Martin v. Yunker

853 P.2d 1332, 121 Or. App. 77, 1993 Ore. App. LEXIS 948
CourtCourt of Appeals of Oregon
DecidedJune 9, 1993
DocketC88-0297CV; C89-1027CV; CA A71623
StatusPublished
Cited by3 cases

This text of 853 P.2d 1332 (Martin v. Yunker) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. Yunker, 853 P.2d 1332, 121 Or. App. 77, 1993 Ore. App. LEXIS 948 (Or. Ct. App. 1993).

Opinions

[80]*80LANDAU, J.

Plaintiffs’ son died in an open-water scuba diving accident that occurred during a diving course taught by defendants. Plaintiffs brought a wrongful death action against defendants on behalf of their son. Defendants filed a third-party complaint for contribution against plaintiffs in their individual capacities, on the basis of allegations that the parents were negligent in their supervision of their son during the diving course. Defendants also filed a separate action for indemnification, on the basis of a standard form indemnification agreement that plaintiffs signed at the beginning of the class. The parties settled the wrongful death action, and the trial court dismissed the contribution and indemnification claims. Defendants appeal from the judgment of dismissal. We reverse in part and affirm in part.

Defendants first assign error to the dismissal of their contribution claim. The trial court held that the claim could not be maintained against plaintiffs because, as parents, they are immune from liability to their son. Defendants argue that plaintiffs’ conduct alleged in the third-party complaint is not of the kind that gives rise to parental immunity. We agree.

On review of the trial court’s dismissal of the contribution claim before trial, we assume the truth of all well-pleaded allegations and draw all reasonable inferences from those facts in favor of defendants. Machunze v. Chemeketa Community College, 106 Or App 707, 712, 810 P2d 406, rev den 312 Or 16 (1991). In their third-party complaint, defendants alleged that the son’s death was a result of plaintiffs’ negligence in a number of particulars, including that plaintiffs failed to inform defendants that their son had severe learning disabilities, was dyslexic and would have difficulty learning the information necessary to participate safely in scuba diving; that plaintiffs completed weekly quizzes for him in connection with the classroom portion of the diving instruction; and that plaintiffs failed to report to defendants that their son complained of stomach pains before the fatal open-water dive.

The extent to which that conduct may give rise to parental liability is governed by the Supreme Court’s decision in Winn v. Gilroy, 296 Or 718,681 P2d 776 (1984). There, the [81]*81court held that the trial court had improperly dismissed a wrongful death claim brought by the representatives of children who had died in an automobile accident while travelling with their intoxicated father. In reaching its decision, the court retreated from a general common law rule that parents are always immune in negligence actions brought by their children. 296 Or at 731. It applied instead the Restatement (Second) Torts § 895G (1979), as the rule of parental liability. That rule provides:

“(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
“(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.”

In applying that rule, the court said that the proper focus is not merely on the existence of the parent-child relationship, but rather on the nature of the particular parental conduct involved. Winn v. Gilroy, supra, 296 Or at 731. We turn, then, to the Restatement rule and the parental conduct alleged in the third-party complaint.

The Restatement (Second) Torts § 895G provides that parental liability may not exist in a particular case if the conduct at issue is “privileged” or “not tortious.” Accordingly, we begin by determining whether the conduct alleged in defendants’ third-party complaint is privileged. Certain categories of conduct, otherwise tortious in nature, are shielded from liability by virtue of a privilege, created either by consent or by law. See, e.g., Bank of Oregon u. Independent News, 298 Or 434, 437, 693 P2d 35, cert den 474 US 826 (1985) (qualified privilege for otherwise defamatory statements if made without malice); Comini v. Union Oil Co., 277 Or 753, 756, 562 P2d 175 (1977) (consent granted to interfere with contract). The parties have failed to provide any authority in support of the conclusion that the conduct alleged in the third-party complaint is subject to a privilege, and we find none.

We next consider whether the conduct alleged in defendants’ third-party complaint can properly be characterized as ‘ ‘not tortious ’ ’ conduct, as that phrase is used in the [82]*82Restatement. Although the court in Winn declined to articulate any broad rule for classifying parental conduct as tor-tious or “not tortious” under section 895G, it did suggest that

“[i]t is possible to distinguish between those obligations that a parent owes his or her child specifically by virtue of parenthood from the general duty of ordinary care to avoid forseeable harm that the defendant would owe to other persons, for instance to someone else’s child, under the same circumstances. Negligence suffices to make the parent liable for the child’s injury in the second kind of case though perhaps not for substandard performance of specifically parental duties, where a more stringent test * * * may remain proper.” Winn v. Gilroy, supra, 296 Or at 732.

That is consistent with the comment to section 895G that, “ [i] f the conduct giving rise to an injury does not grow directly out of the family relationship, the existence of negligence may be determined as if the parties were not related.” Restatement (Second) Torts § 895G, comment k at 430. (Emphasis supplied.) According to the Restatement, if the conduct grows directly out of the family relationship, it may be considered tortious only if it is “palpably unreasonable.” Restatement (Second) Torts § 895G, comment k at 431. The qualifier that “palpably unreasonable” conduct may give rise to liability is congruent with the common law notion that parental immunity extends to “ordinary negligence.” Cowgill, Adm’r v. Boock, Adm’r, 189 Or 282, 301, 218 P2d 445 (1950).1

Thus, according to the court’s dictum in Winn and the comment to the Restatement section that the court adopted in that case, determining whether parental conduct is ‘ ‘not tortious’ ’ involves a two-step inquiry. First, it must be determined whether the conduct entails strictly parental obligations. If not, the conduct may be evaluated without regard to the relationship of the parties. If so, a second determination is required: whether that strictly parental conduct is merely unreasonable, in which case it is “not tortious,” or whether it is “palpably unreasonable,” in which case the conduct may give rise to parental liability.

[83]*83Unfortunately, Winn offers little guidance for resolution of either step in the analysis. The court mentions a number of possibilities concerning the nature of the obligations that arise out of the family relationship, including the parents’ responsibility for

“physical conditions in the home, for food and medical care, for recreation, sports, toys, and games, and for general supervision * * Winn v. Gilroy, supra, 296 Or at 732.

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Related

Martin v. Yunker
853 P.2d 1332 (Court of Appeals of Oregon, 1993)

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853 P.2d 1332, 121 Or. App. 77, 1993 Ore. App. LEXIS 948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-yunker-orctapp-1993.