Tie vote kills appeal in case of parental immunity: 3-3 vote breaks along ideological lines

By Ed White

Associated Press

DETROIT (AP) -- A dispute between a divorced couple over the death of their daughter has created sharp differences at the Michigan Supreme Court over legal immunity for parents.

Because of a 3-3 tie, the justices last week turned down an appeal in a lawsuit against an Oakland County man who briefly left his 3 1/2-year-old daughter on a beach while he used the bathroom during a graduation party in 2006. Daniel Wilson believed other adults were around, but Jordyn drowned.

Mother and ex-wife Nicole Mickel sued on behalf of her daughter's estate, claiming negligence. Two courts, however, have ruled in favor of the father and dismissed the case, noting parental immunity in Michigan law.

"Every day parental decision-making should not be complicated by the threat of trial lawyers," said Chief Justice Robert Young Jr., who voted against taking an appeal. "Permitting a child, or another parent, to sue a parent for an error in judgment because an insurance policy exists does not lead to better parenting -- as those who would abolish what remains of parental immunity must posit."

Justice Brian Zahra disqualified himself, causing the tie, because he had ruled on the case last year while a member of the Michigan appeals court.

The Supreme Court's liberal wing -- justices Diane Hathaway, Marilyn Kelly and Michael Cavanagh -- wanted to hear an appeal of the dismissal of Mickel's lawsuit.

Kelly said it's time for the court to reconsider a 1972 decision that established limited immunity for parents. One of the two protections is when a negligent act "involves an exercise of reasonable parental authority over the child," which was cited by lower courts in dismissing the lawsuit in Jordyn's accidental death.

Kelly said the '72 decision is nearly 40 years old and needs to be revisited for clarification because it has been applied differently in courts across Michigan.

"A significant question exists about whether parental immunity applies to cases of parents' negligent supervision of their children," Kelly wrote.

Young, however, said he's satisfied with leaving the decades-old precedent alone.

"I do not support treating family members as though they are no different from any other commercial parties to a lawsuit," he said. "The family unit is a unique, revered institution under assault from many quarters. This court ought not be one of its assaulters."

Published: Tue, Jun 7, 2011


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