Greenwood v. Anderson
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Cite as 2009 Ark. 360
SUPREME COURT OF ARKANSAS
No.
08-1200
Opinion Delivered June
DOROTHY and ROBERT GREENWOOD,
as Personal Representatives of the Estate of
Michael Anderson, a Minor Deceased,
APPELLANTS,
18, 2009
APPEAL FROM THE LAWRENCE
COUNTY CIRCUIT COURT,
NO. CV-2007-124,
HON. HAROLD ERWIN, JUDGE,
VS.
CLIFFORD ANDERSON, JR.,
APPELLEE,
AFFIRMED
JIM GUNTER, Associate Justice
Appellants, Dorothy and Robert Greenwood, appeal the circuit court’s grant of
summary judgment in favor of appellee Clifford Anderson, Jr. on the basis of parental
immunity. We accepted certification of this case from the court of appeals pursuant to Ark.
Sup. Ct. R. 1-2(b)(4) and (5), as this case involves an issue of substantial public interest and
a significant issue needing clarification or development of the law or overruling of precedent.
We affirm the grant of summary judgment.
Michael Anderson, age five and a half months, and his mother, Erica Greenwood, age
eighteen, were killed in an automobile accident on December 30, 2006. Erica and Michael
were passengers in a car driven by Michael’s father, who is the appellee in this case.
Appellants, Michael’s maternal grandparents and co-personal representatives of Michael’s
estate, filed a wrongful death suit against appellee on November 1, 2007, asserting that the
accident was the result of negligence on the part of appellee and that Michael was killed as
a result of that negligence. Appellee filed a response on November 14, 2007, denying any
negligence and claiming several affirmative defenses including parental immunity.
On December 21, 2007, appellee filed a motion for summary judgment on the basis
that, under the doctrine of parental immunity, the appellants could not maintain an action for
wrongful death against him on behalf of Michael’s estate. In response, appellants contended
that their case should not be barred because the lack of a significant relationship between
appellee and his son should represent an exception to the parental immunity doctrine. In
support of their argument, they attached an affidavit given by them explaining that appellee
had essentially been an absent father and had not financially supported his child. They also
stated in the affidavit that appellee’s liability-insurance policy had paid wrongful death
damages to Erica, and the same liability policy would provide damages to Michael if not for
the parental immunity doctrine. After a hearing held on June 24, 2008, the court entered an
order granting appellee’s motion for summary judgment on July 17, 2008. Appellants then
filed a timely notice of appeal on August 7, 2008.
This court’s standard of review for a summary judgment is well-settled:
[S]ummary judgment is to be granted by a trial court only when it is clear that there
are no genuine issues of material fact to be litigated, and the party is entitled to
judgment as a matter of law. Once the moving party has established a prima facie
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entitlement to summary judgment, the opposing party must meet proof with proof and
demonstrate the existence of a material issue of fact. On appellate review, we
determine if summary judgment was appropriate based on whether the evidentiary
items presented by the moving party in support of its motion leave a material fact
unanswered. This court views the evidence in a light most favorable to the party
against whom the motion was filed, resolving all doubts and inferences against the
moving party. Our review is not limited to the pleadings, as we also focus on the
affidavits and other documents filed by the parties. After reviewing undisputed facts,
summary judgment should be denied if, under the evidence, reasonable men might
reach different conclusions from those undisputed facts.
Verdier v. Verdier, 364 Ark. 287, 289–90, 219 S.W.3d 143, 144 (2005) (quoting Hisaw v.
State Farm Mut. Auto. Ins. Co., 353 Ark. 668, 676, 122 S.W.3d 1, 4 (2003)). Parental
immunity was created judicially in Arkansas in Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d
468 (1938), and proscribes an unemancipated minor from maintaining an action for an
involuntary tort against his parent. Under current Arkansas law, two recognized exceptions
to the parental immunity exist: (1) when the parent has committed an intentional or willful
tort, see Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982); (2) when the
suit is a direct action against an insurer and the damages sought are uninsured-motorist
benefits, see Fields v. Southern Farm Bureau Casualty Ins. Co., 350 Ark. 75, 87 S.W.3d 224
(2002).
On appeal, appellants first assert that the so-called Fields exception, which allows an
action where payment will come from an uninsured-motorist policy, should be expanded to
include cases such as this where payment will come from a liability-insurance policy.
Appellants contend there is no meaningful difference between the two situations, and such
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an expansion of the exception would bring Arkansas in line with other jurisdictions that
recognize an exception for all automobile accidents.
However, after reviewing the pleadings below, we find that this argument was not
sufficiently developed at the trial court level. While appellants did mention Fields in their
response to the motion for summary judgment, appellants never asserted the specific
argument that is now being made on appeal, and our case law has made clear that this court
will not consider arguments made for the first time on appeal. City of Ft. Smith v.
McCutchen, 372 Ark. 541, 279 S.W.3d 78 (2008). Appellant must raise an issue with
specificity and make an argument to the circuit court for it to be preserved on appeal. Porter
v. Ark. Dep’t of Health & Human Servs., 374 Ark. 177, ___ S.W.3d ___ (2008). Therefore,
we are precluded from addressing the merits of this argument.
For their second point on appeal, appellants urge this court to create a new exception
to the parental immunity doctrine in cases where the policies supporting the doctrine will not
be advanced because there has been no significant relationship developed between the child
and the parent-defendant. This court has long-recognized that the policy reasons supporting
the parental immunity doctrine include the State’s interests in maintaining family peace and
harmony, the adequacy of criminal sanctions to punish child abuse, and the upholding of
parental authority. Fields, supra. In this case, appellants contend that appellee was a parent
in “only the loosest sense” because he failed to provide significant financial support for the
child and spent little of his available time with the child. Appellants’ deposition, which was
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attached to their response to the motion for summary judgment, explained that the baby was
born on July 17, 2006; appellee left for active duty in the United States Marine Corp on or
about August 9, 2006; appellee spent the “majority” of his free time while on leave in
November and December with his friends and not the baby; and appellee contributed a total
of $100 to the support of the baby. In such a situation, appellants argue, there is no domestic
harmony or family tranquility to protect because there was no real “family unit” in existence.
Further, there is no “family” to protect because both the baby and his mother are deceased.
Under appellants’ proposed exception, however, every case would require an inquiry
into the allegedly negligent parent’s relationship with the child to determine whether that
relationship is “sufficient” to allow that parent immunity. We find such an approach to be
highly subjective and ultimately undesirable. We also note that other jurisdictions have
declined to adopt such an approach. See, e.g., Ascuitto v. Farricielli, 711 A.2d 708, 713
(Conn. 1998) (declining to apply an exception to immunity for a non-custodial parent and
noting that traditional models of the nuclear family have changed but “[t]he fact that the
composition of families has become more varied, however, has no bearing on their essential
nature as families”); Smith v. Gross, 571 A.2d 1219, 1223 (Md. 1990) (declining to apply
exception to immunity and finding that “maintenance of a common home is not the sine qua
non of the elements of parenthood. The primary requisite of a father-child relationship is not
that a person reside with the child but that the person is, in fact, the father of the child”).
Finally, appellants urge this court to abrogate the traditional parental immunity
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doctrine and adopt the Restatement approach, found in § 895G in the Restatement (Second)
of Torts: (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. Under this approach,
“[T]he proper inquiry concerns the tortious or privileged nature of a parent’s act that
causes injury to the child, not a special parental immunity from a child’s action for
personal torts as distinct from other kinds of claims.” Winn v. Gilroy, 296 Or. 718,
681 P.2d 776, 784 (1984). Parents are not immune from suit by virtue of the
parent/child relationship. The Restatement recognizes that in the course of exercising
parental discipline and parental discretion, parents may be privileged to act in a
manner that would be deemed tortious if directed at a stranger.
Zellmer v. Zellmer, 188 P.3d 497, 501 (Wash. 2008). However, we again find that appellants
failed to develop this argument at the trial court level, and as stated above, this court will not
consider an argument made for the first time on appeal. City of Ft. Smith, supra. We
therefore affirm.
Affirmed.
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