Smelser v. Paul

• Decision Date: 06 July 2017
• Docket Number: No. 93076-7,93076-7
• Citation: 188 Wash.2d 648,398 P.3d 1086
• Parties: Dillon SMELSER, individually, and Derrick Smelser, a minor child, by and through his parent/guardian, Maria Selph, Petitioners, v. Jeanne PAUL and "John Doe" Paul, individually and the marital community comprised thereof, and Ronald Smelser, individually, Respondents.
• Court: Washington Supreme Court

188 Wash.2d 648

398 P.3d 1086

Dillon SMELSER, individually, and Derrick Smelser, a minor child, by and through his parent/guardian, Maria Selph, Petitioners,

v.Jeanne PAUL and "John Doe" Paul, individually and the marital community comprised thereof, and Ronald Smelser, individually, Respondents.

No. 93076-7

Supreme Court of Washington.

Argued Nov. 17, 2016

Filed July 6, 2017

Reconsideration Denied September 1, 2017

Paul Alexander Lindenmuth, Ben F. Barcus & Associates PLLC, 4303 Ruston Way, Tacoma, WA, 98402-5313, for Petitioners.

Sandra B. Bobrick, Sloan Bobrick PS, 4810 Pt. Fosdick Drive N.W., #83, Gig Harbor, WA, 98335, Joanne Henry, Attorney at Law, 4128 N. Mason Ave., Tacoma, WA, 98407-4934, for Respondents.

Daniel Edward Huntington, Gary Neil Bloom, Richter-Wimberley PS, 422 W. Riverside Ave., Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis Mcomie, Attorney at Law, 4549 N.W. Aspen St., Camas, WA, 98607-8302, as Amicus Curiae on behalf of Washington State Association for Justice Foundation.

JOHNSON, J.

¶1 This case concerns the intersection of the doctrine of parental immunity with the system of proportionate liability under chapter 4.22 RCW. Two-year- old Derrick Smelser was run over while playing in his yard by a car driven by the defendant, Jeanne Paul. At trial, Paul was allowed to assert an affirmative defense that the child's father was partially at fault based on negligent supervision of the child. Instructed under RCW 4.22.070, the jury determined the father was 50 percent at fault. However, the trial court refused to enter judgment against the father based on the parental immunity doctrine. The result was that the child's recovery against the driver was reduced by 50 percent. The Court of Appeals affirmed. Smelser v. Paul , noted at 193 Wash.App. 1014, 2016 WL 1306678, review granted , 186 Wash.2d 1002, 380 P.3d 453 (2016). We reverse and hold that under chapter 4.22 RCW and our case law, no tort or fault exists based on the claim of negligent supervision by a parent.

FACTS AND PROCEDURAL HISTORY

¶2 When he was two years old, Derrick¹ was playing in his father, Ronald Smelser's, driveway. Respondent Paul, the father's then girlfriend, had been visiting and had parked her truck in the driveway. As Paul started to drive away, she hit Derrick, who "was pulled under the vehicle and dragged for a distance," and suffered severe injuries. Clerk's Papers (CP) at 300. Derrick's father was home at the time but did not witness the accident. Derrick's five-year-old brother did witness the accident, and when the father heard Derrick's brother, Dillon, screaming, he looked in that direction and saw Derrick under Paul's truck.

¶3 This lawsuit was brought on behalf of Derrick against Paul based on negligence. Paul admitted the basic facts of the accident, but asserted as an affirmative defense that Derrick's father (who was not named as a defendant in the original complaint) was either partially or entirely responsible for the injuries based on a theory of negligent supervision. Derrick moved for summary judgment, arguing that no apportionment of fault to the father was allowable as a matter of law. The court denied summary judgment. Derrick thereafter amended his complaint to include the father as a defendant. The amended complaint did not allege that the father was negligent or otherwise at fault in any way, but stated only that "Defendant Paul also contends that Defendant Ronald Smelser was concurrently negligent and/or engaged in willful misconduct which was a proximate cause of Plaintiffs' injuries." CP at 301. The father never appeared as a party in the suit, and the court entered an order of default against him.

¶4 The case proceeded to a jury trial. Although the father had never appeared as a party, he was called as a witness. Derrick's theory of the case was that Paul was the only one who was negligent, that her negligence was the sole proximate cause of Derrick's injuries, and that the jury was instructed that Derrick had the initial burden of proving that Paul was negligent and had caused his injuries. The jury was also instructed to then consider whether Paul had met her burden of proving, as an affirmative defense, that the father was also negligent. The jury was permitted to apportion fault to the father only if Paul met her burden of proof.

¶5 The jury found that both Paul and the father were negligent and that both proximately caused Derrick's injuries. On a special verdict form, the jury attributed 50 percent of the damages to Paul and 50 percent to the father. Paul proposed the court enter a judgment against her only for the 50 percent of damages apportioned to her by the jury. Derrick objected, proposing that "a ‘joint and several’ Judgment be entered against both Jeanne Paul and Ronald Smelser for the entire amount of Derrick's damages." CP at 1669. Paul, however, argued that a judgment could not be entered against the father due to parental immunity, and noted that joint and several liability is allowed only where there are two or more "defendants against whom judgment is entered." RCW 4.22.070(1)(b) ; CP at 1671.

¶6 The court entered judgment as proposed by Paul for 50 percent of the damages found by the jury. It did not enter any judgment against the father. The Court of Appeals affirmed. We granted review.

ISSUE

¶7 Whether, consistent with the parental immunity doctrine, a parent can be assigned fault under chapter 4.22 RCW based on negligent supervision.

STANDARD OF REVIEW

¶8 This case requires us to consider the proportionate liability scheme in chapter 4.22 RCW in light of the common law doctrine of parental immunity. Chapter 4.22 RCW was enacted in 1986 and, in general terms, was intended to modify certain principles of tort law. Under specific situations, the statute established a system of proportionate fault, modifying the rule of joint and several liability. In situations involving a fault-free plaintiff, joint and several liability remains as to persons or entities against whom judgment is entered. The centerpiece of chapter 4.22 RCW is RCW 4.22.070. RCW 4.22.070(1) provides:

In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages except entities immune from liability to the claimant under Title 51 RCW. The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent. The entities whose fault shall be determined include the claimant or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant, but shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages. The liability of each defendant shall be several only and shall not be joint except:

....

(b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants [claimant's] total damages.

(Second alteration in original) (emphasis added). Under RCW 4.22.070, the foundation of fault apportionment is that all tortfeasors responsible to the injured plaintiff are identified and a percentage of fault is assigned among them. Relying on the clause "entities immune from liability to the claimant," the lower courts allowed the jury to apportion fault to the father based on a claim of negligent supervision.

¶9 Before applying RCW 4.22.070, a preliminary issue that must be resolved is whether a tort duty exists from which fault can be found for negligent parenting.² The trial court and Court of Appeals failed to first determine whether a parent can be liable in tort for his or her child's injuries based on a theory of negligent supervision. While cases have described the principle as a form of "parental immunity," what the cases establish is that no tort liability or tort duty is actionable against a parent for negligent supervision. Simply stated, it is not a tort to be a bad, or even neglectful, parent.

¶10 We comprehensively discussed the cases establishing this rule in Zellmer v. Zellmer, 164 Wash.2d 147, 188 P.3d 497 (2008). Zellmer involved a wrongful death claim brought based on the drowning death of a child while under the stepfather's care. The suit alleged negligence and negligent supervision claims. We were urged to abolish our long standing parental immunity doctrine. We rejected that argument and held the claim was barred. Important to the analysis and conclusion in Zellmer is the analysis of our case law and the principles we have established.

¶11 We reasoned that

this court has consistently held a parent is not liable for ordinary negligence in the performance of parental responsibilities. Jenkins [ v. Snohomish County Pub. Util. Dist. No. 1 ], 105 Wn.2d 99 [, 713 P.2d 79 (1986) ] (disallowing contribution claim where parents allowed child to wander free in neighborhood; child electrocuted at utility power station); Talarico v. Foremost Ins. Co., 105 Wn.2d 114, 712 P.2d 294 (1986) (disallowing negligent supervision claim where parent started backyard fire then left three-year-old son unattended, resulting in severe bums); Baughn v. Honda Motor Co., 105 Wn.2d 118, 119, 712 P.2d 293 (1986) (disallowing contribution claim where parents allowed sight-impaired child to ride motorbike, resulting in fatal crash); Stevens v.

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