Schleier for Alter v. Alter

767 P.2d 1187, 159 Ariz. 397, 25 Ariz. Adv. Rep. 17, 1989 Ariz. App. LEXIS 6
CourtCourt of Appeals of Arizona
DecidedJanuary 10, 1989
Docket1 CA-CIV 9707
StatusPublished
Cited by16 cases

This text of 767 P.2d 1187 (Schleier for Alter v. Alter) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schleier for Alter v. Alter, 767 P.2d 1187, 159 Ariz. 397, 25 Ariz. Adv. Rep. 17, 1989 Ariz. App. LEXIS 6 (Ark. Ct. App. 1989).

Opinions

OPINION

FIDEL, Judge.

A child severely bitten by the family dog brings this lawsuit against her parents. To determine the child’s appeal from summary judgment for her parents, we must answer two questions:

1. Common law liability: When the owners of a dog with demonstrated vicious tendencies toward children expose the dog to their own child, are they shielded by the parental immunity doctrine from common law liability for injuries the dog inflicts?

2. Statutory liability: Does A.R.S. § 24-521, Arizona’s strict liability dog bite statute, apply when the victim is a child of and resides in the same household as the owners of the dog and is bitten at the family home?

For reasons which follow, we affirm summary judgment for the defendants on the plaintiff’s statutory claim, but reverse [398]*398summary judgment and order the reinstatement of the plaintiffs common law claim.

FACTS AND PROCEDURAL HISTORY

When Rachel Toba Alter, the plaintiff, was born on December 6, 1984, her parents, William and Ellen Alter, owned a German short-haired pointer named Misty, which they had bought as a puppy in 1978 or 1979. Shortly after Rachel’s birth, the dog began to show resentment toward children. She first bit the defendants’ three year old niece at a family gathering in July or August of 1985. Approximately one month later, the dog bit Rachel at her grandmother’s home. Rachel was bitten again in October at the Alters’ own residence. The bites on each occasion were to the victim’s head or face. Despite these episodes, the Alters remained fond of the dog and kept her in the hope that such attacks would not recur. William Alter recognized, however, that Misty posed a significant risk to Rachel if the two were left alone in the same room.

On November 3, 1985, Rachel, her parents, and some family visitors were breakfasting in the Alters’ kitchen. Misty lay beneath the kitchen table. As Rachel moved from a chair to the dishwasher, the dog stood, lunged, and bit her on the face. Rachel, eleven months old, fell bleeding from a wound that required twenty-five stitches to repair. She had done nothing to provoke the dog.

A conservator commenced this lawsuit on behalf of Rachel on August 8, 1986. On cross-motions for summary judgment, the trial court ruled for the defendants, reasoning as follows:

The issue in this case boils down to whether the alleged incident resulting in an injury to the minor child from a dog bite comes within the doctrine of parental immunity or alternatively falls within the exception to such doctrine.
The exceptions to such doctrine are clearly not limited to automobile accident cases. However, the doctrine still applies as to inter-family activities involving parental discipline, care and control. Therefore, if the incident resulting in the injury is one that falls within the scope of parental care and control or the exercise of parental authority and the adequacy of child care, the doctrine of parental immunity applies, and the child is precluded from recovering from the parents.
It is this Court’s opinion that a statute imposing strict liability (as in this case for dog bite) does not change the above rule and the doctrine of parental immunity would still apply if the incident arose within the realm of parental discretion as to the care and control of the child, or involved parental judgment with regard to the care of the child.
The Court determines that the permitting of the child to be around a dog kept in the house is an issue of parental judgment regarding the care and control of the minor child and therefore falls within the doctrine of parental immunity.

PARENTAL IMMUNITY IN ARIZONA

The parental immunity doctrine, first articulated in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891), originally prohibited any common law tort suit by a child against a parent. See generally W. Prosser, W. Keeton, Law of Torts § 122 at 904-10 (5th ed. 1984).

Arizona first applied the parental immunity doctrine in Purcell v. Frazer, 7 Ariz. App. 5, 435 P.2d 736 (1967). However, our supreme court overruled Purcell and partially abrogated the doctrine in Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970). There an unemancipated minor child sued her parents for damages resulting from a one-car accident in which the mother was the driver. The court stated:

We feel that two principal factors undermine [the] ... “domestic tranquility” rationale expressed in Purcell v. Frazer, supra, and compel an overruling of that case. One factor ... is that the common law has long permitted child to sue parent in property or contract. It is not unsafe to say that some of the most bitter family disputes arise over property, and yet parental immunity does not limit causes of action in this area. Is it [399]*399reasonable to say that our law should protect the property and contract rights of a minor more zealously than the rights of his person? Secondly, we cannot ignore the almost universal existence of liability insurance, particularly in the automobile accident realm. Where such insurance exists, the domestic tranquility argument is hollow, for in reality the sought after litigation is not between child and parent but between child and parent’s insurance carrier.
Where insurance is available to compensate the child for his injuries, the possibility of disruption of family unity and peace is negligible. On the other hand, where insurance is nonexistent, we doubt that suits by unemancipated minor children against their parents will be frequently entertained. Overwhelmingly weighted against the possibility of such disruptive suits is the vital interest of the public in protecting its members from loss caused by another’s negligence.

106 Ariz. at 88, 471 P.2d at 284.

This stated rationale had breadth enough for total abrogation of the doctrine. Yet our supreme court followed Wisconsin in expressing policy reasons to leave it partially intact:

[W]e agree with Judge Howard [who dissented in the Court of Appeals opinion in Streenz ] that “the role of paterfamilias should not be usurped by the judiciary as to intrafamilial activities involving parental discipline, care and control.” 11 Ariz. App. [10] at 13, 461 P.2d [186] at 189 [ (1969) ]. The Wisconsin Supreme Court, in Goller v. White, [20 Wis.2d 402, 122 N.W.2d 193 (1963)] recognized this important aspect of parental discretion, and held that the parental immunity doctrine “ought to be abrogated except in these two situations:
(1) Where the alleged negligent act involves an exercise of parental authority over the child; and
(2) Where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” 122 N.W. 2d at 198.

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Schleier for Alter v. Alter
767 P.2d 1187 (Court of Appeals of Arizona, 1989)

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Bluebook (online)
767 P.2d 1187, 159 Ariz. 397, 25 Ariz. Adv. Rep. 17, 1989 Ariz. App. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schleier-for-alter-v-alter-arizctapp-1989.