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 Jenkins 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, observing:

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 immunity doctrine.
(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 other care. 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 definition:

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 avert injury.

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.

WPI 14.01

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 not.
(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.

RICHTER-WIMBERLEY, P.S.
By: Jay E. Leipham, WSBA # 4961
(Attorney for Brenda High)
 

HEAR JARED'S VOICE - PLAY - From an interview with Pasco School District investagators concerning the assault.  This is a recording of a recording and it isn't real clear, but worth the download effort.  Jared had a real mellow voice.   Note: If you have a slow load wav, wait for it to load entirely and then play again from the start.   5 minutes long

 

TRIAL ISSUES
http://www.jaredstory.com/trial_brief01.html
http://www.jaredstory.com/trial_brief02.html
http://www.jaredstory.com/trial_brief03.html
http://www.jaredstory.com/trial_brief04.html
http://www.jaredstory.com/trial_brief06.html
http://www.jaredstory.com/trial_brief08.html
http://www.jaredstory.com/trial_brief09.html
http://www.jaredstory.com/trial_brief10.html
http://www.jaredstory.com/trial_brief11.html

 

HIGH v. PASCO SCHOOL DISTRICT
The Lawsuit

PLAINTIFFS' TRIAL BRIEF & FACTUAL BACKGROUND

The Complaint for Damages
THE SETTLEMENT
The Rest of the Story
The Assault
Suicide - The Forseeable Consequences of Bullying
Why the Pasco School District wouldn't help Jared

Court Case about Videos on a bus & bullying

 

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