Keldon K. Scott, "Feature: Family Law: Negligence Actions by Abused Children Against Parents and Caretakers," 85 Mich. B.J. 654 (1996)
Keldon K. Scott is a shareholder with the firm of Bernick,
Omer & Scott, P.C. in Lansing. He
practices domestic relations law, including domestic related torts. He has published
many articles
regarding domestic relations law and has spoken on the subject extensively at
many seminars. He
is currently a Family Law Section council member and executive officer of the
State Bar of Michigan
Family Law Section
[*654] On September 15, 1995, the Michigan Court of Appeals
struck a blow against child abuse
in Bernick v Deihm, 213 Mich App 389; 541 NW2d 566 (1995). The court authorized
a cause of
action in negligence for the failure to protect a child from abuse. In addition,
defendants' efforts to
avoid liability by claiming parental immunity and efforts to limit proofs and
discovery by invoking the
Fifth Amendment, proved fruitless.
This article will discuss the negligence cause of action for
the failure to protect children from abuse,
as well as the related topics of parental immunity, the doctrine of in loco
parentis, and the invocation
of the Fifth Amendment privilege.
NEGLIGENCE SUITS FOR CHILD ABUSE
In Bernick, supra, a child, who was sexually molested by his
grandfather for about eight years,
brought a civil suit against the perpetrator for assault and battery, but also
his step-grandmother for
negligence. The negligence suit alleged that the step-grandmother owed a duty
to intervene to
eliminate any unreasonable risk to the child. Further, the child alleged that
the stepgrandmother sat
idly by when she knew, or should have known, molestation was occurring, thereby
breaching her
duty.
The trial court held that no duty exists to protect a child.
The Court of Appeals reversed. The
appellate court recognized that, generally, there is no duty to protect another
from criminal acts of
others, absent a special relationship. n1 The appellate court reasoned, though,
that a duty can arise
by statute as well as by common law. n2 It concluded that since the step-grandmother's
conduct
could be criminal neglect, a duty exists. The court specifically held that "a
person over 18 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." n3
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n1 Bernick, supra, citing Babula v Robertson, 212 Mich App 45, 536 NW2d 834,
837 (1995).
n2 Bernick v Deihm, 213 Mich App 389 (1995); citing Mays v Gillett Communications
of Detroit, Inc,
198 Mich App 223, 225; 497 NW2d 218 (1993).
n3 Bernick v Deihm, 213 Mich App 389; 541 NW2d 566, 573 (1995).
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The holding in Bernick was arguably limited in two ways. First,
the holding specifically limited the
duty to act reasonably to prevent the sexual abuse of a child. Second, the holding
arguably limited
the tortfeasors to persons responsible for a child's health or welfare pursuant
to the child protection
laws.
THE DUTY
Using the appellate court's own rationale, would the duty
to protect include other acts of neglect,
such as physical abuse or emotional abuse? The appellate court, in Bernick,
based its holding on
the fact that the step-grandmother's failure to act could constitute criminal
neglect.
MCL 722.622(d); MSA 25.248(2)(d) defines "child neglect" as follows:
. . . harm or threatened harm to a child's health or welfare by a parent, legal
guardian,
or any other person responsible for the child's health or welfare that occurs
though
either of the following:
(i) Negligent treatment, including the failure to provide
adequate food, clothing, shelter,
or medical care.
(ii) Placing a child at an unreasonable risk to the child's health or
welfare by failure of the parent, legal guardian, or any other
person responsible for the
child's health or welfare to intervene to eliminate that risk when that person
is able to
do so and has, or should have, knowledge of the risk.
MCL 722.622(i); MSA 25.248(2)(i) provides as follows:
"Person responsible for the child's health or welfare" means a parent,
legal guardian,
person 18 years of age or older who resides for any length of time in the same
home in
which the child resides, or . . .
Using the appellate court's rationale, logic seems to dictate
that not only would "persons responsible
for the child's health" have a duty to act reasonably to prevent sexual
[*655] abuse, but also to
prevent "child neglect." If this conclusion is correct, then a cause
of action would exist for children
against any person who fits the definition set forth in MCL 722.622(i); MSA
25.248(i) for any
emotional or physical abuse -- not just sexual abuse.
THE TORTFEASOR
The Bernick decision imposed the duty on persons defined in
MCL 722.622(i); MSA 25.248(i). These
persons include anyone who the child had resided with, in addition to child
care organizations and
adult foster care family homes or small group homes. Was the decision intended
to exclude
babysitters and neighbors, with whom the child had not resided?
Consider the abuse of a child in a babysitter's care. If the
parents of a babysitter knew the
propensity of their child to abuse children, would negligence apply? If a child
was left at the
babysitter's home and the babysitter's boyfriend or girlfriend abused the child,
would negligence
apply? Arguably, since the child was not residing in the babysitter's home,
pursuant to Bernick,
negligence would not apply.
To answer this question an examination and understanding of
the current law on parental immunity
and the doctrine of in loco parentis should be examined.
PARENTAL IMMUNITY
Unlike spousal immunity, which has been legally and practically
abrogated, in civil actions involving
a parent and child, the defense of parental immunity, although legally abrogated,
practically
speaking, is perhaps even stronger today.
In 1972, the doctrine of parental immunity was abrogated.
n4 The Supreme Court held that:
A child may maintain a lawsuit against his parent for injuries
suffered as a result of the
alleged ordinary negligence of the parent.
However, two exceptions survived, namely:
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 service,
and other care. n5
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n4 Plumley v Klein, 388 Mich 1 (1972).
n5 Id. p. 8.
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The types of negligence that have fallen within the exceptions above include:
. A parent's decision to construct stairs and a gate to a
pool, led to injury. The construction was
ruled a discretionary act and fell within the second exception listed above,
thereby providing
immunity to the parent. n6
. Defendant parent, was sued for failing to instruct the child
on safe and proper use of a pool. Such
instruction was found to be an exercise of parental discretion -- exception
one. Immunity from suit
was granted. n7
. Defendant parent, was sued for improper instruction with
a 100cc dirt bike, which allegedly caused
injury to a child. The purchase of the bike and improper instruction was an
exercise of parental
discretion, and therefore, fell within the first exception. n8
. Defendant father, did not adequately secure a gun known
to be in existence, and his daughter shot
herself. The inadequate handling of the gun fell within the first exception.
Immunity was granted. n9
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n6 Ashley v Bronson, 189 Mich App 498 (1991).
n7 McCallister v Sun Valley, 100 Mich App 131 (1980).
n8 Haddrill v Damon, 149 Mich App 702 (1986).
n9 Wright v Wright, 134 Mich App 800 (1984).
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The main rationale of the exceptions is the "preservation
of the family unit, internal order, and
recognition of its autonomy . . . " n10 In essence, the exceptions were
created pursuant to a public
policy not to interfere in discretionary matters of a child's upbringing.
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n10 Hush v Devilbiss Co, 77 Mich App 639, 646 (1977).
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[*656] Discretion connotes choice. Parents choose different
paths in discipline, guidance, care,
and other responsibilities. The immunity abrogation exceptions were established
to avoid litigation
over parenting differences.
The exceptions have seemed to perpetuate the immunity, which
was supposed to be abrogated.
Until Bernick, all reported cases, except one, ruled that the exceptions applied
and liability was
denied. n11 In Bernick, the appeals court ruled that "child neglect is
not a reasonable exercise of
parental discretion, therefore, the defendants were not immune from liability."
n12 Bernick v Deihm,
213 Mich App 389; 541 NW2d 566, 572 (1995).
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n11 Thelen v Thelen, 174 Mich App 380 (1989).
n12 Bernick v Deihm, 213 Mich App 389; 541 NW2d 566, 572 (1995).
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THE DOCTRINE OF IN LOCO PARENTIS
In Bernick, the step-grandmother sought parental immunity
from liability. She relied on the doctrine
of "in loco parentis." n13 This doctrine recognizes that an "intimate
relationship between parent and
child can surely arise outside genetic bonds." And, "if such a relationship
obtains, then for purposes
of tort immunity, no reason exists for distinguishing that person from a natural
parent." n14
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n13 Hush v Devilbiss Co, 77 Mich App 639 (1977).
n14 Id. p. 647.
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The Plumely exceptions, set forth above, have enabled attorneys
to be creative and actually expand
the doctrine of immunity, which was supposed to be abrogated. Step-parents,
noncustodial parents,
foster care workers, grandmothers, and others now jump on the band wagon seeking
immunity if
their negligence arguably fits one of the exceptions. n15
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n15 Thelen, supra; Hush, supra; Mayberry v Pryor, 132 Mich App 823, reversed
422 Mich 579
(1984).
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If the trend is to allow redress for injuries suffered, notwithstanding
the source of negligence, then
shouldn't the rationale behind the abrogation of the statute be given more weight
than the rationale
supporting the exceptions to the immunity abrogation?
In cases of child abuse, the appeals court, in Bernick, adopted
this analysis. The
step-grandmother's claim of parental immunity failed since "child neglect
is not a reasonable
exercise of parental authority."
TORTFEASORS REVISITED
Returning to the question of the apparent limitation on who
the duty in Bernick applies, arguably,
babysitters and neighbors could owe the same duty. In Bernick, the court imposed
a duty on the
step-grandmother, since a special relationship existed, i.e., the child resided
with her. Under the
child protection laws, her inaction constituted criminal neglect.
The doctrine of in loco parentis recognizes that intimate
relationships arise outside genetic bonds
and for tort immunity, no reason exists for distinguishing that person from
a natural parent.
Babysitters and neighbors immune themselves from liability in certain cases
with this logic.
Similar logic should dictate that if a babysitter or neighbor
is immune from liability due to a "special
relationship" then the same "special relationship" should impose
liability if such a person fails to act
reasonably to prevent the sexual abuse of a child in their care.
FIFTH AMENDMENT INVOCATION IN CIVIL ACTIONS BY CHILDREN n16
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n16 Acknowledgement is afforded to David Bancroft and Andrew M. Scoble, who
wrote "Invoking the
privilege against self-incrimination in civil proceedings: principles and pitfalls."
Section of Litigation,
531-023/13AE, July 1992. Their topics and ideas were of great assistance.
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In civil actions by children claiming sexual abuse against
a family member, potential criminal
concerns arise.
In Bernick, supra, the perpetrator grandfather and the step-grandmother
invoked the Fifth
Amendment in their answer to the complaint, responses to request for admissions,
and in
deposition. The defendants offered no other witnesses to dispute the allegations.
With no proffered
defense, plaintiffs moved for summary disposition, claiming no genuine issue
of material fact existed.
The trial court granted the motion. The appellate court affirmed.
When criminal prosecution is possible a litigant is protected
by the U.S. Constitution and the
Michigan Constitution. When the Fifth Amendment is invoked, certain principles
and strategies must
be understood. The general principles of the invocation of the Fifth Amendment
during civil actions
against children are discussed in general below.
The U.S. Constitution provides: "No person shall be compelled
in any criminal case to be a witness
against himself." Fifth Amendment of the Constitution.
Despite the literal reading, the Fifth Amendment can be invoked
in civil cases also. n17 Michigan
has recognized this principle. n18 A "witness will be protected by his
privilege if there is a
'substantial and imminent danger of incrimination' . . ." n19 The privilege
in Michigan is no more
extensive than the privilege afforded by the U.S. Constitution. n20 The principles
enunciated in
federal cases are applicable. n21
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n17 McCarthy v Arndstein, 266 US 34 (1924); Kastigar v United States, 406 US
441; 92 S Ct 1653
(1972).
n18 In re Schnitzer, 295 Mich 736 (1940); In re Watson, 293 Mich 263; Anonymous
v Attorney
Grievance Commission, 430 Mich 241; 422 NW2d 648 (1988).
n19 In re Schnitzer, 295 Mich 736, 739 (1940).
n20 In the matter of Stricklin, 148 Mich App 659; 384 NW2d 833 (1986).
n21 Id. p. 835.
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When a litigant asserts the Fifth Amendment, the opposing
attorney must be prepared to examine
the validity of the invocation as well as its potential effects. To understand
the validity and effects of
an assertion of the Fifth Amendment, one should be familiar with several concepts.
SCOPE OF THE PRIVILEGE
A privilege against testifying may be asserted when an answer
might incriminate. n22 The testimony
has to be incriminating. n23
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n22 Hoffman v United States, 341 US 479 (1951).
n23 In the matter of Stricklin, 148 Mich App 659; 384 NW2d 833, 836 (1986).
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Further, the privilege forbids only "compelled testimony."
n24 The Michigan Court of Appeals has
held:
The amendment speaks of compulsion. It does not preclude a witness from testifying
voluntarily in matters which may incriminate him. If, therefore, he desires
the
protection of the privilege, he must claim it or he will not be considered to
have been
"compelled" within the meaning of the Amendment. n25
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n24 Kenner v Watha, 115 Mich App 521; 323 NW2d 8, 10 (1982).
n25 Id. p. 10, citing United States v Monia, 317 US 424, 427, 63 S Ct 409 (1943).
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The privilege may be asserted in any stage of the civil proceeding,
including an answer to a
complaint, n26 responses to production of documents, n27 responses to request
for admissions,
n28 deposition responses, n29 and answers to interrogatories. n30
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n26 Arden Way Associates v Boesky, 660 F Supp 1494 (1987).
n27 De Antonio v Solomon, 42 FRD 320 (1967).
n28 Smith v Superior Court, 110 Cal App 3d 422 (1980).
n29 In re Folding Carton Antitrust Litigation, 609 F2d 867 (1979).
n30 United States v Kordel, 397 US 1 (1970).
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However, the privilege has limits. An individual cannot assert
a blanket privilege. n31 The Michigan
Supreme Court has held as follows:
If a direct answer to the question propounded may incriminate, the privilege
of silence
must be accorded. But the liberality of construction to be accorded is not to
be
extravagantly extended so as to obstruct the administration of justice when
an answer
will not jeopardize. The Constitution does not permit the witness "to arbitrarily
hide
behind a [*657] fancied or intangible danger." The tendency to incriminate
must be a
reasonable one; an answer may not be withheld because it might
possibly under some
conceivable circumstances form part of a crime. Accordingly, the privilege must
not
be recalcitrantly asserted too soon. Inquiries that are merely preliminary and,
by
themselves, have no flavor of criminality must be answered until there becomes
a
reasonable basis for fear. n32 [Citations omitted].
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n31 In re Schnitzer, 295 Mich 736, 740; 295 NW 478 (1940).
n32 Id. p. 740.
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WAIVER OF PRIVILEGE
A privilege against self-incrimination may be waived by testimony,
under oath, which is incriminating.
n33 The privilege may also be waived by the voluntary production of documents.
n34
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n33 Southbridge Finishing Co v Golding, 208 NYM 846; 143 NYS2d 911, aff. 2 App
Div 2d 882; 157
NYS2d 898.
n34 Olson v United States, 872 F2d 820 (1989).
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However, if no incriminating facts have been admitted, waiver
is not applicable "where a witness has
not actually admitted incriminating facts he may unquestionably stop short at
any point and
determine he will go no further . . . ." n35 In addition, when a litigant
files a counter-complaint or
cross-claim, some jurisdictions deem the allegations a waiver of the privilege
and some do not.
However, it is clear that a court may dismiss a cause on the basis of equitable
estoppel if a party
insists on invoking the privilege after filing such pleadings. If the result
were different, the Fifth
Amendment would be both a sword and a shield and would create a certain injustice.
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n35 Foster v People, 18 Mich 266.
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CONSEQUENCES OF ASSERTING THE PRIVILEGE
When the privilege is validly asserted in responsive pleadings,
the proponent is faced with serious
ramifications. While normally the proponent of the privilege is not defaulted,
n36 the possibility of
summary judgment becomes real. Such a result is especially logical when only
two parties to the
suit have personal knowledge of the facts.
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n36 National Acceptance Co of America v Bathalter, 705 F2d 924 (1983).
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MCR 2.116(C)(10) provides that except for damages, summary
disposition is proper if there is no
genuine issue about a material fact. The logic is that no triable issue is presented
when the
allegations of fact are not denied. In Bernick, the trial court and appellate
court concurred. Summary
disposition was granted to plaintiff because defendants offered no defense.
As an alternative to the harsh remedy of dismissal or summary
disposition, in order to avoid
prejudice or surprise, the proponent of the privilege may also be barred from
producing evidence or
defenses. n37 The court may bar evidence on an entire issue. Alternatively,
only the testimony or
documents proffered by the claimant of the privilege may be barred.
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n37 Rubenstein v Kleven, 150 F Supp 47 (1957).
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When a litigant asserts the privilege, in addition to other
consequences, the jury or bench is not
precluded from inferring that the privilege was asserted because the answers
would be incriminating.
In criminal actions, negative inferences are impermissible -- not in civil cases.
n38
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n38 Baxter v Palmigiano, 425 US 308; 96 S Ct 1551 (1976); In the Matter of the
Estate of Ellis, 143
Mich App 456; 372 NW2d 592, 596 (1985).
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The Michigan Court of Appeals has specifically addressed this
concept. In a will contest, a litigant
during deposition asserted the Fifth Amendment. Counsel repeatedly argued at
trial that the
proponent of the privilege invoked the privilege because she believed the answers
would be
incriminating. On appeal, the appeals court held:
While counsel's references to the negative inferences which could be drawn from
proponent's silence would have been impermissible in a criminal case, the Fifth
Amendment does not preclude the inference where the privilege is claimed by
a party
to a civil cause. In the matter of the Estate of Ellis, 143 Mich App 456; 372
NW2d 592;
596 (1985).
The opposing attorney is advised to make the invocation of
the privilege very apparent to the trier of
fact.
In cases where an affirmative statement has been incriminating
or where an offensive position has
been taken, a litigant who insists on asserting the privilege may be subjected
to dismissal. The
rationale is simple. One cannot assert a legal position and then refuse to defend
it to the detriment
of the opponent. n39
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n39 Lyons v Johnson, 415 F2d 540 (1969), cert. denied, 397 US 1027 (1970).
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On the other hand, the opposing rationale also has merit.
That is, "the assertion of a constitutional
right should not deprive a party of his day in court. If it did, a constitutional
right is but a shadow and
its assertion only serves to ensnare the one asserting it." n40 Other jurisdictions
have held similarly.
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n40 Albert v Chambers, 335 Mich 111, 116 (1952).
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AVOIDANCE OF THE PRIVILEGE
One certain method to preclude an opponent from asserting
the Fifth Amendment privilege is to
ensure no adverse consequences result from the testimony. If no harm or prejudice
will occur, the
Fifth Amendment is not applicable.
Obtaining a grant of immunity obviates any potential criminal
prosecution resulting from testimonial
acts. The government can grant immunity by letter without court approval. Once
granted, the
immunity is effective just like a contract. n41 Once granted, the Fifth Amendment
privilege is not
available, and testimony may be compelled.
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n41 United States v Garcia, 954 F2d 12 (1992).
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In addition to immunity, a claimant of the Fifth Amendment
privilege may request that the court grant
a protective order precluding the use of discovery materials. This approach
is the least intrusive to
the civil proceeding. The sealed proceeding may be applied for under FRCP 26(c)
or MCR 2.302(C).
The claimant of the privilege is given protection, however, these orders have
been successfully
attacked.
Alternatively, the court may grant a stay of proceedings pending
the outcome of a pending criminal
action against the proponent. This procedure creates a time unfairness for the
civil litigant, and has
been utilized, as well as denied, in other jurisdictions.
In the cases that consider this procedure, the courts have balanced several factors:
. The strength of the showing of the possibility of incrimination;
. The likely duration of the danger of self-incrimination,
i.e., how long before the criminal statute of
limitation will expire or immunity will be given;
. The claimant's willingness to waive any applicable civil time limitations for bringing the suit to trial;
. The claimant agreeability to preserving the status quo (e.g.,
by depositing requested discovery with
court);
[*658] . The availability and materiality of other discovery not subject to the privilege; and
. The degree of other possible prejudice to the party seeking
the discovery. n42
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n42 "Invoking the privilege against self-incrimination in civil proceedings:
principles and pitfalls."
Section of Litigation, 531-0023/13AE, July 1992, by David P. Bancroft and Andrew
M. Scoble.
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Knowing the breadth and effects of the privilege affords the
attorney proper strategy and counsel
when the Fifth Amendment is involved. Since the privilege is strong, proper
consideration to the
above principles and their application to the facts of a particular case is
crucial.
CONCLUSION
The Bernick decision offers significant redress for abused
children. The vulnerability of a child and
the life-long effects that abuse creates justify the results obtained. Not only
are these cases given
merit, but the clever use of immunity laws and privileges to avoid responsibility
have been seriously
limited.
Finally, recovery for the damages is more likely, given that
homeowners insurance coverage may be
afforded. Although another topic, suffice it to say, the defense will no longer
easily be able to claim
that a plaintiff's complaint for negligence is really an intentional tort couched
in negligence terms.