Swartz v. Swartz

• Decision Date: 20 September 1994
• Docket Number: No. WD,WD
• Citation: 887 S.W.2d 644
• Parties: Judith E. SWARTZ, Appellant, v. James M. SWARTZ, Pamela Van Beek and Casualty Reciprocal Exchange, Respondents. 48494.
• Court: Missouri Court of Appeals

Page 644

887 S.W.2d 644

Judith E. SWARTZ, Appellant, v. James M. SWARTZ, Pamela Van Beek and Casualty Reciprocal Exchange, Respondents.

No. WD 48494.

Missouri Court of Appeals Western District.

Sept. 20, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 1, 1994.

Application to Transfer Denied

Dec. 20, 1994.

William G. Cownie, Lee's Summit, for appellant.

Martin M. Montemore, Kansas City, for respondent James M. Swartz, Thomas R. Hill, Kansas City, for respondent Pamela Van Beek, Paul P. Hasty, Jr., Kansas City, for respondent Cas. Reciprocal Exchange.

Before HANNA, P.J., and BRECKENRIDGE and ELLIS, JJ.

BRECKENRIDGE, Judge.

Judith Swartz appeals from the trial court's order granting summary judgment in favor of James Swartz and Pamela Van Beek in a negligence action relating to criminal sexual abuse inflicted on Judith Swartz by Mr. Swartz, her adoptive father. Judith Swartz raises four points on appeal, alleging that the trial court erred in granting summary judgment because (1) the doctrine of parental immunity should not have been applied and (2) no evidentiary hearing was held on the motion for summary judgment. Judith Swartz further contends that the trial court erred in failing to grant her own motion for summary judgment because (3) all of the elements necessary to establish the commission of the tort of negligent infliction of emotional distress by Mr. Swartz were undisputed and (4) the evidence that Ms. Van Beek negligently failed to seek adequate medical care for Judith Swartz was overwhelming. The judgment is affirmed in part, reversed in part and remanded.

Judith Swartz was born on November 18, 1968, to Pamela Van Beek. James Swartz legally adopted Judith Swartz in September of 1976, prior to his marriage to Ms. Van Beek in November of 1979. The couple was divorced in April of 1983. On February 28, 1983, Mr. Swartz was convicted by a Clay County jury of sexually abusing Judith Swartz, for which he was later sentenced to a prison term of fifteen years. Judith Swartz testified at the trial that the acts of abuse began in November of 1979 and ended on September 27, 1982.

On November 17, 1992, Judith Swartz filed this action for damages against Mr. Swartz and Ms. Van Beek. In her first amended petition, Judith Swartz alleged as Count I that her mother negligently and carelessly provided supervision and care for her, negligently failed to warn her of the "dangers and character of her husband," and negligently failed to procure adequate medical care for her after a jury convicted Mr. Swartz of child sexual abuse. In Count II of her petition, Judith Swartz claimed that Mr. Swartz negligently allowed himself to be in her presence, negligently failed to remove himself from her presence, negligently failed to seek help from others for the purpose of protecting Judith Swartz from his abuse, and negligently failed to procure medical treatment for Judith Swartz after he was convicted of child sexual abuse. In Count III, Judith Swartz maintained that Mr. Swartz negligently inflicted emotional distress on her when he attempted to remove her by force from her home on October 18, 1982.

Each of the parties filed a motion for summary judgment. The trial court granted summary judgment in favor of Mr. Swartz and Ms. Van Beek on September 9, 1993. In its order, the trial court concluded that Mr. Swartz and Ms. Van Beek had "parental immunity for alleged acts or omissions which allegedly injured plaintiff on or before December 16, 1991." Judith Swartz now appeals the grant of summary judgment.

The standard for appellate review of a summary judgment is de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). This court's criteria for ascertaining the propriety of summary judgment are the same as those used by the trial court when determining the propriety of sustaining the motion initially. Id. Summary judgment will be upheld on appeal if the reviewing court determines that the movant had a right to judgment as a matter of law and that no genuine issue of material fact existed. Rodgers v. Czamanske, 862 S.W.2d 453, 457 (Mo.App.1993).

I.

Judith Swartz contends as her first point on appeal that the trial court erred in relying on the doctrine of parental immunity in granting the summary judgment motions of Mr. Swartz and Ms. Van Beek. Judith Swartz maintains that parental immunity should not apply because the policy behind the doctrine would not be advanced by its use in this case.

Parental immunity is a judicially-created doctrine first enunciated in the United States by the Mississippi Supreme Court in Hewelett v. George, 68 Miss. 703, 9 So. 885 (1891). The Mississippi court created the doctrine to prevent a minor daughter from suing her mother's estate for damages from psychological suffering and injury incurred when her mother had her incarcerated in an insane asylum for eleven days. The Mississippi Supreme Court based its creation of the doctrine on the premise that allowing minor children to sue their parents or their estates would disrupt family harmony to such an extent that it would be unacceptable from a public policy perspective. Id., 9 So. at 887.

The parental immunity doctrine was adopted by the Missouri Supreme Court in Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29 (1953). ¹ The Supreme Court held in Baker that in the interest of preserving family harmony, a fifteen-month-old child could not sue her father for mere negligence arising from an auto accident. Id. 263 S.W.2d at 32. This initial formulation of the rule applied only to unintentional torts committed within the scope of "parental authority or duty." Id. at 31.

As the parental immunity doctrine evolved in Missouri, the Supreme Court began to create exceptions to the general rule that parents were immune to tort actions instituted by their children. In Wurth v. Wurth, 322 S.W.2d 745 (Mo. banc 1959), the Supreme Court ruled that parental immunity did not apply to the claims of minors emancipated at the time of injury. Id. at 747. The next limitation of the parental immunity doctrine was delineated by the Supreme Court a year later, when the Court ruled that a deceased parent's estate could not claim parental immunity because the reasoning behind the doctrine, the preservation of family harmony, was no longer viable after the death of the parent. Brennecke v. Kilpatrick, 336 S.W.2d 68, 73 (Mo. banc 1960). Implementing the same logic, the Court further eroded the parental immunity doctrine with its decision in Fugate v. Fugate, 582 S.W.2d 663 (Mo. banc 1979), holding that a non-custodial parent was excluded from immunity because, in a post-dissolution setting, the family harmony had already been destroyed. Id. at 669.

In Kendall v. Sears, Roebuck and Co., 634 S.W.2d 176, 178 (Mo. banc 1982), the Court clearly articulated that the parental immunity doctrine should be applied on a case-by-case basis. In conducting the case-by-case analysis, trial courts are to hold evidentiary hearings to determine whether the allowance of the action by the child against the parent would disrupt the tranquility of the domestic establishment or subvert parental control and discipline. Id. at 180.

On December 17, 1991, the Supreme Court abrogated the parental immunity rule established by Baker. In Hartman by Hartman v. Hartman, 821 S.W.2d 852 (Mo. banc 1991), the Court held that the parental immunity exception to the general rule of tort liability was no longer a viable doctrine, id. at 855-56, and adopted in its place a reasonable parent standard. Id. at 858. The Court explained that the policy of preserving family harmony was "less significant than the interest in the right of an injured child to recover for injuries," since damage to family harmony and relationships occurred at the time the wrong was committed. Id. at 855. The abrogation of the doctrine, though, was to have a prospective effect only:

This holding shall apply only to those cases pending in the trial court in which a claim challenging and seeking the overturn of [the] parental immunity doctrine has been timely raised as of the date of issuance of this opinion as well as to those cases in which appealable orders have been entered by the trial court and in which the aggrieved party (or parties) has preserved such issue in a timely manner for appellate review as of the date of issuance of this opinion and to causes of action that arise after the date of issuance of this opinion.

Id. at 858. Judith Swartz's cause of action did not arise after the date of the issuance of Hartman, nor was it pending on December 17, 1991; therefore, her present action must fall under one of the pre-Hartman exceptions if she is to maintain her action.

As noted earlier in this opinion, prior to Hartman, the doctrine of parental immunity was not an absolute rule, but was to be applied only "when the court concludes that to hold otherwise would seriously disturb the family relations and thus be contrary to public policy." Brennecke, 336 S.W.2d at 70. As stated in Brennecke, "[t]he immunity of the parent usually has been predicated upon the premise that to allow such an action against a parent would either disrupt the tranquility of the domestic establishment or subvert parental control and discipline." Id. A cause of action by a minor against a parent could be maintained under the law as it existed before Hartman "if the reasons for its denial [were] no longer in existence." Id. at 73.

No Missouri case was cited, or found, which has addressed the application of the rule of parental immunity where a sexual abuse victim is suing the victim's parent for civil damages. Other jurisdictions have addressed this issue, though, and have found that the doctrine should not apply in cases involving claims of sexual abuse. In a recent decision, the Alabama Supreme Court determined that parental immunity did not apply to sexual abuse cases, as long as the evidence of...