Zellmer v. Zellmer

• Decision Date: 24 July 2008
• Docket Number: No. 78852-9.,78852-9.
• Citation: 164 Wn.2d 147,188 P.3d 497
• Court: Washington Supreme Court
• Parties: Stacey ZELLMER, individually and as copersonal representative of the estate of Ashley Cay McLellan; and Bruce McLellan, individually and as copersonal representative of the estate of Ashley Cay McLellan, Petitioners, v. Joel ZELLMER, Respondent.

188 P.3d 497

164 Wn.2d 147

Stacey ZELLMER, individually and as copersonal representative of the estate of Ashley Cay McLellan; and Bruce McLellan, individually and as copersonal representative of the estate of Ashley Cay McLellan, Petitioners, v. Joel ZELLMER, Respondent.

No. 78852-9.

Supreme Court of Washington, En Banc.

Argued May 22, 2007.

Decided July 24, 2008.

Eric William Lindell, Lindell Law Offices, Seattle, WA, for Petitioner.

Joseph D. Hampton, Catherine Elaine Pruett, Daniel L. Syhre, Betts, Patterson & Mines, P.S., Seattle, WA, for Respondent.

MADSEN, J.

¶ 1 Three-year-old Ashley McLellan drowned in a backyard swimming pool while under the supervision of her stepfather, Joel Zellmer. The trial court ruled the parental immunity doctrine shields Zellmer from liability for negligence in connection with her death. Petitioners Stacey Ferguson¹ and Bruce McLellan, Ashley's biological parents, challenge that ruling. They contend the parental immunity doctrine should be abolished in favor of a reasonable parent standard. Alternatively, they argue the doctrine does not apply under the facts of this case.

¶ 2 We reaffirm that the doctrine of parental immunity precludes liability for negligent parental supervision, but not for a parent's wanton or willful failure to supervise a child. See Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wash.2d 99, 713 P.2d 79 (1986). We decline to recognize an exception for wrongful death actions. We further hold the parental immunity doctrine shields a stepparent to the same extent as a biological or adoptive parent, so long as the stepparent stands in loco parentis to the child. However, we agree with petitioners that summary judgment was improper because Zellmer's loco parentis status is a question of fact that may not be decided as a matter of law on this record. Thus, we reverse the summary judgment order.

FACTS

¶ 3 About four months after they met, Ferguson and Zellmer got married. Clerk's Papers (CP) at 6-7, 26, 69. Ferguson had a three-year-old daughter, Ashley, from a previous marriage. They moved to Zellmer's house on the day of the marriage, September 6, 2003. Ordinarily, Ashley went to day care while Ferguson worked. On December 3, 2003, however, Ashley stayed home sick. Id. at 71. Zellmer agreed to take care of her.

¶ 4 According to Zellmer, at about 5:00 p.m. he started a video for Ashley in her bedroom and then went downstairs to build a fire. About an hour later, he realized she was no longer in her room. He noticed the sliding glass door leading to the backyard was open. He went outside and found Ashley floating in the swimming pool. He pulled her out and called 911. The paramedics resuscitated Ashley, but she died in the hospital two days later.

¶ 5 Ferguson and McLellan sued Zellmer for wrongful death, alleging several causes of action including negligence, negligent supervision, willful and wanton misconduct, breach of contract, negligent infliction of emotional distress, and outrage. Id. at 11-13.

¶ 6 Zellmer moved for summary judgment. He claimed the parental immunity doctrine shielded him from liability for negligence in connection with Ashley's death. Id. at 20. He asserted he stood in loco parentis to Ashley because he provided her financial and emotional support, including housing, meals, and day care. According to Zellmer, Ashley referred to him as "Daddy," and he treated her as his own daughter.

¶ 7 In opposition to the summary judgment motion, Ferguson disputed Zellmer's characterization of his relationship with Ashley. She denied Zellmer supported Ashley financially. She said he was unemployed throughout their marriage and she and McLellan provided for Ashley's needs. According to Ferguson, Ashley spent little time with Zellmer and was still uncomfortable around him on the day she drowned. She said "Joel and Ashley were not even close and Joel did not stand in place of a parent for Ashley." Id. at 71. She said Zellmer was "impatient and short with Ashley and acted in an intimidating manner to her." Ferguson did not allow him to discipline Ashley because she did not think he knew her well enough to do so. Id.

¶ 8 A visitor to Zellmer's house said she witnessed an argument between Zellmer and Ferguson, following which Zellmer called Ashley "a little bitch." Id. at 66.

¶ 9 Ferguson described the 88 days she and Ashley lived with Zellmer as "marked by turmoil." Id. at 69. She claimed Zellmer assaulted her twice, causing her to take Ashley and go stay with her parents. On the day Ashley drowned, Ferguson moved out of Zellmer's house permanently.

¶ 10 McLellan stated he paid child support for Ashley and exercised his visitation rights regularly following the dissolution of his marriage to Ferguson. Id. at 63, 68. According to McLellan, he paid half of Ashley's day care and medical insurance and continued to provide financial and emotional support. Ashley always referred to him as "Dad," and referred to Zellmer as "Joel." Id. at 64. He was actively involved in Ashley's life as her father since the day she was born and intended to do so until he died. "Based on my observations it would be inaccurate to say that Ashley ever hoped that Joel Zellmer would play a parental role in her life." Id.

¶ 11 Ferguson also cast doubt on Zellmer's version of the events surrounding Ashley's death. She said Ashley never would have wandered outside in her pajamas on a cold December night or gone to the unheated swimming pool, which was located in a far corner of the property. Id. at 72. She said a few days after they married, Zellmer purchased a $200,000 accidental death insurance policy for Ashley, naming himself as cobeneficiary. Id. Ferguson pointed to an ongoing criminal investigation of Ashley's death and Zellmer's refusal to cooperate with the police, as evidence the drowning resulted from his intentional misconduct.

¶ 12 The trial court granted summary judgment in favor of Zellmer. The trial court criticized the parental immunity doctrine but reasoned so long as the doctrine remains viable in Washington, it should apply to stepparents as well as to natural parents. The trial court concluded Zellmer necessarily stood in loco parentis to Ashley by virtue of assuming the status of stepparent: "when there is a marriage ceremony and there is a blended family and someone becomes a stepparent that the doctrine of parental immunity applies, and there does not have to be a finding of in loco parentis." Verbatim Report of Proceedings (VRP) (Nov. 5, 2004) at 9.

¶ 13 On appeal, the Court of Appeals recognized stepparents "do not earn the benefit of immunity simply by virtue of marriage to a legal parent." Zellmer v. Zellmer, 132 Wash.App. 674, 681, 133 P.3d 948 (2006). Reasoning that parental immunity is a "reciprocal benefit arising from a legally enforceable financial responsibility," id., the Court of Appeals held a stepparent who is obligated to financially support a stepchild under the family support statute, RCW 26.16.205, is shielded by parental immunity from liability for negligent supervision of the child. Zellmer, 132 Wash.App. at 682, 133 P.3d 948. Because such an obligation generally arises when a stepparent is married to the child's primary residential parent and lives in the same household with the child the Court of Appeals concluded such a stepparent would be protected by parental immunity, except in "rare circumstances." Finding no such exceptional circumstances here, the Court of Appeals affirmed the trial court.

¶ 14 We accepted review of the Court of Appeals decision. Zellmer v. Zellmer, 159 Wash.2d 1008, 154 P.3d 919 (2007).

ANALYSIS

¶ 15 Petitioners urge us to abolish the parental immunity doctrine. They assert the rule of parental immunity lacks modern justification and should be discarded in favor of a "reasonable parent" standard in cases of negligent supervision.

¶ 16 In its original form, the parental immunity doctrine operated as a nearly absolute bar to suit by a child for personal injuries caused by a parent, no matter how wrongful the parent's conduct. See, e.g., Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905) (father raped daughter); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) (stepmother inflicted cruel and inhumane treatment on stepson); Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891) (mother falsely imprisoned child in insane asylum). The parental immunity doctrine originated in three decisions near the turn of the last century and was quickly adopted by most states. See Gale D. Hollister, Parent-Child Immunity: A Doctrine in Search of a Justification, 50 FORDHAM L.REV. 489, 494 (1981). From its inception, however, the doctrine has been subject to extensive critical commentary. Id. Like other courts, this court has disavowed several of the original rationales underlying the doctrine, while sharply limiting its scope. Today, no jurisdiction recognizes the original formulation of the common law parental immunity doctrine, and we need not repeat our reasons for retreating from it. See Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891 (1980); Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952).

¶ 17 The evolution of the parental immunity doctrine in Washington is consistent with the national trend. Washington was one of the first states to recognize the parental immunity doctrine. Roller, 37 Wash. 242, 79 P. 788. However, this court has exercised its continuing duty to determine whether the doctrine remains supported by reason and common sense in view of changing social realities, and to modify it as necessary. See Borst, 41 Wash.2d at 657, 251 P.2d 149 (the rule of stare decisis is less compelling in the context of deciding the scope of the common law parental immunity rule). Like other jurisdictions, this court has substantially limited the scope of parental immunity in accordance with changing views of public policy on the family relation. A parent is not immune when acting outside his...