Terror Min. Co., Inc. v. Roter, 92SC693

Decision Date10 January 1994
Docket NumberNo. 92SC693,92SC693
Citation866 P.2d 929
PartiesTERROR MINING COMPANY, INC. and David L. Roter, M.D., Petitioners, v. Alyssa ROTER and Amber Roter, Protected Persons by their Conservator, Stacy Margolin, Respondents.
CourtColorado Supreme Court

Cooper & Kelley, P.C., Kay J. Rice, John R. Mann, Denver, for petitioners.

Feder, Morris, Tamblyn & Goldstein, P.C., Leonard M. Goldstein, Mark D. Thompson, Denver, for respondents.

Justice SCOTT delivered the Opinion of the Court.

In Roter by Margolin v. Terror Min. Co., 847 P.2d 188 (Colo.App.1992), the Colorado Court of Appeals reversed the trial court's summary judgment and reinstated the tort claims brought by unemancipated minor children against their father. We granted certiorari in order to decide whether our parental immunity doctrine bars such claims. We reverse that part of the court of appeals' decision regarding the children's claims of willful and wanton misconduct, an exception to the parental immunity doctrine, but affirm that court's reversal of the trial court's summary judgment and reinstatement of the children's claims of negligence under the business or employment exception to the parental immunity doctrine.

I

Petitioner David L. Roter, M.D. (Dr. Roter) incorporated Terror Mining Corporation, Inc. (TM) as a Colorado corporation in 1981 and was TM's only shareholder. TM was organized for the purpose of mining gold for commercial gain in Eldora, Colorado. Dr. Roter, who worked for TM on a part-time basis, was TM's only employee. 1

On May 12, 1984, Dr. Roter was engaged in work activities in furtherance of TM's business. While so employed, Dr. Roter attempted to transport a large spool of mining cable from an upper driveway to a lower storage area using TM's Mercedes Unimog. 2 The Unimog was equipped with both a 1600 pound front end loader and a 2000 pound counterweight. The counterweight was secured to the posterior bed of the Unimog with a steel restraining band. Dr. Roter was the only person authorized to operate the Unimog and purportedly had extensive experience driving the vehicle.

After Dr. Roter had loaded the steel cable in the front end loader, his two daughters, Alyssa Roter and Amber Roter (the Roter children), who were then two and four years of age respectively, asked Dr. Roter if they could ride in the rear of the Unimog. Dr. Roter agreed and placed the Roter children in the rear bed of the vehicle. With the mining cable in place, he then proceeded to drive the Unimog down a gravel and dirt road that runs parallel to, and roughly thirty to forty feet above, a stream known as Boulder Creek. The road has a grade of approximately seven percent (7%).

Soon after Dr. Roter began driving the Unimog, the counterweight broke loose, propelling the counterweight forward. The resulting shift in the position of the counterweight threw the Unimog apparatus out of balance, causing Dr. Roter to lose steering control of the vehicle. Dr. Roter attempted to offset the shift in weight by lowering the front-end loader, however, this maneuver caused the Unimog to veer toward the edge of the road and toward the creek below. Unable to control the Unimog, Dr. Roter immediately jumped out of the vehicle and tried to rescue the Roter children from the rear of the Unimog. Before he could reach them, however, the Unimog ran over the edge of the road, whereupon the Roter children were thrown into Boulder Creek. As a result, the children sustained severe injuries.

II

On June 11, 1990, by and through their mother and conservator, Stacy Margolin, 3 the Roter children filed suit in the district court to recover damages for all past and future medical expenses, pain and suffering, permanent disabilities, exemplary damages and for attorney fees and costs with interest. In their verified complaint, the Roter children specifically alleged that their injuries were "the direct and proximate result of Defendant Roter's negligence, carelessness and/or recklessness."

The defendants, Dr. Roter and TM, moved for summary judgment on the grounds that, there being no genuine issue of material fact as a matter of law, the tort action filed by the Roter children was barred under the doctrine of parental immunity. The Roter children argued in opposition to the motion that two exceptions to the parental immunity doctrine that have been adopted by this jurisdiction were applicable to this case, i.e., that Dr. Roter engaged in willful and wanton misconduct and that the incident arose out of Dr. Roter's pursuit of a business or employment activity. As such, the Roter children asserted that Dr. Roter was not protected under our parental immunity doctrine.

Finding the "events which led to the injuries" suffered by the children "undisputed," the district court entered summary judgment in favor of Dr. Roter and TM. That court granted the defendants' motion and dismissed all claims filed by the Roter children on the grounds that, first, the exception to the parental immunity doctrine that is based upon a finding of willful and wanton misconduct by a parent did not apply to the instant case, inasmuch as the Roter children failed to demonstrate a genuine issue of material fact and that their complaint "allege[d] no facts which could conceivably support a finding of willful and wanton or intentional misconduct." Additionally, the district court ruled that the business or employment exception to the parental immunity doctrine was inapplicable to this case because

the parental immunity doctrine is a question of law for the court's determination [and g]iven the policy reasons for the doctrine, that determination can only be based on whether the children were under parental supervision of their father at the time of the injury. If they were, the doctrine applies even though the operative act of negligence ... was within the course and scope of a business activity.

Thus the district court also concluded that because Dr. Roter put his children in the flatbed of the Unimog "in the exercise of parental supervision," a decision that "had nothing to do with [his mining] business," as a matter of law, the doctrine of parental immunity barred the action brought against Dr. Roter.

Following the district court's entry of summary judgment in this matter, the Roter children appealed to the court of appeals. In Roter by Margolin v. Terror Min. Co., Inc., 847 P.2d 188 (Colo.App.1992), the court of appeals reversed the trial court's summary judgment in favor of Dr. Roter and TM, first, on the ground that disputed material factual issues as to whether Roter's conduct was willful and wanton existed. The court of appeals' analysis on this issue is as follows:

The record discloses that the [Roter children] alleged, both in their complaint and in their submissions in opposition to summary judgment, a number of undisputed circumstances in support of their position that Roter's conduct went beyond simple negligence and constituted willful and wanton misconduct. Specifically, [they] cited their young age ..., their unrestrained position in the open rear bed of the Unimog, together with the fact that it was not designed to carry persons. They [also] note the danger resulting from their proximity to the insecurely fastened counterweight and the steep grade of the road being traveled. They likewise point out that, because of their positions relative to that of Roter while operating the machine, he could not get to them in case of an emergency.

Roter, 847 P.2d at 190. The court of appeals thus concluded that the Roter children alleged facts in the complaint and in opposition to the defendants' motion sufficient to support an inference that Dr. Roter's conduct fell within the "willful and wanton misconduct" exception to the parental immunity doctrine, and that as such, summary judgment was inappropriate.

Additionally, the court of appeals reversed the district court's ruling that Dr. Roter's actions did not fall within the limited business or employment exception to the parental immunity doctrine. In support of its judgment, the court of appeals noted that the record

discloses undisputed evidence in support of [the Roter children's] position that they were injured during [Dr.] Roter's exercise of his corporate duties. In this regard, [the Roter children] cite [Dr.] Roter's status as the sole shareholder of the corporation and his being the only authorized driver of the Unimog, which Roter had acknowledged was mostly used on the corporation's mining property. [The Roter children] bolster their position with [Dr.] Roter's admission that he was using the Unimog the day of the accident "in the furtherance of the corporation's business."

Id. The court of appeals concluded that these "undisputed facts, likewise, would be sufficient to support a reasonable factual inference that [the Roter children] were, indeed injured ... while [Dr. Roter] was engaged in [the] acts of his corporation...." Roter, 847 P.2d at 190-91. Accordingly, that court held that the trial court erred in entering summary judgment in favor of Dr. Roter because a genuine issue of material fact was raised by the Roter children. 4 Roter, 847 P.2d at 191.

We granted the petition for certiorari filed by Dr. Roter and TM in order to resolve the following two issues: (1) whether the court of appeals erred in holding that it reasonably could be inferred from the undisputed facts that Dr. Roter's conduct was willful and wanton, rendering summary judgment based on application of the parental immunity doctrine inappropriate; and (2) whether the business or employment exception to the parental immunity doctrine should apply when a parent is acting both in the course of employment and in a parental capacity. Because we find the record does not support a reasonable inference that Dr. Roter's conduct was willful and wanton, we reverse the court of appeals' holding that Dr. Roter's conduct was...

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