Wills v. K-Mart Corp.

COYNE, Justice. Plaintiff Mark Wills appeals from an order of the district court granting summary judgment in favor of his father, Dennis [443] Wills, on the basis of parent-child tort immunity. We reverse. On October 3, 1979, 15-year-old Mark Wills was injured while splitting wood. A metal splinter from the maul Mark was using to drive a wedge purchased from K-Mart struck him in the eye; as a result Mark has lost the sight in his left eye. On his son’s behalf, Dennis Wills commenced an action against K-Mart alleging liability for the sale of the wedge without warning of the need to use protective ey-ewear. In a counterclaim alleging that the boy’s injury was sustained because of his father’s negligent supervision, K-Mart sought indemnity from Dennis Wills. When Mark attained his majority, he amended his complaint to include a direct action against Dennis alleging that Dennis negligently instructed Mark regarding the use of the wedge, negligently failed to provide protective eyewear, and negligently furnished a defective maul. After Mark and K-Mart had entered into a Pierringer release, Dennis Wills moved for summary judgment on the ground of parental immunity. On this appeal from the order for summary judgment, the sole issue presented is the propriety of the district court’s application of the law with respect to parental immunity.1 In Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968), this court abrogated the doctrine of parent-child tort immunity subject to the following two exceptions: “(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 ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care * * Id. at 442, 161 N.W.2d at 638. More recently, in Anderson v. Stream, 295 N.W.2d 595 (Minn.1980), we concluded the Silesky test for parental immunity was both too uncertain and arbitrary in application to justify its continued existence, and prospectively abandoned it in favor of the more flexible “reasonable parent” standard of liability. Id. at 598-99. Because this matter arose prior to Anderson, it must be resolved pursuant to the Silesky standard of parent-child tort immunity. In the 16 years since Silesky was decided, we have only once construed either of the Silesky exceptions. In Romanik v. Toro Co., 277 N.W.2d 515 (Minn.1979), we held that the second exception applied, in addition to the types of care specifically enumerated, only to those acts of parental discretion involving “other care” of a kind similar to those enumerated. We declined, however, to construe the first exception. Noting that “an exercise of reasonable parental authority” has been interpreted both broadly to include supervision as well as discipline, see Wagner v. Smith, 340 N.W.2d 255 (Ia.1983); Paige v. Bing Construction Co., 61 Mich.App. 480, 233 N.W.2d 46 (1975); Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974), and narrowly to restrict the term to discipline, Horn v. Horn, 630 S.W.2d 70 (Ky.1982); Thoreson v. Milwaukee and Suburban Transport Co., 56 Wis.2d 231, 201 N.W.2d 745 (1972), we found it unnecessary to adopt either construction. In Romanik the father had entrusted a snowblower, a potentially dangerous piece of machinery, to his 13-year-old son and had negligently instructed him to operate it contrary to the operator’s manual. We held that such an affirmative act of negligence involving a foreseeable, unreasonable risk of injury to a child could not be characterized as negligent supervision. Similarly, the complaint before us alleges acts of affirmative negligence. Although a maul and a wedge are simple tools rather than a complex machine potentially dangerous because of its moving parts, Mark alleges that his father furnished a danger [444] ously defective maul without providing protective eyewear and that he negligently instructed him on the use of the wedge. On these pleadings Dennis’ liability, if there be any, rests not on breach of a duty arising out of the parent-child relationship but upon that elementary principle of negligence law that one who undertakes to act, even though gratuitously, is subject to the duty to act with reasonable care. Reversed and remanded. Footnotes [1] In their statements of the facts giving rise to this action, both parties draw heavily on depositions which are not part of the district court file. While it may be, as respondent contends, that he is entitled to summary judgment because the uncontroverted facts would not support a finding that he was negligent, his motion was based only on immunity and we have before us only the allegations contained in the pleadings.