Sepaugh v. LaGrone
| Decision Date | 28 August 2009 |
| Docket Number | No. 03-05-00358-CV.,03-05-00358-CV. |
| Citation | 300 S.W.3d 328 |
| Parties | Marietta SEPAUGH, Individually, and as Next Friend of her minor son, Frank LaGrone, Deceased, Appellant, v. Paul LaGRONE, Appellee. |
| Court | Texas Court of Appeals |
Jason C.N. Smith, Art Brender, Law Offices of Art Brender, Forth Worth, for Appellant.
Don W. Kothmann, Knolle, Holcomb, Kothmann & Callahan, P.C., Austin, TX, for Appellee.
Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
Marietta Sepaugh, individually and as next friend of her late minor son, Frank LaGrone (Frank), appeals a take-nothing summary judgment on damages claims she had asserted against appellee Paul LaGrone (LaGrone), Frank's father and Sepaugh's ex-husband. Sepaugh sought damages arising from Frank's death in a Christmas Eve 2002 house fire that also killed another of LaGrone's minor sons (Frank's half-brother) and a third child, a friend of the LaGrone children, who was spending the night. The summary judgment was based solely on LaGrone's affirmative defense of parental immunity. Sepaugh argues that the district court erred in granting summary judgment because parental immunity does not bar her claims. We will affirm the judgment.
Frank2 was the only child of an approximately three-year marriage between Sepaugh and LaGrone that ended, the record reflects, in a contentious divorce. Sepaugh was awarded sole managing conservatorship of Frank, while LaGrone was named possessory conservator and awarded visitation rights. In the intervening years, LaGrone remarried and had two more sons, Cole and Sam.3 After this marriage also ended in divorce, LaGrone was named Sam and Cole's managing conservator. At the time of the fire, Sam and Cole were living with their father in a two-story, four-bedroom house located in northwest Austin. Three bedrooms—two of which the boys occupied—were located upstairs,4 while a master bedroom, where LaGrone slept, was located downstairs. Meanwhile, Frank lived with his mother, Sepaugh, subject to LaGrone's visitation rights.
The fire occurred during the early morning hours of December 24, 2002—Christmas Eve. Frank, then thirteen years of age, was spending the Christmas holidays with his father and younger half-brothers during a visitation period provided under LaGrone and Sepaugh's divorce decree. A friend of the brothers, John Overby, was also spending the night. Frank, Cole, and Overby stayed upstairs, while Sam fell asleep downstairs in LaGrone's room. LaGrone was awakened by the fire around the 3 o'clock hour. He and Sam managed to escape the burning dwelling through a window. LaGrone instructed Sam to call 911, which he did, while LaGrone, and later first responders, attempted to rescue the boys upstairs. They were unsuccessful, and Frank, Cole, and Overby all perished in the fire.
Sepaugh, acting individually and as Frank's next friend, sued LaGrone for damages under the wrongful-death and survivorship statutes. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.001-.012 (wrongful death), .021-.022 (survivorship) (West 2008). She also asserted what she styled as an "independent" "loss of consortium action against Defendant under Texas common law." Sepaugh pled theories of negligence and negligence per se. Specifically, she alleged that LaGrone had a duty under City of Austin ordinances to have smoke detectors that were audible in all sleeping areas of his home, that he breached this duty, and that such breach was a proximate cause of Frank's death.
LaGrone filed an answer raising parental immunity as an affirmative defense. He subsequently filed a "traditional" summary-judgment motion in which he sought to establish each element of his parental-immunity defense as a matter of law. The district court granted LaGrone's motion and rendered judgment that Sepaugh take nothing on her claims. This appeal followed.
In a single issue, Sepaugh contends that the district court erred in granting summary judgment based on LaGrone's parental-immunity defense. She asserts four arguments as to why, she contends, parental immunity does not bar her claims. Her first and principal argument is that parental immunity, as a matter of law, does not bar her claims because they are predicated on LaGrone's breach of a duty imposed by city ordinance rather than the sort of discretionary parenting decision that parental immunity protects. In the alternative, Sepaugh urges that we apply two limitations on parental immunity that certain other states have recognized but Texas, to date, has not: (1) parental immunity does not protect LaGrone because he was not awarded "primary custody" of Frank; and (2) parental immunity does not apply because LaGrone had homeowner's liability insurance coverage. Finally, in the further alternative, Sepaugh argues that even if parental immunity barred Frank's right to recover from LaGrone (and, thus, barred her derivative right to recover under the wrongful-death and survivorship statutes), the defense does not bar her own "independent" "common law" parental-consortium claim.
Standard of review
We review the district court's summary-judgment ruling de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A party moving for summary judgment must demonstrate that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). Where, as here, a defendant moves for summary judgment under the "traditional" standard, he must meet the initial burden of either conclusively negating at least one essential element of each of the plaintiff's causes of action or conclusively establishing each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the defendant meets this initial burden, he is entitled to summary judgment unless the non-movant plaintiff presents summary-judgment evidence raising a genuine issue of material fact as to one of the elements at issue. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant, and indulge every reasonable inference and resolve all doubts in her favor. Id.; Nixon, 690 S.W.2d at 549.
Parental immunity
As recognized in Texas today, the affirmative defense of parental immunity operates to shield parents from tort liability to their unemancipated minor children for alleged acts of negligence that "involve a reasonable exercise of parental authority" (e.g., disciplining or supervising a child) or the exercise of "ordinary parental discretion with respect to the care and necessities of the child" that a parent is obligated to furnish. See Jilani v. Jilani, 767 S.W.2d 671, 672-73 (Tex.1988); Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971). The defense likewise bars such claims against a parent that are derivative of a deceased child's right to recover in negligence against the parent, including wrongful-death or survivorship claims. See McCullough v. Godwin, 214 S.W.3d 793, 799-803 (Tex.App.-Tyler 2007, no pet.); Hoffmeyer v. Hoffmeyer, 869 S.W.2d 667, 668-69 (Tex.App.-Eastland 1994, writ denied); see also Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex.1992) (contribution claim).
The purpose and effect of the parental-immunity defense is to remove, as a matter of policy or prudence, certain parenting decisions from the judicially created regulatory regime that is the negligence tort.5 Although historically rooted in judicial reluctance to encourage adversarial litigation that could undermine peace and order within families, the modern justification for parental immunity in Texas is stated in terms of preventing the disruption or distortion of parental decision-making within the "wide sphere of reasonable discretion which is necessary ... to provide nurture, care, and discipline for their children" that would otherwise result from the imposition of the negligence "reasonably prudent person" standard of conduct and its attendant economic incentives and disincentives. See Shoemake, 826 S.W.2d at 935 (quoting Felderhoff, 473 S.W.2d at 933). As the Texas Supreme Court explained in Felderhoff, in rejecting calls to discard parental immunity as "out of date":
We trust that it is not out of date for the state and its courts to be concerned with the welfare of the family as the most vital unit in our society. We recognize that peace, tranquility and discipline in the home are endowed and inspired by higher authority than statutory enactments and court decisions. Harmonious family relationships depend on filial and parental love and respect which can neither be created nor preserved by legislatures or courts. The most we can do is to prevent the judicial system from being used to disrupt the wide sphere of reasonable discretion which is necessary in order for parents to properly exercise their responsibility to provide nurture, care, and discipline for their children. These parental duties, which usually include the provision of a home, food, schooling, family chores, medical care, and recreation, could be seriously impaired and retarded if parents were to be held liable to lawsuits by their unemancipated minor children for unintentional errors or ordinary negligence occurring while in the discharge of such parental duties and responsibilities. It is in this sphere of family relations between parent and child that the rule of immunity from litigation continues to find justification and validity.
473 S.W.2d at 933. Relatedly, the parental-immunity defense also reflects a goal of avoiding judicial entanglement with or second-guessing of the myriad religious, cultural, and other personal considerations that come to bear on one's judgments when exercising parental responsibilities. Shoemake, ...
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