Inability to control child dooms negligent supervision claim

When a parent’s negligent supervision of a child results in someone being hurt, the injured party has a cause of action against the parent.

The big qualifier of this proposition of law is that the parent has the ability to control the child in the first place. American States Ins. Co. v. Albin, 118 Mich. App. 201 (1982).

Our story: Plaintiff broke a window of defendant’s home. Somehow, one of defendant’s dogs was let out of the house. Plaintiff hit the dog with a club. Defendant’s son grabbed a baseball bat from the house and hit plaintiff in the head. The resulting fractures, bleeding and hearing loss cost plaintiff her job and put her on disability.

Plaintiff sued defendant for negligently supervising her son. Defendant’s winning defense was a profound inability to keep her son in check.

Defendant weighed 100 pounds, had cancer and a heart condition that prevented her from working.

Her 17-year-old son weighed 300 pounds. Police reports established that he had assaulted his mother and other family members several times in the past.

The Court of Appeals affirmed the trial court’s dismissal of plaintiff’s suit.

Considering the substantial differential in size between defendant and her son and his past assaultive conduct toward her, we agree with the trial court that there is no genuine issue of material fact that defendant lacked the ability to physically control her son so as to prevent him from assaulting plaintiff, regardless of her awareness of his propensity for assaultive conduct.

Well, plaintiff argued, defendant could have taken other, nonphysical measures to control her son, such as calling 911 or hiding the baseball bat.

Although we agree that the applicable law does not limit the requisite “control” to the ability of a parent to physically restrain his or her child to prevent potential harm or injury, the altercation in this case was not reasonably foreseeable, and thus defendant could not have known of the necessity and opportunity to exercise control over her son’s conduct by taking the precautionary measures cited by plaintiff.

The COA opined that plaintiff’s best argument was that defendant had not medicated her son on the day of the incident. However, plaintiff offered her lay opinion only, and defendant insisted that she gave her son his medication on the day in question.

The unpublished case is Rollinson v. Beresowskyj.

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At least she wasn’t on Oceanic Flight 815

Attorney Geoffrey Fieger has filed a four-count lawsuit for negligence, false imprisonment, emotional distress and breach of contract, after his client, Ginger McGuire of Ferndale, was locked on an airplane for four hours after it landed.

The Detroit News reports:

[McGuire] flew Monday on a trip for an accounting training session that began in Detroit and ended in Philadelphia. During her travels, she was shuttled to Dulles Airport in Washington, D.C., before heading to Philadelphia, where she was left stranded on the airplane after landing.

McGuire said she was exhausted from traveling and fell asleep as soon as she took her seat on the Philadelphia-bound Trans States airplane — Trans States works in conjunction with United Airlines. She was not taking medication and did not have any alcohol to drink.

McGuire woke up at 3:50 a.m. and found herself alone on the 50-seat plane.

McGuire said she walked up and down the aisle for 15 minutes. She said she panicked and didn’t think of calling for help.

“Then the door to the airplane opened and two Philadelphia police officers were standing there with a TSA officer,” McGuire said. “They wouldn’t let me off the plane until I proved who I was. It was like, ‘Show us your ID, show us your ID.'”

Officials let her go after about 10 minutes. McGuire then checked into a local hotel.

MSC rules in car wash slip-and-fall case

ice covered carA divided Michigan Supreme Court has ruled that a plaintiff who slipped and fell while using a coin-operated car wash in freezing conditions can’t sue even though equipment designed to keep the wash bays ice-free wasn’t working.

The 4-3 decision reverses the Michigan Court of Appeals in Kachudas v. Invaders Self Auto Wash, Inc. (majority opinion) (concurring opinion).

The COA held that Kachudas’ claim sounded in ordinary negligence, not premises liability, and as such, the trial court erred in applying the open and obvious doctrine to dismiss his claim.

The COA majority opinion in Kachudas set this factual scene:

  • Two of the four wash bays “had ice formation.”
  • The equipment designed to keep the bays ice-free wasn’t working but should have been given the outside temperature.
  • The car wash owner was dealing with the issue when Kachudas fell and broke his wrist.
  • The owner had begun placing orange warning cones in front of the bays but got sidetracked when a friend showed up and began talking to him.
  • The owner went to bay three, where Kachudas fell; it was one of the two that did not have “ice formation” when the owner arrived to inspect his business.
  • The floor looked wet but the owner concluded there was ice because the floor was slippery.
  • The parties agree that the ice Kachudas slipped on formed when he sprayed his own car with water.

On these facts, the COA concluded:

Plaintiff’s allegations, that defendant knew of a malfunctioning heating system, but did not do anything, or did not take sufficient action, to protect the public from the likely effects of the malfunctioning system, and that defendant’s failure to act violated a duty to him and the public, are allegations concerning conduct that sound in negligence.

While we recognize that plaintiff’s complaint also pleads allegations typically found in premises liability claims, it is plain that the complaint challenges defendant’s conduct in the face of knowledge about the malfunctioning heating system. …

[T]he applicability of the open and obvious danger doctrine depends on the theory underlying the negligence action. …

Because the trial court misconstrued the underlying theory of the case as one for premises liability rather than negligence, the trial court erred as a matter of law in applying the open and obvious doctrine.

Last month, the MSC heard oral arguments on whether to grant leave to appeal. In a May 21 order, the Court declined to take the case.

All justices except Diane Marie Hathaway agreed that the trial court correctly classified the case as a premises claim.

Although an injured person may pursue a claim in ordinary negligence for the overt acts of a premises owner on his or her premises … the plaintiff in this case is alleging injury by a condition of the land, and as such, his claim sounds exclusively in premises liability.

But the Court was more closely divided on whether there was a jury issue involved.

Justices Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young Jr. and Stephen J. Markman said nothing could be more obvious than the notion that water sprayed into freezing air generally produces ice:

[T]he circuit court properly ruled that the alleged hazardous condition was open and obvious, because a reasonably prudent average user of ordinary intelligence spraying water outdoors in a temperature range of 11 to 24 degrees would anticipate the likelihood of freezing and the resulting danger therefrom. Mann v. Shusteric Enterprises, Inc., 470 Mich. 320 (2004); Slaughter v. Blarney Castle Oil Co., 281 Mich. App. 474 (2008).

Justice Michael F. Cavanagh, joined by Chief Justice Marilyn Kelly, conceded the point that the case was a premises claim. However:

I would nonetheless affirm the Court of Appeals result because, on the facts of this case, summary disposition was improper. Plaintiff has raised a genuine issue of material fact regarding the open and obvious doctrine, and the issue should be submitted to a jury.

Cavanagh didn’t get more specific about why the case should go to the jury.

Hathaway had this to say:

I respectfully dissent from the order of this Court which reverses the Court of Appeals and reinstates the Genesee County Circuit Court’s order granting summary disposition to the defendant.

I believe the trial court’s grant of summary disposition was in error and that the Court of Appeals properly reversed that decision. Accordingly, I would affirm the Court of Appeals.

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MSC denies leave in child-abuse reporting case

On a 4-3 vote, the Michigan Supreme Court has upheld a Court of Appeals decision that held a hospital could be held vicariously liable for two doctors who may have breached a statutory duty to report suspected child abuse.

The MSC denied leave in Lee v. Detroit Medical Center (majority opinion) (dissenting opinion).

The key holdings by COA Judge Donald Owens, joined by Judge William Whitbeck: a failure-to-report claim does not sound in medical malpractice and a hospital may be held vicariously liable if staff doctors do not comply with MCL 722.623, which triggers a duty to report when there is “reasonable cause to suspect child abuse or neglect.”

Judge Peter O’Connell, dissenting in Lee, said doctors will be quick to report anytime a child under their care has a bump or a bruise to avoid litigation based on an alleged breach of the reporting duty.

Michigan Lawyers Weekly had a full report of the COA’s decision.

In the MSC, Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway denied leave. Justices Maura Corrigan, Robert Young and Stephen Markman filed vocal dissents.

From Corrigan:

Because MCL 722.623 created a new statutory duty to report suspected abuse or neglect, defendants make a good argument that the Child Protection Law provides exclusive remedies for violation of the duty. …
Justice Maura Corrigan
Under the Child Protection Law, only individuals, not institutions, are required to report. MCL 722.623(1). And only a “person who is required … to report an instance of suspected child abuse or neglect and who fails to do so” is liable for resulting civil damages, MCL 722.633(1). Accordingly, I question whether an institution may be held liable for a reporting violation. …

[T]he Court of Appeals held that a complaint against physicians for alleged failure to report abuse sounds in ordinary negligence rather than medical malpractice. But, as the dissenting Court of Appeals judge aptly explained, doctors use medical judgment to determine whether a child has been abused and, therefore, whether abuse should be reported.

Accordingly, a doctor often will have “reasonable cause to suspect child abuse” that triggers the reporting requirement, MCL 722.623(1)(a), on the basis of different facts and knowledge than would a layperson who is required to report abuse pursuant to the statute. Thus, although laypersons may be held to ordinary negligence standards when they fail to report potential abuse, when a doctor fails to report his medical expertise is called directly into question.

Young joined Corrigan’s dissenting statement.

Markman echoed Corrigan’s statement that the issues are “jurisprudentially significant.”

Specifically at issue here is: Justice Stephen Markman(a) whether a claim against a physician based on a violation of the statute sounds in medical malpractice or ordinary negligence; and (b) whether a hospital may be subject to vicarious liability under the statute. In what are clearly thoughtful majority and dissenting opinions, the Court of Appeals held that a claim based on the Child Protection Law sounds in ordinary negligence and that vicarious liability is applicable.