Shoemake v. Fogel, Ltd.

• Decision Date: 26 February 1992
• Docket Number: No. D-0526,D-0526
• Citation: 826 S.W.2d 933
• Parties: Janet SHOEMAKE, Individually and as Administratrix of the Estate of Miranda Gilley, Petitioner, v. FOGEL, LTD., A.T., Federal Group I, and International Property Management, Inc., Respondents.
• Court: Texas Supreme Court

Page 933

826 S.W.2d 933

60 USLW 2572

Janet SHOEMAKE, Individually and as Administratrix of the Estate of Miranda Gilley, Petitioner, v. FOGEL, LTD., A.T., Federal Group I, and International Property Management, Inc., Respondents.

No. D-0526.

Supreme Court of Texas.

Feb. 26, 1992.

Rehearing Overruled April 29, 1992.

Ken M. Link, Fort Worth, C. Denise Smith, Houston, for petitioner.

R. Brent Cooper, Dallas, for respondents.

OPINION

MAUZY, Justice.

In this cause, we consider whether a defendant in a survival action arising from the death of a child may seek contribution from a negligent parent of the deceased child. We hold that the doctrine of parental immunity bars such contribution when the parent's negligence involves only negligent supervision of the child.

One month before her second birthday, Miranda Gilley nearly drowned in the swimming pool at her apartment complex. The child was rescued and temporarily revived, but four months later died from the injuries she had suffered. Her mother, Janet Shoemake, then brought this suit against the apartment complex owners, Fogel, Ltd. A.T. and Federal Group I, and the apartment complex manager, International Property Management, Inc. (collectively "Fogel"). ¹ In addition to seeking damages in her own capacity for wrongful death, Shoemake brought a survival action in her capacity as representative of the child's estate. See Tex.Civ.Prac. & Rem.Code §§ 71.001-.011 (wrongful death), 71.021 (survival). The jury awarded $285,492.28 to Shoemake on her wrongful death claim, and $50,969 to the child's estate in the survival action. Considering the negligence that caused the near-drowning, the jury attributed a total of fifty-five percent to the Fogel defendants, and the remaining forty-five percent to Janet Shoemake.

As to the wrongful death action, the trial court reduced Shoemake's recovery by forty-five percent, in accordance with the findings on comparative negligence. See Tex.Civ.Prac. & Rem.Code ch. 33. That aspect of the judgment was not appealed.

In connection with the survival action, Fogel argued that a similar result should obtain; i.e., that it was entitled to a forty-five percent contribution from Shoemake, to be credited against the amount owed her on the wrongful death claim. The trial court rejected that argument and rendered judgment for the estate in the full amount of the jury verdict, along with pre-judgment interest. The court of appeals reversed, holding that the requested contribution was available under sections 33.012 and 33.016 of the Texas Civil Practice and Remedies Code. 795 S.W.2d 903.

Shoemake now argues that Fogel is barred from contribution against Shoemake, because the doctrine of parental immunity bars Miranda Gilley's estate from recovering damages against Shoemake. We agree.

A defendant's claim of contribution is derivative of the plaintiff's right to recover from the joint defendant against whom contribution is sought. Varela v. American Petrofina Co. of Texas, 658 S.W.2d 561, 562 (Tex.1983). Thus, Fogel's claim of contribution depends upon whether Miranda Gilley's estate has the right to recover damages from Shoemake.

The right of an unemancipated minor to bring a tort action against his or her parent is restricted by the doctrine of parental immunity. See Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971). The purpose of the doctrine 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." Id. at 933.

In Felderhoff, this court held that parental immunity does not extend to suits arising in the course of the parent's business activities. Id. More recently, this court held that the doctrine is inapplicable to automobile tort actions. Jilani v. Jilani, 767 S.W.2d 671 (Tex.1988). In both cases, though, we adhered to the view that a parent retains immunity as to "alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child." Felderhoff, 473 S.W.2d at 933; Jilani, 767 S.W.2d at 672.

In the present case, Fogel alleged that Shoemake was negligent in the "management, supervision and control" of Miranda Gilley, and that this negligence proximately caused Miranda's death. ² Because Fogel chose not to bring forward a statement of facts, see Tex.R.App.P. 53(d), we cannot determine the exact circumstances of the child's injuries. We assume, however, that there was no evidence that Shoemake was negligent in any manner other than that suggested by the pleadings. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990) (explaining Rule 53(d)); see also Vance v. Wilson, 382 S.W.2d 107, 108 (Tex.1964) (judgment disposes of all issues presented by the pleadings). Thus, we assume the evidence indicated that Shoemake was negligent in the management, supervision and control of her child. Those responsibilities entail exactly the sort of parental authority that remains protected under Felderhoff and Jilani. If Shoemake's negligence entailed some other sort of authority, such as business authority or driving responsibilities, Fogel has failed to sustain its burden of presenting a sufficient record to show the trial court's error. See Tex.R.App.P. 50(d); Christiansen, 782 S.W.2d at 843.

The court of appeals considered the policy concerns underlying parental immunity, but concluded that they were not implicated by the present facts. The usual rationale for retaining parental immunity, the court determined, is that "parental immunity is necessary for the protection of family peace and tranquility and any change in the rule would unduly interfere with the rights of parents to discipline, control, and care for their children." 795 S.W.2d at 907-08. Applying the first half of that rationale to the present case, the court decided that "the public policy consideration of family peace and tranquility disappeared upon Miranda's death and at the time that Shoemake's action accrued." Id. at 908. The court therefore held that parental immunity did not bar Fogel from seeking contribution against Shoemake. Id.

In Felderhoff, this court did consider the issue of family harmony. We expressly recognized, however, that the aim of domestic tranquility did not provide a realistic justification for parental immunity:

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.

473 S.W.2d at 933. See also Price v. Price, 732 S.W.2d 316, 318 (Tex.1987) (rejecting view that interspousal immunity promotes domestic tranquility).

The real objective of parental immunity, as stated in Felderhoff, is not to promote family harmony; rather, it is simply to avoid undue judicial interference with parental discretion. The discharge of parental responsibilities, such as the provision of a home, food and schooling, entails countless matters of personal, private choice. In the absence of culpability beyond ordinary negligence, those choices are not subject to review in court.

As the court of appeals observed, family harmony may not be a practical concern in cases like the present one, where the family unit no longer exists. Concerns about judicial interference with parental authority, though, do survive the death of a child. Though hindsight may be clear, a court should still be reluctant to "second-guess a parent's management of family affairs" beyond basic, statutory protections. Paige v. Bing Construction Co., 61 Mich.App. 480, 233 N.W.2d 46, 49 (1975). We hold, therefore, that a child's death does not, by itself, extinguish the parent's immunity from liability for negligent supervision. ³ See, e.g., Lewis v. Farm Bureau Mut. Auto Ins. Co., 243 N.C. 55, 89 S.E.2d 788 (1955).

Fogel claims, however, that Shoemake has waived any claim of parental immunity by failing to plead such immunity specifically. Generally, an affirmative defense is waived if it is not pleaded. Tex.R.Civ.P. 94. Though not specifically mentioned in Rule 94, immunity is an affirmative defense that ordinarily must be pleaded to avoid waiver. See, e.g., Davis v. City of San Antonio, 752 S.W.2d 518, 519-20 (Tex.1988) (governmental immunity).

Shoemake did not specifically plead the defense of parental immunity. However, she did plead, as an affirmative defense against each of Fogel's counterclaims, that Fogel was "not entitled to indemnity or contribution from Counter-defendant ... as a matter of law." Fogel filed no special exceptions to clarify this claim. Thus, Fogel cannot now complain that Shoemake's pleading was insufficiently specific. Tex.R.Civ.P. 90, 91; see, e.g., Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982); Manufactured Housing Management Corp. v. Tubb, 643 S.W.2d 483, 487 (Tex.App.--Waco 1982, writ ref'd n.r.e.).

Moreover, Rule 94's requirement of pleading is not absolute. Recently, in Phillips v. Phillips, 820 S.W.2d 785 (Tex.1991), this court considered the circumstances in which the failure to plead an affirmative defense does not result in waiver. We noted that the defense of illegality need not be pleaded, even though it is specifically listed in Rule 94, because "[p]leading an agreement illegal on its face in effect anticipates the defense," and because "[e]nforcement of an illegal agreement violates public policy." 820 S.W.2d at 789-90. For those same reasons, we held that "the defense of penalty is not waived by the failure to plead it if it is apparent on the face of the petition and established as a matter of law." Id.

The same considerations also apply to the defense of parental immunity. If a...