Wright v. Wright , 134 Mich. App. 800 ( 1984 )

R. M. Maher, J.

(concurring). I concur separately to clarify my position in Grodin v Grodin, 102 Mich App 396; 301 NW2d 869 (1980), which plaintiffs cite for the proposition that the question of what is "an exercise of reasonable parental authority” is always a jury question.

I agree with the majority that plaintiffs’ interpretation of the Supreme Court’s decision in Plumley v Klein, 388 Mich 1; 199 NW2d 169 (1972), would result in virtual elimination of the exceptions enumerated by the Supreme Court. The question of what constitutes an exercise of reasonable parental authority is only a question for the jury where reasonable minds would differ as to whether or not the allegedly tortious activity falls within one of the exceptions. In this case, the activity clearly constitutes negligent parental supervision. Since this Court had already held, as a matter of law, that negligent parental supervision falls within the first exception in Plumley ("an exercise of reasonable parental authority over the child”), Paige v Bing Construction Co, 61 Mich App 480; 233 NW2d 46 (1975), the trial court properly granted summary judgment in favor of defendant. In such a case, the only issue is whether reasonable minds would differ on the question of whether the allegedly tortious activity constitutes negligent parental supervision. We agree with the trial court that no such difference of opinion would arise on these facts.

Grodin, supra, presented an entirely different factual situation. There, the issue before the trial court was not whether the parent’s allegedly tortious activity fell within a clearly defined exception under Plumley, supra, but rather whether or not the activity was even negligent. This Court reversed the trial court’s grant of summary judgment in favor of the parent because that order had precluded testimony on important factors which would determine whether or not the parent’s actions had been negligent. In so doing, however, this Court quoted from this Court’s opinon in Meyers v Robb, 82 Mich App 549, 554; 267 NW2d 450 (1978), lv den 403 Mich 812 (1978), where the Court stated:

"The reasonableness of the risk of harm whether analyzed in terms of duty, proximate cause or specific standard of care turns on how the utility of the defendant’s conduct is viewed in relation to the magnitude of the risk thereby created. Moning v Alfono, [400 Mich 425; 254 NW2d 759 (1977)] supra. In any case where there might be a reasonable difference of opinion regarding how that balance should be resolved, the question is for the jury, subject to instructions as to the legal conclusion to be drawn from its determination.” (Emphasis added.)

Thus, even in Grodin, the Court did not hold that the jury was always to decide whether or not allegedly tortious activity fell within one of the exceptions in Plumley.