Zellmer v. Zellmer

Alexander, C.J.

¶52 (concurring/dissenting) — I agree with the majority that the trial court erred in granting summary judgment in favor of Ashley McLellan’s stepfa*170ther, Joel Zellmer, on the basis that Zellmer’s loco parentis status is a question of fact that may not be decided as a matter of law on this record. Therefore, I concur in the majority’s decision to the extent that it reverses the trial court’s summary judgment order. However, for reasons set forth hereafter, I dissent from the majority’s determination that parental immunity should be extended to a stepparent. Consequently, I favor reversing the summary judgment order on grounds that, as a stepparent, Joel Zellmer has no immunity from a suit against him for the wrongful death of Ashley McLellan. That being the case, it is, in my view, unnecessary for us to resolve the question of whether Zellmer was in loco parentis to his stepchild.

¶53 The parental immunity doctrine, which we first recognized in Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), has heretofore applied only to a birth or adoptive parent (hereinafter parent).6 See Borst v. Borst, 41 Wn.2d 642, 656, 251 P.2d 149 (1952); see also DeLay v. DeLay, 54 Wn.2d 63, 337 P.2d 1057 (1959). This doctrine should not be extended to stepparents for several reasons. The first is that support for the general concept of parental immunity has been steadily eroding over the last several decades in jurisdictions around the nation. We noted this very point over 25 years ago in Merrick v. Sutterlin, 93 Wn.2d 411, 414, 610 P.2d 891 (1980), saying, “The trend of many modern cases is to limit or entirely abolish parental immunity.”7 *171Indeed, the highest courts in six jurisdictions — Hawaii, Nevada, North Dakota, Utah, Vermont, and the District of Columbia — declined to adopt the doctrine in the first place.8 Furthermore, courts of last resort in 11 states that once recognized the doctrine have subsequently abolished it.9 Of the remaining states where parental immunity is still recognized, many have limited the circumstances under which the doctrine can be applied by creating exceptions to its application.10 Finally, courts in four jurisdictions that recognize the parental immunity doctrine have explicitly refused to extend the same immunity to stepparents.11

¶54 This court has followed the trend of limiting the circumstances where parental immunity is recognized. In Borst, we examined and renounced many of the policy grounds that were advanced in Roller and succeeding cases as justification for the doctrine of parental immunity. Borst, 41 Wn.2d at 655. There we declined to extend immunity to a parent whose child suffered injury as a consequence of the parent’s negligence in operating a truck for business pur*172poses. Id. at 657-58. In reaching that conclusion, we stated that “none of the arguments which have been discussed [in the opinion] provides a logical and just basis for an absolute rule of immunity applicable” to parent-child suits. Id. at 655. Similarly, in Hoffman v. Tracy, 67 Wn.2d 31, 38, 406 P.2d 323 (1965), we affirmed that parental immunity was not applicable when a child was injured by the conduct of a parent that constituted a temporary abdication of parental responsibility, to wit: driving while intoxicated.

¶55 In Merrick, we again cited Borst and criticized the grounds used to justify parental immunity, indicating that the doctrine should not apply in cases in which a child is injured by a parent as the result of the parent’s negligent operation of an automobile. Merrick, 93 Wn.2d at 413-14, 416. Additionally, in Livingston v. City of Everett, 50 Wn. App. 655, 660, 751 P.2d 1199 (1988), we held that parental immunity did not apply to shield a parent when the parental conduct resulting in injury to a child was “willful and wanton.”

¶56 While I am not presently advocating that we overrule the Roller case in which we first adopted the doctrine of parental immunity, I heartily assert that we should decline to extend the doctrine to stepparents. Declining to extend the doctrine to stepparents would not interfere with any discretion that a stepparent possesses. It would simply preclude them from establishing immunity for tortious conduct that results in injuries to their stepchild.

¶57 Furthermore, the majority is precisely right — I make reference to the above-mentioned obsolete forms of the parental immunity doctrine because it is evidence of the shrinking value of this antiquated doctrine of parental immunity. We should recognize the weak rationale underlying the doctrine and the trend here and in other jurisdictions to limit its application.

¶58 The second reason I have for concluding that we are ill advised to extend the doctrine to stepparents is that there is a substantial difference between the legal duties of a parent and those of a stepparent. It is, of course, univer*173sally recognized that parents have a statutory and common law duty to support and maintain their minor children. See RCW 26.16.205; see also State v. Wood, 89 Wn.2d 97, 569 P.2d 1148 (1977) (parent’s obligation for care and support of child is a basic tenet recognized in Washington without reference to a particular statute). Furthermore, a parent’s duty to pay support for a child generally continues until the child is emancipated. RCW 26.09.170(3). In contrast, this court has held that noncustodial parents do not have responsibility equal to that of the parents for the support of stepchildren. Harmon v. Dep’t of Soc. & Health Servs., 134 Wn.2d 523, 542, 951 P.2d 770 (1998). For stepparents, unlike parents, the obligation to support a stepchild terminates as a matter of law on decree of dissolution, legal separation, or death. RCW 26.16.205; State ex rel. D.R.M. v. Wood, 109 Wn. App. 182, 34 P.3d 887 (2001). In extending parental immunity to stepparents, the majority provides them with the blanket protections afforded to a parent despite the absence of reciprocal obligations. In sum, the policy reasons underlying the parental immunity doctrine do not warrant extending the doctrine to stepparents.

¶59 For the aforementioned reasons, I dissent from the majority’s determination to extend the parental immunity doctrine to stepparents who stand in loco parentis to a stepchild. At the same time, I concur with the judgment of the majority that the trial court’s summary judgment order should be reversed.

C. Johnson and Chambers, JJ., concur with Alexander, C.J.

In reaching that long ago decision in the Roller case, our court appeared to have been influenced by what we said was the general common law rule prohibiting a minor from suing a parent for damages arising in tort. At that time, there was no common law rule in Washington inhibiting a stepchild from suing a stepparent for tortious conduct and none has, as noted, been adopted prior to this time.

Judicial support for the general concept of immunity from tort liability has been waning in this state for some time. In that regard, this court has consigned two common law immunity doctrines to the legal dustbin, notably interspousal immunity in Freehe v. Freehe, 81 Wn.2d 183, 500 P.2d 771 (1972), overruled in part on other grounds by Brown v. Brown, 100 Wn.2d 729, 675 P.2d 1207 (1984) and charitable immunity in Friend v. Cove Methodist Church, Inc., 65 Wn.2d 174, 396 P.2d 546 (1964). Governmental immunity, which existed in this state for many years by statute, was rendered extinct in the 1960s by the legislature’s adoption of ROW 4.92.090 and ROW 4.96.010.

See Rousey v. Rousey, 528 A.2d 416 (D.C. 1987); Petersen v. City & County of Honolulu, 51 Haw. 484, 462 P.2d 1007 (1969); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Nuelle v. Wells, 154 N.W.2d 364 (N.D. 1967); Elkington v. Foust, 618 P.2d 37 (Utah 1980); Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1977).

See Broadbent v. Broadbent, 184 Ariz. 74, 907 P.2d 43 (1995); Gibson v. Gibson, 3 Cal. 3d 914, 479 P.2d 648, 92 Cal. Rptr. 288 (1971); Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980); Hartman v. Hartman, 821 S.W.2d 852 (Mo. 1991); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); Guess v. Gulf Ins. Co., 96 N.M. 27, 627 P.2d 869 (1981); Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529 (1969); Shearer v. Shearer, 18 Ohio St. 3d 94, 480 N.E.2d 388 (1985); Winn v. Gilroy, 296 Or. 718, 681 P.2d 776 (1984); Falco v. Pados, 444 Pa. 372, 376, 282 A.2d 351 (1971); Elam v. Elam, 275 S.C. 132, 268 S.E.2d 109 (1980).

See Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970); Williams v. Williams, 369 A.2d 669 (Del. 1976); Ard v. Ard, 414 So. 2d 1066 (Fla. 1982); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); Transamerica Ins. Co. v. Royle, 202 Mont. 173, 656 P.2d 820 (1983); Unah v. Martin, 1984 OK 2, 676 P.2d 1366; Silva v. Silva, 446 A.2d 1013 (R.I. 1982); Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971); Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721 (1976).

See Burdick v. Nawrocki, 21 Conn. Supp. 272, 274, 154 A.2d 242 (1959); C.M.L. v. Republic Servs., Inc., 800 N.E.2d 200, 209 (Ind. Ct. App. 2003); Warren v. Warren, 336 Md. 618, 628, 650 A.2d 252 (1994); Rayburn v. Moore, 241 So. 2d 675, 676 (Miss. 1970).