United States District Court, Southern District of Illinois
June 28, 1985
AMY N. DUENSING, A MINOR BY HER FATHER AND NEXT FRIEND, CLINT W. DUENSING, AND CLINT DUENSING, INDIVIDUALLY, PLAINTIFFS,
MICHAEL L. TRIPP, DEFENDANT, MICHAEL L. TRIPP, THIRD-PARTY PLAINTIFF, V. SHERRI DUENSING, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Foreman, Chief Judge:
MEMORANDUM AND ORDER
Before the Court is third-party defendant, Sherri Duensing's
motion to dismiss the third-party complaint (Document No. 32).
Clint Duensing brought this negligence action on behalf of his
daughter Amy Duensing for damages incurred when an automobile
driven by the defendant, Michael Tripp, struck Amy. The defendant
filed a third-party complaint seeking contribution from Sherri
Duensing, Amy's mother, alleging that Amy's injuries resulted in
part from Sherri's negligent supervision of Amy. On October 29,
1984, this Court dismissed the third-party complaint. (See
Duensing v. Tripp, 596 F. Supp. 389 (S.D.Ill. 1984). In its
memorandum and order the Court noted that a defendant could seek
contribution only from those who were liable to the plaintiff for
the same injury. From this the Court reasoned that the proper
approach to employ to decide the issue was to first ascertain
whether or not Illinois would recognize a tort of negligent
supervision upon which to premise liability, and second, if such
a tort existed, whether parental immunity would defeat liability.
The Court proceeded to hold that Illinois would not recognize a
tort of negligent supervision.
On November 19, 1984, the defendant asked the Court to
reconsider this ruling, arguing that paragraph (b) of the
third-party complaint did not sound in negligent supervision. The
Court disagreed, but granted the defendant leave to amend the
third-party complaint to conform to the recent case of Moon by
Moon v. Thompson, 127 Ill.App.3d 657, 82 Ill.Dec. 831,
469 N.E.2d 365 (1984). The defendant amended his third-party complaint
repleading paragraphs (a) through (c) and adding paragraph (d)
which alleged that Sherri Duensing authorized or permitted her
daughter, Amy, to cross the street other than in the crosswalk
without yielding the right-of-way to vehicles. Sherri Duensing
has now moved to dismiss the amended third party complaint
contending that paragraphs (a) through (c) have already been
dismissed and that paragraph (d) fails to state a claim upon
which relief can be granted.
The Court agrees with the third-party defendant that paragraphs
(a)-(c) have already been dismissed. The gist of the defendant's
memorandum in opposition to the motion to dismiss is that this
Court was incorrect in its earlier ruling. The defendant
vigorously argues that parental immunity is on its way out in
Illinois, and that Illinois would recognize a tort of negligent
supervision in this context. After reconsidering these arguments
for the third time the Court stands on its earlier decision that
although the parental immunity doctrine in the contribution
context may be abrogated in Illinois, Illinois would not
recognize a tort for the parent's negligent supervision of the
child. Therefore, the defendant can not seek contribution from
the parent as alleged in paragraphs (a)-(c).
Paragraph (d) of the amended third party complaint states that
Sherri Duensing: "Authorized or knowingly permitted Amy N.
Duensing to cross Eastview Drive other than within the marked
crosswalk without yielding the right-of-way to vehicles then upon
Eastview Drive." In support of this claim for contribution, the
defendant relies on Moon By Moon v. Thompson, 127 Ill.App.3d 657,
82 Ill.Dec. 831, 469 N.E.2d 365 (1984). In Moon, a father brought
suit on behalf of his son against an automobile driver for
injuries sustained when his son was struck by the automobile
while driving his bicycle. The defendant driver sought
contribution from the child's parents alleging that they were
under a statutory duty to properly instruct their son with regard
to the laws pertaining to the operation of a bicycle. The First
District held that the parental immunity doctrine would not bar
the contribution claim. The court stated that "[t]his is not a
pure case of negligent supervision; rather, the parental
supervision at issue in this case concerns a statutory duty
imposed upon parents by the legislature." 82 Ill.Dec. at 833, 469
N.E.2d at 367.
The defendant asks this Court to extend the analysis of Moon to
hold that the parents are under a statutory duty to oversee the
actions of their child with regard to all activity covered under
the Illinois Motor Vehicle Code. Specifically, the defendant
contends that a subsection of Article XV in Chapter 11 of the
Motor Vehicle Code pertains to the entire Code. Ill.Ann.Stat. Ch.
95 1/2 § 11-1501 (Smith-Hurd Supp. 1984-85) provides:
Application of rules. (a) It is unlawful for any
person to do any act forbidden or fail to perform any
act required in Article XV of Chapter 11 of this
(b) The parent of any child and the guardian of any
ward shall not authorize or knowingly permit any such
child or ward to violate any of the provisions of
In Moon, the court employed subsection (b) above to find that
the parents had a statutory duty to oversee the actions of their
child with regard to operations of a bicycle. Although subsection
(b) is located in the article pertaining to bicycles, the
defendant argues that a parent has statutory duty to oversee the
actions of his child as they relate to the entire Vehicle Code
since subsection (b) specifically refers to the "Code." Stated
another way, the defendant contends that the Illinois Legislature
intended subsection (b) to apply to the entire Code since
subsection (a) is limited explicitly to Article XV of the Code,
whereas subsection (b) contains no such limitation.
The Court admits that a literal reading of the subsection
supports the defendant's contention; although one can only wonder
why the Legislative would place a provision pertaining to the
entire Vehicle Code in a subsection of the article on bicycle
operations. In any event, assuming that the subsection does apply
to the other provisions of the Code so as to create a statutory
duty on the part of the parents to oversee their child's actions
as they relate to the Code, the Court is of the opinion that the
defendant's claim must still fail.
As stated above and in the earlier order, the first issue that
must be resolved is whether the parent would be liable to the
child for a breach of this statutory duty absent the immunity.
Again, the Court believes that the Illinois Supreme Court would
not recognize, nor did the legislature intend to create such an
action absent the immunity.
The Court has thoroughly reviewed the Moon decision and the
recent case Hartigan v. Beery, 128 Ill.App.3d 195, 83 Ill.Dec.
445, 470 N.E.2d 571 (1984). Although Beery explicitly, and Moon
by implication, recognize a defendant's right to contribution
from the parent with regard to facts similar to the ones before
this Court, neither case specifically addresses whether or not an
action for negligent supervision exists in a parent-child
situation, a determination this Court feels must be made prior to
ascertaining whether or not contribution would apply. The Court
realizes that when sitting in diversity it must apply the law of
the forum state as that state's highest court decides it. It also
realizes that when the state's highest court has not ruled on an
issue, intermediate appellate court decisions constitute the next
best indicia of what the state law is. Wright, Miller & Cooper,
Federal Practice and Procedure: Jurisdiction § 4507 n. 37.
Although, this Court cannot refuse to follow them because it
feels that they are unsound, it is not bound to blindly adhere to
them if other data exists which would indicate the state's
highest court would decide otherwise. Id.
Here, the Court is not facing a situation where all the
districts of the Illinois Appellate Court have ruled on the issue
and are consistent. Both Moon and Hartigan arose from the First
District. No other district has addressed the issue. The Second
District has recognized that negligent supervision presents a
special situation but refused to address the issue. Larson v.
Buschkamp, 105 Ill.App.3d 965, 61 Ill.Dec. 732, 435 N.E.2d 221
(1982). This, together with the fact that both decisions
neglected to determine whether or not negligent supervision would
form the basis of a tort action between the child and parent,
indicate that Illinois Supreme Court would decide otherwise.
Accordingly, the third-party defendant's motion to dismiss
(Document No. 32) is hereby GRANTED. The defendant's third-party
complaint seeking contribution is hereby DISMISSED.
IT IS SO ORDERED.
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