Hall Ex Rel. Singleton v. Martin

BURGESS, Justice,

dissenting.

I respectfully dissent. Crucial to the determination of all three points of error is appellants’ constitutional challenge to the doctrine of parental immunity. Appellees claim Katherine’s cause of action is barred by the doctrine of parental immunity. There was no bar to a suit against a parent at common law until the doctrine was creat*912ed by judicial fiat in 1891 by Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891). Texas recognized the doctrine for the first time in 1948. Garza v. Garza, 209 S.W.2d 1012, 1014 (Tex.Civ.App. — Eastland 1948, no writ). Although Katherine’s cause of action did not accrue until 1987, the courts impose parental immunity upon her cause of action for negligence. Katherine argues that such a restriction is prohibited by the equal protection clause of the Texas Constitution. TEX. CONST, art. I, § 3. I agree. The parental immunity doctrine has survived challenge on the basis of public policy. Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex.1992); Jilani v. Jilani, 767 S.W.2d 671, 672 (Tex.1988); Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971). In approving the public policy objectives of the doctrine without addressing any constitutional issues, the Texas Supreme Court rejected the criticism of a number of scholarly articles. See RESTATEMENT (SECOND) OF TORTS § 895G, cmt. i. (1977); Romualdo P. Eclavea, Liability of Parent for Injury To Unemancipated Child Caused by Parent’s Negligence — Modern Cases, 6 A.L.R. 4th 1066 (1981); 2 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, THE LAW OF TORTS § 8.11 (2nd ed.1986); William E. McCurdy, Torts Between Persons in Domestic Relation, 43 HARY. L. REV. 1030 (1930); Comment, Parent-Child Torts in Texas and the Reasonable Prudent Parent Standard, 40 BAYLOR L. REV. 113 (1988); Chanse McLeod, Note, Jilani v. Jilani: The Erosion of the Parental Tort Immunity Doctrine in Texas, 28 Hous. L.Rev. 717 (1991).

Shoemake, Jilani and Felderhoff partially abrogated the doctrine of parental immunity. Parents can no longer claim immunity in suits for negligence arising in the course of the parent’s business activities, Felderhoff, 473 S.W.2d at 933 or involving a motor vehicle, Jilani, 767 S.W.2d at 673. Shoemake rejected the family harmony policy argument in support of immunity, but upheld the doctrine on the basis of avoiding undue judicial interference. In Shoemake, the supreme court recognized that Price v. Price, 732 S.W.2d 316 (Tex.1987), abolished the doctrine of spousal immunity for all purposes, but held that in addition to the inadequate justification of protection of family harmony rejected by Price, the parental immunity doctrine avoids undue judicial interference with parental discretion. Shoemake, 826 S.W.2d at 936. Shoemake did not address that part of Price which held that the Texas equal protection clause required the doctrine be abolished for both vehicular and non-vehicular torts, and there is no indication in Shoemake, Jilani and Felderhoff that the parties raised an equal protection argument.

Equal protection means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Tex. Const, art. I, § 3 interp. commentary (Vernon 1984). The doctrine of parental immunity treats parents different from all other tortfeasors. Distinction classification is not repugnant to the constitution so long as there is a reasonable basis for the distinction and the law operates equally on all members of the class. Inman v. Railroad Comm’n, 478 S.W.2d 124 (Tex.Civ.App.—1972, writ ref’d n.r.e.); Creps v. Board of Firemen’s Relief and Retirement Fund Trustees of Amarillo, 456 S.W.2d 434, 438 (Tex.Civ.App. — Amarillo 1970, writ ref’d n.r.e.). Within the class of parents, those accused of vehicular torts are treated differently than those accused of non-vehicular torts. This distinction bears no rational relation to legitimate state interest. There are recognized public policy objectives for parental immunity in actions arising out of the discharge of parental responsibilities “such as the provision of a home, food and schooling”. Shoemake, 826 S.W.2d at 936. I believe that, as applied in this case, the doctrine of parental immunity denies Katherine Singleton equal protection of the law. The negligent actions alleged arise not only from failing to educate the child in proper motorcycle safety, but also in failing to provide safety equipment. The tort where the parent negligently operates the vehicle and the tort where the parent negligently fails to provide safe equipment for operating a motorcycle can be distinguished only in ways not *913expressible as a legitimate state interest. Although in the course of rearing their children parents perform many discretionary acts which may be criticized by others, use of motorcycles by unlicensed minors without safety equipment cannot be said to be an act purely and uniquely within the realm of the family. Because the doctrine of parental immunity conflicts with the Texas Constitution, it should not be applied in this case to bar suit as a matter of law.

As to whether appellants failed as a matter of law to state a cause of action against the individual appellees, a cause of action for negligence consists of: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987).

Duty is a question of law. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Appellants urge the appellees failed to establish no duty was owed Katherine. Jimmie Martin testified by deposition they purchased a moped for Katherine, they did not have a helmet for her, and Katherine had her express permission to ride. the moped that day. Jimmie Martin’s affidavit states: “On the day my daughter was injured, I gave her express permission to ride her moped.... [s]he had my implied permission to ride a motorcycle as well, which she was doing on the day of the accident.” Katherine’s step-father, Brent Martin, argues that in the event parental immunity is not available, he has no duty of care towards Katherine. Brent admitted in his affidavit that he “assumed the care and support of” Katherine. Jimmie Martin’s affidavit and deposition aver that she and Brent Martin purchased the moped for her but did not provide a helmet; that Katherine’s father, William Singleton, was aware that Katherine had a moped and rode it and other motorcycles without a helmet, told Katherine he never wore a helmet when he rode, and did not instruct her on safe operation of the vehicle. A person of ordinary prudence, having entrusted a motor-driven vehicle to a child, would have a duty to ensure the child had the necessary safety equipment. Each of the appellees were either a parent or a person who had assumed a parental role. Motsenbocker v. Wyatt, 369 S.W.2d 319, 324 (Tex.1963), recognized a parental duty of supervision. Motsenbocker involved a five-year-old; Katherine was fourteen. The duty exists in either case. Whether that duty was breached by each of the appellees in this case is a question for the jury.

Appellees claim that the fact that Katherine was not wearing a helmet and that no safety gear was provided for her by the appellees is not the proximate cause of the accident. Cause in fact means the act or omission was a substantial factor in bringing about the injury without which no harm would have occurred. Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985). It is a particularly apt question for jury determination. Farley v. MM Cattle Co., 529 S.W.2d 751, 756 (Tex.1975). The accident may have occurred even if Katherine was not present at the scene, but appellants have alleged that but for the alleged acts of negligence by the appellees Katherine would not have been on the motorcycle, or she would have been wearing protective headgear. Appellees failed to establish that the alleged acts were not a cause in fact of Katherine’s injuries. Ap-pellees also argue that it was not foreseeable that Katherine would be riding the motorcycle involved in the accident. It is not required that the particular accident complained of should have been foreseen; all that is required is that the injury be of such a general character as might reasonably have been anticipated and that the injured party be so situated with relation to the wrongful act that injury might reasonably have been anticipated. Nixon, 690 S.W.2d at 550. The affidavits attached to appellants’ summary judgment response state that Jimmie Martin knew her daughter was riding a moped that day and knew she did not have a helmet. Martin failed to establish that it was not foreseeable that Katherine might be injured if she rode a moped, or a similar vehicle, without protective gear. See Brown v. Edwards Transfer Co., Inc, 764 S.W.2d 220, 224 (Tex. *9141988). Brent Martin failed to establish a lack of proximate cause as a matter of law, given that he purchased the moped for Katherine, without a safety helmet, and knew she rode without protective gear. William Singleton also failed to establish a lack of proximate cause as a matter of law, given that he rode with Katherine, told her he never wore a helmet, and did not instruct Katherine to wear protective gear.

The appellees failed to establish that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. Tex.R.Civ.P. 166a. The trial court erred in granting summary judgment for Jimmie Lynn Martin, Brent Martin, and William Singleton III. Points of error one, two and three should be sustained and the judgment reversed and remanded to the trial court for trial on the merits. Because the majority holds otherwise, I respectfully dissent.