Morris v. Brooks, 75855

• Decision Date: 15 February 1988
• Docket Number: No. 75855,75855
• Citation: 366 S.E.2d 777,186 Ga.App. 177
• Parties: MORRIS v. BROOKS et al.
• Court: Georgia Court of Appeals

Page 777

366 S.E.2d 777

186 Ga.App. 177

MORRIS v. BROOKS et al.

No. 75855.

Court of Appeals of Georgia.

Feb. 15, 1988.

Rehearing Denied March 3, 1988.

Certiorari Granted April 21, 1988.

Walter H. Beckham III, Mark S. Izenson, Atlanta, for appellant.

Thomas D. Harper, Richard G. Greer, Jeffrey F. Leasendale, Atlanta, for appellees.

BIRDSONG, Chief Judge.

This court granted the application of appellant's interlocutory appeal to consider the trial court's denial of his motion for partial summary judgment. Brian Morris is the 11-year-old son of David and Donnice Morris. The parents were divorced in June 1984, with custody of Brian being awarded, by consent, to Donnice. David provided $350 per month child support and any expenses over and above that were divided between them. Donnice married James Clark in October 1984. On March 2, 1986, when the family was returning from a visit to Clark's mother in south Georgia, their car was involved in a collision with another car driven by defendant Brooks. Clark admitted he was speeding at the time. Brooks was driving on the wrong side of the road. Donnice was killed and Brian was severely injured. Brian was initially treated in a hospital in Albany, Georgia. He remained there for approximately six weeks and David Morris accepted liability for the costs of such hospitalization. When Brian left the Albany hospital, he moved in with his father. Further surgery and treatment requiring hospitalization in Scottish Rite Hospital was paid for by the father. Since March 2, 1986, Brian has lived with his father and all support and medical expenses have been paid by his father. There has been no custody, financial support, or parental relationship between Brian and his stepfather since March 2, 1986.

Brian's father instituted this action, as next friend, against Brooks and Clark. Clark defended, inter alia, on the basis of "parent/child immunity." Morris filed a motion to strike this defense and it was denied. We granted interlocutory appeal to review this issue. Held:

Clark contends he stands in loco parentis to Brian. Hence, he claims this action is barred on the basis of intrafamilial immunity. Clark is correct in asserting that upon a remarriage, if a mother with a minor child from a previous marriage shares his custody and control with the stepfather, the stepfather stands in loco parentis to the child. Lee v. Green, 217 Ga. 860(1), 126 S.E.2d 417. Further, this court has consistently held that preservation of family tranquility is paramount public policy and prevents an unemancipated child from suing a parent or a person standing in loco parentis. Trotter v. Ashbaugh, 156 Ga.App. 130, 132, 274 S.E.2d 127; Eschen v. Roney, 127 Ga.App. 719, 720-721, 194 S.E.2d 589; Chastain v. Chastain, 50 Ga.App. 241(1), 177 S.E. 828).

However, the Supreme Court, in Nelson v. Spalding County, 249 Ga. 334, 337-338, 290 S.E.2d 915 and Robeson v. Intl. Indem. Co., 248 Ga. 306(1), 282 S.E.2d 896, and this court, in Clabough v. Rachwal, 176 Ga.App. 212, 214, 335 S.E.2d 648, held that we "did not find controlling the status of the 'relationship' at the time the cause of action accrued, but rather...