Dellapenta v. Dellapenta

• Citation: 838 P.2d 1153
• Decision Date: 26 August 1992
• Docket Number: No. 91-8,91-8
• Parties: Louis DELLAPENTA, as personal representative of Nicholas Dellapenta, deceased, and on behalf of Louis Dellapenta, as guardian and guardian ad litem for Bianca Dellapenta; and on behalf of Louis Dellapenta, Appellant (Plaintiff), v. Donetta DELLAPENTA, Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

Page 1153

838 P.2d 1153

61 USLW 2220

Louis DELLAPENTA, as personal representative of Nicholas Dellapenta, deceased, and on behalf of Louis Dellapenta, as guardian and guardian ad litem for Bianca Dellapenta; and on behalf of Louis Dellapenta, Appellant (Plaintiff), v. Donetta DELLAPENTA, Appellee (Defendant).

No. 91-8.

Supreme Court of Wyoming.

Aug. 26, 1992.

Jeffrey A. Tennyson, Jackson, for appellant.

Robert W. Brown and Jeffrey J. Gonda of Lonabaugh & Riggs, Sheridan, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT, ^* and GOLDEN, JJ.

GOLDEN, Justice.

In this appeal we consider the issues of parent-child immunity in negligence actions and the admissibility of evidence of seat belt nonuse. Appellant Louis Dellapenta appeals the trial court's denial of his Motion for Judgment Notwithstanding the Verdict or New Trial and Judgment on the Verdict as the result of a jury decision finding his wife, Donetta, not negligent in an automobile accident involving their children. Appellant initiated personal injury and wrongful death actions on behalf of himself, his deceased son and his daughter who survived the accident.

We hold that parental immunity is abrogated for injuries resulting from simple negligence in the operation of a motor vehicle and that parents have a duty to buckle the seat belts of their minor passengers. We reverse and remand the trial court's denial of admission of seat belt evidence for injuries sustained by Nicholas Dellapenta. We find substantial evidence to support the jury verdict and affirm the trial court's denials of a new trial motion, a jury instruction on the theory of res ipsa loquitur and admission of evidence of liability insurance.

ISSUES

Appellant raises the following issues:

I. Is appellant entitled to a new trial where the jury's verdict is not supported by substantial evidence?

II. Did the district court commit a reversible error of law when it refused to allow appellant to introduce evidence of the appellee's failure to restrain her minor children with available seat belts?

III. Did the district court commit a reversible error of law when it refused to instruct the jury on the theory of res ipsa loquitur?

IV. Did the district court commit an error of law in refusing to allow the

appellant to introduce evidence of the appellee's liability insurance coverage?

FACTS

On November 18, 1987, Donetta Dellapenta traveled from Jackson, Wyoming, south through the Snake River Canyon on Highway 89 with her two minor children, Bianca and Nicholas. Mrs. Dellapenta encountered a patch of snow on a curved portion of the roadway and lost control of the vehicle. The automobile slid off the side of the road, rolled several times and came to rest on the bank of the Snake River. None of the occupants were wearing seat belts and all were ejected from the vehicle. Mrs. Dellapenta and Bianca were injured and Nicholas died of drowning and hypothermia.

Appellant, father of Bianca and Nicholas, brought suit on his own behalf and as personal representative and administrator of the estate of Nicholas Dellapenta and as guardian and guardian ad litem of the person and estate of Bianca Dellapenta. The estate of Nicholas claimed damages for the last illness, funeral and burial expenses. Bianca, through her guardian, claimed damages for loss of companionship, care, comfort, advice and society as well as pecuniary loss and emotional distress for the death of her brother, Nicholas. For her own injuries, Bianca claimed past and future medical expenses, pain and suffering, scarring, loss of enjoyment of life, emotional distress and disability and disfigurement. Appellant Louis Dellapenta claimed damages for loss of companionship, care, comfort, advice and society for the death of his son and the injuries to his daughter; pecuniary loss for his son's death; and emotional distress resulting from the death of Nicholas and injuries to Bianca.

DISCUSSION

Appellant's issues will be addressed out of sequence for discussion of this appeal. We have added to these issues a threshold question: May a child sue his or her parent for injuries or death resulting from negligence in the operation of a motor vehicle or failure to buckle the child in a seat belt? We begin with this query and discussion of appellant's seat belt issue and follow with the remaining issues raised by this appeal.

I. Parent-Child Immunity in Negligence Actions

This case presents a threshold question that was neither briefed by the parties to this appeal nor addressed by the trial court. That question is: May a child sue his or her parent for injuries or death resulting from negligence in the operation of a motor vehicle or failure to buckle the child in a seat belt? For the reasons that follow we must answer this question in the affirmative. We discuss first the issue of parental immunity to tort action in terms of automobile negligence and follow with our analysis of the seat belt issue.

Louis Dellapenta, on behalf of his daughter, deceased son and himself, sought damages for personal injury to Bianca and the wrongful death of Nicholas through his wife's acts of negligence. A jury found Mrs. Dellapenta not negligent in the vehicular accident.

The action brought by appellant against his wife for damages as a result of injury to Bianca and the death of Nicholas is an interspousal action in negligence. This court previously abrogated interspousal tort immunity in Tader v. Tader, 737 P.2d 1065 (Wyo.1987). In that case a wife sued her husband in negligence for injuries resulting from an automobile accident. In our deliberations on the immunity issue, we considered the discussion of numerous cases abrogating interspousal immunity and found:

The age-old contentions of invoked family disharmony and conjectural insurance fraud weigh no greater with this court than with a present significant majority of other jurisdictions where also rejected.

Tader, at 1068. Appellant's action against his wife falls squarely within Tader and is sustained.

The doctrine of parental immunity, prohibiting suits by children for personal injuries or death sustained as a result of their Additional arguments in support of parental immunity have developed since Hewellette. They include the effect on family finances, particularly upon other children in the family; interference with parental discipline; and the possibility of fraud and collusion where liability insurance exists. 1 J.D. Lee and Barry A. Lindahl, Modern Tort Law: Liability and Litigation § 18.01 (Rev. ed. 1988).

parent's tortious actions, was judicially created by the Supreme Court of Mississippi in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891). In order to promote family harmony by reinforcing continued guidance and control by parents and the child's "reciprocal obligation to aid, comfort and obey," the court prohibited a suit for false imprisonment by a minor child against his parent. Hewellette, 9 So. at 887.

The doctrine has seen partial and total abrogation in recent years. 6 Marilyn Minzer et al., Damages in Tort Actions § 49.34 (1989). The Restatement (Second) of Torts § 895G (1979) lends support for changes in the rule: "A parent or child is not immune from tort liability to the other solely by reason of that relationship." This break from insulation based on mere parental status alone has prompted total abrogation in some cases and a shift of focus to parental duty of care. Stamboulis v. Stamboulis, 401 Mass. 762, 519 N.E.2d 1299 (1988).

Many courts, while refusing to totally abrogate the doctrine, have carved out exceptions to the immunity rule. Suit may be brought upon the death of either child or parent on the theory that the family relationship has been dissolved. 1 J.D. Lee, supra, § 18.02. Parental acts of wanton or willful misconduct or those committed within the course of the parent's business have also been subject to suit. Schlessinger v. Schlessinger, 796 P.2d 1385, 1388 (Colo.1990); Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640, 642 (1963); Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971).

Parental negligence resulting in vehicular accidents has provided the greatest area for erosion of the doctrine in recent years. We are aware of at least thirty states that now recognize an action by an unemancipated minor against a parent for automobile negligence. Jilani v. Jilani, 767 S.W.2d 671, 673 n. 1 (Tex.1988). ¹ This type of tort elicits specific grounds for abrogation of the rule. Arguments to maintain immunity for the preservation of family harmony become specious when the child's injury itself is viewed as the most disruptive act. Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Elam v. Elam, 275 S.C. 132, 268 S.E.2d 109, 111 (1980). Particularly in light of the widespread prevalence of liability insurance, the domestic tranquility argument rings hollow. Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282, 283, 41 A.L.R.3d 891 (1970). The action is more likely to ease the family's financial difficulties stemming from the child's injury through the infusion of insurance funds and thereby repair the family unit. Jilani, 767 S.W.2d at 674. Abrogation in negligence cases is also reinforced by recognition that children's property and contract actions against parents often cause bitter This court first addressed the issue of parental immunity in tort in Ball v. Ball, 73 Wyo. 29, 269 P.2d 302 (1954). There, a minor child brought suit in simple negligence against his father for injuries received when the plane his father was piloting crashed. The child, through his mother, did not allege willful or malicious conduct or that the tort was committed in the course of the father's business. This court affirmed the trial court's dismissal of the child's action, remarking on its reluctance to "encourage actions as maintainable between children and their parents unless sanctioned by the statute law or where they disclose so clear an invasion of the rights of the...