PLAINTIFFS' TRIAL BRIEF
filed with the SUPERIOR COURT, FRANKLIN COUNTY, WASHINGTON
Jan. 22nd 2003
HIGH, Plaintiffs, vs.
PASCO SCHOOL DISTRICT, Defendants.
TRIAL ISSUES - # 8
Is there any evidence that would
allow a jury to conclude that Mr. or Mrs. High were guilty of willful and
wanton misconduct with regard to the death of their son?
Plaintiff’s recovery for the death of their
son is not reduced by their alleged negligence or failure to mitigate damages
unless their conduct rises to the level of wilful and wanton negligence.
Defendant District has pleaded an affirmative
defense that plaintiffs are responsible for their son’s death. It
is anticipated that defense counsel during opening statements and the defense
suicide expert at trial, will suggest or state unless restrained by the
court, that plaintiffs were negligent in failing to obtain counseling for
Jared before he died, and that Mr. High was negligent in his handling and
storage of the handgun Jared used to kill himself. Such suggestions
and such defense are inappropriate to the facts of this case, and would
be highly prejudicial.
Whether a tortfeasor whose negligence injures a child
claims as a defense the contributory negligence of the parents or seeks
indemnity or contribution from the allegedly negligent parent, it is clear
in Washington that the defense is inapplicable unless the neglect of the
parent(s) rises to the level of willful and wanton misconduct. In
v. Snohomish County PUD, 105 Wn.2d 99, 713 P.2d 79 (1986), a 7 year
old child was injured in a power distribution substation, and his parents
brought action to recover for his injuries. The defendant contended
the parents had negligently supervised the child, and the trial court allowed
evidence on that subject over the plaintiffs' objection, then removed the
issue from the jury at the close of the case. Both sides appealed,
and the Supreme Court ordered the evidence excluded on remand, because
the parent's conduct did not rise to the level of willful and wanton misconduct,
Washington has continued to follow the rule of
parental immunity where the parent may have been negligent but was not
engaged in willful misconduct. See Stevens v. Murphy, 69 Wn.2d 939,
421 P.2d 668 (1966). There the court observed that although the father's
act of turning into oncoming traffic was gross negligence, it was not willful
misconduct since it was neither deliberate, intentional, nor wanton conduct
with knowledge or appreciation of the fact that danger was likely to result.
Stevens with knowledge or appreciation of the fact that danger was likely
to result. Stevens with knowledge or appreciation of the fact that danger
was likely to result. Stevens with knowledge or appreciation of the fact
that danger was likely to result. Stevens v. Murphy, 69 Wn.2d at
948. Likewise, the court held in DeLay v. DeLay, 54 Wn.2d 63, 337
P.2d 1057 (1959) that where a parent is acting in his parental capacity
and injury occurs to a child, the child may not sue the parent.
(Jenkins, at 105)
Citing the New Jersey case of Foldi v. Jeffries,
93 N.J. 533, 461 A.2d 1145 (1983), the Jenkins court further noted
the public policy underlying the rule:
...there are certain areas of activities within
the family sphere involving parental discipline, care and control that
should remain free of judicial activity. "Parents should be free to determine
how the physical, moral, emotional, and intellectual growth of their children
can best be promoted." Foldi, 93 N.J. at 545, 461 A.2d at 1152.
Parents should not routinely have to defend their child-rearing practices
where their behavior does not rise to the level of wanton misconduct.
(Ibid., at 105)
In Chhuth v. George, 43 Wn. App. 640, 719 P.2d
562 (1986), a Franklin County case with Pasco School District as one of
the defendants, a 7 year old child was killed when he was hit by a car.
The defendants counter-claimed against the boy’s parents, claiming they
had been contributorily negligent That claim was allowed to go to
the jury, which found the parents partially at fault. A new trial
was ordered to allocate damages, and that order was appealed. The
court addressed the issue of the parental responsibility, and noted:
In order for the conduct of parents
in supervising their child to be actionable in tort, such conduct must
rise to the level of willful and wanton misconduct; if it does not, then
the doctrine of parental immunity precludes liability. . . .
(Chuuth, at 647, quoting an earlier case.)
The court considered and rejected the District’s argument
that the rule should not apply in a death case:
Since the underlying reasons for granting parental
immunity are unaffected by the demise of a family member, the mere fact
the cause of action is for wrongful death will not abrogate the parental
(Ibid., at 647)
The rule is not limited to “supervision” negligence
and, in Washington, applies when the duty allegedly breached by the parent
arises from the family relationship. 16 Washington Practice
§ 11.4. Even in Wisconsin, where the rule has been limited,
parental immunity is applied where the act involves (1) exercise of parental
authority, or (2) exercise of ordinary parental discretion with respect
to provision of food, clothing, housing, medical and dental services and
Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).
Where the evidence does not support a finding of willful
and wanton parental misconduct, it is error to allow any evidence on the
issue, due to the prejudicial nature of the mere suggestion that a parent
was less than careful. In Laudermilk v. Carpenter, 78 Wn.2d
92, 469 P.2d 896 (1970), the court emphasized the prejudice of mentioning
parental negligence to a jury in a case where the evidence would not support
such a finding:
The rule in such cases is that since the contributory
negligence of a parent cannot be imputed to a child, the continued presence,
before the jury, of this highly prejudicial issue denies the plaintiff
a fair trial.
In Adamson v. Traylor, 60 Wn.2d 332, 373 P.2d
961 (1962), the case was reversed and remanded for the court’s failure
to remove the issue of the father’s alleged contributory negligence until
the close of the evidence. The defendant in that case drove his car
over an 8 year old child sleeping in a bedroll in a grassy area at a camping
area. The defendant had amended his answer two days before trial
to raise the issue of the contributory negligence of the boy’s father.
At the close of the evidence, the issue was removed from the jury, which
found the boy totally responsible. On appeal, the court observed:
It was too late at the close of the evidence
to instruct the jury to disregard the issue of the father’s negligence
after his responsibility for causing the accident had been injected into
the case during the entire course of the trial. The plaintiff was
denied a fair trial in being required to try the case with the continued
presence before the jury of this improper and highly prejudicial issue
to his cause.
(Adamson, at 335.)
Willful misconduct and wanton misconduct have a standard
Willful misconduct is the intentional
doing of an act which one has a duty to refrain from doing or the intentional
failure to do an act which one has the duty to do when her or she has actual
knowledge of the peril that will be created and intentionally fails to
Wanton misconduct is the intentional doing of an
act which one has a duty to refrain from doing or the intentional failure
to do an act which one has a duty to do, in reckless disregard of the consequences
and under such surrounding circumstances and conditions that a reasonable
person would know, or should know, that such conduct would, in a high degree
of probability, result in substantial harm to another.
There is no evidence in this case of any acts or omissions
of either of the plaintiffs with regard to their son which rises to this
degree of culpability. To allow the defendants to suggest otherwise
or attempt to introduce evidence on the subject would be highly prejudicial.
In any event, it appears that in the world of “tort reform”,
willful and wanton misconduct would not be “fault” for purposes of allocation
and comparison under R.C.W. 4.22.070. As observed in the WPI
discussion of the above instruction, the court in Adkisson v. Seattle,
42 Wn.2d 676. 258 P.2d 461 (1953), noted that “willful and wanton misconduct
are not within the meaning of negligence”:
[W]illful misconduct is characterized by intent to
injure, while wantonness implies indifference as to whether an act
will injure another. Graphically expressed, the difference between
willfulness and wantonness is that between casting a missile with intent
to strike another and casting a missile with reason to believe that it
will strike another, but with indifference as to whether it does or does
(Adkisson, at 684.)
The Jenkins court, supra, used similar language:
"Willful and wanton misconduct falls between simple negligence and an intentional
tort." Jenkins, at 106.
As discussed below (# 9), such a level of intent, more
than "reckless" and less than "intentional" may constitute “fault” under
R.C.W. 4.22.015 and R.C.W. 4.22.070.
RESPECTFULLY SUBMITTED this 22nd day of January, 2003.
By: Jay E. Leipham, WSBA # 4961
(Attorney for Brenda High)