BROADBENT BY BROADBENT v. Broadbent

minor, by BROADBENT, Christopher Conservator, Phillip E. BROAD

BENT, Plaintiff-Appellant, Greer, Mesa, Wooley by L. & Robert Kern BROADBENT, Phillip Broadbent. plaintiff-appellant

Laura J. Defendant-Appellee, Kessler, Ulrich, P.C. Paul Thompson & Phoenix, Kessler, Donn G. G. Ulrich INDEMNITY NORTHBROOK Musick, by Wayne B. Lit- Peeler & Garrett COMPANY, Party in Real O’Leary, Angeles, Los Lynn A. tlefield and Interest-Appellee. party in interest Northbrook. for real CA FARM FIRE & CASUALTY STATE Swenson, Ridenour, & Evans Cleere COMPANY, foreign corporation, Evans, Phoenix, for defendant- James W. Plaintiff-Appellee, appellee Laura J. Broadbent. by Lawrence A. Pesh- Peshkin & Kotalik Jr., Phoenix, Kotalik, Phillip plain- E. BROADBENT and Laura J. kin and E.J. wife, Broadbent, tiff-appellee Farm. husband State Broadbent, minor, Christopher Defen- Summers, Broadbent & Walker John dants-Appellants. Phoenix, defendants-appellants Phillip, Laura, Christopher Broadbent. No. CA-CV 91-0202. Appeals OPINION 1, Department A. Division CONTRERAS, Presiding Judge.

Sept. presented ques- appeal, In this we are April Review Granted nearly whose child tion of whether a mother super- negligently fails to drowns when she from common law liabili- vise him is immune ty immuni- for his ty doctrine. We hold that the doctrine circum- applies under the case and therefore summary grant court’s affirm the trial judgment. AND

I. BACKGROUND PROCEDURAL HISTORY 13, 1984, Appellant Christopher April child”) (“the playing in and

Broadbent swimming pool at the Broadbent around the mother, Appellee Laura home while his (“the mother”), him. No watched Broadbent time, the child one home. At that else was years one-half old and was two and he was in the to swim. While know how water, vinyl rings inflatable the child wore staying him in afloat. upper arms to assist pool and removed got out of the The child telephone rings. The inside the flotation the ment on the basis of the mother went inside to rang house and conceding the the cause left child unattended doctrine answer it. She negligent supervision. on injury The mother talked the her beside the child’s was judgment telephone single five to ten minutes. While stand- a The trial court entered talking telephone, and on the she could Farm summary judgment for granting State stretched not see area unless she tort coverage the on the on and for mother telephone cord to its limit and stretched claim. addition, previ- had body. In mother her judg- timely appeal notice of from ously her lenses and could removed contact coverage has been ment was filed. The issue clearly. being After see area the outside Upon stipulation appeal. on abandoned minutes, for at five telephone on the least permitted Northbrook parties, this Court telephone to check mother cord stretched provided person- Indemnity Company, which him. She on the but could not see coverage on liability insurance al umbrella pool, dropped telephone, ran to the and issue, in appear the date the accident floating deep end saw the child party in appeal as a real interest revived, but suffered pool. The child was of the mother. behalf damage. severe brain a in February tort action II. DISCUSSION moth- was filed name in Immunity The Doctrine A. Parental er, negligence caused alleging her Arizona Casualty injuries. Farm Fire and State (“State Farm”), Company which was the is a com The doctrine homeowner’s insurer under a Broadbent’s originated in Hewlett mon law creation that independent filed ac- policy, subsequently an Supreme George, Mississippi in v. Laura, Christopher against Phillip, tion fostering held that in the interest defendants”) (“the coverage seek- Broadbent families, children tranquility peace that the child’s claim was ing a declaration permitted to sue their were policy. under the homeowner’s not covered (1891) (abrogat 9 So. 885 tort. Miss. the two cases. The trial court consolidated Glaskox, ed Glaskox v. 614 So.2d declaratory judgment portion of In the (Miss.1992)). adopted in doctrine The was action, moved for State Farm Frazer, consolidated in which Arizona Purcell summary judgment arguing that the house- from held father was immune that the pre- policy in the homeowner’s hold exclusion liability unemancipated minor children to his coverage of the child’s claim. State cluded accident injuries sustained in an for their pa- Arizona’s argued Farm also negligent allegedly by the father’s caused mother could rental (1967). driving. Ariz.App. injuries. child’s legally liable her however, Court, Supreme The Arizona responded to coverage The defendants Streenz, a Purcell overruled summary judgment Farm’s motion State minor child sued her case which a summary judg- filed cross-motion for in a accident one-car sustained that the ment which mother passenger and her she was the where did not bar the driver of the car. 106 rather than claim (1970). court held general right of ac minor unemancipated had unsupervised young chil- to not allow injuries sus parents for against her family’s swimming pool. dren access to allegedly in the automobile accident tained of rea- They also that the doctrine asserted driving. caused her precluded application of expectation sonable abrogated partially Id. The Streenz the household exclusion. reasoning long permitted children had the common law portion In the claim of the consolidat- tort contract mother, property action, position to sue ed law to for the defendant, summary and it was reasonable judg- actions named moved for Streenz, however. The Sando- per- different rights of children likewise actions, closing existence of injury “the sonal determined that val court insurance, particularly for automo- and a to the child alone accidents, possibility of meant that the bile ‘care and control’ part of the negli- family unity peace disrupting parents.” provided ‘other care’ to 88, The court 471 P.2d at 284. gible. Id. at Id. holding parental immu- by explained that particular nity ruling these that doctrine did court’s affirming In the trial circumstances, completely not intend to it did suit, the San- immune from were 89, 471 P.2d at abrogate the doctrine. Id. at limiting the that it was not doval court noted Instead, courts indicated that the court parental abrogation of the in- usurp intrafamilial activities should not 14, negligence cases. Id. at to automobile care, discipline, and control volving parental it would It stated that 623 P.2d at 803. reasoning approval cited with consider, on a case case “continue White, 20 N.W.2d Goller v. Wis.2d basis, injury and cause of the the actual (1963), regarding the situations two 193 parent breached a the act of the whether parental doctrine should which opposed large, at as duty owed to the world apply: family duty to a child within alleged negligent act in- Where sphere.” Id. authority volves an exercise child; Alter, examined In this Court Schleier alleged negligent act in- where immunity doc- of the application ordinary parental an exercise of volves in a situation in which a bitten trine respect provision discretion with negli- parents for dog sued her food, clothing, housing, medical and 397, (Ct.App. P.2d 1187 gence. 159 Ariz. 767 services, and other care. dental 1989). parents acknowledged that 89, (quoting 471 P.2d at 285 danger dog posed a to children. knew their 198). Goller, 122 at N.W.2d Schleier, 400, In 767 P.2d at 1190. Id. at considered the Our court next as a case in characterized Sandoval parental immunity doctrine application of the presented pure issue of which “the facts 623 Sandoval v. 128 neglect” such that parental supervisory (1981). The issue in was P.2d 800 he immune from father was doctrine barred a suit a child whether the a familial to the child alone “violated alleged for the father’s large.” at opposed to a to the world leaving gate open in the negligence in at 767 P.2d at 1189-90. through front home fenced four-year-old tricycle child rode his which contrast, In the Court found by passing automobile. and was then struck supervise their parents’ general daughter surpassed the more distinguished the act The Sandoval dog. 767 supervise their Id. at leaving gate open from the of the father (although the P.2d at 1190 stating that in parent in Streenz act of the may limited to the their child have been driver, parent, as a “the family sphere, parents’ carefully.” Id. at to drive to the world large). was owed to the world court reasoned P.2d at 802. The parents violated held that This Court an accident resulted because “[i]f duty parents’ both duties and driving, any passenger parent’s negligent subsumed within supervise their child was injured, been and the the vehicle could have supervise their passenger liable to that driver should be Therefore, owed to the world passenger is regardless of the fact that the did Court held that The circum- of the driver.” Id. apply. case the court were before relying on recently applica argued, It is further Schlei- This Court considered parents1 in er, of the doctrine to natural any parental duty she had to her Sandbak, P.2d Sandbak general alone was within subsumed Sandbak, young (Ct.App.1990). any premises. duty to on the neighbor’s property onto a had wandered considering After Arizona case law on the severely neighbor’s dog. mauled disagree. P.2d at This barred Id. at claim, us concluding The child’s would have liken the child’s counsel not limited to those where the doc- Streenz and obligated legally acts that trine perform. Id. at P.2d at 10. However, cir- we conclude that child was left unat- rejected argu- cumstances which the This Court also the child’s swimming pool parents that her violated a near a and ment Sandbak tended large by allowing her duty to the world injuries parental supervi- received involved neighbor’s property. the trespass on Therefore, the and “other nature sion care.” if such that even a This Court determined duty parent the owed the was not like of existed, duty parents’ the of that violation Specifically, in Streenz Schleier. those proximate of duty not the cause her is to its facts does not Schleier limited injuries injury. Id. The direct cause of her the can be proposition stand for parents’ the dog, the action of not her by their if that child is harmed sued child allowing trespass. her to Id. This act family pet dog the on the fact the based analogous found that this situation was 400-01, dangerous. Ariz. at 767 could be the direct to that of Sandoval which cause distinguishing P.2d at 1190-91. The fact injuries impact of the of the child’s was the is that knew that the the automobile, leaving and not act of the the dangerous because it propensities had addition, gate In found open. Id. preced- times in the had bitten children three “no between the that there was connection therefore, and, ing four months of a the world at alleged breach to the world at child large” and the action the between dog. parents. foregoing the of the With review Although child in on of the the behalf has evolved under doctrine it otherwise, argued pool it a present case consider the the case law we dog in be to the itself cannot likened Schlei- question present the of ease and whether the many things pool is like other er. applies parent negligently to a doctrine who child, dangerous such as a hot fami- supervise her child around the failed to burner, cigarette lighter, a stove even ly’s swimming pool. a paint parent thinner. situation where a child to unattended around items allows Immu- Applicability B. the Parental catego- the dangerous could be falls into nity Present Case Doctrine to the negligent supervision, which ry appeal, argued it is on behalf of the large. not evoke a to the world at does him arose out child that his Therefore, circumstances attendant It obligation as a owner. property of her closely present instant case a situation nonparental she a maintained that had holding analogous to the circumstances large—to to the exer- duty—a world Sandoval, involved which also all children care to cise reasonable parent. supervision of child danger posed by swimming from the State, parents, it the child’s natural most recent case In Rourk v. Arizona’s involving foster who were not related to negligent supervision, asked this Court was blood, marriage, adoption child the foster applied to foster determine whether providing were not foster care contem- or who (Ct.App. parents. adoption. 821 P.2d at plation of Id. at 1991). though We held that even the doctrine applied lawsuit had been would have if the closing control as she would In held that the not have keep driving safe within of a vehicle. We con- have over of the residence was a on behalf of the clude parent alone because appeal pres- present child fails because the part “care and control” or “other negligent supervision, rather ents a case responsibility. aspect care” instrumentality failure to control Ariz. at P.2d at 802. see no We that caused the harm. parents’ duty in San- distinction between It is further on behalf keep young child doval to their unattended in limit- that Arizona should followWisconsin parents’ duty out of the street and exceptions. In Cole Sears the Goller swim, out keep their who is unable to Co., young boy parents of a Roebuck & family pool when child is unattend- neighbor sued a and Sears cases, See id. is owed ed. both when he was struck in the child sustained alone, to the child not to the world at extending glider eye by metal from a tube If a child other than swing purchased in- set Sears injured present had been and was circum- yard. neighbor’s stalled in the 177 N.W.2d similar to either or the (Wis.1970). sought The defendants case, parent might have had injured parents, contribution from the arising of an out parents alleging inter alia that the failed assumption of care for another’s provide proper supervise supervision or not at but because the world of the child. Id. The trial overruled Sandoval, large existed. there- Based we injured the demurrer reject contention that fore the contribution action. Id. to the arose out of to the large at care to world to exercise reasonable injured appeal, the injury all children from parent’s supervision argued that a of a child id. See immunity playing is “entitled to It is also on behalf of child that parental pri- control involves direct and is parental immunity not apply should because marily parent and an interaction between injury was not caused the action of a activity.” child rather than a nondomestic instrumentality, person third as it was Id. 177 N.W.2d at 868. The Cole court re- im- parental and Sandbak where Sandoval jected argument, believing that Goller munity apply, did instead but was caused greater degree “limited instrumentality an control of the ‘essentially parental’ simply acts which are mother, which was similar emphasized nature.” Id. at 869. The court This Schleier where not exception: Goller second However, appeal. has for us some qualify exception liability im- to determine that was not state, paren- the act must not liability put mune from on this basis us would tal in nature but it must also constitute an Ari- at odds with the clear rationale of the “respect of to the exercise discretion with previously appli- zona cases discussed. The food, clothing, housing, of medi- provision cability of immu- nonapplicability services, dental care.” cal and whether, determined nity was on the basis of White, supra. The Goller v. term “other injury, the act that caused the not so as to cover acts care” is broad all breached a owed to the world intimately parent-child associated with a child or a owed to within the relationship. Thus, sphere. an instru- while mother, court noted that Id. Wisconsin mentality the control essentially supervision parental, of is children supervision she breached was Furthermore, legal but does involve a as is alone. unlike food, providing with hous- pool in ease with children the mother could not services, ing, edu- medical dental the sense that and, It mother did cation. thus concluded that “other unlike legal applicable. P.2d at care” referred such duties and did imposition warrant essentially acts con- that were providing similar cerned with a child with III. CONCLUSION Id. The court therefore necessities. Cole mother, summary, we conclude that the held im- under the that case. negligent supervi- mune from for her also the same The Wisconsin court reached sion affirm trial court’s conclusion Thoreson v. Milwaukee & Sub- grant summary judgment. It should be Co., involving Transport a case an urban upon our noted that our decision is based three-year-old ran unattended child who into analysis of Arizona case review and law path of a bus. 56 Wis.2d perceive the current status of what (1972). nar- N.W.2d 745 The Thoreson court expressed rowly exception construed the first Goller supreme our In the court. event immunity—which abolishment involves departure or modification of there to be parental authority the exercise of over the law, it is for the the established embracing discipline. area child—as court to not this Court. determine and N.W.2d 753. As to the second GARBARINO, J., agreed excep- exception, it Cole concurs. ordinary not extend to acts of does KLEINSCHMIDT, dissenting. Judge, upbringing, supervision such as or education respectfully I believe that we dissent. legal safety, not of about that are the same dealing have wide latitude with the issue food, providing clothing, housing, nature as and medical and dental services. The court 11, 14, sought concluded that care in the ex- “[t]he (1981), supreme ques- court said that the gives not the care clusion is broad one parent’s tion whether the was owed to affairs____ day-to-day exclusion The large matter or the world at was a legal obligations, is limited to and a case-by-case to be decided on a basis.

who is in other matters cannot par- simply claim because he is a majority especially good The has done an ent.” Id. job tracing abrogation evolution however, immunity. exegesis, Its Although case counsel exposes upon fine are how the distinctions correctly states that Wisconsin liability turns case to case. The from exceptions courts have narrowed the Goller test of whether a is owed the world legal abrogation alone, it or to the however well nature, duties of an essential we decline to cases, very may in some is not satisfac- serve similarly exception in Arizona for narrow the tory in others. First, several reasons. the court in Sandbak argument, specifically rejected makeweight of Thore- There a collat- the limitations son, noting point majority opinion, have eral in the with which Arizona courts my par- sharply disagree. begin analysis I I with limited acts that lays ground legally obligated perform point ents are work argues that category my own conclusion. The child instead have included broad in this “other care” within the activities to which the should present in applies. Sand- case unlike the situation bak, Second, in which Arizona courts have 800 P.2d at 10. several cases apply, the instru- supreme our found that Sandoval concluded mentality the actual harm parent’s failure to close the which caused moth- keep this case under the control the unattended child rejects majority The part and control” or “other er. “care provided by parents there- it misstates the test. care” to be the observation the mother owe the fore doctrine The test is to whom did found injuries received to recover for majority allow a child duty? The does not rest with however, Nor would allow- observation, in an automobile accident. goes but on to bolster weighing courts in following statement: the suit involve the its conclusion with how Alter, parental decisions about the merits of Furthermore, unlike Schleier raised, supervised, and children should (App.1989), the 767 P.2d 1187 Nothing in this mother’s actions supported. pool mother could not judgment which soci- involved an exercise could sense that honoring. ety slightest interest has the and unlike Streenz v. (1970), was in argue that the mother the moth- No one could allowing any way justified in a two-and-half- pool control over the as she er did not have swimming driving year play by himself have of a vehicle. old to would thus conclude pool. A finder of fact could mind, is not correct. my this statement gross conduct was an act of that the mother’s super- The mother in our case could have protec- negligence not merit the which would her child and the vised the contact between immunity. Jeffries, tion of See Foldi easily parents in pool as as the (immunity for 461 A.2d 1145 N.J. supervised have contact between their negligent supervision not for su- simple but dog. Similarly, could have and their she pervision amounts to willful or wanton supervised contact her child and between County negligence); Jenkins v. Snohomish easily as the mother Dist., Utility Public 105 Wash.2d carefully. could have driven (no immunity for conduct P.2d 79 cases, These same two Streenz and Schlei- person knew or should which a reasonable er, support the conclusion that the mother’s highly dangerous); see also have known is duty in owed to the world at our Blaze, Douglas & A. Jefferson L. Lankford court, 3.4(2) Arizona, § Negligence in The Law of that the Ariz. at stated (1992) (discussing relationship be- at 39-40 Streenz was liable for her child’s immunity). gross negligence and tween because the mother owed a granting the order sum- would reverse carefully. yet, the world to drive And mary judgment remand this case for gave liability, accident that rise to a crash trial. tree, endanger anyone into a passenger in

than the child who was a car. 106 Ariz. at 471 P.2d at See Thus, potential 282. it was the for harm to pedestrians the world of motorists and large, anyone whether that world at not, justified dispensing was harmed too, Schleier, immunity. So danger it was the that an uncontrolled Arizona, Appellee, STATE might anyone, only actually even if it bit bite justified imposi- the owner’s liability. tion of See PITTS, Appellant. Chester Lee Why at 1189-91. is this No. CA-CR any different than Streenz Schleier? The mother owed a to the world to Appeals Court of swimming pool. differ- What 1, Department A. Division negligence ence does it make that her on this in harm to her own occasion resulted Sept. immunity ought child? Parental April Review Granted policy reason runs counter see no my this suit conclusion. allow disruptive is no more the mother unity

unity disruptive than it is

Case Details

Case Name: BROADBENT BY BROADBENT v. Broadbent

Court Name: Court of Appeals of Arizona

Date Published: Apr 5, 1994

Citation: 870 P.2d 1149

Docket Number: 1 CA-CV 91-0202

Court Abbreviation: Ariz. Ct. App.