Dortman v. Lester

380 Mich. 80 (1968) 155 N.W.2d 846

DORTMAN
v.
LESTER.

Calendar No. 6, Docket Nos. 51,568, 51,569.

Supreme Court of Michigan.

Decided February 9, 1968.

Peter E. Bradt, for plaintiffs.

McIntosh, Simpson, Oppliger & Mugan (Gerald E. Mugan, of counsel), for defendant Harger H. Lester.

SOURIS, J.

This appeal involves two cases brought in behalf of the Dortmans to recover damages from the defendants for injuries suffered by Mrs. Dortman when the car in which she was riding was struck from the rear by a car driven by defendant Barre Lester, the 18-year-old son of the other defendants. Title to the car Barre Lester was driving was in his name and his mother's. Plaintiffs planted their claim against defendant father on the theory that he was causally negligent in permitting his son to drive a car knowing that the son was an incompetent driver and that the father's negligence and the son's negligence were concurrent proximate causes of Mrs. Dortman's injuries.^[*]

While plaintiffs' pleadings are in conclusionary form, defendants did not move for a more definite statement. Instead, they answered and then moved for summary judgment in favor of defendant father alone on the grounds that plaintiffs' complaints failed to state causes of action against him (see GCR 1963, 117.2[1]) and that, as against him there was no genuine issue as to any material fact, thereby entitling defendant father to dismissal of the actions as a matter of law (see GCR 1963, 117.2[3]). The circuit judge granted summary judgments dismissing the actions against defendant father for failure to state causes of action against him. The Court of Appeals affirmed. 3 Mich. App. 600.

Following the Court of Appeals' decision in this case, this Court decided Muma v. Brown (1967), 378 Mich. 637. We divided equally on the sufficiency of proofs to support the jury's verdict in favor of plaintiff. The dissenters who voted for reversal considered the crucial legal issue on the appeal to be the applicability of the rule of negligent entrustment to the facts of the case. The Justices who joined in the controlling opinion, on the other hand, like the circuit judge and the Court of Appeals, considered the legal issue to be whether parents are liable for the negligent acts of their children resulting from the parents' negligent failure to exercise parental supervision. See their opinion at pp 643-645, and particularly at p 644 where it is said that the question was one of first impression. If the question addressed by the Justices who joined in the controlling opinion was a negligent entrustment question, then clearly it was not one of first impression. See the negligent entrustment cases cited in the dissent at p 648. They were, instead, addressing the issue of parental liability, in a case in which the rules of negligent entrustment would have been adequate to support plaintiffs' claim.

In discussing the issue of parental liability, those Justices who joined in the controlling opinion quite properly did so in the factual context of the Muma Case, in which the parents happened to own the vehicle with which their child negligently committed a tortious injury. The fact of the parents' ownership and control of the vehicle was legally irrelevant to the legal issue of their parental liability, although it would have been legally relevant to their liability under the rules of negligent entrustment. Unfortunately, the controlling opinion's language seems to limit its otherwise valid conclusions regarding parental liability for a child's negligent operation of a motor vehicle only to those situations in which the parents not only can exercise control over the child, but, also can control the availability of the motor vehicle to the child. While I do not believe such limitation is legally justifiable, I concede the case of Muma v. Brown, supra, does not contribute much to our decision herein. We must, instead, look elsewhere for our authority.

Earlier, in May v. Goulding (1961), 365 Mich. 143, this Court cited and applied, among others, the following authorities pertinent to the issue framed by the pleadings in this case of Dortman:

1 Harper and James, Law of Torts, § 8.13, p 662:

"Aside from the relationship of master and servant, the parent may be liable for harm inflicted by a child under circumstances that constitute negligence on the part of the parent. This, of course, is not a case of responsibility of a parent for the child's tort, but liability for his own wrong."

2 Restatement, Torts, § 316, currently, Restatement, (Second), Torts § 316, pp 123, 124:

"§ 316. Duty of Parent to Control Conduct of Child.

"A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

"(a) knows or has reason to know that he has the ability to control his child, and

"(b) knows or should know of the necessity and opportunity for exercising such control."

4 Restatement, Torts, § 877, p 442:

"§ 877. A person Directing or Permitting Conduct of Another.

"For harm resulting to a third person from the tortious conduct of another, a person is liable if he * * *

"(a) * * *

"(b) * * *

"(c) controls, or has a duty to use care to control, the conduct of another who is likely to do harm if not controlled, and fails to exercise care in such control, or

"(d) * * *"

The theory upon which plaintiffs relied in these cases as against the defendant father is squarely within the above-quoted rules of the common law. The motions for summary judgment, therefore, should not have been granted for failure to state causes of action. We reverse and remand to the circuit court for further proceedings. Plaintiffs may tax their costs.

T.M. KAVANAGH, ADAMS, and BRENNAN, JJ., concurred with SOURIS, J.

O'HARA, J. (dissenting).

I disagree with Mr. Justice SOURIS. First, I am not in accord with his application of Muma v. Brown, 378 Mich. 637. I regard the case as inapposite.

In Muma, we were concerned with an unlicensed and inexperienced minor of the age of 14 driving the family automobile titled in the mother and father jointly. The theory of the plaintiff was that the parents were negligent in leaving the 14-year-old boy at home alone unsupervised for a weekend, with a set of keys to the family car in the house.

In the case at bar the minor was 18 years of age. He was a licensed driver. The title to the automobile involved was in his name and the name of his mother. His license to drive was granted him by the State. He was legally entitled to be an owner and he was by the certificate of title a co-owner. His father was a stranger to the title and could not under any statute we have been cited have prohibited his son from obtaining title thereto legally, nor legally could he compel his son as co-owner to divest himself of his co-ownership.^[*] This is a far factual cry from the situation presented in Muma.

With the general principles quoted by Justice SOURIS I have no basic disagreement. In the pleaded factual context of this case I do not think they control. Plaintiff alleged as to the father only that Barre E. Lester was under 21, and "was subject to the orders, direction and control of his * * * parents." Literally, such a legal conclusion can hardly be challenged. It is little more than a restatement of the parent-child relationship. Such relationship does not per se render a parent liable for the tort of a child. At least I have never so understood that to be the law of this State.

I would affirm the Court of Appeals. Costs to the defendant Harger A. Lester.

DETHMERS, C.J., and KELLY, J., concurred with O'HARA, J.

BLACK, J., did not sit.

NOTES

[*] The complaint alleged, and the answer admitted, that the son "was subject to the orders, direction and control" of his parents.

[*] We are aware of PA 1966, No 164, which became effective March 10, 1967.