dissenting.
I must dissent from the opinion of the Court in this case. I find that I agree with much of what Justice Cardine has written, but I am not clear as to why he concurred in the result. I cannot agree to concur in the result. My position is that before the Court seizes upon a case to change a policy position, such as the doctrine of parental immunity, it should have a case in which liability would be clear absent that doctrine. In this instance, a new theory of liability is adopted for parents, which then serves as the vehicle for abolition of the doctrine of parental immunity. Furthermore, I am not satisfied that the theory of liability should accuse only the parent who was driving at the time of the tragic accident. If children are to be required to wear seat belts, both parents must share the responsibility for that failure.
I confess that I have sincere reservations about the abolition of the doctrine of parental immunity, even as the rule has been limited by the majority. While the tent may be large enough to accommodate this intrusion, I am not satisfied that the tent will be large enough to suit the entire camel. Many of what I have come to regard as frivolous lawsuits founded upon a theory of negligent parenting depend absolutely upon the abolition of the doctrine of parental immunity, and that abolition commenced in some fashion that was perceived as innocuous.
In any event, if the abolition is to be accomplished it should not occur upon a fulcrum of a creative theory of liability. As Justice Cardine notes, this jurisdiction has not yet agreed that the failure of a plaintiff to wear a seat belt can be invoked by a defendant as a theory to limit or avoid the recovery of damages. Yet, the Court here has decided that the failure to require the wearing of seat belts can serve as a ground for liability. While I do not agree with this application of jurisprudence, I am satisfied that the theory of liability is the primary issue in the case, and only after that question is resolved is there any justification for considering the abolition of the doctrine of parental immunity.
I understand that the facts of this case are not controlled by Wyo.Stat. § 31-5-1402 (1991) because the tragic accident antedated the adoption of the statute. I note, however, that the rule adopted by the Court is antithetical to the statute, particularly subsection (f), which provides:
(f) Evidence of a person’s failure to wear a safety belt as required by this act shall not be admissible in any civil action.
Indeed, this statute seems to confirm the absence of the seat belt defense in Wyoming, and hardly seems consistent with a theory of liability that depends upon requiring children to wear seat belts. I even wonder what the reaction of the Court would be to a statute that created a classification of only parents and children if a constitutional attack were made upon such a statute. Yet the judicial classification is accomplished without comment as to the duties of adults other than parents.
Finally, I believe that Justice Cardine makes a telling point when he discusses the difficulties in implementing the Court’s rule. I would find it hard to believe that this was the first time the Dellapenta children had ridden in a vehicle without wearing seat belts. The Court is demanding a life style adjustment for Wyoming families. If the rule is to be satisfied, parents must inculcate in their children, from the time they are infants, the demand that seat belts be worn at all times. This must be a shared parental responsibility, and it is not just that it be assigned only to the parent who happens to be driving the vehicle when the accident happens. The father should also be a party defendant in this case, instead of simply representing his interests and those of the children against the mother. Marriages have a difficult time surviving a tragedy such as this without the judicial branch of government creating another reason for separation of the interests of the parents.
Requiring both parents to be defendants would not diminish the policy argument of family harmony that has been a traditional argument in favor of parental immunity. It might make more clear, however, that the real thrust of the rule is to find a *1167funding source for expenses rather than simply an insistence upon enhancing the safety of Wyoming children.
I cannot subscribe to the creation of a novel theory of liability that is contrary to Wyoming legislative policy to set aside a traditional doctrine of parental immunity. I dissent from the decision of the Court in this case.