Broadbent v. Broadbent ( 1995 )

FELDMAN, Chief Justice,

specially concurring.

I join in the abrogation of parental immunity and the court’s adoption of the reasonable and prudent parent test but write separately to sound a note of caution. Although we abolish a rule of tort immunity, we must bear in mind that “difficult problems” remain in “determining when a physical harm should be regarded as actionable.” Restatement (Second) of Torts § 895G cmt. k. If the alleged tortious conduct does not grow out of the family relationship, the question of negligence “may be determined as if the parties were not related.” Id. However, there are areas of broad discretion in which only parents have authority to make decisions. In these areas, I agree with the Restatement’s view that “the standard of a reasonable prudent parent ... reeognize[s] the existence of that discretion and thus ... require[s] that the [parent’s] conduct be palpably unreasonable in order to impose liability.” Id. If, however, the charged breach of duty falls outside the area of a parent’s discretionary authority and is, instead, within the obligation of due care owed by anyone who has supervisory or other responsibility for another’s safety, then the test should be much more flexible.

Thus, the parent who decides to enroll a two-year-old child in swimming lessons at a neighborhood pool operates within the realm of parent-child decision-making. Although the child might be hurt during the course of such lessons, the decision to put the child in that position is peculiarly a matter of parental authority rather than a question of supervisory care or performance. Under the proper application of the reasonable and prudent parent test, as a matter of law there should be no liability unless one could say the decision was palpably unreasonable under given circumstances.

The facts of this case illustrate the other side of the coin. The act of leaving an unsupervised two-year-old child, who was unable to swim, at the side of a swimming pool was not an exercise of parental decision-making but an inadvertent act in the performance of duties owed by a caretaker. As the Restatement indicates, the reasonable and prudent parent test extends a great deal of flexibility to the first example but much less, if any, to the second.