Hatzinicolas v. Protopapas

• Decision Date: 03 December 1987
• Docket Number: No. 284,284
• Citation: 533 A.2d 1311,73 Md.App. 271
• Parties: Niki HATZINICOLAS et al. v. Nicholas PROTOPAPAS et al. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 271

73 Md.App. 271

533 A.2d 1311

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

No. 284 Sept. Term 1987.

Court of Special Appeals of Maryland.

Dec. 3, 1987.

Argued before GARRITY, BLOOM and ROBERT M. BELL, JJ.

BLOOM, Judge.

This appeal presents us with a question of first impression in this state: whether a minor child can maintain an action in tort against a business partner of her father for an alleged act of negligence committed in the operation of the partnership business. We hold that the action is barred by the still viable doctrine of parent-child immunity; therefore, we shall affirm the order of the Circuit Court for Baltimore City (Ward, J.) granting the partner's motion for summary judgment.

Background

The appellants in this case, plaintiffs below, are Niki Hatzinicolas, a minor, and her mother, Evgenia Hatzinicolas, individually and as prochein ami for the minor. The appellee is Nicholas Protopapas, who is a partner of the minor appellant's father, Michael Hatzinicolas, in the operation of a restaurant known as the Hopkins Carry-Out.

On December 4, 1984, while on the premises of the Hopkins Carry-Out, two-year-old Niki Hatzinicolas lost two fingers of her right hand when the hand got caught in the chain and gears of a food slicer.

Contending that the injury occurred because the metal safety guard of the slicer was not in place, enabling the child to gain access to the chain and gears, appellants filed suit in the Circuit Court for Baltimore City against appellee, Nicholas Protopapas, trading as Hopkins Carry-Out, Globe Slicing Machine, Inc., the manufacturer of the slicer, and Barry Kahn, the distributor of the slicer. The claim against appellee was for negligence; the claim against the manufacturer was for strict liability, for negligence, for breach of the implied warrant of merchantability and for breach of contract; and the claim against the distributor was also for breach of the implied warranty of merchantability and for breach of contract.

Appellee answered the complaint and also filed a request for an admission of facts, pursuant to Md.Rule 2-424, to establish that Niki's father and appellee were the sole partners in Hopkins Carry-Out. Appellants' failure to respond to the request for admissions within the required thirty days was deemed to constitute an admission of the partnership relationship between Niki's father and appellee. Md.Rule 2-424(b). Appellants have not challenged the admission; they openly admit that appellee and Michael Hatzinicolas are general partners in Hopkins Carry-out.

Based on this partnership relationship, appellee filed a motion for summary judgment, contending that the suit against him was barred by virtue of Maryland's adherence to the parent-child immunity doctrine. Judge Ward granted appellee's motion for summary judgment, issued his written order of summary judgment against appellant, and certified that judgment as a final judgment pursuant to Md.Rule 2-602, thus permitting this appeal to be brought despite the fact that appellants' claims against the other defendants are still unresolved.

The Doctrine of Parent-Child Immunity

We note at the outset that the doctrine of parent-child immunity is alive and well in Maryland. Frye v. Frye, 305 Md. 542, 505 A.2d 826 (1986). Maryland recognizes only two exceptions to the general rule that a child cannot maintain an action in tort against his or her parent or that a parent cannot maintain an action in tort against his or her child. The first exception to the rule was set forth by the Court of Appeals in Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951), in which the Court held that a minor child had a right of action against her father for cruel and inhuman treatment or for malicious and wanton wrongs. The second exception was set forth by the Court of Appeals in Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617 (1957), in which the Court held that the doctrine of immunity is inapplicable when the child is emancipated. More specifically, Waltzinger held that a mother could maintain a suit against her adult son for injuries sustained in an accident caused by the alleged negligence of the son in the operation and control of an automobile. Neither of these exceptions, of course, are applicable to the case sub judice.

Even prior to Frye v. Frye, supra, this Court, although not always in agreement with the parent-child immunity rule, see, Montz v. Mendaloff, 40 Md.App. 220 at 226-29, 388 A.2d 568 (1978) (Gilbert, C.J., concurring), recognized the existence of the rule and has consistently adhered to it, rejecting all suggestions that we abrogate, alter or modify it. In Latz v. Latz a/k/a Schafer, 10 Md.App. 720, 272 A.2d 435, cert. denied, 261 Md. 726 (1971), we held that a suit by a father against a daughter for the daughter's negligent driving and death of the mother was barred by the parent-child immunity doctrine. In Sanford v. Sanford, 15 Md.App. 390, 290 A.2d 812 (1972), we held that a minor child's suit against his father for injuries he sustained from his father's negligent driving was barred by the doctrine. In Montz v. Mendaloff, 40 Md.App. 220, 388 A.2d 568, cert. denied, 283 Md. 736 (1978), we held that the parent-child immunity barred a suit by a minor child against her parents for injuries sustained by the child as a result of the mother's negligent driving even though the negligence may have been gross. And in Shell Oil Co. v. Ryckman, 43 Md.App. 1, 403 A.2d 379 (1979), we declined to create an exception to the rule for claims arising when the parent and child are jointly engaged in a business activity. Finally, the Court of Appeals removed the last vestige of doubt as to the continued vitality of the doctrine in Frye v. Frye, supra.

Appellants present three arguments in support of their contention that the parent-child immunity doctrine should not be applied in this case. Their first argument is that the result of barring their action would fly in the face of the General Assembly's express concern for the protection of children's rights. By way of example, they cite Md.Cts. & Jud.Proc.Code Ann. § 5-201 (Repl.Vol.1984, Cum.Supp.1987), which protects a minor's cause of action by tolling the statute of limitations during the minority of the child, and Md.Cts. & Jud.Proc.Code Ann. § 10-910 (Repl.Vol.1984, Cum.Supp.1987), which states that in an action by an infant for damages the negligence of a parent or custodian of the infant cannot be imputed to the infant so as to bar the infant's suit. From these examples they conclude that Maryland statutory and case law evidence a strong intent to protect children's rights against unrelated persons; therefore, they argue, appellants should be allowed to maintain an action against appellee because they are not related to him.

That argument, however, misses its mark in this instance. Appellants are not suing a person who is unrelated to them. They are asserting a claim against the business partner of the infant plaintiff's father based upon an alleged partnership tort. Because partners are jointly and severally liable for partnership torts, Md.Corps. & Ass'ns Code Ann. § 9-307 (Repl.Vol.1985), appellee would be able to demand contribution from the minor appellant's father should appellants be successful in their suit. Phillips v. Cook, 239 Md 215, 210 A.2d 743 (1965). Therefore, appellants would be able to do indirectly what they could not do directly, that is, obtain damages in their suit against appellee that in the end would be payable in part by the injured child's father. That result would be inconsistent with the rationale of the parent-child immunity doctrine. See, Stokes v. Association of Independent Taxi Operators, Inc., 248 Md. 690, 237 A.2d 762 (1968) (per curiam); Riegger v. Bruton Brewing Co., 178 Md. 518, 16 A.2d 99 (1940).

Appellants' second argument is an interpretation of Md.Corps. & Ass'ns Code Ann. § 9-307, supra, and Phillips v. Cook, supra. Apparently disregarding the conjunctive nature of "and" in § 9-307, appellants state that "[s]everal liability means that an individual partner can be charged solely for the wrong." Appellants then buttress their assertion by stating that Phillips "held that an action could be maintained against other partners where the partnership auto was operated by one partner, provided the use of the vehicle was in the partnership's interest and for its benefit." To this they add, citing 60 Am.Jur.2d Partnership, § 162 (1972), that "there is ample authority that an aggrieved party in tort can sue the partnership or one or more of its members, and even single out for suit a partner who was not personally involved in the commission of the tort." Appellants thus conclude that appellee, as a non-parental partner, can be sued individually for the negligent act or omission of the partnership.

While we agree with all of those contentions, we note that appellants have failed to continue the analysis to its logical conclusion. Md.Corp. & Ass'ns Code Ann. § 9-307(1) states that "partners are liable jointly and severally...." Thus, if appellants were to obtain a judgment against the appellee as being severally liable for the partnership tort, the appellee would then have the right to demand contribution from the infant plaintiff's father because they are jointly as well as severally liable under § 9-307. A more thorough reading of Phillips would have alerted appellants to this joint liability, as evidenced by the following language in that opinion If the tortious act may reasonably be found to be done within the scope of the business of the partnership, the individual partner against whom judgment is obtained may have a right of contribution from the partnership and from the other partners, but that right does not limit the remedy of the plaintiff to proceed against the members of the partnership as individuals as well as co-partners.

Phillips, 239 Md. at 224, 210 A.2d 743. [Emphasis added.]

Appel...