O'NEIL v. Swan

218 N.W.2d 457 (1974)

Albert Thomas O'NEIL, Senior, Appellant, v. Arthur R. SWAN, et al. a. k. a. and d. b. a. Swan, Mattson, Pougiales and Gullickson, Attorneys at Law, Respondents.

No. 44353.

Supreme Court of Minnesota.

March 29, 1974.

Rehearing Denied June 17, 1974.

Albert Thomas O'Neil, Sr., pro se.

Brown & Bins, and Frederic N. Brown, Rochester, for respondents.

Considered and decided by the court without oral argument.

PER CURIAM.

Plaintiff, Albert Thomas O'Neil, Sr., appeals from an order of the district court dismissing his complaint with prejudice for failure to state a claim upon which relief can be granted. We affirm.

In 1965, plaintiff's wife, now deceased, commenced a divorce action against him in which one of the hotly contested issues was the custody of the parties' son, then about 10 years of age. The trial court in that case appointed defendant Arthur R. Swan guardian ad litem for the purpose of representing the child's interests and recommending what action by the court would best serve the child's interests. In the present action, which is against the guardian and the guardian's law partners, plaintiff claims that he is entitled to approximately a million dollars in total damages for physical and emotional injuries he allegedly suffered when his child, on recommendation of the guardian, was sent by the court to camp in the summer of 1966 and to a private school starting in the fall of 1967.

We do not reach the issue of whether the statute of limitations had run against plaintiff's claim when he commenced the action because we have concluded that a guardian ad litem does not owe parents any duty, the breach of which can support a finding of negligence. That is, one does not, by virtue of his acting as guardian of an infant in a divorce case between the parents, thereby subject himself to liability to the parents for any failure to act with reasonable care in representing the child's interests. This follows logically from the purpose of a guardianship ad litem, which is to protect the rights of the infant. See, Eidam v. Finnegan, 48 *458 Minn. 53, 50 N.W. 933 (1892); Bryant v. Livermore, 20 Minn. 313 (Gil. 271) (1874).

Affirmed.

KELLY, J., took no part in the consideration or decision of this case.