Broadbent by Broadbent v. Broadbent

• Decision Date: 14 November 1995
• Docket Number: No. CV-93-0378-PR,CV-93-0378-PR
• Citation: 907 P.2d 43,184 Ariz. 74
• Parties: , 64 USLW 2334 Christopher BROADBENT, a minor, by his Conservator, Phillip E. BROADBENT, Plaintiff-Appellant, v. Laura J. BROADBENT, Defendant-Appellee, NORTHBROOK INDEMNITY COMPANY, Real Party in Interest-Appellee.
• Court: Arizona Supreme Court

Page 43

907 P.2d 43

184 Ariz. 74, 64 USLW 2334

Christopher BROADBENT, a minor, by his Conservator, Phillip E. BROADBENT, Plaintiff-Appellant, v. Laura J. BROADBENT, Defendant-Appellee, NORTHBROOK INDEMNITY COMPANY, Real Party in Interest-Appellee.

No. CV-93-0378-PR.

Supreme Court of Arizona, In Banc.

Nov. 14, 1995.

Kern and Wooley by Robert L. Greer, Mesa, for Plaintiff-Appellant Christopher Broadbent, a minor, by his Conservator, Phillip E. Broadbent.

Ridenour, Swenson, Cleere & Evans, P.C. by James W. Evans, Phoenix, for Defendant-Appellee Laura J. Broadbent.

Ulrich, Kessler & Anger, P.C. by Paul G. Ulrich, Donn G. Kessler, Phoenix, Musick, Peeler & Garrett by Wayne B. Littlefield, Lynn A. O'Leary, Los Angeles, CA, for Real Party in Interest Northbrook Indemnity Company.

OPINION

CORCORAN, Justice.

We must determine whether the doctrine of parental immunity bars Christopher Broadbent's action against his mother for negligence. We also discuss the viability of the line of Arizona cases creating and refining the parental immunity doctrine. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution, and rule 23, Arizona Rules of Civil Appellate Procedure.

FACTS AND PROCEDURAL HISTORY

I. Facts

Christopher and his mother, Laura J. Broadbent, went swimming at the family residence on April 13, 1984, their first day of swimming that year. Christopher was wearing "floaties," which are inflatable rings worn on the arms to assist a child in staying afloat. Laura understood that a child could still drown while wearing floaties and should be supervised. At the time of the accident, Christopher was two-and-a-half years old and did not know how to swim.

Laura and Christopher were by the side of the pool when the telephone rang. Laura left Christopher alone by the pool to answer the phone. Laura saw Christopher remove his floaties before she answered the phone. Laura talked on the phone 5 to 10 minutes and could not see Christopher from where she was talking. She also did not have on her contact lenses. Laura said that if she stretched the phone cord and her body, she could see the pool area, but when she did this, she could not see Christopher. She dropped the phone, ran toward the pool, and found Christopher floating in the deep end of the pool.

Laura administered cardio-pulmonary resuscitation and telephoned for the paramedics. Neither Laura nor the paramedics were able to revive Christopher. The paramedics took Christopher to the hospital where he was finally revived. As a result of this near drowning, Christopher suffered severe brain damage because of lack of oxygen. He has lost his motor skills and has no voluntary movement.

II. Procedural History

The coverage issue between State Farm Fire & Casualty Co. and the Broadbents was resolved by stipulation and order in the court of appeals. Broadbent v. Broadbent, 178 Ariz. 53, 54, 870 P.2d 1149, 1150 (App.1993). Therefore, that action is not reflected in the caption of this opinion or in the text.

A complaint was filed on behalf of Christopher, as plaintiff, against his mother, alleging that she was negligent and caused his injuries. This action was brought to involve the Broadbents' umbrella insurance carrier in the issue of coverage. In her answer, Laura admitted that she was negligent in her supervision of Christopher, and she moved for summary judgment, arguing that the doctrine of parental immunity applied. All parties to both the declaratory judgment action and the negligence action filed a stipulation to consolidate the cases, and the trial court ordered the consolidation. The trial court granted Laura's motion for summary judgment and ruled that the parental immunity doctrine applied to the facts of this case.

Phillip Broadbent, as Conservator for Christopher, appealed to the court of appeals. The parties stipulated that: (1) the real party in interest was Northbrook Indemnity Company, who provided personal umbrella liability insurance coverage for Laura Broadbent on the date of the accident; (2) Laura may be entitled to indemnity from Northbrook if Laura is liable for the injuries to Christopher; (3) Laura did not want to defend the action but agreed that Northbrook should be permitted to defend; and (4) the only issue in the case was whether the doctrine of parental immunity applied. The court of appeals ordered that Northbrook be permitted to appear and defend the case.

The court of appeals affirmed the trial court, finding that under the parental immunity doctrine the mother was not liable for her child's injuries. Broadbent, 178 Ariz. at 58, 870 P.2d at 1154. The court of appeals held that this case was most closely analogous to Sandoval v. Sandoval, 128 Ariz. 11, 623 P.2d 800 (1981), which involved negligent supervision of a child by a parent, and rejected the argument that the mother's duty to the child arose out of a duty to the world at large to protect all children from the pool. Broadbent, 178 Ariz. at 56-57, 870 P.2d at 1152-53. The court of appeals also rejected Christopher's arguments that (1) the injuries were caused by an instrumentality under the control of the mother, and therefore the doctrine of parental immunity did not apply; and (2) Arizona should further limit application of parental immunity in accord with Wisconsin cases from which Arizona's standard was originally derived. Broadbent, 178 Ariz. at 57-58, 870 P.2d at 1153-54.

Judge Kleinschmidt dissented and agreed with Christopher's argument that the mother owed a duty to the world to supervise the swimming pool, and therefore the doctrine of parental immunity did not apply. Broadbent 78 Ariz. at 59, 870 P.2d at 1155 (Kleinschmidt, J., dissenting) (finding this case more closely analogous to Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970), and Schleier v. Alter, 159 Ariz. 397, 767 P.2d 1187 (App.1989)).

The court of appeals noted that it based its decision on an application of the current status of the parental immunity doctrine in Arizona and that any departure or modification of the established case law was "for the supreme court to determine" and not the court of appeals. Broadbent, 178 Ariz. at 58, 870 P.2d at 1154. We agree and do so in this opinion today.

DISCUSSION

I. History and Purpose of the Parental Immunity Doctrine

A. The Origins of Parental Immunity

We begin by stating a few basic facts about the treatment of children under the law and family immunities. Under common law, a child has traditionally been considered a separate legal entity from his or her parent. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, and David G. Owen, Prosser and Keeton on the Law of Torts § 122, at 904 (5th ed. 1984) (Prosser & Keeton ); Martin J. Rooney & Colleen M. Rooney, Parental Tort Immunity: Spare the Liability, Spoil the Parent, 25 New Eng.L.Rev. 1161, 1162 (1991). Children have generally been allowed to sue their parents in property and contract actions. Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193, 197 (1963); Gail D. Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L.Rev. 489, 497 (1982) (Parent-Child Immunity ). In contrast, at common law the courts merged the identity of husband and wife; therefore, spousal immunity prohibited any action by a wife against her husband because to do so would have been to sue herself. Parent-Child Immunity, at 496-97; see also Windauer v. O'Connor, 13 Ariz.App. 442, 442-45, 477 P.2d 561, 562-65 (1970) (holding that doctrine of spousal immunity did not bar action by former wife against divorced husband for personal injuries sustained when husband shot wife during marriage). The doctrine of spousal immunity has been abolished and there has not been a prohibition against siblings suing each other. See Jefferson L. Lankford & Douglas A. Blaze, Law of Negligence in Arizona § 5.3(1)(a), at 106 (1992) (noting that Arizona has joined majority of states by abolishing doctrine of interspousal immunity).

The doctrine of parental immunity is an American phenomenon unknown in the English common law. See Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 289, 479 P.2d 648, 649 (1971); Cates v. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 20, 619 N.E.2d 715, 721 (1993); Prosser & Keeton § 122, at 904. Courts in Canada and Scotland have held that children may sue their parents in tort. See Gibson, 92 Cal.Rptr. at 289, 479 P.2d at 649; Prosser & Keeton § 122, at 904.

In early American history, children were viewed as "evil and in need of strict discipline," and the courts recognized wide parental discretion. Parent-Child Immunity, at 491-92. There was a strong presumption that parental discipline was proper. See, e.g., S.C.Code Ann. § 16-3-40 (Law.Co-op.1976) (statute originating from 1712 that provided a defense to "[k]illing by stabbing or thrusting" if done while chastising or correcting your child). Only recently has the state intervened to protect children. See, e.g., A.R.S. §§ 8-501 to -550.01 (child welfare and placement). Viewed against this backdrop, it is not surprising that no American child had sought recovery against a parent for tortious conduct until the late nineteenth century.

In Hewlett v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891), ¹ the Supreme Court of Mississippi held, without citation to legal authority, that a child could not sue her parent for being falsely imprisoned in an insane asylum because of parental immunity, a doctrine which that court created from whole cloth. As its rationale, the court stated:

[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...