Hatzinicolas v. Protopapas

• Decision Date: 01 September 1988
• Docket Number: No. 2,2
• Citation: 550 A.2d 947,314 Md. 340
• Parties: Niki HATZINICOLAS et al. v. Nicholas PROTOPAPAS et al. ,
• Court: Maryland Court of Appeals

Page 340

314 Md. 340

550 A.2d 947

Niki HATZINICOLAS et al. v. Nicholas PROTOPAPAS et al.

No. 2, Sept. Term, 1988.

Court of Appeals of Maryland.

Dec. 9, 1988.

Gerard P. Uehlinger, Lentz, Hooper, Jacobs & Blevins, P.A., on brief, Baltimore, for petitioners.

Daniel Karp, Allen, Thieblot & Alexander, Robert J. Thieblot, Anne M. Hrehorovich, on brief, Baltimore, for respondents.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

RODOWSKY, Judge.

"The doctrine usually called the parent-child immunity rule exists in Maryland." Frye v. Frye, 305 Md. 542, 543, 505 A.2d 826, 827 (1986). The immunity includes actions sounding in negligence. Id. at 567, 505 A.2d at 839. In this negligence action an unemancipated infant sues the business partner of one of the infant's parents and alleges negligence arising out of the conduct of the partnership business. The Court of Special Appeals extended parental immunity to the defendant. Hatzinicolas v. Protopapas, 73 Md.App. 271, 533 A.2d 1311 (1987). In so doing that court was persuaded by one aspect of the rationale in David v. David, 161 Md. 532, 157 A. 755 (1932) which held that a wife could not maintain a negligence suit against the partnership of which her husband was a member. For reasons hereinafter explained we conclude that parent-child immunity should not be extended to a parent's partner or partnership and we disapprove of the implications to the contrary in David.

The record on which the legal issue is presented consists of the complaint and admissions of fact. Petitioner, the infant plaintiff, Niki Hatzinicolas (Niki), who was born October 20, 1983, is the daughter of Evgenia Hatzinicolas (Evgenia) and Michael Hatzinicolas (Michael). Niki resides with both of her parents. Michael and the respondent, Nicholas Protopapas (Protopapas), were partners in a business known as Hopkins Carry Out. The two partners had no written partnership agreement. They purchased an automatic slicing machine which was operated on the premises of their partnership business. At the machine's rear were a rotating wheel and chain mechanism normally covered by a metal plate. The complaint stated that

"[o]n or about December 4, 1984, while the [slicing machine] was in use as an automatic slicer, the minor Plaintiff was on the premises of Hopkins Carry Out, when she went to the rear of the shop and placed her right hand on or near the chain and gears of the [slicing machine]. Her ring-finger and middle finger were forced into the gears, the metal guard of the [slicing machine] having fallen off or otherwise not being present on the back of the machine at that time."

Niki, by Evgenia, her mother and "next friend", sued Protopapas "t/a Hopkins Carry Out." The plaintiff alleged that

"Protopapas t/a Hopkins Carry Out was negligent by failing to maintain the establishment in a proper and safe manner for its invitees, that [Protopapas] knew or should have known of the dangerous condition of the [slicing machine], should have maintained additional protection or barriers between persons such as Plaintiff and the [slicing machine], and was in other respects negligent."

Protopapas obtained summary judgment based on parent-child immunity. ¹ Following affirmance of the judgment by the Court of Special Appeals, we granted the plaintiff's petition for certiorari.

Our analysis begins by construing the complaint as fleshed out by the admitted facts. The theory of liability is that the defendant's duty arises as a possessor of land, or of chattels, or both. The admissions of fact make clear that the possession and alleged breach of duty are by Protopapas and by Michael, as partners and joint tortfeasors. The claim, however, is asserted only against Protopapas. The nonjoinder is permissible. Under the Uniform Partnership Act, Md.Code (1975, 1985 Repl.Vol.), Title 9 of the Corporations and Associations Article (CA), the tort liability of partners is joint and several. See CA §§ 9-305 and 9-307(1). ² Indeed, under the liability theory asserted, even though any negligence of Protopapas and Michael is necessarily concurrent, the plaintiff may maintain the action without suing every joint tortfeasor. See Carroll v. Kerrigen, 173 Md. 627, 632, 197 A. 127, 128 (1938); Gordon v. Opalecky, 152 Md. 536, 550, 137 A. 299, 304 (1927); Walters v. Baltimore & O.R.R., 120 Md. 644, 657-58, 88 A. 47, 52 (1913); Diamond State Tel. Co. v. Blake, 105 Md. 570, 572, 66 A. 631, 632 (1907).

The plaintiff's description of Protopapas as a person "t/a Hopkins Carry Out" does not convert this claim into one asserted against the partnership. Maryland has a "common name" statute. See Md.Code (1974, 1984 Repl.Vol.), § 6-406 of the Courts and Judicial Proceedings Article (CJ). ³ This complaint does not name Hopkins Carry Out as a defendant, and the plaintiff did not serve Protopapas as an agent for the unincorporated group.

Further analyzing the record we note the absence of any facts concerning whether, between the two partners, either had primary responsibility for maintaining the premises or the slicing machine. The record is also silent concerning who had started the slicing machine at the time of the occurrence, who had brought the infant plaintiff onto the premises and who was responsible for her immediate supervision at the time of the occurrence.

The arguments plaintiff made to the Court of Special Appeals fell into two general categories. The first sought to prevent extension of parental immunity to a partner of the infant's parent. In that approach the plaintiff emphasized that public policy manifests concern for the protection of children's rights, that Protopapas was severally liable, and that the father, Michael, was not being sued by the daughter, Niki. Plaintiff's second argument examined the scope of the parent-child immunity concept. Niki submitted that the immunity does not apply, even if the parent is a defendant sued directly by the child, where the tort arises out of the parent's conduct of a business. Plaintiff contended that the policy underlying the immunity, namely, protecting the exercise of parental discretion, is not as strong in the business context as in the domestic context, particularly when it is likely that liability insurance insulates the intrafamily relationship from, at least, the full impact of the litigation.

The Court of Special Appeals answered both aspects of plaintiff's argument by pointing out that, even if the parent is not formally joined as a party defendant to the child's claim, the defendant partner, or the partnership, may claim contribution from the nonparty, partner-parent who is jointly and severally liable. To permit Niki's suit against Protopapas would allow the plaintiff to do indirectly what she could not do directly. This analysis by the Court of Special Appeals rested largely on this Court's bar of a personal injury action by a wife against her husband's partnership in David v. David, 161 Md. 532, 157 A. 755 (1932). The Court of Special Appeals thought "the reasoning of David ... to be persuasive here." Hatzinicolas v. Protopapas, 73 Md.App. 271, 279, 533 A.2d 1311, 1315 (1987).

Answering in particular the business activity argument of the plaintiff, the Court of Special Appeals viewed employment of an underage plaintiff by the parent's partnership to have been a significant factor present in decisions from other states relied upon by the plaintiff. ⁴ Employment of the infant is absent in the instant matter. In addition to its having refused judicially to recognize any business exception to parental immunity in Shell Oil Co. v. Ryckman, 43 Md.App. 1, 403 A.2d 379 (1979), the intermediate appellate court also described this Court's position in Frye v. Frye, 305 Md. 542, 505 A.2d 826 (1986), to be "that the insurance argument was one to be made to the General Assembly should it wish to legislate in the area of parent-child immunity." 73 Md.App. at 279, 533 A.2d at 1315.

We shall consider the precedential value of the David decision in Part I. In Part II we shall test the result sought by Protopapas by the policy underlying parent-child immunity.

I

In the David case, Minnie B. David, the wife of Samuel David, had filed a personal injury action "against Charles David and Samuel David, co-partners trading as Union Wallpaper Company[.]" 161 Md. at 533, 157 A. at 755. Thus, unlike the instant case, the plaintiff in David joined as a party defendant the partner who directly enjoyed a personal immunity. At the time of the David suit the only way in which a plaintiff could obtain a judgment which would directly reach partnership assets was to join as defendants all members of the partnership upon whom service of process could be obtained. ⁵ The predecessor of CJ § 6-406, the common name statute, was not enacted until the Acts of 1937, Ch. 504, § 124. Niki, the infant plaintiff here, did not employ the common name statute. Thus in the instant case, unlike David, a judgment for the plaintiff would not "directly reach" all partnership assets. Cf. CJ § 6-406(b) (see n. 3, supra ). The liability asserted in the instant action, however, is also a partnership liability and in that respect this case is like David where the wife's injuries resulted from a fall into an open, unguarded, and unlighted elevator shaft on partnership premises.

David affirmed a judgment on the pleadings in favor of the defendants. Applying the law of that era, the David court reasoned from the premise that the wife could not sue her husband at law due to the common law disability of coverture. One of the amalgam of statutes known as the Married Women's Property Act, specifically, the Act of 1898, Ch. 457, § 5, had in terms empowered married women to sue for torts committed against them as fully as if they were unmarried. ⁶ Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534 (1927), however, gave the statute a limited construction. Furstenburg held that the...