finding this case more closely analogous to Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970), and Schleier v. Alter, 159 Ariz. 397, 767 P.2d 1187 (App. 1989)
How later courts described this case
- finding this case more closely analogous to Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970), and Schleier v. Alter, 159 Ariz. 397, 767 P.2d 1187 (App. 1989)
Written by the judges who cited it.
The opinion
KLEINSCHMIDT, Judge,
dissenting.
I respectfully dissent. I believe that we have wide latitude in dealing with the issue of parental immunity because, in Sandoval v. Sandoval, 128 Ariz. 11, 14 , 623 P.2d 800, 803 (1981), the supreme court said that the question whether the parent’s duty was owed to the child or the world at large was a matter to be decided on a case-by-case basis.
The majority has done an especially good job of tracing the evolution of the abrogation of parental immunity. Its exegesis, however, exposes how fine are the distinctions upon which liability turns from case to case. The test of whether a duty is owed to the world at large or to the child alone, however well it may serve in some cases, is not very satisfactory in others.
There is a makeweight argument, a collateral point in the majority opinion, with which I sharply disagree. I begin my analysis with this point because it lays the ground work for my own conclusion. The child argues that parental immunity should not apply in this case because, unlike the situation present in several cases in which Arizona courts have found that immunity did apply, the instrumentality which caused the actual harm in this case was under the control of the mother. The majority rejects this argument with the observation that it misstates the test. The test is to whom did the mother owe the *59 duty? The majority does not rest with that observation, however, but goes on to bolster its conclusion with the following statement:
Furthermore, unlike Schleier v. Alter, 159 Ariz. 397 , 767 P.2d 1187 (App.1989), the mother could not supervise the pool in the sense that the parents could supervise their dog, and unlike Streenz v. Streenz, 106 Ariz. 86 , 471 P.2d 282 (1970), the mother did not have control over the pool as she would have over the driving of a vehicle.
To my mind, this statement is not correct. The mother in our case could have supervised the contact between her child and the pool as easily as the parents in Schleier could have supervised contact between their child and their dog. Similarly, she could have supervised the contact between her child and the pool as easily as the mother in Streenz could have driven carefully.
These same two cases, Streenz and Schleier , support the conclusion that the mother’s duty in our case was owed to the world at large. The supreme court, in Sandoval, 128 Ariz. at 13 , 623 P.2d at 802 , stated that the mother in Streenz was liable for her child’s injuries because the mother owed a duty to the world to drive carefully. And yet, the accident that gave rise to liability, a crash into a tree, did not endanger anyone other than the child who was a passenger in the car. See Streenz, 106 Ariz. at 86 , 471 P.2d at 282 . Thus, it was the potential for harm to the world of motorists and pedestrians at large, whether anyone in that world at large was harmed or not, that justified dispensing with parental immunity. So too, in Schleier , it was the danger that an uncontrolled dog might bite anyone, even if it only actually bit the owner’s child, that justified the imposition of liability. See Schleier, 159 Ariz. at 399-401 , 767 P.2d at 1189-91 . Why is this case any different than Streenz or Schleier? The mother owed a duty to the world to supervise this swimming pool. What difference does it make that her negligence on this occasion resulted in harm only to her own child? Parental immunity ought not apply.
I see no policy reason which runs counter to my conclusion. To allow this suit against the mother is no more disruptive to family unity than it is disruptive to family unity to allow a child to recover for injuries received in an automobile accident. Nor would allowing the suit involve the courts in weighing the merits of parental decisions about how children should be raised, supervised, and supported. Nothing in this mother’s actions involved an exercise of judgment which society has the slightest interest in honoring. No one could argue that the mother was in any way justified in allowing a two-and-half-year old to play by himself by a swimming pool. A finder of fact could thus conclude that the mother’s conduct was an act of gross negligence which would not merit the protection of immunity. See Foldi v. Jeffries, 93 N.J. 533 , 461 A.2d 1145 (1983) (immunity for simple negligent supervision but not for supervision that amounts to willful or wanton negligence); Jenkins v. Snohomish County Public Utility Dist., 105 Wash.2d 99 , 713 P.2d 79 (1986) (no immunity for conduct which a reasonable person knew or should have known is highly dangerous); see also Jefferson L. Lankford & Douglas A. Blaze, The Law of Negligence in Arizona, § 3.4(2) at 39-40 (1992) (discussing relationship between gross negligence and immunity).
I would reverse the order granting summary judgment and remand this case for trial.