DISPOSITION: [***1]
Affirmed in part, reversed in part, and remanded for further proceedings regarding the claim against Opal.
COUNSEL: Bernick, Omer & Scott, P.C. (by Keldon K. Scott), Anderson, Stull
& Associates (by David J. Anderson) and Patrick L. Rose, for William R.
Phillips. Lansing, Lansing, Lansing.
Kallas & Henk, P.C. (by Leonard A. Henk), for Estate of Opal Deihm. Bloomfield
Hills.
Bullen, Moilanen, Klaasen & Swan, P.C. (by David W. Swan, for Duwayne Deihm.
Jackson.
JUDGES: Before: Hoekstra, P.J., and Wahls and G.S. Buth, * JJ.
* Circuit judge, sitting on the Court of Appeals by assignment.
OPINIONBY: Myron H. Wahls
[*392] [**570] WAHLS, J.
Plaintiff, initially through a conservator and later on his own, brought and
maintained an action
seeking damages for the sexual abuse inflicted upon him by defendant Duwayne
Deihm over an
eight-year period. Opal Deihm was named as a defendant because she allegedly
was aware of, but
failed [**571] to prevent, the sexual abuse. After the filing of these appeals,
Opal passed away
and her estate has been substituted as a party to the appeals.
[*393] In Docket No. 164586, plaintiff appealed as of right the trial court's
dismissal of the claim
against Opal at the [***2] conclusion of a jury trial. Opal cross appealed,
challenging the trial
court's earlier refusal to grant her motion for summary disposition. In plaintiff's
appeal, we reverse
the trial court judgment dismissing the claim against Opal. In Opal's cross
appeal, we affirm the
order denying her motion for summary disposition.
In Docket No. 171316, Duwayne appeals by leave granted from the trial court
judgment
incorporating a jury award in favor of plaintiff. We affirm.
At trial, plaintiff testified that Duwayne sexually abused him approximately
150 times. The abuse
began when plaintiff was three years old, and stopped when he was eleven. For
a time, the abuse
occurred almost on a daily basis. The abuse occurred mostly in the home of Duwayne
and Opal,
who slept in separate bedrooms.
I
In Docket No. 164586, plaintiff argues that the trial court abused its discretion
when it granted
Opal's motion to amend her answer to add an affirmative defense. We disagree.
A court should
freely grant leave to amend a complaint when justice so requires. MCR 2.118(A)(2);
Patillo v
Equitable Life Assurance Society, 199 Mich. App. 450, 456; 502 N.W.2d 696 (1993).
The rules
pertaining to the amendment [***3] of pleadings are designed to facilitate amendment
except
when prejudice to the opposing party would result. Patillo, supra, p 456. This
Court will not reverse a trial court's decision on a motion to amend a complaint
absent an abuse of discretion that
results in injustice. Price v Long Realty, Inc., 199 Mich. App. 461, 469; 502
N.W.2d 337 (1993).
Here, the scheduling conference order established the deadline for discovery
as December 3,
1992, and the deadline for motions on the pleadings as January 15, 1993. On
January 14, 1993,
Opal moved for summary disposition or, in the alternative, argued that she was
entitled to the
defense of parental immunity. Under the scheduling order, Opal's motion was
timely.
[*394] At the same time she moved for summary disposition, Opal moved to amend
her pleadings
so that they would conform to the evidence. Opal's motion for summary disposition
was brought in
part pursuant to MCR 2.116(C)(8) and (10). Accordingly, when the trial court
denied Opal's motion for summary disposition, it was required to allow Opal
to amend her pleadings. MCR 2.116(I)(5).
In addition, plaintiff did not request additional time for discovery, nor
did he request a postponed
[***4] trial date. Under these circumstances, even though Opal's motion came
after the close of
discovery and after mediation, plaintiff has not shown prejudice. Terhaar v
Hoekwater, 182 Mich.
App. 747, 751-752; 452 N.W.2d 905 (1990). The trial court did not err in allowing
Opal to amend her pleadings.
Similarly, the trial court has discretion to strike all or part of the pleadings
of a party who fails to
produce documents or other tangible evidence pursuant to a subpoena or an order
to attend. MCR
2.506(F)(3). This Court reviews discretionary decisions of the trial court for
an abuse of discretion.
See Price, supra, p 466. An appellate court will find an abuse of a trial court's
discretion only if an
unprejudiced person, considering the facts upon which the trial court made its
decision, would
conclude that there was no justification for the ruling made. People v Miller,
198 Mich. App. 494,
495; 499 N.W.2d 373 (1993). Here, plaintiff has not shown that the trial court
abused its discretion in denying plaintiff's motion to strike.
II
Plaintiff argues that the trial court abused its discretion in denying his
[*395] motion for a directed
verdict with regard to the issue of Opal's parental [***5] immunity. We agree.
In reviewing a denial
of a motion for a directed verdict, this Court examines the evidence in a light
most favorable to the
nonmoving party [**572] to determine whether sufficient evidence was presented
to create an
issue for the jury. Cleary v Turning Point, 203 Mich. App. 208, 210; 512 N.W.2d
9 (1994). This
Court will not disturb the trial court's decision unless there has been a clear
abuse of discretion.
Id., p 211.
Generally, a child may maintain a lawsuit against a parent for injuries suffered
as a result of the
alleged ordinary negligence of the parent. Plumley v Klein, 388 Mich. 1, 8;
199 N.W.2d 169 (1972); Ashley v Bronson, 189 Mich. App. 498, 501; 473 N.W.2d
757 (1991). However, the doctrine of parental immunity provides two exceptions
to this general rule of law: (1) where the alleged negligent act involves an
exercise of reasonable parental authority over the child and (2) where the alleged
negligent act involves an exercise of reasonable parental discretion with respect
to the provision of food, clothing, housing, medical and dental services, and
other care. Plumley, supra, p 8; Ashley, supra, p 501. Thus, if Opal was exercising
reasonable [***6] parental authority over plaintiff, then she is immune from
liability. Plumley, supra, p 8; Ashley, supra, p 501.
In determining whether a defendant was exercising reasonable parental authority,
the question is
not whether the defendant acted negligently, but whether the alleged act reasonably
fell within one
of the Plumley exceptions. Ashley, supra, p 506. The determination whether conduct
falls within
one of the Plumley exceptions is a question of law for the court. Id., pp 504,
506. For purposes of
determining whether parental immunity applies, and because this inquiry requires
characterization
of the type of activity of the defendant, this [*396] Court has assumed the
truth of the plaintiff's
allegations. See id., pp 502, 506-507.
Here, plaintiff testified that Opal was a light sleeper and that she was in
the room next to his when
Duwayne anally raped him. Plaintiff screamed loudly while he was being raped.
Plaintiff also
testified that Opal slept just two or three feet away when the three were sleeping
in a pickup truck
while on a vacation. Plaintiff cried out when Duwayne sodomized him on that
occasion as well.
If plaintiff's allegations are to be believed, [***7] Opal's alleged failure
to act could constitute
criminal neglect. Since Opal resided in the same home in which plaintiff resided
for a period during
which plaintiff was raped, she is a "person responsible for the child's
health or welfare." MCL
722.622(i); MSA 25.248(2)(i). Opal had a statutory duty to intervene to eliminate
any unreasonable risk to plaintiff when she was able to do so and had, or should
have had, knowledge of the risk. MCL 722.622(d)(ii); MSA 25.248(2)(d)(ii). Child
neglect is not a reasonable exercise of parental discretion. As a matter of
law, Opal is not entitled to the defense of parental immunity. Ashley, supra,
p 506. Accordingly, the trial court abused its discretion by denying plaintiff's
motion for a directed verdict with regard to Opal's affirmative defense of parental
immunity.
III
Once it has been determined that Opal's alleged conduct does not fall under
the doctrine of
parental immunity, the question remains regarding whether there is a genuine
issue of material fact
concerning her negligence. Plaintiff argued that the trial court abused its
discretion in dismissing
[*397] plaintiff's cause of action against Opal. Opal counterargued that the
trial court [***8]
should have granted her motion for summary disposition. We agree with plaintiff
that his cause of
action against Opal should not have been dismissed. This Court reviews a decision
to grant or
deny a motion for involuntary dismissal under the clearly erroneous standard.
Sullivan Industries,
Inc v Double Seal Glass Co, Inc, 192 Mich. App. 333, 339; 480 N.W.2d 623 (1991).
The trial
court's decision will not be overturned unless the evidence manifestly preponderates
against the
decision. Id.
To establish a prima facie case of negligence, a plaintiff must introduce
evidence sufficient to
establish that (1) the defendant owed a duty to the plaintiff, (2) the defendant
breached that duty,
(3) the defendant's [**573] breach was a proximate cause of the plaintiff's
injuries, and (4) the
plaintiff suffered damages. Berryman v K mart Corp, 193 Mich. App. 88, 91-92;
483 N.W.2d 642 (1992). The issue whether a defendant owes an actionable legal
duty to a plaintiff is a question of law that the court must decide after assessing
the competing policy considerations for and against
recognizing the asserted duty. Schultz v Consumers Power Co, 443 Mich. 445,
450; 506 N.W.2d
175 (1993); Colangelo [***9] v Tau Kappa Epsilon Fraternity, 205 Mich. App.
129, 132; 517
N.W.2d 289 (1994).
As a general rule, there is no duty to protect against the criminal acts of
a third person absent a
special relationship between the defendant and the plaintiff or the defendant
and the third person.
Babula v Robertson, 212 Mich. App. 45, 49; 536 N.W.2d 834 (1995). Here, however,
Opal had a duty to protect plaintiff. A duty can arise by statute, as well as
by common law. Mays v Gillett
Communications of Detroit, Inc, 198 Mich. App. 223, 225; 497 N.W.2d 218 (1993).
As stated
earlier, Opal's alleged [*398] failure to act could constitute criminal neglect.
MCL 722.622(d)(ii);
MSA 25.248(2)(d)(ii). We hold that a person over eighteen years of age who is
responsible for a
child, as defined by MCL 722.622(i); MSA 25.248(2)(i), has a duty to act reasonably
to prevent the sexual abuse of that child.
The question whether Opal breached her duty was a question of fact for the
jury to determine.
Knight v Gulf & Western Properties, Inc, 196 Mich. App. 119, 125; 492 N.W.2d
761 (1992).
Accordingly, the trial court clearly erred in dismissing plaintiff's claim against
Opal. Sullivan
Industries, supra, p 339. [***10] For the same reasons, the trial court did
not err in denying Opal's
motion for summary disposition.
IV
In Docket No. 171316, Duwayne argues that the trial court erred in granting
plaintiff's motion for
summary disposition with respect to liability. We disagree. A motion for summary
disposition
pursuant to MCR 2.116(C)(10) tests the factual support of a claim. Skinner v
Square D Co, 445
Mich. 153, 161; 516 N.W.2d 475 (1994). The court must consider the affidavits,
pleadings,
depositions, admissions, and documentary evidence submitted or filed in the
action. Id. The court's
task is to review the record evidence, giving the benefit of reasonable doubt
to the opposing party,
and decide whether a genuine issue of material fact exists to warrant a trial.
Id., pp 161-162. An
appellate court similarly makes all legitimate inferences in favor of the nonmoving
party, id., p 162,
and reviews the trial court's decision de novo. Wieringa v Blue Care Network,
207 Mich. App. 142, 144; 523 N.W.2d 872 (1994).
[*399] Contrary to Duwayne's claim, a copy of plaintiff's deposition was filed
with the trial court
before the trial court granted plaintiff's motion for summary disposition regarding
[***11] liability. In that deposition, plaintiff testified about numerous instances
when Duwayne pulled down plaintiff's
pants, fondled plaintiff, sucked plaintiff's penis, and penetrated plaintiff
anally. Plaintiff estimated
that Duwayne performed fellatio on plaintiff forty or fifty times. Duwayne forced
plaintiff to perform
fellatio on Duwayne an additional forty or fifty times.
In response to plaintiff's testimony, Duwayne neither offered a defense nor
responded to the
complaint, requests for admissions, or deposition questions. Because there was
no factual
support for Duwayne's defense, summary disposition in favor of plaintiff was
appropriate with
respect to liability. Skinner, supra, p 161.
V
Duwayne argues that the trial court violated his rights against self-incrimination
and his wife's
spousal privilege. We disagree. The trial court did not grant plaintiff's motion
for summary
disposition regarding liability as a penalty for Duwayne's invocation of his
Fifth Amendment rights.
Rather, the trial court protected Duwayne's rights by allowing him to refuse
to answer requests for
admission and deposition questions. [**574] Nevertheless, the trial court felt
that it would be a
"big waste [***12] of my time if all we are going to get at trial is, well,
I'm invoking the Fifth. I don't see what the jury would do except give them
a judgment of some sort."
The privilege against self-incrimination not only permits a person to refuse
to testify against himself
at a criminal trial in which he is a defendant, [*400] but also permits him
not to answer official
questions put to him in any other proceeding, civil or criminal, formal or informal,
where the
answers might incriminate him in future criminal proceedings. Allen v Illinois,
478 U.S. 364, 368;
106 S. Ct. 2988; 92 L. Ed. 2d 296 (1986); In re Stricklin, 148 Mich. App. 659,
663; 384 N.W.2d 833 (1986). However, the Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refuse to testify in response
to probative evidence offered against them: the amendment does not preclude
the inference where the privilege is claimed by a party to a civil cause. Baxter
v Palmigiano, 425 U.S. 308, 318; 96 S. Ct. 1551; 47 L. Ed. 2d 810 (1976).
The privilege against self-incrimination under the Michigan Constitution is
no more extensive than
the privilege afforded by the Fifth Amendment of the United States [***13] Constitution.
Stricklin,
supra, p 664. This Court's reasoning in Stricklin, supra, p 665, is equally
persuasive here:
Any penalty resulting from appellants' failure to testify was no more than
the
"penalty" that any party suffers when he decides not to testify in
his own defense.
Appellants retained the unfettered discretion to testify or not to testify;
had they
chosen to testify, it would have been because the testimony would have increased
their chances of retaining their parental rights, and not because of a penalty
imposed
by the state upon their refusal to testify. The choice not to testify was no
more than
appellants' tactical decision as to the best course to follow through the probate
and
criminal proceedings.
When a motion under MCR 2.116(C)(1O) is made and supported as provided by
the court rule, an adverse party may not rest upon the mere allegations [*401]
or denials in that party's pleadings,
but must, by affidavits or as otherwise provided, set forth specific facts showing
that there is a
genuine issue for trial. MCR 2.116(G)(4). If the adverse party does not so respond,
judgment shall
be entered against that party if appropriate. Id. Here, because Duwayne [***14]
did not respond to plaintiff's evidence, the trial court did not violate Duwayne's
privilege against self-incrimination in
granting plaintiff's motion for summary disposition with respect to liability.
Stricklin, supra, p 665.
As for Duwayne's argument concerning Michigan's statutory spousal privilege,
the cases he cited
solely concern the Fifth Amendment. Duwayne's brief did not cite a single case
that dealt with
Michigan's spousal privilege. Accordingly, that part of the argument was abandoned.
Isagholian v
Transamerica Ins Corp, 208 Mich. App. 9, 14; 527 N.W.2d 13 (1994). This Court
will not search for authority to sustain or reject a party's position. Id. In
any case, Duwayne's argument would fail for the same reasons as above. MCR 2.116(G)(4).
VI
Duwayne argues that the trial court abused its discretion in allowing plaintiff's
experts to testify
about purely speculative damages. We disagree. A trial court's decision to admit
expert testimony
under MRE 702 or to exclude it as speculative is reviewed for an abuse of discretion.
Phillips v
Mazda Motor Mfg (USA) Corp, 204 Mich. App. 401, 412; 516 N.W.2d 502 (1994).
A person may be qualified to testify as an expert [***15] witness by virtue
of the person's
knowledge, skill, experience, training, or education in the subject matter of
the testimony. MRE
702; Phillips, supra, p 412. The weight given to the testimony of experts [*402]
is for the jury to
decide. People v Whitfield, 425 Mich. 116, 124; 388 N.W.2d 206 (1986). Where
such testimony is purely speculative, it should be excluded or stricken pursuant
to MRE 403. Phillips, supra, p 412. Here, after reviewing the record, we conclude
that the trial court did not abuse its [**575]
discretion in admitting the testimony of plaintiff's experts.
VII
Duwayne argues that the trial court abused its discretion in allowing the
interruption of plaintiff's
examination in order to present the testimony of plaintiff's medical experts.
We disagree. The first
interruption of which defendant complains occurred at 4:30 p.m. when the trial
court adjourned for
the day. The second and third interruptions were made to accommodate the schedules
of the two
witnesses. Under MRE 611, a trial court has broad power to control the manner
in which
witnesses are called. Phillips, supra, p 415. The mode and order of interrogation
is within the trial
court's discretion. Id. [***16] Here, no abuse of discretion was shown.
VIII
Defendant argues that the trial court erred in allowing the jury to consider
during its deliberations
charts that were not introduced as evidence. We disagree. The consideration
of documents that
are not admitted into evidence but are submitted to the jury does not constitute
error requiring
reversal unless the error operated to substantially prejudice the party's case.
Beasley v
Washington, 169 Mich. App. 650, 660; 427 N.W.2d 177 (1988).
Several panels of this Court have reversed on [*403] the basis of this error.
See, e.g., id.; Eley v
Turner, 155 Mich. App. 195, 200; 399 N.W.2d 28 (1986); People v Jones, 128 Mich.
App. 335,
337; 340 N.W.2d 302 (1983); People v Allen, 94 Mich. App. 539, 544, 546, 548;
288 N.W.2d 451 (1980); People v Talley, 56 Mich. App. 598, 601; 224 N.W.2d 660
(1974); People v Page, 41 Mich. App. 99, 103; 199 N.W.2d 669 (1972). However,
in each of those cases, the evidence that was submitted to the jury was either
inadmissible or had not been shown to the jury before.
Here, in contrast, Duwayne did not object to the charts when they were first
shown to the jury
during closing arguments. The charts [***17] in the jury room contained nothing
that the jury had
not already seen without objection in open court. Hirdes v Selvig, 369 Mich.
173, 180; 119 N.W.2d 537 (1963); see also Metcalf v Waterbury, 60 Mich. App.
553, 558; 231 N.W.2d 437 (1975). It was not shown that anything unfairly prejudicial
to defendant was on the charts. Hirdes, supra, p 180. In addition, defendant
had a full opportunity to comment about the charts during closing argument.
The submission of this evidence to the jury did not substantially prejudice
Duwayne's case. Beasley, supra, p 660.
IX
Defendant argues that the trial court erred in instructing the jury that it
could award damages for
future loss of earning capacity. However, when a party fails to object to jury
instructions, appellate
review is precluded absent manifest injustice. Gore v Rains & Block, 189
Mich. App. 729, 741; 473 N.W.2d 813 (1991). Here, plaintiff did not request
any damages for future loss of earning capacity. We do not find any manifest
injustice caused by the jury's instructions. Id.
[*404] X
Duwayne argues that the trial court abused its discretion in denying his motion
for a new trial or
remittitur. We disagree. First, [***18] Duwayne argues that a new trial is warranted
because the
court granted plaintiff's motion for summary disposition with respect to liability.
We disagree. See
issues IV and V, supra.
Second, defendant argues that the amount of the verdict was not supported
by the evidence. We
disagree. An appellate court should reverse the trial court's decision regarding
a motion for additur
or remittitur only if an abuse of discretion is shown. Bordeaux v Celotex Corp,
203 Mich. App. 158, 171; 511 N.W.2d 899 (1993). Other than the size of the verdict,
defendant presents no argument that the verdict was influenced by prejudice.
The trial court is in the best position to determine whether a jury's verdict
was motivated by impermissible considerations. Id., p 172.
The proper consideration in deciding a motion for remittitur is whether the
[**576] jury award was
supported by the evidence. Wilson v General Motors Corp, 183 Mich. App. 21,
38; 454 N.W.2d
405 (1990). The trial court's inquiry is limited to objective considerations
regarding the evidence
adduced and the conduct of the trial. Id. Appellate courts must defer to a trial
court's decision
because of the trial court's superior ability [***19] to view the evidence and
evaluate the credibility
of the witnesses. Bordeaux, supra, p 171.
Here, the record is replete with heinous acts over many years, acts that caused
plaintiff
substantial emotional and physical pain. Expert witnesses opined regarding potential
lifelong
consequences, with plaintiff reliving the traumatic experiences as if for the
first time. Testimony
showed [*405] that plaintiff would need extensive psychiatric and medical care.
It is impossible to
put a dollar value on the suffering of a great deal of pain and suffering and
humiliation. Stowers v
Wolodzko, 386 Mich. 119, 142; 191 N.W.2d 355 (1971). When the evidence is considered
in the light most favorable to plaintiff, id., the trial court did not abuse
its discretion in denying Duwayne's motion for remittitur. Bordeaux, supra,
p 171.
XI
Finally, Duwayne argues that the cumulative effect of the trial court's errors
deprived him of a fair
and impartial trial. We disagree. The only error here was in allowing the jury
to view the charts in
the jury room. As discussed in issue VIII, supra, this error does not require
reversal.
In Docket No. 171316, the judgment incorporating the jury verdict [***20]
against Duwayne is
affirmed. In Docket No. 164586, the order denying Opal's motion for summary
disposition is
affirmed. The order granting Opal's motion to amend and the order denying plaintiff's
motion to
strike Opal's pleadings are affirmed. However, the order dismissing Opal is
reversed and the matter
is remanded for proceedings consistent with this opinion. We do not retain jurisdiction.