Fogel, Ltd. A.T. v. Shoemake
| Decision Date | 04 September 1990 |
| Docket Number | No. 2-89-149-CV,2-89-149-CV |
| Citation | 795 S.W.2d 903 |
| Parties | FOGEL, LTD. A.T., Federal Group I, and International Property Management, Inc., Appellants, v. Janet SHOEMAKE, Individually and as Administratrix of the Estate of Miranda Gilley, Appellee. |
| Court | Texas Court of Appeals |
Cowles & Thompson, R. Brent Cooper, R. Michael Northrup, Dallas, for appellants.
Keith, Link & Smith, P.C., C. Denise Smith and Ken M. Link, Fort Worth, for appellee.
Before FARRIS, LATTIMORE and DAY, JJ.
In this case of first impression, the issue before us is whether the doctrine of parental immunity prohibits a third party from seeking contribution from a negligent parent in a survival action brought by the child's estate.
Appellee, Janet Shoemake, is the mother of the deceased child, Miranda Gilley. As administratrix of the Estate of Miranda Gilley, appellee filed a survival action against appellants and was awarded damages. Appellants contend they are entitled to contribution from Janet Shoemake, individually, for the percentage of negligence assessed by the jury against her individually.
We hold that such contribution is available and is not prohibited by the doctrine of parental immunity. We reform the trial court's judgment so as to reflect that appellants are entitled to receive contribution from Janet Shoemake, individually, in the survival action for 45 percent of the total damages awarded to the Estate of Miranda Gilley. As reformed, we affirm the trial court's judgment.
This wrongful death and survival action arose out of the drowning death of twenty-three-month-old Miranda Gilley after she fell into a swimming pool located at the apartment complex in which she resided. The wrongful death action was instituted by her parents, Janet Shoemake and Wayne Gilley. The survival action was filed by Janet Shoemake, individually, as administratrix of the Estate of Miranda Gilley. 1
The jury awarded Janet Shoemake $285,492.28 in her wrongful death claim, but refused to award damages to Wayne Gilley for his claim. The jury also awarded $50,969 to the Estate of Miranda Gilley in the survival action. In its verdict, the jury assessed negligence against the parties in the following percentages: apartment complex owners Fogel, Ltd. A.T. and Federal Group I, 5 percent each; apartment complex manager, International Property Management, Inc., 45 percent; and Janet Shoemake, 45 percent. In the wrongful death claim, the trial court subsequently reduced the damages awarded to Shoemake by 45 percent, and allowed her a recovery of $157,020.75 plus pre-judgment interest. Appellants filed a motion to amend the judgment in the survival action, requesting a credit against Janet Shoemake for 45 percent of the amount awarded to the Estate of Miranda Gilley. This motion was denied by the trial court, and judgment was entered against appellants on the verdict and for pre-judgment interest, totaling $186,910.32 to Janet Shoemake, and $66,336.70 to the Estate of Miranda Gilley.
In their sole point of error, appellants assert the trial court erred in failing to grant them contribution against Janet Shoemake, individually, for the percent of damages to the Estate of Miranda Gilley found by the jury to have been caused by the negligence of Janet Shoemake. Appellants argue they properly pled their claim for contribution and obtained a finding from the jury in support of this contribution claim in accordance with TEX.CIV.PRAC. & REM.CODE ANN. sec. 33.012 (Vernon 1986). They argue that under the provisions of TEX.CIV.PRAC. & REM.CODE ANN. sec. 33.016 (Vernon 1986), they are entitled to a credit against Janet Shoemake for $29,851.52, which represents 45 percent of the $66,336.70 in damages awarded to the Estate of Miranda Gilley.
Shoemake maintains that since under the doctrine of parental immunity, Miranda would have no cause of action against Shoemake, the appellants likewise have no right of recovery against Shoemake, citing us to Jilani By and Through Jilani v. Jilani, 767 S.W.2d 671 (Tex.1988), Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971), and City of Houston v. Watson, 376 S.W.2d 23 (Tex.Civ.App.--Houston 1964, writ ref'd n.r.e.). Shoemake argues that because a child has no cause of action against a parent for injuries arising out of deficient supervision, a defendant from whom the child recovers in tort has no contribution rights against the parent for negligent supervision. Shoemake further contends that appellants are not entitled to contribution, because the effect of such contribution would be to impute her negligence to her child, which is expressly prohibited by law, citing us to Mitchell v. Akers, 401 S.W.2d 907 (Tex.Civ.App.--Dallas 1966, writ ref'd n.r.e.). Finally, Shoemake asserts the appellants waived their point of error, because they failed to cite any case law, scholarly work, or legal authority to support what Shoemake characterizes as a subjective theory of contribution, citing us to TEX.R.APP.P. 74.
We disagree.
Shoemake, as legal representative of the Estate of Miranda Gilley, instituted the survival action under TEX.CIV.PRAC. & REM.CODE ANN. sec. 71.021 (Vernon 1986), which provides the following:
(a) A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.
(b) A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person. The action survives against the liable person and the person's legal representatives.
(c) The suit may be instituted and prosecuted as if the liable person were alive.
Appellants' assertion that they are entitled to contribution from Shoemake, because the jury found her 45 percent negligent, is based on chapter 33 of TEX.CIV.PRAC. & REM.CODE ANN. (Vernon 1986), which at the time of the accident, provided, in pertinent part, the following:
Sec. 33.001. Comparative Negligence
(a) In an action to recover damages for negligence resulting in death or injury to a person or property, contributory negligence does not bar recovery if the contributory negligence is not greater than the negligence of the person or persons against whom recovery is sought.
(b) Damages allowed are diminished in proportion to the amount of negligence attributed to the person recovering.
....
Sec. 33.011. Definitions
In this subchapter:
(1) "Claimant" means a party seeking relief, including a plaintiff, counterclaimant, or cross-claimant.
(2) "Defendant" includes any party from whom a claimant seeks relief.
....
If there is more than one defendant and the claimant's negligence does not exceed the total negligence of all defendants, contribution must be in proportion to the percentage of negligence attributable to each defendant.
....
If, because of the application of the rules of this subchapter, two claimants are liable to each other in damages, the claimant who is liable for the greater amount is entitled to a credit toward his liability in the amount of damages owed him by the other claimant.
Id. (emphasis added). 2
The majority of states recognize the parental immunity doctrine, but have restricted its scope by various exceptions or limitations. 3 These jurisdictions, however, are not in agreement as to the doctrine's exceptions or limitations. The most frequently cited reason in support of the rule is the protection of family peace and tranquility and the parental right to discipline, control, and care for their children. Litigation between family members has been viewed as an intrusion which might adversely affect the family unit. Ard v. Ard, 414 So.2d 1066, 1067 (Fla.1982).
While many states still recognize parental immunity, many jurisdictions have abolished or modified the rule as the policies behind it have lost viability. Id. For example, a parent who commits a willful, malicious or intentional wrong against a child has abandoned or abdicated his parental responsibility and thereby subjected himself or herself to liability. Aboussie v. Aboussie, 270 S.W.2d 636 (Tex.Civ.App.--Fort Worth 1954, writ ref'd).
In 1971, the Texas Supreme Court addressed the question of whether parental immunity should be extended to acts arising outside the normal family relationship of parent and child and occurring in a parent's business activity in which the child is engaged as an employee. In Felderhoff v. Felderhoff, the court declined to extend parental immunity to acts occurring in the conduct of a business activity wholly outside the sphere of parental duties and responsibilities. Felderhoff, 473 S.W.2d at 930. The Felderhoff court declined to abrogate the immunity rule, stating that the better approach was to retain the rule "with respect to alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child." Id. at 933. More important to the facts before us, the Felderhoff court recognized that:
[P]eace, tranquility, and discipline in the home are endowed and inspired by higher authority than statutory enactments and court decisions. Harmonious family relationships depend on filial and parental love and respect which can neither be created nor preserved by legislatures or courts. The most we can do is to prevent the judicial system from being used to disrupt the wide sphere of reasonable discretion which is necessary in order for parents to properly exercise their responsibility to provide nurture, care, and discipline for their children. These parental duties, which usually include the provision of a home, food, schooling, family chores, medical care, and recreation, could be seriously impaired and retarded if parents were to...
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