      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-05-00358-CV



  Marietta Sepaugh, Individually, and as Next Friend of her minor son, Frank LaGrone,
                                  Deceased, Appellant

                                                  v.

                                     Paul LaGrone, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
        NO. GN402204, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                               DISSENTING OPINION

               I respectfully dissent.

               Marietta Sepaugh alleges that Frank LaGrone’s death was proximately caused by

Paul LaGrone’s failure to comply with a City of Austin ordinance that required him to equip his

residence with smoke detectors that sounded an alarm audible in all sleeping areas. LaGrone’s

obligation to comply with this ordinance, designed to protect not just LaGrone’s children but any

person in the residence, was not within the realm of discretionary parenting decisions protected by

the parental-immunity doctrine.

               The parental-immunity doctrine shields a parent from suits brought by an

unemancipated minor child arising out of “alleged acts of ordinary negligence which involve a

reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect

to provisions for the care and necessities of the child.” Felderhoff v. Felderhoff, 473 S.W.2d 928,
933 (Tex. 1971). In Felderhoff, the Texas Supreme Court established guidelines for determining

when a parent is immune from liability to his child for alleged acts of ordinary negligence.

See id. at 932-33. The Felderhoff court observed that the objective of the parental-immunity doctrine

is to “prevent the judicial system from being used to disrupt the wide sphere of reasonable discretion

which is necessary in order for parents to properly exercise their responsibility to provide nurture,

care, and discipline for their children.” Id. at 933. Accordingly, in order for immunity to attach, the

act complained of must involve either the exercise of parental authority or the exercise of ordinary

parental discretion. Id.

               In Felderhoff, the court considered whether parental immunity barred a negligence

claim brought by a fourteen-year-old boy who was injured while working for a farming partnership

in which his father was a partner. The boy alleged that his injuries were caused by the negligent acts

of his father “in the course and furtherance of the partnership business.” Id. at 928. The court noted

the existence of a legal relationship of employer and employee between the child and his father under

which the same legal duties were owed to the child as to any other employee. The court concluded

that because the negligent acts were alleged to have been committed “in the course of business

activities wholly outside of the sphere of parental duties and responsibilities,” parental immunity did

not apply. Id. at 933. The Felderhoff court retained the parental-immunity rule with respect to “acts

of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of

parental discretion with respect to provisions for the care and necessities of the child.” Id.

               The supreme court next addressed the parental-immunity doctrine in Jilani v. Jilani,

767 S.W.2d 671 (Tex. 1988). There, an action was brought on behalf of three minor children for



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injuries they sustained in an automobile accident caused by the alleged negligence of their father,

who had been driving the car. In holding that parental immunity did not apply, the court reasoned

that “familial obligations and duties imposed by law and nature are quite different from the general

obligation the law imposes upon every driver of an automobile.” Jilani, 767 S.W.2d at 673.

Because the “essence of the alleged negligence was the improper operation of a motor vehicle—an

activity not essentially parental,” the court concluded that the conduct complained of did not “fall

within the sphere of ‘reasonable exercise of parental authority or the exercise of ordinary parental

discretion’ described in Felderhoff.” Id. Consequently, the court held that parental immunity did

not bar the claims of the minor children.

               Informed by these supreme court decisions, the question presented in this case is

whether the alleged negligent act forming the basis of Sepaugh’s claims constitutes an “exercise of

parental authority or the exercise of ordinary parental discretion” with respect to LaGrone’s parental

duties. The majority holds that his acts and decisions related to providing a home for Frank and

therefore involved an exercise of parental discretion. Sepaugh’s claims, however, are directed

specifically to LaGrone’s alleged failure to provide a functioning smoke-detection system in the

house, as required by City of Austin Ordinance No. 000406-78 (April 6, 2000). A violation of this

ordinance is punishable by a fine of up to $2,000, Tex. Loc. Gov’t Code Ann.§ 54.001 (West 2008),

and thus is criminal in nature. LaGrone had no discretion, parental or otherwise, to ignore or fail to

comply with requirements of the City’s ordinance.

               The parental-immunity doctrine has been the subject of much recent criticism.

See generally Romualdo P. Eclavea, Annotation, Liability of Parent for Injury to Unemancipated



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Child Caused by Parent’s Negligence – Modern Cases, 6 A.L.R.4th 1066, 1113-25 (1981).

Indeed, as of 2001, eleven states had abrogated the doctrine completely. See Herzfeld v. Herzfeld,

781 So.2d 1070, 1073-74 (Fla. 2001). But I am not arguing for that result. I believe the law

established by the supreme court in Felderhoff and Jilani easily supports a refusal to apply the

doctrine in the present case. This case is not about a parent negligently allowing his child to engage

in illegal or dangerous activity. It is about a parent allegedly violating a mandatory ordinance, which

led to the death of the child. The City’s criminalization of the act underlying Sepaugh’s negligence

claim removes any discretionary aspect of LaGrone’s conduct.

               Moreover, the City’s ordinance imposed on LaGrone, as a homeowner, a general

obligation to install smoke detectors not only for the safety of his children, but for the safety of

anyone present in the home. Thus, the City’s restriction on the discretion a homeowner can exercise

in protecting residents and visitors from the hazards of house fires does not involve a parent’s

supervision of his children. See Jilani, 767 S.W.2d at 673 (“In the present action, the essence of the

alleged negligence was the improper operation of a motor vehicle—an activity not essentially

parental.”). Rather, the ordinance imposes on homeowners certain obligations to enhance the safety

of any person in the home. Accordingly, the situation here is directly analogous to that in Jilani,

where the supreme court emphasized that the breach of a legal duty owed to the general public would

not be excused merely because the injured party was a child of the tortfeasor:




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         The familial obligations and duties imposed by law and nature are quite different
         from the general obligation the law imposes upon every driver of an automobile. It
         is the “reasonable discretion” with respect to parental obligations that this court was
         trying to protect in Felderhoff. The immunity is limited to transactions that are
         essentially parental.

Id.

                Because the negligent conduct complained of is LaGrone’s alleged failure to comply

with a mandatory city ordinance—with potential criminal penalties—the negligence alleged does not

involve an essentially parental activity. For that reason, permitting a cause of action arising out of

that conduct would not interfere with LaGrone’s supervision of his children or disrupt the wide

discretion he may exercise in discharging his responsibility to provide for their nurture, care, and

discipline. I believe that, under these facts and existing legal precedent, the parental-immunity

doctrine does not apply. I would reverse the trial court’s summary judgment and remand the cause

for trial.




                                        ___________________________________________________

                                        J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Filed: August 28, 2009




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