Zellmer v. Zellmer

• Decision Date: 01 May 2006
• Docket Number: No. 55473-5-I.,55473-5-I.
• Citation: 133 P.3d 948,132 Wn. App. 674
• Parties: Stacey ZELLMER, individually and as co-personal representative of the Estate of Ashley Cay McLellan, and Bruce McLellan, individually and as co-personal representative of the Estate of Ashley Cay McLellan, Appellants, v. Joel ZELLMER, Respondent.
• Court: Washington Court of Appeals

133 P.3d 948

132 Wn. App. 674

Stacey ZELLMER, individually and as co-personal representative of the Estate of Ashley Cay McLellan, and Bruce McLellan, individually and as co-personal representative of the Estate of Ashley Cay McLellan, Appellants, v. Joel ZELLMER, Respondent.

No. 55473-5-I.

Court of Appeals of Washington, Division 1.

May 1, 2006.

Eric William Lindell, Lindell Law Offices, Mercer Island, WA, for Appellants.

Harold B. Field, Murray Dunham & Murray, Joseph D. Hampton, Catherine Pruett Betts, Patterson & Mines, Seattle, for Respondent.

ELLINGTON, J.

¶ 1 A small child drowned in a swimming pool while under her stepfather's supervision. The chief question presented here is whether the doctrine of parental immunity protects stepparents as it does legal parents. We hold it does, so long as the stepparent stands in loco parentis to the child.

BACKGROUND

¶ 2 Three-year-old Ashley McLellan lived primarily with her mother and stepfather, Stacey and Joel Zellmer. On December 3, 2003, Ashley was sick, and stayed home from day care. Her mother went to work, and her stepfather Joel stayed home with Ashley. At approximately 5:00 p.m., Joel's eight-year-old son Dakota came home from school. Joel checked on Ashley in her upstairs bedroom and started a movie for her. About 30 or 40 minutes later, Joel found Ashley floating in the swimming pool in the backyard. He performed CPR until paramedics arrived, but Ashley died two days later.

¶ 3 The Zellmers' marriage ended soon after Ashley's death. Stacey Zellmer and Ashley's father, Bruce McLellan, sued Joel Zellmer for wrongful death, alleging negligent supervision, negligent infliction of emotional distress, willful or wanton misconduct, outrage, and breach of contract. The trial court dismissed all claims on summary judgment, ruling as to the negligence claims that Zellmer was entitled to the protection of the parental immunity doctrine.

ANALYSIS

¶ 4 With certain exceptions, parents and guardians are generally immune from liability to their children for injuries caused by negligent supervision.¹ The doctrine of parental immunity originated to "preserv[e] harmony in domestic relations,"² and its purpose has been variously described as "`maintaining family tranquility, fear of undermining parental control and authority, an interest in assuring that family property be shared by all rather than appropriated by one family member, fear of collusion and fraud, and a view of the parent-child relationship as analogous to the husband-wife relationship.'"³

¶ 5 The Washington Supreme Court has expressly rejected most of these rationales, holding that the doctrine is grounded not on a need to preserve family tranquility or avoid fraud, but solely on the need for discretion in performing parental duties:

Parenthood places a grave responsibility upon the father and mother. It is their duty to rear and discipline the child. In rearing the child, the parents must provide a home and perform tasks around the home and on the premises. In most cases, it is necessary or convenient to provide a car for family transportation. In all the family activities, the parents and children are living and working together in close relationship, with neither the possibility of dealing with each other at arm's length, as one stranger to another, nor the desire to so deal. The duty to discipline the child carries with it the right to chastise and to prescribe a course of conduct designed for the child's development and welfare. This in turn demands that the parents be given a wide sphere of discretion.

In order that these parental duties may adequately be performed, it is necessary that the parents be not subject to the risk of suit at the hands of their children. If such suits were common-place, or even possible, the freedom and willingness of the father and mother to provide for the needs, comforts and pleasures of the family would be seriously impaired. Public policy therefore demands that parents be given immunity from such suits while in the discharge of parental duties.[⁴]

¶ 6 Initially, appellants urge us to follow the trend in other jurisdictions and abolish the parental immunity doctrine. Our Supreme Court has, however, declined to go so far, directing instead that the doctrine be reviewed on a case by case basis.⁵ Appellants also point out that the trend has been to narrow the scope of parental immunity. But the doctrine's reach has thus far been limited in Washington only by the types of parental behavior it protects, not by the parties to whom it applies. Washington thus continues to recognize immunity from suit for parents performing parental duties such as supervision. The question, therefore, is whether the doctrine applies to stepparents performing parental duties.

¶ 7 It is difficult to see why a stepparent living with a child and performing parental duties does not require the same wide sphere of discretion as a legal parent. Indeed, the "freedom and willingness" of a stepparent to provide for the child may be more in need of protection, given that a stepparent's obligation to the child derives only from the circumstance of marriage. In one of the earliest cases to address this question, the Minnesota Supreme Court observed as follows:

If a stepfather has voluntarily assumed all the obligations and beneficent attitudes of a natural parent toward an unemancipated minor child, it is difficult to understand why he should be denied any of the immunities from suit accorded for reasons of public policy to a natural parent. The California supreme court in Trudell v. Leatherby, 212 Cal. 678, 683, 300 P. 7, 9, pointed out that:

"The same vexatious conditions created in the family circle by litigation between parent and child, would result from like litigation instituted by a minor against the stepfather or stepmother when the minor has been taken into and is a member of the household of the latter. We can see no good reason why we should apply the rule in one case and deny its application in the other. . . ."

Clearly, the interests of society require peace and discipline in a home presided over by a faithful and devoted stepparent as well as in a natural home.[⁶]

The majority of courts to address this question agree that the policies justifying parental immunity apply equally to stepparents, so long as they stand in loco parentis to the child.⁷

¶ 8 The requirement of a showing of in loco parentis standing reflects the connection between entitlement to immunity and financial obligation toward the child. In most of these jurisdictions, stepparents are not legally bound to support their stepchildren.⁸ Reasoning that immunity is a reciprocal benefit arising from a legally enforceable financial responsibility, these courts conclude that stepparents do not earn the benefit of immunity simply by virtue of marriage to a legal parent.⁹ These courts therefore look to in loco parentis status as some guarantee of a continuing commitment, an indication that the injured child will not be left without the negligent stepparent's financial resources.

¶ 9 Financial responsibility is a touchstone in Washington immunity cases as well, and was determinative in Stevens v. Murphy,¹⁰ in which the Washington Supreme Court held a divorced, noncustodial parent immune from suit because the children remained entitled to his financial support:

The prior divorce did not totally deprive him of his parental rights. It did not divest him of the right to the love and affection of his children; nor them of the right to his. Nor did the divorce decree take from the children their legitimate claims of support and aid from their father. This is a complete answer to the argument tendered by appellants that the divorce decree extinguished any parental relationship that existed prior thereto.[¹¹]

¶ 10 Further, in Washington, the family support statute imposes financial responsibilities upon stepparents.¹² The statute applies to all stepparents whose stepchildren "are part of the family unit, who reside in the family home, or who are in the residential care of one of the adults in this family unit."¹³ The statute codifies the common law, and incorporates the in loco parentis inquiry.¹⁴ A financial support obligation thus arises where a stepparent is in loco parentis, which usually occurs when a stepparent is married to a child's primary residential parent.

¶ 11 There may be rare circumstances in which residential arrangements are not determinative, because a stepparent stands in loco parentis to a child only if he or she has the subjective intent to assume the status of parent to the child.¹⁵ This is a highly factual inquiry, and may be neither simple nor predictable. In today's world of blended families and shared parenting, the question could generate litigation of precisely the kind the immunity doctrine seeks to prevent: putting hearsay and finger pointing on the main stage in circumstances where hindsight clouds rather than illuminates.

¶ 12 But we have discovered only one Washington case considering the in loco parentis status of a stepparent whose stepchildren resided in his home. In In re Montell, unusual facts prevailed, in that the children lived with their mother and stepfather only for the duration of the custodial father's incarceration.¹⁶ The court held the stepfather was essentially an accidental and temporary custodial stepparent without the intent necessary for in loco parentis standing, and thus was not liable to the State for the children's support.¹⁷

¶ 13 In most cases, however, the stepparent who is married to the primary residential parent and lives in the same household with the child is obliged to support the child.¹⁸ These stepparents assume the duties of parents, and have need of the same wide sphere of discretion as legal parents. We hold that stepparents who are obligated to support stepchildren under the family support statute are protected by the immunity doctrine to the...