The Lawletter Vol 34 No 10, November 4, 2010
The Court of Appeals of Michigan recently held, in the case of Mickel v. Wilson, No. 289037, 2010 WL 3418897 (Mich. Ct. App. Aug. 31, 2010) (unpublished per curiam opinion), that a father could not be held liable for the negligent supervision of his daughter, who died while in the father's care. In Mickel, the plaintiff mother and defendant father had divorced, and the father had custody every other weekend of the couple's three daughters, aged nine, seven, and three and a half. On the day of the incident, the father had taken the girls to a relative's graduation party, which was being held at a home situated on an inland lake. The father knew that the youngest girl could not swim.
The girls changed into their swimsuits and played near the shoreline. The host announced that parents should watch their children and that flotation devices were available; however, the youngest girl was not made to wear one. The father supervised the girls but then went inside to use the restroom. There were other parents and children at the shoreline, but he did not ask anyone to watch his children. When he returned, he could not find his two youngest daughters. Ultimately, the youngest child was found floating in the water and was taken to the hospital, where she was pronounced dead. The father admitted that he had had a beer and a mixed drink at the party, and a Breathalyzer test administered two hours after his arrival at the hospital registered a .01 or .02 BAC.
The mother was appointed personal representative of the daughter's estate, and she filed suit against the father, alleging negligence, negligence per se (based on criminal neglect), and gross negligence. The defendant moved for summary disposition on the basis of parental immunity, which was granted. The plaintiff appealed.
The court of appeals affirmed, holding that the doctrine of parental immunity barred the plaintiff's claim. The doctrine is limited to situations where the alleged negligent act involves (1) the exercise of reasonable parental authority over the child, and (2) the exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. The supervision of a child, according to the court, is conduct within a parent's reasonable exercise of discretion. Hence, the plaintiff was not entitled to bring a negligent supervision action against the father.
The court of appeals also rejected the plaintiff's claim that she was entitled to maintain a gross negligence claim. Because the Supreme Court of Michigan has not indicated that the doctrine does not apply to a higher level of negligence, the court of appeals declined to do so.