No. 13-0159 -           Kimberly Landis and Alva Nelson, as parents and guardians of A.N.,
                        a minor v. Hearthmark, LLC d/b/a Jarden Home Brands, Wal-Mart
                        Stores, Inc., C.K.S. Packaging, Inc., Packaging Service Company, Inc.,
                        and Stull Technologies, Inc.
                                                                              FILED
                                                                          November 18, 2013

                                                                         RORY L. PERRY II, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA





Davis, Justice, concurring, in part, and dissenting, in part:

              It has been said that “‘[t]he law does not require parents to be perfect[.]’” In

re: Q.A.H. v. M.H., No. WD 75786, 2013 WL 3661746, at * 14 (Mo. Ct. App. July 16, 2013)

(quoting In re: S.M.H. v. T.H., 160 S.W.3d 355, 372 (Mo. 2005)). Accord Breese v. Smith,

501 P.2d 159, 176 (Alaska 1972) (“[W]e do not expect parents to be perfect, recognizing that

a certain amount of trial and error is necessary for the development of both the parents and

the child[.]”). Nevertheless, this is precisely the expectation that the majority of the Court

has imposed upon the parents of the injured child in this case. By allowing the product

liability defendants herein to name the child’s parents as third-party defendants for the

allocation of fault;1 raise as a defense the parents’ negligence or fault in causing or

contributing to their child’s injuries;2 and rely upon the parents’ conduct as an intervening




              1
                  See Maj. op. at Syl. pt. 2.
              2
                  See Maj. op. at Syl. pt. 3.

                                                1

cause of the child’s injuries,3 the majority has unnecessarily expanded the exceptions to and

essentially eviscerated the concept of parental immunity in this State. In short, the majority

has let the defendants do indirectly what the child cannot do directly: blame his parents. In

one fell swoop, my brethren have effectively usurped a little boy’s right to full recompense

for the injuries he suffered while he was using the defendants’ products to roast

marshmallows for a bedtime snack, leaving him, instead, with an imperfect right of recovery

against those who legally should be held responsible for his damages. I absolutely cannot

agree with this decision to erode the parental immunity doctrine and to deprive an injured

child of his right of redress. Accordingly, I dissent from the majority’s decision in this case.4



             A.	 The Limited Exceptions to the Parental Immunity Doctrine
                        Do Not Apply to the Facts of this Case

              “The filial bond is one of the strongest, yet most delicate, and most inviolable

of all relationships[.]” In re Shaun Christopher M., 508 N.Y.S.2d 771, 772, 124 A.D.2d

1025, 1025 (1986) (internal quotations and citations omitted). Accord Elk Grove Unified

Sch. Dist. v. Newdow, 542 U.S. 1, 17, 124 S. Ct. 2301, 2311-12, 159 L. Ed. 2d 98 (2004)

(appreciating “the fragile, complex interpersonal bonds between child and parent” (internal



              3
                  See Maj. op. at Syl. pt. 4.
              4
                Despite my dissent, I do, however, concur with the majority’s holding in
Syllabus point 1, wherein the defendants are precluded from asserting a contribution claim
against the child’s parents by virtue of the parental immunity doctrine. Beyond this limited
holding, though, I disagree with the majority’s disposition of this case.

                                                2

quotations and citations omitted)). In recognition of this quintessential truth, we have

embraced the concept of parental immunity in this State, which “prohibits a child from

bringing a civil action against his or her parents.” Cole v. Fairchild, 198 W. Va. 736, 749,

482 S.E.2d 913, 926 (1996) (citation omitted). We have explained the rationale for this

policy as follows:

              The basis for [the parental immunity] doctrine [i]s the
              preservation of domestic or family tranquility . . . :

                      The peace of society, and of the families composing
              society, and a sound public policy, designed to subserve the
              repose of families and the best interests of society, forbid to the
              minor child a right to appear in a court in the assertion of a
              claim to civil redress for personal injuries suffered at the hands
              of the parent. The state, through its criminal laws, will give the
              minor child protection from parental violence and wrong-doing,
              and this is all the child can be heard to demand.

Lee v. Comer, 159 W. Va. 585, 588, 224 S.E.2d 721, 722 (1976) (internal quotations and

citation omitted). Furthermore, we have observed that “the real purpose behind the [parental

immunity] doctrine is simply to avoid undue judicial interference with parental discretion.

The discharge of parental responsibilities . . . entails countless matters of personal, private

choice. In the absence of culpability beyond ordinary negligence, those choices are not

subject to review in court.” Cole, 198 W. Va. at 749, 482 S.E.2d at 926 (internal quotations

and citation omitted).



              While the purpose of the parental immunity doctrine may be noble, the


                                              3

application of this principle is not absolute. Over time, and in the appropriate circumstances,

we have recognized very specific and limited exceptions to the doctrine of parental

immunity. See generally Sias ex rel. Mabry v. Wal-Mart Stores, Inc., 137 F. Supp. 2d 699

(S.D. W. Va. 2001) (collecting cases discussing West Virginia judicial decisions regarding

parental immunity doctrine and exceptions thereto). However, none of the exceptions we

heretofore have recognized, i.e., the child’s wrongful death,5 the parent’s intentional or wilful

conduct,6 or automobile accidents for which there is liability insurance,7 are present in this

case.8 And none of these exceptions have limited the exercise of a parent’s discretion when


              5
               See Syl. pt. 7, Cole v. Fairchild, 198 W. Va. 736, 482 S.E.2d 913 (1996) (“The
parental immunity doctrine does not prohibit the negligence of a parent from being asserted
as a defense in an action brought by the parent for the wrongful death of a child.”).
              6
              See Syl. pt. 9, Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418 (1991)
(“Parental immunity is abrogated where the parent causes injury or death to his or her child
from intentional or wilful conduct, but liability does not arise from reasonable corporal
punishment for disciplinary purposes.”).
              7
                See Syl. pt. 2, Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721 (1976) (“An
unemancipated minor may maintain an action against his parent for personal injuries
sustained in a motor vehicle accident caused by the negligence of said parent and to that
extent the parental immunity doctrine is abrogated in this jurisdiction.”). See also Lusk v.
Lusk, 113 W. Va. 17, 166 S.E. 538 (1932) (allowing pupil injured in school bus accident to
sue her father, as operator of bus, where father was protected by indemnity insurance in his
vocational capacity).
              8
                Although not the prevailing view, the majority nonetheless potentially could
have recognized an exception to the parental immunity doctrine to permit an infant plaintiff
to assert a claim against his parents for injuries for which there is available homeowners
insurance coverage as a logical, but limited, extension of our prior holdings in Syllabus point
2 of Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721, and Lusk v. Lusk, 113 W. Va. 17, 166
S.E.	 538. See Verdier v. Verdier, 364 Ark. 287, 291, 219 S.W.3d 143, 145 (2005)
                                                                                  (continued...)

                                               4

supervising his/her child.



              In its most basic sense, the crux of the case sub judice concerns the exercise

of two parents’ discretion in the supervision of their child. Whether such discretion was

exercised rightfully, wrongfully, negligently, or otherwise is not for us to say because parents

are immune from suit by their children in this State. We have specifically held that “[t]he

rule of parental immunity from an injury to a child will not be extended to a case in which

the reason for the rule fails.” Syl., in part, Lusk v. Lusk, 113 W. Va. 17, 166 S.E. 538 (1932).

In the instant proceeding, the majority has not expressly abolished, limited, or otherwise

found the doctrine of parental immunity to be inapplicable to the facts of this case. And I

submit that no good reason to alter parental immunity exists in the case sub judice insofar as

the vast majority of jurisdictions that have considered similar claims involving a child who

has sustained burn injuries while under his/her parents’ supervision have found the child’s

parents to be immune from suit by the injured child. See generally Neel v. Sewell, 834



              8
               (...continued)
(“Broadening the exception to the parental-immunity doctrine to cases where a parent is
covered by liability insurance through an existing homeowner’s policy leads to a dangerous
slippery slope.”); Sepaugh v. LaGrone, 300 S.W.3d 328, 338 (Tex. App. 2009) (rejecting
exception to parental immunity doctrine based upon existence of applicable homeowners
insurance as contrary to Texas law). Cf. American Family Mut. Ins. Co. v. Ryan, 330 N.W.2d
113, 115-16 (Minn. 1983) (holding household exclusion in policy of homeowners insurance
to be valid despite parents’ immunity from suit by child). However, it does not appear that
the parties have made this argument or that the parents have challenged the rejection of
coverage under their policy of homeowners insurance in this case.

                                               5

F. Supp. 2d 648 (E.D. Mich. 2011); Bell v. Schwartz, 422 F. Supp. 257 (D. Minn. 1976);

Hush v. Devilbiss Co., 77 Mich. App. 639, 259 N.W.2d 170 (1977); Murray by Olsen v.

Shimalla, 231 N.J. Super. 103, 555 A.2d 24 (1989); Zikely v. Zikely, 470 N.Y.S.2d 33, 98

A.D.2d 815 (1983), aff’d, 479 N.Y.S.2d 8, 467 N.E.2d 892 (N.Y. 1984); Talarico by

Johnston v. Foremost Ins. Co., 105 Wash. 2d 114, 712 P.2d 294 (1986). But see Petersen

v. City & Cnty. of Honolulu, 51 Haw. 484, 462 P.2d 1007 (1969). I find the reasoning of

these cases to be legally sound and consonant with the policy we have adopted in this State

to maintain the integrity of familial relationships through application of the parental

immunity doctrine.



              Yet, through its holdings herein, the majority essentially has abrogated parental

immunity by allowing alleged tortfeasors to indirectly hold parents liable for their children’s

injuries even though the child still has no right of recovery against his/her parents.

Therefore, if the infant plaintiff in this case cannot seek recompense for his injuries from his

parents, neither should the products liability defendants who allegedly caused his injuries.




                                               6

               B. The Majority’s Decision Deprives the Infant Plaintiff of

                        His Right to Recover for His Injuries


              “Children sweeten labours, but they make misfortunes more bitter.” Francis

Bacon, Essays Civil and Moral, Essay VII “Of Parents and Children.” Such words are truer

still when a person’s status as a child inexplicably limits his/her legal right to recover for

catastrophic injuries sustained in a most unfortunate household accident. Yet this is precisely

the result of the majority’s decision in this case.



              A fundamental principle of the law of torts is the right of an injured party to

recover fully and completely for injuries caused by a tortfeasor. In other words, “a plaintiff

is entitled to one . . . complete satisfaction for his injury.” Board of Educ. of McDowell Cnty.

v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 604, 390 S.E.2d 796, 803 (1990).

Accord Savage v. Booth, 196 W. Va. 65, 70, 468 S.E.2d 318, 323 (1996) (“[A]n injured

plaintiff should receive but one recovery in complete satisfaction for the wrong suffered.”

(citation omitted)); Syl. pt. 7, in part, Pennington v. Bluefield Orthopedics, P.C., 187 W. Va.

344, 419 S.E.2d 8 (1992) (“‘At common law, an injured party may have only one full

recovery[.]’ Syllabus point 1, [in part,] Thornton v. Charleston Area Medical Center, 158

W. Va. 504, 213 S.E.2d 102 (1975).”). See also Syl. pt. 3, in part, State Farm Mut. Auto. Ins.

Co. v. Schatken, 230 W. Va. 201, 737 S.E.2d 229 (2012) (“‘It is generally recognized that

there can be only one recovery of damages for one wrong or injury. . . .’ Syl. Pt. 7, in part,

Harless v. First Nat’l Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982).”);

                                               7

McDavid v. United States, 213 W. Va. 592, 601, 584 S.E.2d 226, 235 (2003) (same); Stump

v. Ashland, Inc., 201 W. Va. 541, 550, 499 S.E.2d 41, 50 (1997) (same). With respect to

infants who have sustained injuries and seek redress therefor, we have held that

“[u]nemancipated minors enjoy the same right to protection and to legal redress for wrongs

done them as others enjoy.” Syl. pt. 1, Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721.

Thus, it stands to reason that the infant plaintiff in the case sub judice also is entitled to “one

. . . complete satisfaction for his injury.” Zando, 182 W. Va. at 604, 390 S.E.2d at 803.



               Until the majority rendered its decision in this case, A.N. would have been

entitled to a full recovery for his injuries by seeking redress from the products liability

defendants because the doctrine of parental immunity precludes him from suing his parents

for their role, if any, in causing his injuries. Despite the majority’s holding that “the parental

immunity doctrine precludes a defendant from asserting a contribution claim against the

parents of the child,”9 such a pronouncement is illusory insofar as the practical application

of the remainder of the majority’s new Syllabus points allows a defendant to reduce his/her

liability by referencing the fault of the parents in supervising their child even though the

defendant may not, directly, seek contribution from the child’s parents. The only logical

reason a defendant would wish to avail itself of these fault-shifting mechanisms is to reduce

its own liability to the injured child. However, by reducing the amount of damages a


               9
                   Maj. op. at Syl. pt. 1, in part.

                                                      8

products liability defendant must pay to an injured child, so too are the damages the injured

child, him/herself, is entitled to recover correspondingly diminished because the doctrine of

parental immunity precludes the child from seeking recompense from his/her parents. I do

not agree with my brethren that the infant plaintiff in this case should be deprived a full and

complete recovery lest the products liability defendants be held accountable for their role in

causing or contributing to his tragic injuries.



              This Court has recognized that “the need for and value of family tranquility

must not be discounted,”10 and, to this end, we have long embraced the doctrine of parental

immunity in this jurisdiction. Sadly, the majority’s holdings herein foretell the abandonment

of our allegiance to this time honored doctrine. Because I do not agree that the doctrine of

parental immunity is an archaic relic of a bygone era, I respectfully dissent from the

majority’s decision in this case.




              10
               Lee v. Comer, 159 W. Va. at 588-89, 224 S.E.2d at 723 (internal quotations
and citation omitted).

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