*1 had a con Griffin There was appeared suspi
tract to sell his business FBI. There was evidence cious to the million dol possessed the stolen ten Griffin may inferences from the Counsel draw lars. “reasonable, fair, legiti that are record 146, State, Allridge v. mate.” denied, 489 (Tex.Crim.App.1988), cert. 103 L.Ed.2d 109 S.Ct. U.S. State, (1989). also Hollins See (Tex.App. [1st Dist.] — Houston writ). sugges prosecutor’s find that We this parties conspired to make tion that the from story is a reasonable deduction cover point appellant’s overrule the evidence. We four. of error the trial court is affirmed. McGEE, Appellant, Joseph McGEE, Individually and Linda Diane Friend of Parent and Next as Natural Bardin, Jr., Appellee. Deston No. 10-96-031-CV. Texas, Appeals
Waco. Nov. 1996. Denying Rehearing Jan. Opinion
362 *3 Scanes, Cameron, Ña- L. Keith C. Waco, Howell, Lee, P.C.,
man, for Smith & appellant. Deaconson, Pakis, Giotes, Beard D.
David Waco, P.C., appellee. Page, for & DAVIS, C.J., and CUMMINGS Before VANCE, JJ.
OPINION
VANCE, Justice. any there is evi-
We must decide whether his stepfather, who has abused dence that otherwise, negli- acted stepson, sexually and opposed to inten- gently respects some tionally respects. The distinction all insurance important because homeowner’s coverage negligent acts but may provide address the also not intentional acts. We whereby the natural agreement of an effect stepfather mother has indemnified step- having personally pay against claims. son’s properly re- that the court We determine judicata. Although we jected res a claim of right to decide that jury had the find that the negligent, the doctrine the acts were some of must immunity applies, so we reformed, judgment. As reform the affirmed. judgment will be (Diane) married was Linda Diane McGee (Michael) for six- Joseph McGee to Michael son, Deston years. had a John She teen (John), marriage. Bardin, prior Jr. his two months before father had died John’s “father-fig- only birth, and Michael was divorced, she and Michael ure.” After Diane John, assaulting damages for sued him for Agreement ... both engage in this negligence.1 ini- gross She negligence, and De- and on behalf of herself individually and as natural behalf tially filed suit Bardin, Jr.,” signed it in her Diane John, ston parent next friend of who became n his own filed a counter- capacity. Michael individual right when he turned party to enforce Diane large- claim both alleged, are eighteen. The acts which it but the court found agreement, asserted ly because Michael uncontroverted to other- claims and failed egre- did not bar John’s rights, are so his Fifth Amendment it. It is wise enforce the details. gious that we will not recite they began when John say sufficient judg- from the adverse appeals years age and involved or six was five agreement points assert: ment. His alcohol, abuse, him providing sexual bind- and Diane divorced was made when he magazines videotapes of a showing him suit; the evi- *4 ing and bars this on John nature, committing and acts pornographic to the legally insufficient dence self-gratification presence. in his negli- negligence gross and jury’s finding of (3) judgment; court’s gence and thus the claims before the case Diane withdrew her (1) negligence immunity bars John’s jury, found: submitted to the which was (4) (2) claims; failing in to John; the court erred and suffered Michael assaulted John findings judgment on $20,000 anguish make and enter damages for mental and (3) declaratory judgment assaults; a counterclaim for as a result of the medical care indemnity agreement. effect of the negligence proximate was about the Michael’s the (4) agreement John; disagree prior bars injuries sustained We to cause legally $50,000 claims and find the evidence damages anguish mental and John’s in sufficient, points. those will overrule resulting negligence;. and we care from the medical however, (5) will, point concern- sustain the gross negligence; and We Michael acted with judg- (6) reform the $105,000 punitive ing parental awarded as should be to the attributed judgment con- ment to delete damages. The court entered negligence. findings. Michael’s the sistent with say ease, discussing the we must Mi- Prior to prior In the divorce Diane and this are discon- aspects of ease signed agreement an acknowl- that several chael had prior agree- certing. Because of Diane’s against claims edging that she and John had ment, will affect rights that our decision prosecuted to later. Michael that were be company effectively of an insurance hold are those By agreement, agreed that Diane to are innocent”. liability any judg- and John —both of whom harmless from on of, ques- complains without might that acts that John ment that she or John recover however, observe, tion, that by further occurred. We was not covered insurance.2 She against Mi- charges were filed any no criminal agreed not to enforce such to ful of references and the record is “through process, turnover chael attempts frame Mi- orders, to pro- Diane’s and John’s garnishments, or other writ than inten- every negligent rather every type chael’s acts as or character cess under Mi- so as to recover proceeding.” Although the tional conduct type of court Nevertheless, policy.3 capacity homeowner’s agreement that she had “full chael’s recites outset, parties placed posture have in which the express some reser 3. The we must 1. From case, public-policy posture all of litigation of this us vations about makes agreements designed towards John was "intention Michael’s conduct to that allow considerations A.S., 282, 292 al.” See Childers (Tex.App. allowing coverage while facilitate insurance writ) (“artful Worth liability. effectively escape We are — Fort insured to negli plead attempts intentional torts as ... Casualty Co. v. Fire & of State Farm mindful action”). turn gence Our decision will causes of Supreme an Gandy, Court declared where the John, not intended to harm on whether Michael step assign to a agreement a bad-faith claim intentionally. acted whether he policy. public daughter violative of to be (Tex. 1996) (discussion agreements S.W.2d 696 indemnifying irony of a mother 2. We note the relationship the claim between used to alter the against having pay dam- of her child abuser ages insured, ant, company). and the insurance insurance to child unless there is to that cover them. (3) them; prior privity we do our best to follow the deci- or those in with will second same hope of our action based claims as sions rights parties ultimately that were or could have been raised in the will raised Corp., first by that Court. action. Amstadt U.S. Brass determined Generally, circumstances, Given these our decision people by judgment in are bound a suit about intent or could lead to one they parties. to which were not equally two untenable results. One alter- judicata doctrine of an exception res creates is to infer Michaels’s to harm native intent by forbidding to this rule second suit aris of law and as a matter hold that all of ing subject out of the same matter of an seen, his conduct was intentional. As bewill privity par earlier suit those with the precedents we do not believe to the original ties suit. Id. at 652-58. permit that must follow course. The other uphold jury’s findings alternative is to privity in' People can be at least provid- can be ways: they can three control an action ing step- it; (2) alcohol other materials to his they parties if even are not their open- increases child. This result the risk of represented by a party interests can be ing the door to future lawsuits children action; they can be successors they interest, have suffered through believe somehow deriving par their claims *5 parent stepparent. hands of a Al- ty the prior to the action. Id. at 653. To deter though we believe that current law dictates plaintiffs privity mine are in whether later course, the we also that the latter believe prior the plaintiffs we examine interests protects par- of doctrine parties Privity the Id. if shared. exists the ents stepparents ple- and most the parties identity an of in share interests the thora of lawsuits that we otherwise fear. legal subject right litiga basic that is the prior
tion. Id. whether a To determine suit JUDICATA and one involve the RES under review same basic subject matter, we focus on the factual basis point Michael’s first asserts that John’s plaintiffs complaint. Id. If the second by agreement the claims are barred that was relitigate seek to the matter which was the reached at the time of his divorce from Di- subject litigation, judicata res the earlier ane. plaintiffs bars the if the suit even second do judicata generic Res is the term for allege identical causes of action to those concepts concerning a group of related judicata by asserted Id. Res the first. also given judgments. conclusive effects final precludes action on claims a second that arise Corp., Barr v. Resolution Trust subject out the same matter and which . (Tex.1992) doctrine, Within the might litigated in the have been first suit. (1) categories: principle there are two claim Id. (also preclusion judicata); as res known and principles to Applying these Michael’s (2) (also preclusion issue known as collateral that judicata, claim of we find it fails res preclusion prevents estoppel). Id. Claims party prior because not a John was relitigation of a claim or cause of action case, privity in divorce nor was he with Di finally adjudicated, has been as well ane, party to the divorce was a case and that, matters with the use of dili related agreement.4 to the id. Not See is the gence, litigated prior have been in the should subject wholly case “basic matter” this preclusion prevents suit. Id. Issue relit- in the different from that involved divorce igation particular already issues resolved case, actually preserved agreement prior suit. Id. The elements of claims litigation. John’s claims for future See id. preclusion, judicata, prior or res are: asserts, authority, on the merits court of Michael without final during jurisdiction; identity parties agreement his testi- competent ratified affected, Although might they presented Gandy argument be party has Diane's claims Neither jury. were not submitted to this court. damages damages punitive mony the state- and at trial. We have reviewed disagree. point, awarded for the intentional torts. ment of facts this and we Point one is overruled. has de The Texas general duty not to there is no
cided that EVIDENCE LEGALLY-INSUFFICIENT Boyles negligently emotional distress. inflict Kerr, 593, 594 three, says that two and Thus, negligent no claim for inflic John has legally support the evidence is insufficient to not, Boyles does tion of emotional distress. jury’s findings negligence gross and however, right affect a claimant’s to recover negligence, support and thus to the court’s damages anguish mental caused a defen judgment, because all of the bad acts John legal duty. dant’s breach of some other were, law, alleges intentional as matter at 597. John became addicted to Because negligent.5 rather than drugs, alcohol and which resulted medical treatment, expenses hospitalization complaining party When the raises he claims resulted point challenging legal a “no-evidence” beyond anguish. Boyles mental does sufficiency of the evidence to a find not bar his claim. See id. ing party that favors the who had the burden supposedly argues that all of the proof finding, reviewing on that court acts, including providing alcohol to if, considering only must sustain the John, materials, objectionable him showing sup that evidence and the inferences which performing presence sexual acts in his port finding in light most favorable to with the con- were so intertwined assaultive disregarding agrees intentional acts. duct as contrary, any probative inferences to the evi intentional, assaults were but he supports Browning-Ferris, dence it. Inc. *6 (a) argues (Tex.1993). the evidence of Michael’s Reyna, 865 S.W.2d 928 If watching sexually-explieit indiscriminate there is more than a scintilla of evidence to (b) videos, self-gratification in front acts support finding, the chal no-evidence (c) John, making beverages alcoholic lenge fails. Id. “When the offered acts, negligent dis- available to John were prove a vital fact is so weak as do tinguishable from acts that the intentional suspi more than create a mere surmise or urges constituted assaults. His brief us to existence, cion of is [the fact’s] the evidence approve negligence finding because and, effect, legal no more than a scintilla is negligent “separate apart” from acts Bros., City no evidence.” Inc. v. Heldenfels acts, Having molestation. ex- (Tex. sexual Christi, Corpus 41 record, agree 1992). amined the entire many acts Michael that of the non-contact jury The found that Michael had assaulted closely with and thus were simultaneous damages John and awarded him for that be connected with the assaults and should intentional conduct. Michael does not com- part considered as a thereof.6 plain part judgment. of that of the question that some acts punitive-damages was conditioned The record reveals asserts, were, finding “separate apart” on an affirmative of either intentional as John respect to gross negligence. Mi- from misconduct. conduct or Because the sexual With acts, on separate our decision turns chael does not attack the affirmative those must, law, conduct, infer punitive damages whether we as a matter of of intentional decision, injure regardless that Michael intended to John. will stand. of our negligent in- judgment for actual fundamental difference between John will recover insufficiency majority actual 5. Michael does not assert factual 6. The of the question jury negligent We We ad- awarded were for the acts. nor does he causation. sufficiency believe that the reason for that is that dress the of the evidence to presented way negligence findings in such a as to maximize in the event we are his case immunity. recovery policy. wrong under the insurance about 366 grossly injury and inten- also Mut. see Woida v. North Star Ins. injury Co., (Minn.1981) (in specific
tional is the intent to inflict 306 N.W.2d 573 injury. Copelin, Reed Tool Co. v. ferring intent the actions a when were of Milbank, (Tex.1985). 404, 406 Intent means that nature); “the calculated Ins. Co. v. consequences actor desires cause of his M.M.D., & B.L.G. 484 N.W.2d 58 act, consequences that he believes that the (Minn.Ct.App.1992) (refusing to address substantially from are certain to result it.” intent inferred without (quoting Id. (Seoond) Restatement Torts engaged in defendant sexual conduct (1965)). § 8A knowing highly it was certain that he However, plaintiff). infect would We find State Farm Fire & Cas. Co. S.S. bright-line is no “[t]here rule to determine question to be instructive on of when injure when intent should be intent to harm will inferred be inferred. Farm, Rather, a matter of set of law. each facts: State trial granted summary judgment case-by-ease court had ‘must be on a considered ba sis; company declaring likely favor of the insurance the more to result harm is from policy provide conduct, homeowner’s did not likely certain the more intentional coverage for certain claims asserted may to harm intent be inferred as matter ” its insured. Id. 375. Those claims arose Chartier, Loveridge law.’ activity out of consensual sexual that resulted (quoting at 151 v. Stanford, N.W.2d K.A.G. being genital in the claimant’s infected with (Ct. 148 Wis.2d 434 N.W.2d herpes. Id. The issue before App.1988)). whether, law, Court was as a matter of genital herpes transmission of was an inten- State Farm reasserts the rule injury tional which came within the “inten- person injure that whether a intends to an injury tional exclusion” of the homeowner’s person ordinarily other of fact policy such that the claim was covered. uniquely within the realm factfinder. 376. The Id. at Court focused on whether an Each Id. at 378. case is to be considered fact issue of material about existed whether bright-line is no its individual facts —there knew at the insured that time with substan- guiding principle Id. at 379. A rule. is: the certainty herpes tial that he would transmit likely harm from more is to result certain claimant. Because Id. at 379. it conduct, likely intentional the more intent to that such fact determined an issue of did may harm as a matter of inferred law. exist, summary judgment was reversed. *7 there Id. When is sexual misconduct with a Id, minor, intent to harm should inferred. The Court Farm’s conten- addressed State Id. that, tion even if the did not insured intend jury To the extent found conduct, injure to the claimant his his other acts committed Michael were injure to her intent should be inferred misconduct, not intertwined with the sexual matter of law: charge jury court’s to allowed the deter which intent in Jurisdictions infer sexual mine that those acts were unreasonable un usually only misconduct cases do so negli der the circumstances and were acts instances of sexual misconduct with minors ’ gence. charge jury to also allowed acts [Foot or forcible sex between adults. damages accordingly. Separating the award jurisdictions omitted.] note Those reason intentional acts acts from the was injure may only that intent to be inferred assigned task that we to be to understand when the character of an act is such that jury by opinion. the State Farm Id. at “degree certainty that the conduct requires to 378. The standard of review us injury sufficiently great will cause is jury’s uphold if the record con justify inferring injure intent to as a mat Chartier, more than Loveridge ter of law.” v. 161 tains a scintilla 150, 146, (1991); support Browning-Ferris, 468 151 it.7 865 Wis.2d N.W.2d S.W.2d Again, ordinarily ficiency review the is would not suf- evidence of
367 1994, (Tex.App.—Eastland writ de- probative 668 there is some 928. We believe nied). independently that occurred evidence of acts provid- assaults—specifically those that Michael assault found objectionable materials to ing alcohol and accordingly. and awarded ed John jury’s that Mi- support the John—to finding cov earlier that this pointed out We points two negligent. We overrule chael was John com many of the acts about which ers and three. encompassed remaining acts plains. The negligence do not fall finding of within the PARENTAL IMMUNITY exceptions that the any of the three within Thus, a recognized. point Supreme asserts that the doc- Court has fourth Michael’s type negli- liability for this immunity bars John’s immune from parental parent trine presented: questions Two are of conduct.8 gence claims. types of conduct does the doctrine to what of whether now turn to We protect doctrine
apply; and should the Michael, may stepparent, as a invoke stepparents? immunity. support In parental doctrine of single case cites a Texas position, his century the doc For much of this i.e., stepparent, to a applying the doctrine absolutely pro immunity parental trine of (Tex. Martin, Hall v. S.W.2d by their minor parents tected from suits denied), de writ cert. App.—Beaumont Felderhoff, 473 children. Felderhoff nied, 114 S.Ct. 511 U.S. (Tex.1971). Now, however, 928, 930 (1994). says that doc L.Ed.2d 72 parent parental immunity protect not does stepparent, to a trine should not be available intentional acts. Id. at 930-31. legal duty stepchild. has no who Thus, immunity for assaults parents have says Beaumont Court sim He also on their children. applied to the that the doctrine ply assumed and, event, any applying it was Felderhoff, Court “set the necessary to the decision. parent-child litigation.” Jila boundaries (Tex.1988) ni Jilani never knew reveals that John The record (quoting Felderhoff). The Court “retained father, had died two biological ‘alleged respect rule with Michael and Diane months before his birth. ordinary negligence acts of which involve eigh- approximately was married when John authority parental reasonable exercise and Diane di- months old. Michael teen ordinary parental discretion the exercise of John was seventeen. vorced when respect provisions for the care and Diane, was, according to “the ” of the child.’ Id. The rationale necessities had ever known.” figure father that John right parent to use discre is that the asked about that Michael Diane testified discharge of these duties tion married, they but adopting after were “seriously impaired” parents if the could be *8 his father’s keep him to “want[ed] she ordinary negligence could be held liable for position of name.” Consistent with parental discharging those that occurs while Court, we hold that the doctrine Beaumont duties. Id. immunity applies to a parental of position. in Michael’s recognized has The acts are ex summary, In the intentional parental exceptions to the doctrine three immunity. (1) acts; parental cepted from the doctrine immunity: or malicious intentional The (2) lderhoff, at 930-31. employ in S.W.2d by parents an acts committed Fe child; acts, jury found to be remaining which the relationship with their er-employee recognized (3) negligent, do not fall within an automobile. negligent operation of and immuni- parental exception to the doctrine fmeyer Hoffmeyer, Hof protects applies, the doctrine 8. To the extent it by parental immunity. We do so because barred conduct, negligent matter how loathsome. stepparent. See footnote 5. Michael is a Inc., (Tex.1980) (If Thus, ty. may not recover for them.9 can written instrument is so worded that it Id. We sustain point four. meaning given legal a certain or definite by protected Michael is the doc- Because ambiguous interpretation, then it is not liability parental immunity from for trine of and the court will construe the contract as constituting negligence, we will re- the acts law.). agreement Diane The binds matter judgment to eliminate the actual form (1) liability on hold Michael harmless from damages that the awarded in connection might any judgment that she or John recover negligence finding. with the (2) by and not that was not covered insurance any judgment against enforce such Michael MICHAEL’S COUNTERCLAIM orders, through process, garnish turnover noted, agreement in an that As we have ments, process every type or other writ or (1) signed individually, agreed to Diane she proceed every type character and of court any liability from on hold Michael harmless provide ing. agreement The does not that judgment might that she or John recover liability to Michael “has been released from (2) by that was not covered insurance and John], that an accord and satis [Diane and any judgment against Mi- to enforce such part, in or in faction has been reached whole filed through legal processes. chael Michael liability to personal [Di and that he has no against Diane and John for a a counterclaim Having on ane and no basis which John].” declaratory judgment seeking “a construction requested, grant the relief that Michael under the of the Covenant Not to Enforce failing judgment court did not err enter Declaratory Judgments Act Uniform personally that Michael is not liable. We liability has been released from [Michael] points five and six. overrule John], that an accord and satis- [Diane part, has in whole or faction been reached CONCLUSION personal liability to [Di- and that he has no found that We have court declined Michael’s John].” ane and liability protects Michael from findings agree- request to make about John, though steppar- he is a towards even judg- incorporate ment and them into the Thus, judgment determine, ent. we must reform ment. As far as we can the court $50,000 damages of eliminate the actual were not found John’s claims jury found to have resulted from which the agreement. five and barred acts. six, complains of the court’s overrul- “failing to find that ing request (1) provide: is reformed to personally on the is not liable McGee Plaintiff, Bardin, Jr., Deston have judgment.” Defendant, from Michael Jo- recover of and McGee, $125,000; he also seph the sum party not a to the Because John was prejudgment interest at the rate of recover agreement, or the he is not divorce suit August percent per annum from ten court was bound its terms. 3, 1995, on the actual dam- until November agreement determining that correct $20,000; post- ages he recover not bar his claims. did percent ten judgment interest at the rate of appeal that the inter Michael asserts until per annum from November agreement pretation of the $125,000,for all of which paid, on the sum of assertion, findings of Accepting law. let execution issue. R See inappropriate. fact would have been *9 LaGuarta, Kirk, reformed, judgment affirmed. & the P Enter. v. Gavrel As & immunity parental need not consider whether reach the of whether the 9. We do not gross negli protects stepparent liability gross negligence. a from doctrine But bars Michael's for damage question gence. punitive was condi 667, The Hoffmeyer Hoffmeyer, 668 v. 869 S.W.2d see tionally affirmative of submitted on an 1994, writ) (allegation (Tex.App. — Eastland gross negligence. Because Michael assault or preclude application of gross negligence does not assault, jury’s finding of the does not attack the parental immunity). the doctrine of damage punitive award will stand.
369
only ordinary
alleged
negligence
the
ON
OPINION
REHEARING
ap
that
on
and
the issues
mother
asserted
rehearing.
party
Each
filed a motion for
justification
peal
solely of law” as
were “ones
motions,
deny
will
both
but will discuss
We
facts.
Id.
presenting
for not
a statement of
some of our reasons.
the
Court held: “Because
at 936-37. The
states,
rehearing
per-
for
in
John’s motion
apparent
parental
immunity
defense of
was
part:
Appeals
...
tinent
“The Court of
erred
pleadings,
applica
its
on the face
the
and
sustaining
in
Point of Error No.
Defendant’s
law,
matter of
there was no
purely
tion was
a
by reforming
4
the trial court’s
immunity.”
separate jury finding on
for a
need
upon
parental
based
the doctrine of
immuni-
937-38.
Id.
parental
ty.”
argues
immunity
He
does
and,
apply
gross negligence
the
not
for
Obviously,
parents
adop
natural
and
time,
Michael,
stepparent,
first
who is a
immunity
parents enjoy
because
then-
tive
failing
waived
doctrine
a
the
obtain
A
legal relationship with their children.
jury
standing
finding that he was
in loco
however,
stepparent,
does not benefit from a
parentis
complains
to John. Michael
about
may may
legal relationship and
or
not act as
the
our failure to address whether
“parent”
respect
given
a
to a
child.1
supports
gross negligence.
the
charity
kindness
or
through
One who
oth
Loco
In
Pabentis
family
er motive has received into his
immunity
Parental
is an affirmative
treats a child as a member thereof stands
ordinarily
pled
defense that
must be
to avoid
(in
place
parent)
parentis2
loco
of a
so
Ltd.,
Fogel,
waiver.
v.
Shoemake
family.
long
Trot
as
child remains
(Tex.1992).
933,
pled parental
937
Pollan,
(Tex.Civ.
729
ter
311
immunity
objected
curiam,
App.-Dallas),
per
n.r.e.
writ refd
gross negligence
charge
issues in
on
(1958).
158 Tex.
Although jury welfare, rights, safety about persons stepparent parentis by whether a stands in loco affected it. may cases, required in some none was 16, 1987, C.S., Leg., Act of June 70th 1st ch.
required
biological
here.
John’s
father died
2,
2.12,
§
(formerly
1987 Tex.
44
Gen. Laws
mother,
two months
before
birth. His
Tex.
&
Civ.
Prac.
Rem. Code Ann.
Diane,
eigh
married Michael when John was
41.001(5)).4
§
charge,
jury
Under the
old; they
teen months
divorced
he
when was
gross negligence
found
as an unintentional
years
seventeen
old. Diane testified that wrong.
only
Michael was
figure
father
John had
recognized
Our
Court has
ever known.
exceptions
pa
three
to the
of
doctrine
original holding
We reaffirm our
(1)
immunity:
rental
intentional or malicious
parental
immunity protects
doctrine of
“a
acts;
by parents
acts
committed
an
position.”
in Michael’s
v.
McGee
employee-employer relationship with their
McGee,
360,
936
(Tex.App.-Waco
S.W.2d
367
child;
negligent operation
of an
1996)
added).
(emphasis
Hoffmeyer
Hoffmeyer,
automobile.
v.
869
667,
Negligence
(Tex.App.-Eastland
S.W.2d
668
GROSS
denied). Although gross negligence
writ
argues
parental immunity
covers
exception,
could form the basis for another
only ordinary negligence
jury
and that the
Creating
we are not so inclined.
such an
grossly negligent.
found Michael
Parental
exception
objec
would not further the “real
immunity
protect
parent
does not
com-
ie.,
parental immunity,
avoiding
tive” of
un
wilful, malicious,
mits
wrongs
or intentional
judicial
due
parental
interference with
discre
against a child.
Felderhoff,
v.
473
Felderhoff
Shoemake,
tion.
826
at
S.W.2d
936.
(Tex.1971).
930-31
S.W.2d
The doctrine
parental immunity
we hold that
bars recov
“ordinary negligence
is restricted to
and un-
ery
gross negligence.5
for
wrongs.”
intentional
Id. at 931.3 The “real
Although
necessary
disposition
our
objective”
parental immunity
of
is to “avoid
would,
appeal,
upon
were we called
judicial
undue
interference with
dis-
points,
to address Michael’s
find that some
Shoemake,
cretion.”
826
S.W.2d
936.
probative
supports
charged
The court
with the then-
gross negligence. We believe that the evi-
statutory
gross negligence:
definition of
provided
dence that Michael
alcohol and ob-
negligence”
jectionable
“Gross
means more than
materials to John raised an issue
momentary
inadvertence,
thoughtlessness,
about whether
with
an
Michael acted
such
judgment.
or error of
It means such an
entire want of care as to establish that the
entire want of care as to
question
establish that the
act or omission in
was the result of
act or omission in
rights,
was the result
actual conscious
indifference
John’s
welfare,
of actual
safety.
conscious indifference to the
closely
3. Parental
remains a defense to “al
the current definition of
resem
"malice”
leged
ordinary negligence
acts of
objective
which involve a
subjective prongs
gross
bles the
ordinary parental
reasonable exercise of
ty
41.001(7);
authori
negligence.
§Id.
Universal Serv. Co.
ordinary parental
or the exercise of
discretion
(Tex.
Ung,
Inc. v.
641 & n.2
respect
provisions
for the care and neces
1995).
Felderhoff,
sities of the child.”
Felderhoff
(Tex.1971);
Parental choices
parental immunity
5. The doctrine of
has been the
culpability
are not reviewable “in the
absence
subject
Romualdo P. Ec
of several annotations.
beyond ordinary negligence.”
Shoemake
Fo
lavea, Annotation, Liability
Injury
Parent
t
for
Ltd.,
gel,
o Unemancipated
Neglig
Caused
Parent's
Child
Cases,
(1981);
ages original opinion. in our were addressed rehearing are denied. motions
S.D.G. The STATE of Texas.
No. 14-94-01179-CV. Texas, Appeals (14th Dist.).
Houston Nov. 1996. Rehearing Overruled Jan.