NICOLE MICKEL V DANIEL WILSON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
NICOLE MICKEL, Personal Representative of the
Estate of JORDYN DANIELLE WILSON,
UNPUBLISHED
August 31, 2010
Plaintiff-Appellant,
v
No. 289037
Oakland Circuit Court
LC No. 2007-085390-NO
DANIEL WILSON,
Defendant-Appellee,
and
BRIAN JOHNSON and EMERALD LAKES
VILLAGE HOME OWNERS ASSOCIATION,
Defendants.
Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ.
GLEICHER, J. (dissenting).
I respectfully dissent. The general rule in this state, as announced in Plumley v Klein,
388 Mich 1, 8; 199 NW2d 169 (1972), is that “[a] child may maintain a lawsuit against his parent
for injuries suffered as a result of the alleged ordinary negligence of the parent.” In my view, the
parental conduct at issue in this case falls outside the narrow exceptions to parental responsibility
adopted in Plumley. Furthermore, I believe that Michigan should fully abrogate the judicially
created parental immunity doctrine because it is unfair, unworkable, and logically unsupportable.
In Plumley, 388 Mich at 8, our Supreme Court acknowledged that the abolition of
intrafamily tort immunity “best serves the interests of justice and fairness to all concerned.”
Nevertheless, the Supreme Court tempered that sweeping pronouncement by approvingly
borrowing from “sister states … two exceptions to this new rule of law . . . .” Id. The exceptions
envision immunity “(1) where the alleged negligent act involves an exercise of reasonable
parental authority over the child; and (2) where the alleged negligent act involves an exercise of
reasonable parental discretion with respect to the provision of food, clothing, housing, medical
and dental services, and other care.” Id.
-1-
Our Supreme Court selected the exceptions from two sister state opinions that examined
the exceptions: Goller v White, 20 Wis 2d 402; 122 NW2d 193 (Wisc, 1963), and Silesky v
Kelman, 281 Minn 431; 161 NW2d 631 (Minn, 1968). However, the exceptions set forth in
Goller and Silesky differ in two notable respects from those adopted in Plumley. The Michigan
Supreme Court inserted the word “reasonable” to modify the term “parental authority,” and
substituted the term “reasonable” for “ordinary” as a descriptor of “parental discretion.”1 These
deliberate modifications clearly signal our Supreme Court’s intent to limit or restrict the reach of
the Goller exceptions, and to immunize only reasonable exercises of parental authority and
discretion. Moreover, the insertion of the term “reasonable” reflects the Supreme Court’s
anticipation that whether parental conduct fell within an exception would be a jury question. I
agree with this Court’s analysis in Grodin v Grodin, 102 Mich App 396, 402; 301 NW2d 869
(1980), that our Supreme Court’s decision to incorporate a reasonableness standard “appears
deliberate and would seem … to require a determination by the finder of fact, thus precluding
summary judgment.” Although the majority characterizes Grodin’s analysis as “beg[ging] the
question,” ante at 6 n 2, quoting Thelen v Thelen, 174 Mich App 380, 384 n 1; 435 NW2d 495
(1989), the majority neither attaches any significance to the Supreme Court’s alteration of the
Goller exceptions, nor imbues with any meaning the word “reasonable.”2
The instant case presents the question whether the negligent parental supervision alleged
by plaintiff falls within the second Plumley exception because it involves “an exercise of
reasonable parental discretion.” 388 Mich at 8. Logically, it makes no sense that the Supreme
Court in Plumley rejected a broad form of “intra-family tort immunity” in “the interests of justice
and fairness,” yet deliberately maintained broad immunity for parental supervision. Id. The
supervision of children consumes most of a parent’s time and energy. As the case law since
Plumley demonstrates, a substantial number of tort claims involve allegations falling under the
parental supervision umbrella. But, notwithstanding that parental supervision encompasses an
enormous range of regular parental activities, the Supreme Court in Plumley did not specifically
1
The Wisconsin Supreme Court had adopted the exceptions as follows:
After a careful review of the arguments for and against the parentalimmunity rule in negligence cases, we are of the opinion that it ought to be
abrogated except in these two situations: (1) where the alleged negligent act
involves an exercise of parental authority over the child; and (2) where the alleged
negligent act involves an exercise of ordinary parental discretion with respect to
the provision of food, clothing, housing, medical and dental services, and other
care. Accordingly the rule is abolished in personal injury actions subject to these
noted exceptions. [Goller, 20 Wis2d at 413.]
2
As the majority concedes, this Court has inconsistently interpreted the phrase “reasonable
exercises of parental authority” over a child. Ante at 5. Beginning with Thelen, 174 Mich App
380, this Court has effectively erased the word “reasonable” by simply eliminating its meaning
from both exceptions.
-2-
incorporate the term “supervision” in the list of exceptions to immunity. Instead, the Supreme
Court shielded from tort liability a discrete and narrowly drawn list of parental acts: “the
provision of food, clothing, housing, medical and dental services, and other care.” Id. I cannot
conceive why the Supreme Court would expressly maintain immunity for discretionary decisions
that occur only occasionally, like deciding whether to take a child to the doctor or dentist, yet
neglect to mention that it also meant for immunity to cover the single most frequently performed
parental task.
Had our Supreme Court intended to immunize parents for torts committed in the scope of
general parental supervision, it would have maintained the immunity that previously existed. I
find reinforcement of my conclusion in footnote 6 of Mayberry v Pryor, 422 Mich 579, 588; 374
NW2d 683 (1985), in which a unanimous Michigan Supreme Court observed, “The two Goller
exceptions were adopted nearly verbatim in Plumley. However, Wisconsin courts have
consistently held that parental supervision does not fall within either exception.”
Additionally, the majority’s interpretation of the second Plumley exception simply
ignores the word “reasonable,” instead immunizing all exercises of parental discretion related to
the care of children. The majority’s interpretation, that “an exercise of reasonable parental
discretion with respect to the provision of food, clothing, housing, medical and dental services,
and other care” encompasses any act relating to parental supervision, permits the Plumley
exceptions to almost entirely undermine Plumley’s abrogation of intrafamily immunity. 388
Mich at 8. The Wisconsin Supreme Court reached precisely the same conclusion in Cole v Sears
Roebuck & Co, 47 Wis 2d 629; 177 NW2d 866 (1970), in which the Court rejected that the term
“other care” includes supervision, observing:
Granting immunity to a parent solely because the negligence complained
of arose out of a familial obligation would give immunity the same breadth and
scope as in those jurisdictions which carved out another exception to the rule of
immunity premised on whether the negligent act was an activity intimately
associated with the parent-child relationship. However, this approach was
considered in Goller and rejected when the rule of parental immunity was
abolished in personal injury actions subject to the two noted exceptions. …
Goller limited immunity to a greater degree than simply acts which are
“essentially parental” in nature. To qualify for the exception to liability in this
state, the act must not only be parental in nature but it must also constitute an
exercise of discretion with “respect to the provision of food, clothing, housing,
medical and dental services, and other care.” … The term “other care” is not so
broad as to cover all acts intimately associated with the parent-child relationship.
[Internal citations omitted, emphasis added.]
In Thoreson v Milwaukee & Suburban Transport Co, 56 Wis 2d 231, 247; 201 NW2d 745 (Wisc,
1972), the Wisconsin Supreme Court reemphasized its rejection of the notion that the Goller
exceptions embraced immunity for all forms of parental supervision:
We think the rationale in Cole is correct that the rule of ejusdem generis
should be applied in interpreting the words “other care” and that the exception
does not extend to the ordinary acts of upbringing, whether in the nature of
supervision or education, which are not of the same legal nature as providing
-3-
food, clothing, housing, and medical and dental services. The care sought in the
exclusion is not the broad care one gives to a child in day-to-day affairs. If this
were meant, the exclusion would be as broad as the old immunity was. The
exclusion is limited to legal obligations, and a parent who is negligent in other
matters cannot claim immunity simply because he is a parent. [Emphasis added.]
The Minnesota Supreme Court, the second “sister state” court decision on which Plumley
relied, soon followed Wisconsin’s lead by entirely rejecting the Goller exceptions. In Anderson
v Stream, 295 NW2d 595, 598 (Minn, 1980), that Court explained:
While the Silesky court was well-intentioned in continuing the immunity
doctrine in regard to certain parental conduct, application of the exceptions has
proven to be very difficult because their precise scope is by no means clear. The
prospect of applying these vaguely worded, highly subjective standards to the
ever-increasing number of parent-child liability cases coming before this court is
reason to reflect upon the degree of difficulty in meaningful interpretation of the
exceptions and alternative means of providing parents with some leeway in
exercising their parental authority and discretion. We believe that since the
problems inherent in construing the Silesky exceptions present a real danger of
arbitrary line-drawing and in light of the fact that instructing the jury on a
“reasonable parent” standard adequately protects functions which are parental in
nature, the continued existence of the Silesky exceptions cannot be justified.
[Footnote omitted.]
In Anderson, id., the Minnesota Supreme Court adopted a “reasonable parent” standard, as
described by the California Supreme Court in Gibson v Gibson, 3 Cal 3d 914; 92 Cal Rptr 288;
479 P2d 648 (1971). Yet another sister state abolished the doctrine of parental immunity
“without reservation” in 1984. Kirchner v Crystal, 15 Ohio St 3d 326, 327; 474 NE2d 275
(1984).
As the Michigan Supreme Court took note in People v Stevenson, 416 Mich 383, 390;
331 NW2d 143 (1982), “This Court has often recognized its authority, indeed its duty, to change
the common law when change is required.” A decade later, in Adkins v Thomas Solvent Co, 440
Mich 293, 317; 487 NW2d 715 (1992), the Supreme Court reiterated, “When appropriate, we
have not hesitated to examine common-law doctrines in view of changes in society’s mores,
institutions, and problems, and to alter those doctrines where necessary.” I believe that the time
has come to jettison the Goller exceptions, which have entirely undermined the abrogation of
intrafamily immunity announced in Plumley. Basic notions of fairness animate my view. A
child injured by tortious conduct is no less deserving of compensation because the tortfeasor is
her father, rather than her uncle or an unrelated stranger. I cannot fathom a logical justification
for the rule that defendant here owes his daughter a lesser duty of care than he would his niece,
had he agreed to supervise her water play along with his daughter’s. Alternatively, it would
make no sense to hold defendant responsible in tort for negligently supervising his niece, but not
for negligently supervising his daughter.
Because our Supreme Court in Plumley offered no elucidation of any rationale for its
adoption of the Goller exceptions, the precise public policies they serve are difficult to
reconstruct. Presumably, the Court’s central concern was that a complete abrogation of parental
-4-
immunity could subvert parental discipline or interfere with parental decisionmaking powers.
But I fail to understand how a standard obligating a parent to act reasonably under the
circumstances erodes parental prerogatives. For example, defendant in this case certainly
possessed wide discretion with regard to the general supervision of his daughters while they
played in the lake. Whether that discretion reasonably extended to permitting a 3-1/2-year-old
child to swim unattended, without a life jacket, constitutes a question that can be answered
without implicating a parent’s fundamental decisionmaking authority. Although defendant had
the power and the duty to supervise his children in a potentially dangerous environment, it hardly
undermines or threatens his parental authority to insist that his supervisory decisions must
qualify as reasonable. Here, a jury could decide that defendant reasonably understood that the
other adults in the area would watch the girls while observing the other children. Jurors
understand that a momentary parental misjudgment does not necessarily equate to a negligent
act. Alternatively, a jury could decide that defendant negligently failed to assign or identify a
specific spotter to watch the children when he entered the house. Permitting a jury to determine
whether defendant’s conduct was reasonable under the circumstances neither undercuts parental
discretion with respect to such fundamental matters as the “provision of food, clothing, housing,
medical and dental services, and other care,” nor challenges parental authority over a child.
Consistent with the plain language of Plumley, 388 Mich at 8, I would hold that a jury
should decide whether defendant’s decision to permit his daughters to play unsupervised in the
lake amounts to a reasonable exercise of parental discretion. But in light of this Court’s virtual
abrogation of Plumley, I urge wholesale judicial revisitation of parental immunity, bearing in
mind the Ohio Supreme Court’s conclusion that “[a]bolition of parental immunity as a matter of
public policy will provide the innocent victims of tortious conduct the forum they deserve in
attempting to redress their claims.” Kirchner, 15 Ohio St 3d at 330.
/s/ Elizabeth L. Gleicher
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.