Procedural History: The child’s father brought this suit against the child’s mother. This was likely due to the fact that the family had liability insurance that could cover the loss.
Facts: While defendant mother was watching her 2.5 year old son swimming at the family residence, the phone rang. Defendant went inside to answer it but then looked outside and could not see her son. She found him at the bottom of the pool, and while he was eventually revived, he had lost motor skills and had no voluntary movement due to the brain damage suffered from lack of oxygen.
Issue: Does the doctrine of parental immunity apply?
Rules: Parental immunity was soon embraced by almost every state, but several states have since abolished it. In several situations, parental immunity does not apply: if the parent is acting outside his parental role and within the scope of his employment; if the parent acts willfully, wantonly, or recklessly; if the child is emancipated; if the child or parent dies; if a third party is liable for the tort, then the immunity of the parent does not protect that third party; and if the tortfeasor is standing in “loco parentis,” such as a grandparent or foster parent.
Parental immunity is abrogated except:
- Where the alleged negligent act involves an exercise of parental authority over the child; and
- Where the alleged negligent act involves an exercise or ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.
Previous precedent (Sandoval) – a parent would not be immune if the parent had a duty to the world at large (overturned in this case).
Application: Because parents always owe a parental duty to their minor child, the issue should revolve around whether the parents have breached this duty and whether the breach caused the injury.
Conclusion: A parent is not immune from liability for tortious conduct directed toward his child solely by reason of that relationship. A parent is not liable for an act or omission that injured his child if the parent acted as a reasonable and prudent parent in the situation would.