§75.04 The Relationship of Children to Parents

• Jurisdiction: Washington

§ 75.04 THE RELATIONSHIP OF CHILDREN TO PARENTS

[1] Parental Immunity

The doctrine of parental immunity is judicial in origin and arose out of some of the same considerations that fostered spousal immunity. The rationale of the doctrine was to protect parents from suit by their minor children to promote family tranquility and to strengthen parental authority. The doctrine recognizes that parents should be allowed substantial discretion in the parenting of their children. Unlike the doctrine of spousal immunity, which has been judicially abrogated, the parental immunity doctrine still retains strong judicial approval.

In 1986, the Washington Supreme Court considered the broad application of the parental immunity doctrine in Jenkins v. Snohomish County Public Utility District, 105 Wn.2d 99, 713 P.2d 79 (1986). The court in Zellmer v. Zellmer, 164 Wn.2d 147, 161, 188 P.3d 497 (2008), affirmed Jenkins, 105 Wn.2d 99, and the vitality of the parental immunity doctrine. It shields a stepparent to the same extent as a biological or adoptive parent, if the stepparent stands in loco parentis, which was a factual issue in Zellmer. Whether immunity protects a stepparent will depend on the overall relationship with the child. In Zellmer, the court specifically declined the invitation to overrule Jenkins. 164 Wn.2d at 151. A parent is still liable to his or her child if the harm occurs while the parent is acting outside the person's parental capacity, such as when driving a car or when acting in a wanton or willful manner. Id. at 155. "Willful" requires a showing of actual intent to harm, while "wanton" infers such intent from reckless conduct. Id. at 155 n.2. In reaching its decision, the Jenkins court cited, with approval, the rules of several prior cases. From them, the court distilled the following principles:

1. Parental immunity does not apply in a case involving the negligent driving of a parent. Jenkins, 105 Wn.2d at 104 (citing Merrick v. Sutterlin, 93 Wn.2d 411, 610 P.2d 891 (1980)).
2. Parental immunity does not apply when a child is injured because the parent abdicated parental responsibility by driving while intoxicated. Id. (citing Hoffman v. Tracy, 67 Wn.2d 31, 406 P.2d 323 (1965)).
3. Parental immunity does not apply when a child suffers injuries due to the negligence of a parent acting in his business capacity. Id. at 104-05 (citing Borst v. Borst, 41 Wn.2d 642, 251 P.2d 149 (1952)). The court held that unless there was evidence of willful and wanton parental misconduct, the doctrine of parental immunity precluded parental liability. "Willful or wanton misconduct" means that the parent knew, or had reason to know, of circumstances which would inform a reasonable parent of the highly dangerous character of his or her conduct. Id. at 105.
JENKINS V. SNOHOMISH CNTY. PUB. UTIL. DIST., 105 Wn.2d 99, 713 P.2d 79 (1986). Child was injured while playing at power substation, and the parents sued the substation owners for damages. The defendant alleged negligent supervision as a defense. The trial court allowed the defense and the jury held the parents 75 percent contributorily negligent. The Supreme Court reversed, holding that unless the parents' misconduct was willful and wanton, the doctrine of parental immunity barred consideration of their comparative negligence.

The Washington...