Smelser v. Paul
93076-7
| Wash. | Jul 6, 2017Background
- Two-year-old Derrick was run over and severely injured in his father's driveway by Jeanne Paul's truck while the father was home but did not witness the accident.
- Paul admitted the accident facts but asserted as an affirmative defense that Derrick's father (Ronald Smelser) was negligent in supervising the child.
- The father was added as a defendant by amendment, never appeared, and default was entered against him; he testified at trial.
- A jury found both Paul and the father negligent and apportioned fault 50% to each.
- The trial court refused to enter judgment against the father citing parental immunity and entered judgment against Paul for only 50% of damages; the Court of Appeals affirmed.
- The Washington Supreme Court reversed, holding negligent parental supervision is not an actionable tort duty and thus a parent is not an "at-fault" entity under RCW 4.22.070; Paul must be held liable for the full damages the jury found attributable to her.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a parent may be assigned fault under RCW 4.22.070 based on negligent supervision | Smelser: No — negligent parental supervision is not an actionable tort, so no fault can be apportioned to the parent as a matter of law | Paul: Yes — RCW 4.22.070 allows the trier of fact to apportion fault to "entities immune from liability to the claimant," so she may show the father was partly at fault and reduce her liability | Held: No — negligent parental supervision imposes no tort duty; therefore a parent cannot be an "at-fault" entity under chapter 4.22 and no fault may be apportioned to the parent; judgment entered against Paul for full damages |
| Whether reducing the child’s recovery by apportioning fault to an immune parent violates RCW 4.22.020 and precedent barring imputation of parent’s negligence to the child | Smelser: Allowing apportionment to the parent effectively diminishes the child’s recovery and conflicts with RCW 4.22.020 and long-standing common-law rule that a parent’s negligence is not imputed to the child | Paul: Apportionment to an immune entity does not create liability; it merely limits Paul's exposure under the proportionate-fault scheme | Held: Majority: Apportionment to a parent for negligent supervision would indirectly accomplish what RCW 4.22.020 and precedent prohibit; parent cannot be treated as an at-fault entity |
| Whether parental immunity is a true immunity or reflects absence of a tort duty | Smelser: Parental "immunity" reflects that negligent parenting is not a tort — no duty exists for ordinary negligent supervision | Paul: Distinguishes between liability and factual fault; apportioning fault to an immune parent does not make the parent liable | Held: Majority adopts the view that parental immunity corresponds to no actionable tort (analogous to discretionary-function immunity), so no fault exists to apportion |
| Proper remedy after wrongful apportionment at trial | Smelser: Trial court should enter full judgment against the negligent defendant (Paul) for the damages found attributable to her | Paul: The statute contemplates apportionment among entities, and when an immune entity is assigned fault the plaintiff may bear that shortfall; judgment should reflect only the nonimmune defendant's share | Held: Majority: Reverse and remand — enter judgment against Paul for the full amount of Derrick's damages as determined by the jury |
Key Cases Cited
- Zellmer v. Zellmer, 164 Wn.2d 147 (2008) (reaffirmed that parents are not liable for ordinary negligent supervision and characterized parental immunity as reflecting absence of an actionable tort)
- Price v. Kitsap Transit, 125 Wn.2d 456 (1994) (interpreting the definition of "entity" and limits on apportionment under chapter 4.22)
- Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246 (1965) (analogy to discretionary governmental immunity: "it is not a tort for government to govern")
- Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99 (1986) (example of case disallowing contribution/liability for parental negligence)
- Talarico v. Foremost Ins. Co., 105 Wn.2d 114 (1986) (disallowing negligent supervision claim against parent)
- Merrick v. Sutterlin, 93 Wn.2d 411 (1980) (discussed limits on parental liability in related parental-immunity context)