Smith v. Smith

• Full Citation: Smith v. Smith, 922 So.2d 94 (Ala. 2005)
• Decision Date: 12 August 2005
• Citation: 922 So.2d 94
• Docket Number: No. 1031744.,1031744.
• Parties: Janice Marie SMITH, as administrator of the estate of Kevin Morgan Smith, a deceased minor v. Ronnie SMITH a/k/a Ronald Smith, et al.
• Court: Alabama Supreme Court

Page 94

922 So.2d 94

Janice Marie SMITH, as administrator of the estate of Kevin Morgan Smith, a deceased minor v. Ronnie SMITH a/k/a Ronald Smith, et al.

No. 1031744.

Supreme Court of Alabama.

August 12, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas E. Jones, Auburn, for appellant.

James R. McKoon, Jr., Phenix City, for appellees.

SEE, Justice.

Janice Marie Smith is the administrator of the estate of her deceased minor son, Kevin Morgan Smith. Janice sued Ronnie Smith a/k/a Ronald Smith, Maria D. Thrash, Mildred Smith, Classie Marie Little, and fictitiously named parties, alleging negligence, wantonness, and willfulness in causing Kevin's death. The trial court entered a judgment as a matter of law in favor of Ronnie Smith, Maria D. Thrash, and Mildred Smith at the close of Janice's evidence.¹ Janice appeals. We reverse and remand.

I.

On December 10, 1999, Janice took her 10-year-old son, Kevin Morgan Smith, to spend the night with his paternal grandparents, Ronnie Smith and Mildred Smith. Kevin had visited his grandparents approximately three to four times a year since he was six or seven years old. Ronnie and Mildred's house is located on Highway 80 in Phenix City, Alabama. The five-lane highway runs in front of Ronnie and Mildred's home; the highway has two eastbound lanes, two westbound lanes, and a center turning lane.

Maria D. Thrash, Kevin's aunt, was at Ronnie and Mildred's house when Janice dropped Kevin off on December 10. Maria and Mildred had decided earlier that day that later that evening they would go to a jewelry store across the street from Ronnie and Mildred's. Kevin and Maria's daughter Sherry asked if they could go along. Maria and Mildred told them that they had to stay at the house.

At approximately 7:00 p.m., Mildred and Maria left the house and started toward the highway to go to the jewelry store. Kevin and Sherry chased after them. Maria again told Kevin and Sherry to stay in the house, but the children said that both Ronnie and Maria's husband had given them permission to go with Mildred and Maria to the jewelry store.

Maria testified at trial that, although she tried to take Kevin's hand to cross the highway, Kevin raced ahead by himself. Janice provided somewhat conflicting testimony. She testified that Maria had told her that Maria instructed Kevin to run across the highway after Maria had told him that it was "okay" to do so. However, Janice testified that Maria told her that Maria had said "okay" at the end of her instruction to Kevin to ascertain whether he understood her instruction, but that he misconstrued the "okay" to mean that he should cross the highway at that time, and, according to Janice, Maria said that Kevin rushed out as soon as she had finished instructing him. The record is clear that Kevin attempted to cross the highway by himself and that he was hit by a car. Kevin later died at the hospital.

Janice was named the administrator of Kevin's estate. She sued the driver of the car, Classie Marie Little, alleging negligence, willfulness, and wantonness. She also sued Ronnie, Mildred, and Maria alleging negligence, willfulness, and wantonness in their failure to supervise and protect Kevin. All of the defendants eventually answered, and the trial court set a trial date. The case proceeded to trial against Ronnie, Mildred, and Maria.² At trial, Janice testified that she trusted Ronnie, Mildred, and Maria to look after Kevin and to discipline him just as she would. Janice also testified that she considered Ronnie, Mildred, and Maria to stand in her shoes as parent while Kevin was with them.

At the close of Janice's case, Ronnie, Mildred, and Maria moved for a judgment as a matter of law ("JML"), arguing solely that they were entitled to parental immunity because in Janice's absence they stood in loco parentis to Kevin. The trial court granted the motion and entered a judgment in favor of Ronnie, Mildred, and Maria. Janice moved for a new trial on the sole ground that the doctrine of parental immunity should not extend to Ronnie, Mildred, and Maria. The trial court denied that motion. Janice appealed to the Court of Civil Appeals, and the Court of Civil Appeals transferred the case to this Court because it lacked subject-matter jurisdiction. We now reverse the trial court's judgment and remand the case for further proceedings.

II.

"`[T]his Court uses the same standard the trial court used initially in granting or denying a JML.'" I.C.U. Investigations, Inc. v. Jones, 780 So.2d 685, 688 (Ala.2000) (quoting Delchamps, Inc. v. Bryant, 738 So.2d 824, 830 (Ala.1999)). Regarding a question of law, this Court indulges no presumption of correctness as to the trial court's ruling. I.C.U. Investigations, 780 So.2d at 688 (citing Delchamps, Inc., 738 So.2d at 831, and Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992)).

III.

In moving for a JML at the close of Janice's evidence, Ronnie, Mildred, and Maria argued only that they were not liable because they were entitled to parental immunity.³ The trial court reasoned that Ronnie, Mildred, and Maria stood in loco parentis to Kevin and that, consequently, the doctrine of parental immunity extended to shield them from liability. Janice argues that parental-immunity doctrine based on in loco parentis status is not applicable in this case.⁴

This Court has not defined the standard for determining when a nonparent may stand in loco parentis to a child. Thus, this is a case of first impression. Based on the standard we define today, we conclude that Ronnie, Mildred, and Maria did not stand in loco parentis to Kevin and that, therefore, they are not exempt from liability on the basis of parental immunity.

Black's Law Dictionary 803 (8th ed.2004) defines the term "in loco parentis" as "[o]f, relating to, or acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent."⁵ This Court has delineated two clear situations in which a person or entity stands in loco parentis. First, a teacher "`is regarded as standing in loco parentis'" and has the authority to administer moderate corporal punishment to students under his or her care. Deal v. Hill, 619 So.2d 1347, 1348 (Ala.1993)(quoting Suits v. Glover, 260 Ala. 449, 450, 71 So.2d 49, 50 (1954)). Accord, Hinson v. Holt, 776 So.2d 804, 810 (Ala.Civ.App.1998). Second, the Alabama Department of Human Resources "stands in loco parentis to children of unfit parents." Mitchell v. Davis, 598 So.2d 801, 805 (Ala.1992). In other situations, however, Alabama law does not explain how or when a nonparent may stand in loco parentis. See Lipscomb v. Lipscomb, 660 So.2d 986, 988 (Ala.1994)(stating in a child-support case that the evidence showed that a grandfather stood in loco parentis to his granddaughter, but not explaining what that evidence consisted of); Dean v. State, 89 Ala. 46, 46, 8 So. 38, 39 (1889)(holding that one standing in loco parentis may administer reasonable punishment to the child, but not discussing how one acquires in loco parentis status); and Deal v. Deal, 545 So.2d 780, 781 (Ala.Civ.App.1989)(holding that when a stepfather "puts himself in loco parentis, and has a primary duty," he should support his stepchild, but not explaining how a stepfather puts himself in loco parentis).

Other jurisdictions have held that a nonparent stands in loco parentis in two situations: (1) where he or she assumes the obligations incidental to parental relations, without legally adopting the child, and (2) where he or she voluntarily performs the parental duties to generally provide for the child. See Logan v. Logan, 730 So.2d 1124, 1126 (Miss. 1998)(recognizing that the Mississippi Supreme Court has defined "a person acting in loco parentis as one who has assumed the status and obligations of a person without a formal adoption" and that a person who provides parental supervision, support, and education to a child as if the child were his or her own stands in loco parentis); Hamilton v. Foster, 260 Neb. 887, 903-04, 620 N.W.2d 103, 116 (2000)(holding that a person stands in loco parentis to a child if he or she assumes the obligations incident to the parental relationship without legally adopting the child and noting that "[t]he assumption of the relationship is a question of intent, which may be shown by the acts and declarations of the person alleged to stand in that relationship"); Fevig v Fevig, 90 N.M. 51, 53, 559 P.2d 839, 841 (1977)(stating that a person stands in loco parentis when "he puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formalities necessary to a legal adoption" and that to act in loco parentis "the person must intend to assume toward the child the status of a parent"); Rutkowski v. Wasko, 286 A.D. 327, 331, 143 N.Y.S.2d 1, 5 (1955)(holding that a person stands in loco parentis to a child if he or she assumes all the obligations incident to the parental relationship and actually discharges those obligations); and S.A. v. C.G.R., 856 A.2d 1248, 1248 (Pa.Super.Ct.2004)(holding that the status of in loco parentis embodies the idea of assumption of a parental status and the discharge of parental duties and that "`[t]he phrase "in loco parentis" refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption'"). After reviewing that standard as adopted in these other jurisdictions, we adopt the following standard: In Alabama, a nonparent stands in loco parentis if he or she (1) assumes the obligations incident to parental status, without legally adopting the child, and (2) voluntarily performs the parental duties to generally provide for the child.

A person assuming the status and obligations of in loco parentis must intend to assume that status and those obligations. See Hamilton, 260 Neb....