Parsons v. Smithey

• Decision Date: 09 January 1973
• Docket Number: No. 10685--PR,10685--PR
• Parties: , 54 A.L.R.3d 964 Ruth PARSONS, a single woman, Down Parsons and Gail Parsons, Minors, by and through their Guardian ad Litem, Donald S. Robinson, Appellants, v. Jerry B. SMITHEY and Sarah Smithey, husband and wife, Appellees. . In Banc
• Court: Arizona Supreme Court

Page 1272

504 P.2d 1272

109 Ariz. 49, 54 A.L.R.3d 964

Ruth PARSONS, a single woman, Down Parsons and Gail Parsons, Minors, by and through their Guardian ad Litem, Donald S. Robinson, Appellants, v. Jerry B. SMITHEY and Sarah Smithey, husband and wife, Appellees.

No. 10685--PR.

Supreme Court of Arizona. In Banc.

Jan. 9, 1973.

Rehearing Denied Feb. 6, 1973.

Robertson, Molloy, Fickett & Jones, by Burton J. Kinerk, Tucson, for appellants.

Chandler, Tullar, Udall & Richmond, by D. B. Udall, Howard D. Watt, Tucson, for appellees.

LOCKWOOD, Justice.

We granted the petition for review in this case in view of the importance of deciding a question of first impression in this state. Opinion of the Court of Appeals, 15 Ariz.App. 412, 489 P.2d 75 (1971) vacated.

On March 26, 1967, early in the morning, Michael Smithey entered the home of Mrs. Ruth Parsons through an arcadia door and began beating her over the head with a hammer. Her cries for help awakened her two daughters, who came into her bedroom to protect her. Michael was asked by Mrs. Parsons why he was beating her and his response was that she should 'take off (her) clothes and lay down on the floor.' When one of the daughters ran 'down the hall' to call the police Michael followed her and began beating her with the hammer also. He was locked out of the bedroom but reentered armed with a knife and a large belt buckle. He continued to attack and cut Mrs. Parsons' ear almost entirely off. Finally he was persuaded to leave when the daughters offered him a small sum of money. As he left he threatened '(i)f you tell the police, I will come back and kill all three of you.'

As a result of the attack Mrs. Parsons suffered multi-contusions, compound fractures and lacerations to her head. One of her daughters received a surface cut to her neck.

Michael was sent to Fort Grant and ultimately to California for psychiatric treatment.

Mrs. Parsons and her daughters brought suit for damages against Michael and his parents, Jerry B. Smithey and Sarah Smithey pursuant to A.R.S. § 12--661 (1956), and also on the common law doctrine of parental negligence, in failing to exercise control of a minor son. The trial court directed a verdict in favor of the plaintiffs on the issue of Michael's liability, and directed a verdict for defendants on the issue of the parents' liability for negligence for failure to control Michael. On stipulation, the parents agreed to pay $500 of the verdict against Michael.

Plaintiffs argue that the trial court erred in denying them access, both before and during trial, to the juvenile records of Michael. The court refused permission to examine these records under the authority of A.R.S. § 8--228, subsec. B (1956) which provided:

'The disposition of a child or of evidence given in the juvenile court shall not be admissible as evidence against the child in any proceeding in another court, nor shall such disposition or evidence disqualify a child in a civil service application, examination or appointment.'

In State v. Fierro, 101 Ariz. 118, 416 P.2d 551 (1966), (reaffirmed in principle in State v. Horton, 101 Ariz. 229, 418 P.2d 385 (1966)), we held that the record of a juvenile defendant could not be used as evidence, but could be used by the court in determining sentence for the defendant in a criminal trial. We held that the statutory prohibition does not forbid the use of information for any purpose; on the contrary, it bans the use of said order (of disposition) or evidence only when used as evidence against the child in any case or proceeding in any other court. State v. Fierro, supra, 101 Ariz. at 120, 416 P.2d at 553.

It is obvious that the statutory prohibition goes to the use of an order of disposition or evidence given in juvenile court. With this restriction any records of the juvenile proceedings on file with the Clerk of the Superior Court are subject to inspection and use as are any other public records.

To permit inspection of juvenile records which are not required to be filed with the Clerk, maintained as work product of juvenile probation officers and staff for use by the juvenile court judge for analytical or other purposes in handling a juvenile case, for the benefit of a person not the juvenile involved, would subvert the intent of the statute. For, as in this case, where the juvenile and his parents are involved in a civil action, it would be difficult, if not impossible, to separate the issues pertaining to the juvenile from those pertaining to the other persons. The prejudice sought by the statute to be avoided, would inevitably arise as to the juvenile. Hence the court did not err in refusing plaintiffs' access to any juvenile record of Michael, except those on file and not restricted.

The trial court vacated plaintiffs' request to take Michael's deposition and denied the motion requiring his physical examination in 1968. The reason for the decision was that although the defendant parents were given the notice of deposition and motion for physical examination of Michael, they were unable to produce Michael because he was outside the jurisdiction in the exclusive custody of the State of California.

A second notice of deposition was given to the parents in 1969. Pursuant to 16 A.R.S. Rule of Civil Procedure 30(c) (Supp.1973), (since amended and incorporated in 16 A.R.S. Rule of Civil Procedure 26(a)), defendants moved the court for an order that the deposition not be taken, attaching an affidavit of a psychologist that 'in his opinion Michael Smithey's mental health and stability might be jeopardized at the present time by forcing him to testify or to be deposed.' Under the unusual circumstances of this case we cannot say the trial court abused its discretion in denying the taking of the deposition and physical examination. See 16 A.R.S. Rule of Civil Procedure 30(c) and 35(a) (Supp.1973).

The theory which the plaintiffs invoke in their suit against the parents is that of parental neglect in failing to control Michael. We have not heretofore decided the issue of parental liability for the torts of their children. But see, Seifert v. Owen, 10 Ariz.App. 483, 460 P.2d 19 (1969).

At common law it is well established that mere parental relationship will not impose liability upon the parents for the torts of their children. National Dairy Products Corp. v. Freschi, 393 S.W.2d 48 (Mo.Ct.App.1965). See discussion in Annot. 155 A.L.R. 85 (1945); Note, The Iowa Parental Responsibility Act, 55 Iowa L.Rev. 1037 (1970); Comment, Liability Of Negligent Parents For The Torts Of Their Minor Children, 19 Ala.L.Rev. 123 (1966); Comment, Parental Tort Liability, 1 Land and Water L.Rev. 299 (1966). But there have evolved in the law a few doctrines which impose liability upon the parents for their children's torts. One such doctrine which recognizes that liability is where the parent has failed to exercise the care which a reasonable parent should exercise to prevent his child from creating an unreasonable risk of harm to others. ¹ Bieker v. Owens, 234 Ark. 97, 350 S.W.2d 522 (1961).

The Restatement (Second) of Torts § 316 (1965) succinctly enunciates the standard for determining liability under this doctrine.

'A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control his child, and

(b) knows or should know of the necessity and opportunity for exercising such control.'

Liability of the parents is based upon ordinary rules of negligence. '(T)he injury must have been the natural and probable consequence of the negligent act, that is, a consequence which, under the surrounding circumstances, might and ought reasonably to have been foreseen as likely to flow from such act.' National Dairy Products Corp. v. Freschi, supra, 393 S.W.2d at 53.

In the present case the plaintiffs argue that the parents had or should have had knowledge of Michael's 'aggressive behavior' such that they should have reasonably foreseen that he would cause violent injury to others. Knowing this they breached a duty owed to Mrs. Parsons by failing to properly control Michael. It is strongly suggested that 'reasonable control' under the circumstances would have been to send Michael to a psychiatric clinic.

A portion of the evidence offered by the plaintiffs was excluded by the trial judge, but the following was admitted: the parents' knowledge (1) that Michael had once told a strange woman on the street to remove her clothes and when she refused, he threatened to throw rocks at her; (2) that Michael was a behavior problem in school, e.g., his teacher had to move him because he was 'poking and pummeling' other children; he acted aggressively toward other children and seemed as if he 'hated the world;' (3) that Michael had once followed a classmate and forced his way into her home and shoved her around; (4) that Michael was in need of professional psychiatric treatment. This last recommendation was made in 1962 by Dr. Zemsky, school psychiatrist, in 1965 by Mrs. Baker, a psychologist and in 1967 by Mrs. Edith Benson, school counselor.

The following additional offer of proof was made and refused: (1) Michael's police record showing that he was apprehended for arson at the age of eight and eleven, for theft of his father's watch at the age of ten, for joyriding three times at the age of fourteen, and for running away at the age of nine; (2) Michael's school records in which there was contained a recorded meeting between Larry Hart, Michael's school counselor, and the parents at which time the Smithey's were encouraged to obtain psychiatric help for Michael, and recorded reports of Michael's teachers commenting on his aggressive behavior.

The plaintiff maintain that the trial court erred in directing a verdict in favor of the...