Opinion
Case Number: 117007
02-19-2020
MARIAH ARCHIE, AS PARENT AND NEXT FRIEND OF H.G., A MINOR CHILD, Plaintiff/Appellant, v. CLARYSSA SCHONLAU AND JESSICA SCHONLAU, Defendants/Appellees.
Nathan D. Rex, Larry E. Finn, PARRISH DEVAUGHN, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Elizabeth D. Oglesby, ANGELA D. AILLES & ASSOCIATES, Oklahoma City, Oklahoma, for Defendants/Appellees.
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE PATRICIA G. PARRISH, TRIAL JUDGE
AFFIRMED
Nathan D. Rex, Larry E. Finn, PARRISH DEVAUGHN, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Elizabeth D. Oglesby, ANGELA D. AILLES & ASSOCIATES, Oklahoma City, Oklahoma, for Defendants/Appellees.
BRIAN JACK GOREE, CHIEF JUDGE:
¶1 A former foster child sued his former foster parents under Oklahoma's dog-bite statute. The child was in his foster parents' home when the family dog bit him in the face. The court below granted foster parents summary judgment and the child appealed. The appellate standard of review is de novo. We affirm because parental immunity applies to foster parents' discretionary decisions which do not amount to willful and wanton intent to harm, including a decision to have a dog in the home.
Background
¶2 Mariah Archie, as parent and next friend of H.G. (H.G. or Child), Plaintiff/Appellant, sued Claryssa and Jessica Schonlau, Defendants/ Appellees, for damages based on 4 O.S. §42.1, Oklahoma's dog-bite statute.
¶3 Defendants were contracted foster parents with the Oklahoma Department of Human Services. H.G. was placed in Defendants' home by DHS. While in the Defendants' care, he was bitten by the family dog, Jaxon, a blood hound. Jaxon had lived at the home around other children prior to the biting accident without incident. The dog bit H.G. in the face without provocation or warning.
¶4 Originally Defendants filed a motion for summary judgment and were denied when the trial court determined the doctrine of parental immunity did not bar a strict liability claim brought under 4 O.S. §42.1. In response to the trial court's ruling, Defendants filed a motion to reconsider the motion for summary judgment. The trial court then sustained the motion for summary judgment on the basis that §42.1 did not apply to members of the dog owner's household. H.G. appeals asserting Defendants are strictly liable for their dog's attack without provocation while he was lawfully present in Defendants' home. The issue is whether the trial court properly granted Defendants summary judgment.
Standard of Review
¶5 The appellate standard of review for summary judgment is de novo. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051. De novo review involves a plenary, independent and non-deferential examination of the trial court's rulings of law. In re Estate of Bell-Levine, 2012 OK 112, ¶5, 293 P.3d 964. "Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Moore v. Warr Acres Nursing Center, LLC, 2016 OK 28, ¶4, 376 P.3d 894. See also 12 O.S. §2056(C); Okla. Dist. Ct. R. 13(e), 12 O.S. Supp. 2013, ch. 2, app.
Analysis
¶6 H.G. argues damages are recoverable based on 4 O.S. §42.1. This case presents the question of whether parental immunity bars Plaintiff's strict liability claim.1 Section 42.1 provides: "The owner or owners of any dog shall be liable for damages to the full amount of any damages sustained when his dog, without provocation, bites or injures any person while such person is in or on a place where he has a lawful right to be." 4 O.S. §42.1.
¶7 Oklahoma's dog-bite statute is derived from the common law and is liberally construed. Nickell v. Sumner, 1997 OK 101, ¶13, 943 P.2d 625. See also 12 O.S. §2; 25 O.S. §29. It imposes liability without regard to fault. Nickell at ¶5. "The elements of strict liability under §42.1 consist of (1) ownership of the dog, (2) lack of provocation, (3) a bite or other injury to the plaintiff by the dog, and (4) the plaintiff's lawful presence at the place where the attack occurs." Id. at ¶14 citing Hampton By and Through Hampton v. Hammons, 1987 OK 77, 743 P.2d 1053; Hood v. Hagler, 1979 OK 163, 606 P.2d 548.
¶8 The dog-bite statute is silent concerning the common law doctrine of parental immunity. Parental immunity is the common law tradition designed to preserve family harmony by forbidding a minor child to sue a parent for personal injuries suffered at the hands of the parent. Tucker v. Tucker, 1964 OK 89, ¶¶3-6, 13, 395 P.2d 67. A person is not literally required to be the child's natural parent to receive parental immunity. Instead, Oklahoma requires that a person stand in loco parentis to the injured child.2 Van Wart v. Cook, 1976 OK CIV APP 39, ¶3 citing Wooden v. Hale, 1967 OK 69, 426 P.2d 679. A foster parent stands in loco parentis to a foster child. See Matter of B.C., 1988 OK 4, ¶¶18-20, 749 P.2d 542. Therefore, parental immunity applies to foster parents. Van Wart v. Cook, 1976 OK CIV APP 39, 557 P.2d 1161.
¶9 By statutory mandate, the common law remains in full force unless some legislative enactment explicitly provides otherwise. 12 O.S. §2; 25 O.S. §29; see also Watson v. Gibson Capital, L.L.C., 2008 OK 56, ¶12, 187 P.3d 735. In determining whether the statute imposes liability regardless of parental immunity, we are bound by state statutes and case law which mandate that the common law remains in full force unless a statute explicitly provides to the contrary. Tate v. Browning-Ferris, Inc., 1992 OK 72, ¶11, 833 P.2d 1218 citing 12 O.S. §2.3 ("By statutory mandate the common law remains in full force in this state, unless a statute explicitly provides to the contrary. Oklahoma law does not permit legislative abrogation of the common law by implication; rather, its alteration must be clearly and plainly expressed. An intent to change the common law will not be presumed from an ambiguous, doubtful or inconclusive text.") (Emphasis in original). Section §42.1 is silent concerning immunity.
¶10 The Oklahoma Supreme Court has recognized and adhered to parental immunity since its decision in Tucker. Among the justifications for parental immunity, preservation and protection of family harmony is the rationale most frequently cited. See Unah By and Through Unah v. Martin, 1984 OK 2, ¶6, 676 P.2d 1366.4 Oklahoma case law has generally described the scope of immunity to extend to cases of "ordinary negligence." See, e.g., Tucker, Unah, Wooden, Hampton. Cf. Sixkiller v. Summers, 1984 OK 14, 680 P.2d 360.5 While the Court has articulated parameters for immunity in the context of negligence and, to a limited extent, intentional tort, it has not yet determined whether immunity bars an action in strict liability pursuant to 4 O.S. §42.1; this case presents an issue of first impression.
¶11 Since Tucker, the Court has partially abrogated the immunity rule in two limited circumstances: for a "negligence action brought on behalf of an unemancipated minor child against a parent to the extent of the parent's automobile liability insurance";6 and for cases involving "willful misconduct."7
¶12 First, the Court in Unah partially abrogated the parental immunity rule when a child is injured as a result of their parent's negligent operation of a motor vehicle. Unah, ¶11. That compulsory liability coverage was the law in Oklahoma was a significant factor in the Court's decision because the policy argument to preserve family harmony was hollow where such insurance existed. Id., ¶7. Later in Sixkiller, a child sued his parent for ordinary and gross negligence when the child was shot in the eye with an arrow as a result of the father's negligent supervision. Sixkiller, ¶3. The court cited the rationale that parental immunity preserves family harmony in support of its decision to bar the child's claims. Id., ¶7. In doing so, the court was mindful not to intrude on the exercise of parental authority and care of a child. Id. The "limited abrogation of parental immunity in Unah [would] not be extended to cases involving negligent supervision short of willful misconduct." Id., ¶12. These cases make clear that the goal of parental immunity is to protect family harmony, but not excuse parents who intentionally harm their children. Id.
¶13 In this case, a claim brought under the dog-bite statute differs from the negligence theories of recovery in Unah and Sixkiller. Courts have interpreted §42.1 as a strict liability statute, meaning the Legislature in certain circumstances intended to impose liability on dog owners without regard to fault.
¶14 For strict liability statutes, a person could be liable under the terms of a statute, but such liability is not necessarily equivalent to willful misconduct or an intentional tort,8 or a failure to use even slight care.9 Accordingly, a statute which purports to impose strict liability does not automatically disqualify a parent's common law immunity. Whether immunity applies must be determined according to the nature of the conduct and not merely based upon whether the liability is strictly imposed by statute.
¶15 In cases other than vehicular negligence, there has been no suggestion to abrogate parental immunity short of willful misconduct. Sixkiller, ¶12. In this case, the foster family had the family dog in the home for one and a half years prior to H.G.'s arrival. The foster parents introduced the dog and H.G. through a gate and later in the living room prior to the dog biting him without warning or provocation. There is no evidentiary material presented in the record to demonstrate a material fact question, or even an inference, that the Defendants' conduct could be anything more than ordinary negligence. Defendants' decision to keep and expose children to the family dog in this case was at most a negligent act involving ordinary parental discretion and supervision. See Squeglia v. Squeglia, 234 Conn. 259, 661 A.2d 1007 (Conn. 1995) (holding that parental immunity barred a child's statutory strict liability claim for a dog bite where the parents' decision to have a dog in the home is within the parental supervisory function and therefore falls directly within the scope of claims that the doctrine is intended to bar.) Foster parents' decision to keep Jaxon as a family pet and around foster children is the type of decision that does not rise to the level of conduct identified in Sixkiller.
¶16 Therefore Defendant-foster parents were immune from liability based on common law parental immunity. Summary judgment for Defendants was correct as a matter of law.
¶17 AFFIRMED.
JOPLIN, P.J., and BUETTNER, J., concur.
Defendants urged in the alternative that the Legislature did not intend §42.1 to apply to a child who is a household member. Because we conclude parental immunity bars the claim, it is unnecessary to address this question.
A person "in loco parentis" is "one who has assumed the status and obligations of a parent without formal adoption." Workman v. Workman, 1972 OK 74, ¶10, 498 P.2d 1384.
12 O.S. §2 provides: The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.
Other justifications include: (1) disturbance of domestic harmony and tranquility; (2) interference with parental care, discipline, and control; (3) depletion of family assets in favor of the claimant at the expense of other children in the family; (4) the possibility of inheritance by the parent of the amount received in damages by the child; and (5) the danger of fraud and collusion between parent and child.