
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




ON MOTION FOR RECONSIDERATION EN BANC




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



D I S S E N T I N G   O P I N I O N
		This case presents an important opportunity to revisit the court-made doctrine of
parental immunity, particularly the appropriate bounds of parental discretion in the face of a duty
imposed by law.  As the Missouri Supreme Court has expressed:

The rule of parental immunity is a court-made rule.  It was formulated, not by
legislative enactment propounding an expressed public policy, but by the courts who
asserted their conception of what public policy was.  Consequently, courts have a
duty to criticize and reexamine their relationship of the rule to public policy and to
make such modifications as appear merited.	


Fugate v. Fugate, 582 S.W.2d 663, 668 (Mo. 1979) (internal quotation marks and citations omitted);
see also Nudd v. Matsoukas, 131 N.E.2d 525, 531 (Ill. 1956) ("The doctrine of parental immunity,
as far as it goes, was created by the courts.  It is especially for them to interpret and modify that
doctrine to correspond with prevalent considerations of public policy and social needs."). 
		  As the majority points out, we are bound by the precedents of the Texas Supreme
Court.  See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.--Austin 2004,
no pet.).  Texas Supreme Court precedent, however, requires us only to apply the doctrine of parental
immunity to "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).  Working
within that framework, I believe that this Court, when confronted with the facts of this case, should
grant en banc consideration for the purposes of reevaluating its standard for determining the
boundaries of "ordinary parental discretion."
		The first decision to recognize parental immunity in the United States was the
Mississippi Supreme Court's decision in Hewlett v. George, 9 So. 885, 887 (Miss. 1891).  Stressing
the public policy of fostering family harmony and tranquility, the court held that a parent who had
wrongfully committed her child to an insane asylum was immune from suit.  Id.  Other state courts
adopted the doctrine, citing additional public policy considerations.  See Streenz v. Streenz, 471 P.2d
282, 283 n.1 (Ariz. 1970) ("The principal reasons stated are (1) disturbance of domestic tranquility,
(2) danger of fraud and collusion, (3) depletion of the family exchequer, (4) the possibility of
inheritance, by the parent, of the amount recovered in damages by the child, and (5) interference with
parental care, discipline and control.").  
		The doctrine first appeared in Texas in 1948.  See Garza v. Garza, 209 S.W.2d 1012,
1015 (Tex. Civ. App.--Eastland 1948, no writ) (holding that because minor children would be
barred from suing father in tort, they were also barred from recovering for loss of his society).  In
Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 936 (Tex. 1992), the Texas Supreme Court rejected the
promotion of family harmony as the policy basis for parental immunity in favor of the protection of
parental discretion, stating, "The real objective of parental immunity . . . is not to promote family
harmony; rather, it is simply to avoid undue judicial interference with parental discretion."  (citing
Felderhoff, 473 S.W.2d at 933 ("We recognize that peace, tranquility and discipline in the home are
endowed and inspired by higher authority than statutory enactments and court decisions. 
Harmonious family relationships depend on filial and parental love and respect which can neither
be created nor preserved by legislatures or courts.")).
		Courts in other jurisdictions have rejected the notion that parental discretion should
protect a parent from liability where, as here, an unrelated child would have a valid cause of action,
but the child of the alleged tortfeasor would not.  See Broadbent v. Broadbent, 907 P.2d 43, 50 (Ariz.
1995) (holding that parental immunity did not bar cause of action when child drowned after parent
left him unattended near swimming pool, observing, "We fail to see why parents should not be held
liable for negligence in failing to supervise their own children near the pool, when their liability
would be clear had the children not been their own."); Grivas v. Grivas, 113 A.D.2d 264, 269 (N.Y.
App. Div. 1985) (holding that parental immunity did not bar claim by child who was injured by lawn
mower operated by her mother because child "occupied the same position as any neighborhood child
with respect to the operator's duty of care").  It is worth considering whether the public policy of
supporting parental discretion is served in this case by applying such a broad view of parental
discretion that the unrelated victim of the fire may assert a claim against LaGrone, while Frank is
barred from doing so.
		Similarly, some courts have taken the position that where the parent owes a duty to
the public at large, as opposed to a particularized duty to the child, there is no parental discretion to
breach that duty.  See Henderson v. Woolley, 644 A.2d 1303, 1307-08 (Conn. 1994) (holding that
commission of crime is not protected by parental immunity because "that act constitutes a breach
of duty owed not only to the child, but to the public at large"); Grivas, 113 A.D.2d at 269 (stating
that parental immunity did not apply because "the duty to exercise reasonable care in the operation
of a lawn mower is a duty owed to all"); Cummings v. Jackson, 372 S.E.2d 1127, 1128 (Ill. App. Ct.
1978) (holding that, where parent violated city ordinance by failing to trim trees on her property line,
causing child to be hit by car when driver's view was obstructed, child's claim was not barred by
parental immunity because duty to comply with ordinance "was owed primarily to the general
public . . . and only incidentally to the members of the family").  This Court should consider
adopting a similar view in the present case, where LaGrone owed a duty to the public at large to
equip his home with properly functioning smoke detectors as required by city ordinance.  The danger
of a home fire affects not just family members dwelling in the home, but non-family members who
might be in the home at the time, as well as inhabitants of neighboring homes. The bounds of public
policy in protecting parental decision-making should not be stretched to the point that a parent's
failure to comply with a city ordinance requiring functioning smoke alarms in a home--an act of
negligence endangering not the just the parent's own child but the public at large--is considered the
reasonable exercise of ordinary parental discretion and authority. 
		Because I believe that the Court should reevaluate the limits of parental discretion in
cases such as this one, I respectfully dissent from the denial of the motion for en banc consideration.


						__________________________________________
						Diane M. Henson, Justice
Filed:   December 11, 2009
