Schleier for Alter v. Alter ( 1989 )

SHELLEY, Judge,

specially concurring:

The record is devoid of any evidence that small children visited the Alter home. Also, there was no evidence that the dog was dangerous to anyone but small children. The duty of the driver of a motor vehicle on a public street is much different than the duty of parents in their own home wherein lawful entry may be made only by invitation. Therefore, I do not think the Streenz world-at-large theory applies in this ease. In Sandoval, our supreme court, in regard to Streenz, stated:

In Streenz, supra, we did not delineate precisely the areas in which parental immunity would continue to be a bar to suit by a minor for the negligence of his parents, though it is apparent that automobile cases are ones in which the doctrine of parental immunity is abolished. This, however, is not an automobile case in the usual sense in that the parent’s obligation did not arise out of his driving of an automobile. The direct cause of Ramero’s injuries was the impact of the Perez automobile, not the act of leaving the gate open. We disinguish this act from the act of the parents in Streenz, supra, in which the parent, as a driver, had a duty to the world at large to drive carefully. If an accident resulted because of the parent’s negligent driving, any passenger in the vehicle could have been injured, and the driver should be liable to that passenger regardless of the fact that the passenger is the child of the driver.

Sandoval, 128 Ariz. at 13, 623 P.2d at 802 (emphasis added).

I concur in the result because the parents were on notice that Misty constituted a grave danger to Rachel. They had a duty to remove that danger from the home. The two Goller exceptions to the abrogation of the doctrine of parental immunity set forth in Streenz are not applicable to the facts of this case. The failure of the parents to act did not involve an exercise of parental authority over the child. Neither did it involve the exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. Keeping Misty in the home certainly was not an exercise of ordinary parental discretion. The doctrine of parental immunity cannot be used to protect the parents from the duty to remove Misty, an obvious and known danger, from the home, at least before it bit Rachel for the third time.