Nolasco v. Malcom
| Decision Date | 25 September 2020 |
| Docket Number | Nos. S-19-729,S-19-730.,s. S-19-729 |
| Parties | Gaspar NOLASCO, Personal Representative of the Estate of Maria E. Nolasco, deceased, appellant, v. Brennon MALCOM, Special Administrator of the Estate of Catarina A. Nolasco, deceased, appellee. Gaspariny Nolasco, appellant, v. Brennon Malcom, Special Administrator of the Estate of Catarina A. Nolasco, deceased, appellee. |
| Court | Nebraska Supreme Court |
Tod A. McKeone, of Heldt, McKeone & Copley, Lexington, for appellants.
Elizabeth Ryan Cano and Stephen L. Ahl, of Wolfe, Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., Lincoln, for appellee.
Daniel J. Thayer, of Thayer & Thayer, P.C., L.L.O., and Benjamin I. Siminou, of Siminou Appeals, Inc., for amicus curiae Nebraska Association of Trial Attorneys.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Stacy, J. Appellants’ automobile negligence actions were dismissed on summary judgment after the district court concluded they were barred by the parental immunity doctrine. In these consolidated appeals, appellants challenge the applicability and the continued viability of that doctrine in Nebraska.1 After considering the origins, development, and application of the doctrine, we conclude the automobile negligence claims alleged in these cases fall outside the scope of Nebraska's parental immunity doctrine. We therefore reverse the judgments of the district court and remand the causes for further proceedings.
On January 21, 2017, Catarina A. Nolasco was operating a motor vehicle on the interstate near Wood River, Nebraska, when the vehicle left the roadway and entered the ditch, rolling several times. Nolasco's unemancipated minor children were riding in the vehicle with her at the time; her son was seriously injured and her daughter died from injuries sustained in the accident. Nolasco also died as a result of the accident.
The daughter's estate filed a wrongful death and survival action against Nolasco's estate, and the son (now an adult) filed a separate negligence action against Nolasco's estate to recover for his injuries. Both actions alleged that Nolasco's negligent operation of the vehicle caused the accident. Specifically, they alleged Nolasco was negligent in failing to maintain a proper lookout, driving at a speed greater than was reasonable and prudent under the conditions then existing, and failing to exercise proper control over her vehicle.
Nolasco's estate moved for summary judgment in both actions, alleging the doctrine of parental immunity applied to bar the negligence claims. The district court agreed. The court's order discussed and considered several Nebraska cases, including the seminal case of Pullen v. Novak ,2 and ultimately determined the doctrine of parental immunity applied to automobile negligence claims. It acknowledged the appellants’ request to abrogate or limit the doctrine, but declined to do so, reasoning that any changes to the judicially created doctrine must come from either the Nebraska Supreme Court or the Nebraska Legislature. The district court thus granted summary judgment in favor of Nolasco's estate and dismissed the actions.
Timely appeals were filed by the son and by the daughter's estate. We granted their petitions to bypass and consolidated the cases for purposes of appeal.
Appellants assign that the district court erred in dismissing the actions based on the parental immunity doctrine.
The scope of a judicially created rule of immunity, including whether such rule should be limited or extended, presents a question of law.3
To the extent an appeal presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.4
[3] The doctrine of parental immunity, as it has been articulated in Nebraska, provides generally that an unemancipated minor cannot maintain an action against his or her parents, or any other person standing in that relation to the minor, to recover damages for ordinary negligence, but can maintain an action to recover damages for " ‘brutal, cruel, or inhuman treatment.’ "5 We have described this as a "modified version" of the parental immunity doctrine adopted in other jurisdictions.6
In these consolidated appeals, the threshold question is one of first impression: Does Nebraska's modified parental immunity doctrine apply to bar automobile negligence claims brought by unemancipated minors against a parent? To answer that question, we begin our analysis with a general overview of the origins of the judicially created doctrine in the United States. We then discuss the development, recognition, and application of the doctrine in Nebraska. And finally, we consider the parties’ arguments as to whether the doctrine applies to bar automobile negligence claims and whether this court should modify or abrogate the doctrine.
The doctrine of parental immunity did not originate in English common law,7 but instead was introduced into American tort jurisprudence by the 1891 Mississippi Supreme Court case of Hewlett v. George .8 In Hewlett , the court held that an unemancipated minor could not sue her mother for damages sustained when the mother confined the child in a mental institution. Hewlett reasoned:
[S]o long as the parent is under obligation to care for, guide and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand.9
In the decades immediately following Hewlett , courts in all but a handful of states10 adopted some version of the doctrine of parental immunity, but courts were not consistent in articulating either the scope of the doctrine or the public policy reasons justifying its adoption.11 Common justifications for adopting the doctrine included (1) maintaining family harmony; (2) preserving parental autonomy and authority over the discipline, supervision, and care of children; (3) preventing fraud and collusion between family members; and (4) protecting family assets from depletion in favor of one child at the expense of others.12
By the mid-20th century, jurisdictions began to reexamine the blanket doctrine.13 The Wisconsin Supreme Court's opinion in Goller v. White14 is generally recognized as the first case to abrogate the doctrine,15 but it was only a partial abrogation. Goller abolished blanket parental immunity, but expressly retained immunity where the alleged negligence involved either the exercise of parental authority over the child or "ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care."16
After Goller , a few states chose to maintain blanket parental immunity,17 but most jurisdictions moved away from blanket immunity and narrowed the practical application of the doctrine by recognizing a wide variety of exceptions and limitations.18
The most commonly recognized limitation has been to allow suits against parents for the negligent operation of an automobile.19 Some states adopted a Goller -like approach and limited the doctrine to bar tort claims only when the negligent conduct at issue is inherent to the parent-child relationship, such as the exercise of parental authority, supervision, care, or discipline.20 Some states have abolished the doctrine in toto,21 and others have replaced it with either a "reasonable parent" rule or the approach followed by the Restatement (Second) of Torts.22
The first Nebraska case to formally recognize the doctrine of parental immunity was the 1959 case of Pullen v. Novak .23 In Pullen , we identified three earlier cases that established the framework for the doctrine in Nebraska: Nelson v. Johansen ,24 Clasen v. Pruhs ,25 and Fisher v. State.26 All three cases involved claims of cruel parental treatment of a minor child.
Well over a century ago, in Nelson ,27 we considered a negligence claim brought on behalf of a 10-year-old girl who was sent by her parents to work for and live with the defendant and his family. It was alleged the defendant sent the child out in bitterly cold weather to walk some distance back to her parent's home without sufficient clothing, which caused her to become "badly frozen" and remain bedridden in "great pain" for a long time.28 We affirmed the jury verdict in favor of the child, reasoning in part that the defendant stood in the relation of the child's parent and it was his "duty to see that she was properly clothed [and if] he failed in this through negligence he would be liable for the consequences."29
The 1903 case of Clasen30 was the first Nebraska case to expressly limit tort recovery by minors against parents. In Clasen , a 6-year-old child was sent by her parents in Germany to live with an aunt in Nebraska. Eventually, the aunt returned the child to her parents, after which the child, through a next friend, sued the aunt seeking damages for cruel and inhuman treatment. It was alleged the aunt had unnecessarily beaten, tortured, and whipped the child, and had denied her proper food and clothing, causing permanent injury to her health and growth. The jury returned a verdict in favor of the child. On appeal, the aunt admitted she stood in loco parentis to the child but argued that a parent should not be held liable in tort for correcting a child unless the parent acted with ...
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