                                                                                                               FILED
                                                                                                               OF APPEP I r"
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                     2014 AUG 19
                                                                                                                 Apt 9 : 36
                                                   DIVISION II
                                                                                                                        TON
TORRE J. WOODS, individually;                                                      No. 44346 -5 -II El.y \

                                       Appellant,


           v.



H. O.       SPORTS        CO.      INC.,    a      for -
                                                       profit                  PUBLISHED OPINION
Washington          corporation;     and MICHAEL E.
    WOODS, individually;

                                       Respondents.


          MELNICK, J —          Torre Woods appeals from the trial court' s grant of summary judgment

dismissal based on the parental immunity doctrine of his claims against his father, Michael Woods.
            1
Michael,        driving his motor boat, pulled Torre and his friends on an inflatable tube. Ejected from

the tube, Torre suffered a serious injury. He subsequently filed a negligence claim against Michael

and a product       liability   claim against    the tube   manufacturer.     We granted discretionary review on

the issue of whether the parental immunity doctrine should be applied to the facts of this case. We

reverse the trial court' s grant of summary judgment and remand to the trial court to reinstate

Torre' s negligence action against Michael.

                                                           FACTS


           In July 2010, Michael went to a lake with Torre and two of Torre' s friends. Michael drove

a 240 -horsepower jet boat at approximately 30 mph and towed Torre and his friends on an

inflatable tube designed and manufactured by H.O. Sports Company, Inc. The tube crossed a wake

and all three boys were ejected. One of Torre' s friends landed on him. The impact broke Torre' s

neck and rendered him a quadriplegic.




1                                                                                               disrespect to them.
    To   avoid confusion, we refer      to the   parties   by their first   names and mean no
44346 -5 -II



          The tube is     a   large inflatable device that       seats    four   people.    H.O. Sports' s recommended


maximum speed when             pulling the tube is 15        mph    for   children and     20   mph   for   adults.   Although


Michael and Torre had engaged in this activity many times and Michael declared that he " was

always careful     to   operate   the boat    at a speed    that Torre was    comfortable with,"        Michael also stated


that he probably could have prevented the accident by travelling at a slower speed. Clerk' s Papers

at29.



          Torre filed a complaint against Michael for negligence and against H.O. Sports for product


liability. Michael filed a motion for summary judgment and argued that the parental immunity

doctrine    required     his dismissal.       The trial court granted Michael' s motion, ruling that he had

parental immunity. A commissioner of this court granted discretionary review of the summary

judgment order solely on the issue of the applicability of the parental immunity doctrine to this

case. 2 We hold the parental immunity doctrine is inapplicable to this case and reverse the trial

court' s order granting summary judgment and dismissing Torre' s claims against Michael.
                                                           ANALYSIS


I.         STANDARD OF REVIEW


           We review an order for summary judgment de novo, engaging in the same inquiry as the

trial   court.   Loeffelholz    v.   Univ. of Wash., 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012).                       Summary

judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on


file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and     that the moving party is       entitled   to   a   judgment   as a matter of       law."   CR 56( c).    We construe




2 The parties have briefed an additional issue based on Torre' s motion for reconsideration in the
trial   court.   With his     motion    for   reconsideration,      Torre   submitted new evidence.             The trial court
would not consider new evidence and struck it from the record. Because this issue is beyond the
scope of the discretionary review order, we decline to consider it.

                                                                2
44346 -5 -II



all facts and the reasonable inferences from those facts in the light most favorable to the nonmoving

party.    Loeffelholz, 175 Wn.2d           at   271.   Summary judgment is proper only if reasonable persons

could reach    but one       conclusion    from the     evidence presented.     Bostain    v.    Food Express, Inc., 159


Wn.2d 700, 708, 153 P. 3d 846 ( 2007).


II.       PARENTAL IMMUNITY DOCTRINE


          The parental immunity doctrine is a judicially created doctrine that originally operated as

a nearly absolute bar to a child' s lawsuit for personal injuries caused by a parent, regardless of the

wrongfulness of the parent' s conduct. See, e.g., Roller v. Roller, 37 Wash. 242, 79 P. 788 ( 1905)

 father   raped     daughter).    Since its origination, the parental immunity doctrine has been subject to

extensive critical commentary, and, like other jurisdictions, Washington has " substantially limited

the   scope of parental       immunity." Zellmer v. Zellmer, 164 Wn.2d 147, 155, 188 P. 3d 497 ( 2008);

see also   Merrick     v.   Sutterlin, 93 Wn.2d 411, 413 -15, 610 P. 2d 891 ( 1980). "              The primary purpose

of the doctrine is to avoid the chilling effect tort liability would have on a parent's exercise of

parental   discipline       and parental   discretion." Zellmer, 164 Wn.2d         at   162. "    In exercising that right,

parents are    in   need of a ` wide sphere of         discretion. '   Zellmer, 164 Wn.2d at 159 ( quoting Borst v.

Borst, 41 Wn.2d 642, 656, 251 P. 2d 149 ( 1952)). Our Supreme Court has confirmed the continued


viability of the parental immunity doctrine and has refused to replace it with "reasonable parent"

standard of    liability.3 Zellmer, 164 Wn.2d at 158 -61.




3 The rationale for the parental immunity doctrine has been well documented by our Supreme
Court. See Borst, 41 Wn.2d at 650 -54; Merrick, 93 Wn.2d at 412 -15; Zellmer, 164 Wn.2d at 154-
55.




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44346 -5 - II



          Washington courts have carved out three exceptions to the parental immunity doctrine.4

The first is where a parent negligently operates an automobile.5 Merrick, 93 Wn.2d at 412, 416
             ended car,
 mother rear -                     causing      injury   to her two -
                                                                    year      old child).
                                                                              -             The second is where a parent


injures his or her child while engaging in a business activity. Borst, 41 Wn.2d at 657 -58 ( father

ran over son while         driving his business          truck).     The third is where a parent engages in willful or


wanton misconduct or intentionally wrongful conduct.6 Hoffman v. Tracy, 67 Wn.2d 31, 437 -38,

406 P. 2d 323 ( 1965);         see also Zellmer, 164 Wn.2d at 157; Jenkins v. Snohomish County PUD Dist.

No. 1, 105 Wn.2d 99, 105 -06, 713 P. 2d 79 ( 1986).


            The Supreme Court to date has avoided adopting a bright line rule for application of the

parental     immunity         doctrine.    Instead, in Merrick, the court stated that the better approach is to


make a case -by -case determination of when to apply parental immunity. 93 Wn.2d at 416.

            We have examined every case dealing with the issue. We recognize that there may
            be situations of parental authority and discretion which should not lead to liability.
            Several courts, such as Wisconsin and California, have attempted to put forth an
            all- encompassing rule to deal with these situations. We believe that the better
            approach is to develop the details of any portions of the immunity that should be
            retained by a case -to -case determination.

Merrick, 93 Wn.2d at 416.




4 Michael and H. O. Sports urge us to find that parental immunity applies to all recreational
activities. We decline the invitation to add a fourth category.

5                                                                                                     boats.   He cited to no
    Torre   urges us     to    expand     the   motor vehicle exception          to include   motor

statute     or   case   that defines      an " automobile"          to include   a " motor    boat." " We do not consider
conclusory        arguments unsupported            by    citation    to authority.   State v. Mason, 170 Wn. App. 375,
384, 285 P. 3d 154 ( 2012);           see   RAP 10.3(      a)(   6), 10. 4.


6 Torre also argues for the first time on appeal that there is a genuine issue of material fact as to
whether Michael' s conduct was wanton, thus making the parental immunity doctrine inapplicable.
Because Torre neither argued this theory in the trial court, nor did the parties meaningfully address
it in the trial court, we do not consider it on appeal. RAP 2. 5( a), 9. 12.


                                                                      4
44346 -5 -II




          To determine the scope and breadth of parental immunity, we look to our Supreme Court' s

pronouncements          for   guidance. "[      W] hen the parental activity whereby the child was injured has

nothing to do with parental control and discipline, a suit involving such activity cannot be said to

undermine      those    sinews of     family life."    Borst, 41 Wn.2d          at   651. " A parent is not immune - hen
                                                                                                                   w


         outside   his   or   her    parental    capacity."   Zellmer, 164 Wn.2d             at    155.   Parents are immune,
acting


however, from      claims      for   negligent supervision of         their   children. "    Subjecting parents to liability

for negligent supervision inevitably allows judges and juries to supplant their own views for the

parent' s   individual   child- rearing    philosophy." Zellmer, 164 Wn.2d                  at   161. " Parents should be free


to determine how the physical, moral, emotional, and intellectual growth of their children can best

be promoted. Parents should not routinely have to defend their child -
                                                                     rearing practices where their

behavior does      not rise     to the   level   of wanton misconduct."              Jenkins, 105 Wn.2d at 105 ( citations


omitted).




            The modern parental immunity doctrine is intended to " avoid undue judicial interference

with the     exercise of parental        discipline    and parental     discretion....            Parents have a right to raise


their   children without undue state             interference."       Zellmer, 164 Wn.2d           at   159. "[   T] he purpose of


immunity is        to    provide      sufficient    breathing     space       for making discretionary decisions,              by

preventing judicial second -guessing of such decisions through the medium of a tort action."

Zellmer, 164 Wn.2d at 160.


            Based on the foregoing, we must determine ifthis case involves parental control, discipline,

or'   discretion for    which parental       immunity     applies.      In so deciding, we keep in mind that Torre' s

lawsuit alleges that Michael failed to exercise ordinary care while operating his boat in an

 inattentive,   careless, or negligent manner.            Torre does not allege that Michael acted negligently in

                                     in the activity for                he               his injuries.        This distinction is
 allowing him to         engage                               which           received




                                                                  5
44346 -5 - II




important. We recognize the difference between a parent having immunity for choosing an activity

for his child to participate in versus a parent' s negligence while participating in the chosen activity.

The former involves parental control, discipline, and discretion. As an example, parental immunity

applies to parents' discretionary decisions to allow their children to engage in specific activities.

See Baughn       v.   Honda Motor Co., Ltd., 105 Wn.2d 118, 119 -20, 712 P. 2d 293 ( 1986) (             nine -
                                                                                                              year-




old child allowed to ride on the back of a mini bike operated by another minor, resulting in

injuries);     Delay    v.   Delay,    54 Wn.2d 63, 64 -65, 337 P. 2d 1057 ( 1959) ( parent instructed son to


siphon gas from a vehicle, resulting in burn injuries).

          The situation before us is more akin to the facts of Merrick, where the mother drove an

automobile and rear -
                    ended another car. 93 Wn.2d at 412. Her two -year -old child, a passenger in

the car, suffered injuries. Merrick, 93 Wn.2d at 412. Through a guardian ad litem, the child sued

his mother for negligence. Merrick, 93 Wn.2d at 412. The Supreme Court reversed the trial court' s

grant of summary judgment and held " that a minor child injured by the negligence of a parent in
an automobile accident              has   a cause of action against   that     parent."   Merrick, 93 Wn.2d at 416.


Subsequently,         this   case   has been interpreted to   mean   that "[   a] parent is not immune when acting

outside   his   or    her   parental   capacity."   Zellmer, 164 Wn.2d at 155.


          Here, when Michael drove the boat and towed the tube, his actions did not involve parental

control, discipline, or discretion. Michael' s actions did not involve negligent supervision of Torre.

Lastly, Michael' s actions did not involve parental discretion or decision -making in how to raise
his   child.    Instead, Michael' s actions involved driving a boat and towing a tube occupied by his

son and others, over a wake at a speed higher than the manufacturer' s recommendation, which


ejected the boys from the tube and injured Torre. Michael thus engaged in an allegedly negligent

 activity that directly injured Torre. At the time of the accident, Michael' s relationship with Torre



                                                              6
44346 -5 -II




was not primarily that of a parent and child, but of a boat driver and tube rider. We hold that the

parental immunity doctrine is inapplicable in this case and that the trial court erred by granting

summary judgment     and   dismissing   Torre'   s claims against   Michael.   In so ruling, we note that the

chilling effect of tort liability in this case does not adversely affect Michael' s exercise of parental

discipline and parental discretion as it relates to Torre. See Zellmer, 164 Wn.2d at 162.


        We hold that the parental immunity doctrine is inapplicable to Torre' s allegations of

negligence against Michael under the facts of this case. We reverse the trial court' s order granting

summary judgment and remand to the trial court to reinstate Torre' s negligence action against

Michael.




We concur:




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