Carey v. Reeve

• Decision Date: 13 November 1989
• Docket Number: No. 22771-8-I,22771-8-I
• Citation: 56 Wn.App. 18,781 P.2d 904
• Parties: Jay CAREY, Trustee in Bankruptcy for Bert R. Ewing, a Bankrupt, Plaintiffs, v. Linda REEVE, a single woman, Joe McCann and Helen McCann, husband and wife, and the marital community composed thereof, Respondents, Bert O. Ewing, Jr., a minor, by and through his guardian ad litem, Dominic L. Bacetich, Appellant.
• Court: Washington Court of Appeals

Page 18

56 Wn.App. 18

781 P.2d 904

Jay CAREY, Trustee in Bankruptcy for Bert R. Ewing, a Bankrupt, Plaintiffs, v. Linda REEVE, a single woman, Joe McCann and Helen McCann husband and wife, and the marital community composed thereof, Respondents Bert O. Ewing, Jr., a minor, by and through his guardian ad litem, Dominic L. Bacetich, Appellant.

No. 22771-8-I.

Court of Appeals of Washington Division 1.

Nov. 13, 1989.

Diego P. Gavilanes, Everett, for appellant, Bert Ewing.

I. Richard Lassman, Alexander & Associates, Seattle, for respondent, Linda Reeve.

Russ Juckett, Everett, for plaintiff, Jay Carey.

Richard B. Johnson, Everett, for respondents, Joseph and Helen McCann.

GROSSE, Acting Chief Judge.

The appellant, Bert O. Ewing, Jr., a minor, by and through his guardian ad litem, Dominic L. Bacetich, appeals the granting of an order on summary judgment dismissing his suit against the respondents, Linda Reeve and Joseph and Helen McCann, the mother and grandparents of Jeremy Reeve.

Bert O. Ewing, Jr. (Bert) was burned as the result of an accident in which he and Jeremy Reeve (Jeremy) were playing with matches and cigarettes. Bert's parents, Bert R. Ewing and Alice Ewing, brought suit against Linda Reeve for negligent entrustment and supervision, and against the McCanns for negligent supervision. ¹ The trial court found "as a matter of law that the doctrine of parental immunity applies to the grandparents HELEN and JOSEPH McCANN and the mother LINDA REEVE, and if said doctrine did not apply herein the issue of liability would go to the trier of fact".

On June 9, 1980, Bert and Jeremy, both approximately 4 1/2 years old, were playing with matches and cigarettes when the shirt(s) Bert was wearing ignited. As a result Bert sustained severe burns and injuries. The incident happened in the back or side yard of the Ewing's home. At the time of the accident Bert's mother was inside the house reading or sleeping. That summer Jeremy was spending his days at the home of the McCanns, his maternal grandparents. The McCanns lived across the street from the Ewings. Jeremy's mother, Linda Reeve, worked days and left Jeremy with her parents while she was at work. Joseph McCann, Linda's father and Jeremy's grandfather, is a retired police officer who was forced to retire from the force after he became disabled. At the time of the accident, he was undergoing treatment and taking medication for back problems and pain. He had recently been hospitalized.

Bert and Jeremy played together frequently, however, Jeremy was not permitted to play at Bert's house because of previous incidents involving burns, cigarettes, and alleged beer drinking. The depositions of the two children differ as to who provided the matches. The day of the accident, Jeremy was being cared for by both of his grandparents. Before the accident occurred, he and several neighborhood friends were playing with squirt guns around the McCann home. Mr. McCann showed the children how to fill their squirt guns from the outdoor faucet as opposed to traipsing into the kitchen for refills. Mr. McCann returned inside the house and continued performing light housekeeping chores. At the time of the accident Mrs. McCann, who had previously been working in the yard, was taking a shower. Fifteen to twenty minutes after Mr. McCann showed the children how to refill their water pistols, Jeremy returned to the McCann home and reported that Bert had been burned.

Suit was brought against Linda Reeve and the McCanns. Motions for summary judgment were brought and, after several continuances to allow medical discovery concerning Mr. McCann's health, argument was heard. Respondent's argument centered on the basis that neither Linda Reeve nor the McCanns had engaged in willful or wanton misconduct in the care and supervision of Jeremy. The Ewings and appellant argued theories of negligent supervision and negligent entrustment based on their contention that Jeremy had previously displayed a propensity for acting recklessly with matches and a cigarette lighter, and that neither his mother nor his grandparents exercised proper control under the circumstances. They also argued that Linda Reeve was negligent for allowing her father to care for Jeremy considering the state of his mental and physical health. The trial court granted the motions on summary judgment based on the doctrine of parental immunity covering the parent and the grandparents who were held to be acting in loco parentis.

The liability of a parent or guardian for negligent entrustment and supervision of a minor child depends on whether the child himself has been injured, or whether the child has injured another. If a child has been injured himself as a result of his parent's failure to supervise, the parent cannot be sued for negligent supervision. Baughn v. Honda Motor Co., 105 Wash.2d 118, 119, 712 P.2d 293 (1986); Jenkins v. Snohomish Cy. PUD 1, 105 Wash.2d 99, 713 P.2d 79 (1986); Talarico v. Foremost Ins. Co., 105 Wash.2d 114, 712 P.2d 294 (1986). A parent will be liable for his child's injuries only if his failure to properly supervise the child amounts to willful or wanton misconduct.

Historically, the parental immunity doctrine has been based on the public policy interest in maintaining family tranquility, fear of undermining parental control and authority, an interest in assuring that family property be shared by all rather than appropriated by one family member, fear of collusion and fraud, and a view of the parent-child relationship as analogous to the husband-wife relationship.

Jenkins v. Snohomish Cy. PUD 1, 105 Wash.2d at 104, 713 P.2d 79. The application of the doctrine of parental immunity, although widespread in the past, has been severely criticized especially in cases such as Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), the first holding using parental immunity in Washington. There the court held that the incestuous rape of a 15-year-old child could not be the subject of a compensation action because to allow such would destroy the family relationship. The Washington Supreme Court has generally found parental immunity for negligent supervision, Cox v. Hugo, 52 Wash.2d 815, 329 P.2d 467 (1958), but has recognized exceptions to the doctrine. Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891 (1980) (no parental immunity for child's injuries when injured as a result of parent's negligent driving); Hoffman v. Tracy, 67 Wash.2d 31, 406 P.2d 323 (1965) (no parental immunity for child's injuries because parent abdicated responsibility by driving drunk); Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952) (no immunity where parent is acting in business capacity rather than parental).

In contrast to the doctrine of parental immunity, in Washington, parents are liable to third parties for the tortious conduct of a child if they know of the child's dangerous proclivity and fail to take reasonable measures to control that proclivity. Eldredge v. Kamp Kachess Youth Servs., Inc., 90 Wash.2d 402, 408, 583 P.2d 626 (1978); Norton v. Payne, 154 Wash. 241, 244-48, 281 P. 991 (1929); Restatement (Second) of Torts § 316 (1965). See also Annot., Parent's Liability for Injury or Damage Intentionally Inflicted by Minor Child, 54 A.L.R.3d 974 (1973); Shong, The Legal Responsibility of Parents for their Children's Delinquency, 6 Fam.L.Q. 145 (Summer 1972). The Restatement has set forth the theory of liability, commonly referred to as the theory of negligent supervision, as follows:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them if the parent

(a) knows or has reason to know that he has the ability to control his child, and

(b) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts § 316 (1965).

In the case before this court, in dismissing the claims, the trial court found as a matter of law that the doctrine of parental immunity applied. Because this case deals with the liability of a parent (or grandparent) because of a child's alleged action towards a third person, and not towards her child (or their grandchild), the trial court erred in applying the doctrine of parental immunity. ²

Although the trial court granted summary judgment on improper grounds, it does not necessarily follow that the decision must be reversed. As the Supreme Court said in Ertman v. Olympia, 95 Wash.2d 105, 108, 621 P.2d 724 (1980): "We have held many times that where a judgment or order is correct, it will not be reversed merely because the trial court gave the wrong reason for its rendition." (Citations omitted.) Further, a trial court's disposition may be affirmed on any theory within the pleadings and the proof. Timms v. James, 28 Wash.App. 76, 81, 621 P.2d 798 (1980). Thus the decision may be upheld where there is an alternate ground on which the summary judgment could have been granted.

Thus, the question becomes one of whether there is an unresolved issue of fact regarding the parent's or grandparents' negligence in the supervision of Jeremy. The appellant contends the evidence before the trial court raises material questions of fact concerning whether the McCanns negligently supervised their grandson or whether Jeremy's mother was negligent in allowing her parents to supervise Jeremy. ³

There are many depositions in this case. Both boys were deposed some 4 years after the incident. Jeremy's mother and grandparents were deposed, and Bert's father was deposed. The depositions indicate that Bert had been seen with matches, a lighter, and even smoking; that he had been punished several times for lighting cigarettes, and a couple of weeks before the accident he had burned Jeremy's arm. After that, Jeremy was told he was not allowed to go to the Ewing's house because of Bert's proclivity to play...