Gollnick v. Gollnick by Gollnick

• Decision Date: 29 October 1987
• Docket Number: No. 73A01-8704-CV-96,73A01-8704-CV-96
• Citation: 514 N.E.2d 645
• Parties: Gregory E. GOLLNICK, Appellant v. Karen R. GOLLNICK, a Minor, By her next friend, Verna GOLLNICK, and Verna Gollnick, Appellees. John GOLLNICK and Margaret Gollnick, Appellants, v. Karen R. GOLLNICK, a Minor, By her next friend, Verna GOLLNICK, and Verna Gollnick, Appellees.
• Court: Indiana Appellate Court

Page 645

514 N.E.2d 645

Gregory E. GOLLNICK, Appellant v. Karen R. GOLLNICK, a Minor, By her next friend, Verna

GOLLNICK, and Verna Gollnick, Appellees.

John GOLLNICK and Margaret Gollnick, Appellants, v. Karen R. GOLLNICK, a Minor, By her next friend, Verna

GOLLNICK, and Verna Gollnick, Appellees.

No. 73A01-8704-CV-96.

Court of Appeals of Indiana,

First District.

Oct. 29, 1987.

Peter G. Tamulonis, Robert J. Wampler, Lynn A. Francis, Kightlinger & Gray, Robert A. Smith, N. Kathleen Wenzel, Lewis, Bowman, St. Clair, & Wagner, Indianapolis, for appellants.

Scott D. Pankow, Sipe, Pankow, Han, & Associates, Howard S. Young, Jr., Young & Young, Indianapolis, Charles T. Bate, Soshnick, Bate, & Harrold, Shelbyville, for appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Pursuant to Indiana Rules of Procedure, Appellate Rule 4(B)(6), defendant-appellants, Gregory E. Gollnick (Gregory) and John and Margaret Gollnick (the Gollnicks), bring an interlocutory appeal from the Shelby Circuit Court's denials of their motions for summary judgment. The motions were filed in response to a claim for personal injuries brought by plaintiff-appellees, Karen R. Gollnick (Karen), who is Gregory's daughter and the Gollnicks' niece, and Verna Gollnick (Verna), Karen's mother and Gregory's former spouse.

We affirm in part and reverse in part.

STATEMENT OF THE FACTS

Gregory and Verna were married in 1967. The marriage produced two children, Amy, born in 1971, and Karen, born in 1974. Pursuant to a written settlement agreement, Verna and Gregory agreed to joint legal custody of their daughters, but Verna was awarded physical custody, subject to Gregory's reasonable visitation.

In December 1983, Gregory, who, like Verna, is a resident of California, exercised his visitation rights and took his daughters to visit their aunt and uncle, the Gollnicks, in Indiana. Gregory and the girls arrived at the Gollnick home on December 26, and that evening Amy, Karen, and their cousins went sledding down the driveway of the vacant house next door. The driveway was curved and sloping, and it emptied into a cul-de-sac. The Gollnicks had cautioned their children to be aware of cars entering the cul-de-sac because embankments at the end of the driveway obscured the views of sledders and oncoming motorists. That night, the adults present stationed themselves as lookouts at the bottom of the driveway.

The morning of the next day, December 27, the children again went sledding. Gregory specifically gave Karen permission to go. No adults were present, and no one was positioned at the bottom of the driveway. As Karen sledded down the driveway, a cousin saw a car approaching. He yelled out a warning, but it was too late for Karen to take evasive action. She struck the car, and suffered a broken leg and a head injury, the latter requiring extensive rehabilitation.

Karen and Verna filed a complaint against Gregory and the Gollnicks, alleging the former negligently supervised Karen and the latter failed to warn Karen of a danger which they knew existed. Both Gregory and the Gollnicks filed motions for summary judgment. Gregory asserted Karen could not maintain an action against him because of the parental immunity doctrine. The Gollnicks argued that they owed no duty to Karen because they were not her custodians, they did not create the risk of danger, and the incident did not occur on their property. The trial court denied both motions, but did certify the issues for purposes of interlocutory appeal.

ISSUES

The issues, as certified by the trial court, are as follows:

I. Whether Indiana substantive as well as procedural law applies to the cause of action asserted by Verna and Karen against Gregory;

II. Whether an unemancipated child is barred by Indiana's parental immunity doctrine from bringing an action for negligent supervision against a parent who is a legal custodian of the minor child;

III. Whether a person who is not the parent, guardian or custodian of a nine-year-old child owes a duty to exercise reasonable care to safeguard such child or warn of dangers not created by such person;

IV. Whether landowners owe a duty to exercise reasonable care either to safeguard or to warn a child, who is visiting such landowners with We will discuss Issues III and IV together.

the child's parent as a guest, of dangers relating to activities of the child occurring on property other than that of the landowners.

STANDARD OF REVIEW

Our standard of review in an appeal from a denial of a summary judgment is well established. We ascertain whether the pleadings, affidavits, answers to interrogatories, responses to requests for admission, and depositions, when read in the light most favorable to the non-moving party, reveal any genuine issues of material fact, and if not, whether the trial court correctly applied the law. Shallenberger v. Scroggins-Tomlinson, Inc. (1982), Ind.App., 439 N.E.2d 699. In performing our function of review we stand in the position of the trial court and consider the same matters as it does. Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154. We also note that, generally, summary judgment is rarely appropriate in negligence actions. Ember v. B.F.D., Inc. (1986), Ind.App., 490 N.E.2d 764.

DISCUSSION AND DECISION

ISSUE I: Choice of Law

Gregory contends lex loci delicti requires the application of Indiana substantive law, despite the fact that Karen, Verna, and he are residents of California. It could be argued that California law should be applied, because the issue presented is not a tort question, but immunity based upon a familial relationship, and California has an exclusive interest in governing their family relationship.

In determining the choice of substantive law in tort cases, Indiana follows the rule of lex loci delicti, the law of the place where the wrong occurred. Umbarger v. Bolby (1986), Ind.App., 496 N.E.2d 128; Hubbard Mfg. Co. v. Greeson (1986), Ind.App. 487 N.E.2d 825; Maroon v. State, Dept. of Mental Health (1980), Ind.App., 411 N.E.2d 404, trans. denied. Under this doctrine, the law of the place where the allegedly tortious conduct occurred governs all matters going to the basis of the right of action or affecting substantive rights of the parties. Greeson, supra. In the instant case, Karen was injured in Indiana, so Indiana law will govern all substantive issues. ¹

In Emery v. Emery (1955), 45 Cal.2d 421, 289 P.2d 218, unemancipated minor children and their mother sued their father to recover for injuries suffered in an automobile accident. The parties were California domiciliaries, but the accident occurred in Idaho. Because the accident occurred in Idaho the California Supreme Court held that Idaho law should be applied regarding the negligence issue. 45 Cal.2d at 425, 289 P.2d at 221. However, concerning the issue of parental immunity the court looked to California law, because "[i]t is not ... a question of tort but one of capacity to sue and be sued and as to that question the place of injury is both fortuitous and irrelevant." (Footnote omitted.) 45 Cal.2d at 427, 289 P.2d at 222. To hold otherwise, the court reasoned, would subject the rights and duties attendant to the family relationship to constant change as family members crossed state lines during temporary absences from home.

We decline to adopt the distinction contained in Emery, supra. Greeson, supra, and Maroon, supra, make it clear that lex loci delicti governs all matters affecting the basis of the right of action or the substantive rights of the parties. This necessarily includes any questions concerning immunity from suit. See Maroon, supra at 412. While a different result might obtain under the so-called "modern rule" or "most significant relationship approach," because Karen could argue California's interest in governing its family relationships (see Aurora Nat'l Bank v. Anderson (1971), 132 Ill.App.2d 217, 268 N.E.2d 552), we need not address it. Lex loci delicti is the rule in Indiana, despite urgings to the contrary. See Greeson, supra at 827 n. 1; Maroon, supra at 417 (Ratliff, J., concurring).

Because the allegedly tortious conduct occurred in Indiana, Indiana substantive law is to be applied to all substantive issues, including the question of whether Karen may maintain a cause of action against Gregory.

ISSUE II: Parental Immunity

Gregory asserts Karen has no cause of action against him because of the parental immunity doctrine.

The doctrine of parental immunity is a judicially created rule that allows a parent immunity from suit for injuries to an unemancipated minor child. Vaughan v. Vaughan (1974), 161 Ind.App. 497, 316 N.E.2d 455; Smith v. Smith (1924), 81 Ind.App. 566, 142 N.E. 128, trans. denied. The doctrine has been partially abrogated. In Buffalo v. Buffalo (1982), Ind.App., 441 N.E.2d 711, the court held that the parental immunity doctrine does not preclude a suit for negligent injury by an unemancipated minor child against a non-custodial parent where the marriage of the child's parents was dissolved prior to the child's injury. In Buffalo the child was injured while he was with his father pursuant to the father's right to visitation. The court's rationale for not allowing immunity was that, when the parents' marriage was dissolved and the mother was granted custody, a new family unit was formed. Therefore, although the reasons underlying the parental immunity doctrine still applied to the mother, the same could not be said for the father because he was a non-custodial parent.

Gregory contends the holding in Buffalo is inapplicable to the instant case. Under the terms of the written marital settlement agreement Verna was granted physical custody of the children, but their legal custody is jointly shared by Verna and Gregory. It is for this reason that Gregory seeks to preclude the application of Buffalo.

We believe Buffalo is controlling, and we decline to carve another exception where the...