Nolasco v. Malcom , 307 Neb. 309 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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NOLASCO v. MALCOM
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Gaspar Nolasco, Personal Representative of
the Estate of Maria E. Nolasco, deceased,
appellant, v. Brennon Malcom, Special
Administrator of the Estate
of Catarina A. Nolasco,
deceased, appellee.
Gaspariny Nolasco, appellant, v. Brennon
Malcom, Special Administrator of the
Estate of Catarina A. Nolasco,
deceased, appellee.
___ N.W.2d ___
Filed September 25, 2020. Nos. S-19-729, S-19-730.
1. Immunity. The scope of a judicially created rule of immunity, including
whether such rule should be limited or extended, presents a question
of law.
2. Appeal and Error. To the extent an appeal presents questions of law, an
appellate court must reach an independent conclusion irrespective of the
determination made by the court below.
3. Immunity: Parent and Child: Damages. The doctrine of parental
immunity, as it has been articulated in Nebraska, provides generally that
an unemancipated minor cannot maintain an action against his or her
parents, or any other person standing in that relation to the minor, to
recover damages for ordinary negligence, but can maintain an action to
recover damages for brutal, cruel, or inhuman treatment.
4. Immunity: Parent and Child: Negligence. The doctrine of parental
immunity, as adopted and applied in Nebraska, has always been con-
fined to that class of ordinary negligence claims involving conduct
related to parental authority, discretion, or decisionmaking in the super-
vision, care, and treatment of a minor child.
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5. Immunity: Parent and Child. The justifications for adopting the doc-
trine of parental immunity in Nebraska include protecting the proper
exercise of parental authority, recognizing parental discretion in raising
and disciplining minor children, and protecting against tort liability
based on a legitimate parental decision.
6. Immunity: Parent and Child: Negligence. When a negligence claim
does not pertain in any respect to the exercise of parental authority,
discretion, or decisionmaking in the supervision, care, and treatment of
a minor child, the claim falls outside the scope of Nebraska’s modified
parental immunity doctrine.
Appeals from the District Court for Dawson County: James
E. Doyle IV, Judge. Reversed and remanded for further
proceedings.
Tod A. McKeone, of Heldt, McKeone & Copley, for
appellants.
Elizabeth Ryan Cano and Stephen L. Ahl, of Wolfe, Snowden,
Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for appellee.
Daniel J. Thayer, of Thayer & Thayer, P.C., L.L.O., and
Benjamin I. Siminou, of Siminou Appeals, Inc., for amicus
curiae Nebraska Association of Trial Attorneys.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Stacy, J.
Appellants’ automobile negligence actions were dismissed
on summary judgment after the district court concluded they
were barred by the parental immunity doctrine. In these con-
solidated appeals, appellants challenge the applicability and the
continued viability of that doctrine in Nebraska. 1 After consid-
ering the origins, development, and application of the doctrine,
1
See Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959).
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we conclude the automobile negligence claims alleged in these
cases fall outside the scope of Nebraska’s parental immunity
doctrine. We therefore reverse the judgments of the district
court and remand the causes for further proceedings.
I. BACKGROUND
On January 21, 2017, Catarina A. Nolasco was operating
a motor vehicle on the interstate near Wood River, Nebraska,
when the vehicle left the roadway and entered the ditch, rolling
several times. Nolasco’s unemancipated minor children were
riding in the vehicle with her at the time; her son was seriously
injured and her daughter died from injuries sustained in the
accident. Nolasco also died as a result of the accident.
The daughter’s estate filed a wrongful death and survival
action against Nolasco’s estate, and the son (now an adult) filed
a separate negligence action against Nolasco’s estate to recover
for his injuries. Both actions alleged that Nolasco’s negligent
operation of the vehicle caused the accident. Specifically, they
alleged Nolasco was negligent in failing to maintain a proper
lookout, driving at a speed greater than was reasonable and
prudent under the conditions then existing, and failing to exer-
cise proper control over her vehicle.
Nolasco’s estate moved for summary judgment in both
actions, alleging the doctrine of parental immunity applied
to bar the negligence claims. The district court agreed. The
court’s order discussed and considered several Nebraska cases,
including the seminal case of Pullen v. Novak, 2 and ulti-
mately determined the doctrine of parental immunity applied
to automobile negligence claims. It acknowledged the appel-
lants’ request to abrogate or limit the doctrine, but declined
to do so, reasoning that any changes to the judicially created
doctrine must come from either the Nebraska Supreme Court
or the Nebraska Legislature. The district court thus granted
2
Id.
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summary judgment in favor of Nolasco’s estate and dismissed
the actions.
Timely appeals were filed by the son and by the daughter’s
estate. We granted their petitions to bypass and consolidated
the cases for purposes of appeal.
II. ASSIGNMENT OF ERROR
Appellants assign that the district court erred in dismissing
the actions based on the parental immunity doctrine.
III. STANDARD OF REVIEW
[1] The scope of a judicially created rule of immunity,
including whether such rule should be limited or extended,
presents a question of law. 3
[2] To the extent an appeal presents questions of law, an
appellate court must reach an independent conclusion irrespec-
tive of the determination made by the court below. 4
IV. ANALYSIS
[3] The doctrine of parental immunity, as it has been
articulated in Nebraska, provides generally that an uneman-
cipated minor cannot maintain an action against his or her
parents, or any other person standing in that relation to the
minor, to recover damages for ordinary negligence, but can
maintain an action to recover damages for “‘brutal, cruel, or
inhuman treatment.’” 5 We have described this as a “modified
3
See, Wood v. McGrath, North, 256 Neb. 109, 589 N.W.2d 103 (1999)
(discussing judgmental immunity rule); Frey v. Blanket Corp., 255 Neb.
100, 582 N.W.2d 336 (1988) (discussing quasi-judicial immunity and
parental immunity); Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979)
(addressing spousal immunity).
4
See In re Adoption of Micah H., 301 Neb. 437, 918 N.W.2d 834 (2018).
5
Pullen, supra note 1, 169 Neb. at 223, 99 N.W.2d at 25.
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version” of the parental immunity doctrine adopted in other
jurisdictions. 6
In these consolidated appeals, the threshold question is
one of first impression: Does Nebraska’s modified parental
immunity doctrine apply to bar automobile negligence claims
brought by unemancipated minors against a parent? To answer
that question, we begin our analysis with a general overview
of the origins of the judicially created doctrine in the United
States. We then discuss the development, recognition, and
application of the doctrine in Nebraska. And finally, we con-
sider the parties’ arguments as to whether the doctrine applies
to bar automobile negligence claims and whether this court
should modify or abrogate the doctrine.
1. General History of Parental
Immunity Doctrine
The doctrine of parental immunity did not originate in
English common law, 7 but instead was introduced into
American tort jurisprudence by the 1891 Mississippi Supreme
Court case of Hewlett v. Ragsdale. 8 In Hewlett, the court held
that an unemancipated minor could not sue her mother for
damages sustained when the mother confined the child in a
mental institution. Hewlett reasoned:
[S]o long as the parent is under obligation to care for,
guide and control, and the child is under reciprocal obli-
gation to aid and comfort and obey, no such action
as this can be maintained. The peace of society, and
6
Id. See, also, Richards v. Meeske, 268 Neb. 901, 689 N.W.2d 337 (2004).
7
See, 4 Restatement (Second) of Torts § 895G, comment b. (1979); 2 Dan
B. Dobbs et al., The Law of Torts § 358 (2d ed. 2011); 2 Stuart M. Speiser
et al., The American Law of Torts § 6:49 (2014).
8
Hewlett v. Ragsdale, 68 Miss. 703, 9 So. 885 (1891), abrogated, Glaskox
by and through Denton v. Glaskox, 614 So. 2d 906 (Miss. 1992).
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of the families composing society, and a sound public
policy, designed to subserve the repose of families and
the best interests of society, forbid to the minor child
a right to appear in court in the assertion of a claim to
civil redress for personal injuries suffered at the hands
of the parent. The state, through its criminal laws, will
give the minor child protection from parental violence
and wrong-doing, and this is all the child can be heard
to demand. 9
In the decades immediately following Hewlett, courts in all
but a handful of states 10 adopted some version of the doctrine
of parental immunity, but courts were not consistent in articu-
lating either the scope of the doctrine or the public policy rea-
sons justifying its adoption. 11 Common justifications for adopt-
ing the doctrine included (1) maintaining family harmony; (2)
preserving parental autonomy and authority over the discipline,
supervision, and care of children; (3) preventing fraud and
collusion between family members; and (4) protecting family
9
Id. at 711, 9 So. at 887.
10
See, e.g., Petersen v. City and County of Honolulu, 51 Haw. 484, 462 P.2d
1007 (1969) (declining to adopt doctrine, reasoning minors are entitled to
same redress for wrongs as other persons and reasons other jurisdictions
give for doctrine not sufficient to overcome that basic right); Rupert v.
Stienne, 90 Nev. 397, 528 P.2d 1013 (1974) (abrogating interspousal
immunity while clarifying parental immunity was never adopted); Nuelle
v. Wells, 154 N.W.2d 364 (N.D. 1967) (finding court had never adopted
doctrine and should not); Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1977)
(answering certified question by holding minor’s suit against parent for
negligent supervision not categorically barred by unrecognized doctrine of
parental immunity).
11
See Annot., 6 A.L.R. 4th 1066, § 2[a] (1981).
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assets from depletion in favor of one child at the expense
of others. 12
By the mid-20th century, jurisdictions began to reexam-
ine the blanket doctrine. 13 The Wisconsin Supreme Court’s
opinion in Goller v. White 14 is generally recognized as the
first case to abrogate the doctrine, 15 but it was only a partial
abrogation. Goller abolished blanket parental immunity, but
expressly retained immunity where the alleged negligence
involved either the exercise of parental authority over the child
or “ordinary parental discretion with respect to the provision
of food, clothing, housing, medical and dental services, and
other care.” 16
After Goller, a few states chose to maintain blanket parental
immunity, 17 but most jurisdictions moved away from blanket
immunity and narrowed the practical application of the doctrine
by recognizing a wide variety of exceptions and limitations. 18
12
See id. See, also, 4 Restatement (Second), supra note 7, § 895G, comment
c.; 2 Dobbs et al., supra note 7; 2 Speiser et al., supra note 7.
13
See 2 Speiser et al., supra note 7.
14
Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).
15
See 4 Restatement (Second), supra note 7, § 895G, comment j.
16
Goller, supra note 14, 20 Wis. 2d at 413, 122 N.W.2d at 198.
17
See, e.g., Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Blake v.
Blake, 235 Ga. App. 38, 508 S.E.2d 443 (1998); Vaughan v. Vaughan, 161
Ind. App. 497, 316 N.E.2d 455 (1974); La. Rev. Stat. Ann. § 9:571 (2016).
18
See, Annot., 6 A.L.R. 4th 1066, §§ 6 through 12 (1981 & Supp. 2020)
(discussing various exceptions to doctrine including claims related to
motor vehicle accidents, death of parent or child, breach of duty to general
public, parent’s business activity, claims covered by liability insurance,
and claims against noncustodial parents); 2 Dobbs et al., supra note 7.
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The most commonly recognized limitation has been to allow
suits against parents for the negligent operation of an automo-
bile. 19 Some states adopted a Goller-like approach and limited
the doctrine to bar tort claims only when the negligent conduct
at issue is inherent to the parent-child relationship, such as the
19
See 4 Restatement (Second), supra note 7, § 895G, comment k. at
430 (noting “most of the cases abrogating the immunity have involved
automobile accidents”). Accord, e.g., Hebel v. Hebel, 435 P.2d 8, 15
(Alaska 1967) (finding it “unnecessary to attempt to define precisely what
scope should be given to the doctrine of parental immunity,” but holding
minor can sue parent for negligent driving); Nocktonick v. Nocktonick,
227 Kan. 758, 611 P.2d 135 (1980) (holding minor may sue parent
for automobile negligence and declining to otherwise define scope of
doctrine); Glaskox, supra note 8 (abrogating doctrine as applied to suits
for negligent operation of vehicle); Transamerica Ins. Co. v. Royle, 202
Mont. 173, 656 P.2d 820 (1983) (declining to define scope of doctrine
but holding it does not apply to actions based on automobile negligence);
Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966) (allowing minor
to sue parent for negligence in automobile accident); France v. A. P. A.
Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970) (abrogating doctrine
to allow suits based on negligent operation of motor vehicle and declining
to address its continued scope beyond facts presented); Silva v. Silva, 446
A.2d 1013 (R.I. 1982) (abrogating doctrine in automobile tort actions);
Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971) (abrogating
doctrine in actions for automobile negligence); Merrick v. Sutterlin, 93
Wash. 2d 411, 610 P.2d 891 (1980) (abrogating doctrine in automobile
negligence action and holding continued application of doctrine in other
circumstances should be determined on case-by-case basis); Lee v. Comer,
159 W. Va. 585, 224 S.E.2d 721 (1976) (abrogating doctrine regarding
actions based on negligent operation of motor vehicle); Dellapenta v.
Dellapenta, 838 P.2d 1153 (Wyo. 1992) (holding automobile negligence
actions do not involve parental authority or discretion and thus fall outside
doctrine of parental immunity).
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exercise of parental authority, supervision, care, or discipline. 20
Some states have abolished the doctrine in toto, 21 and others
20
See, Schneider v. Coe, 405 A.2d 682 (Del. 1979) (noting preservation of
parental authority vital to public policy and refusing to abrogate immunity
in actions based on negligent supervision of children); Pedigo v. Rowley,
101 Idaho 201, 610 P.2d 560 (1980) (retaining doctrine at least in cases
of negligent supervision because family plays essential role in welfare of
society); Cates v. Cates, 156 Ill. 2d 76, 104-05, 619 N.E.2d 715, 729, 189
Ill. Dec. 14, 28 (1993) (holding parental immunity extends only to conduct
“inherent to the parent-child relationship” which involves an “exercise
of parental authority and supervision over the child”); Rigdon v. Rigdon,
465 S.W.2d 921 (Ky. 1970) (abrogating doctrine except where conduct
involves reasonable exercise of parental authority over child or where
negligence involves providing care and necessities to child); Black v.
Solmitz, 409 A.2d 634 (Me. 1979) (abrogating doctrine as categorical ban
but retaining it for conduct involving care and discipline of children, which
parameters can be defined in future cases); Plumley v. Klein, 388 Mich. 1,
199 N.W.2d 169 (1972) (abrogating doctrine except for conduct involving
exercise of reasonable parental authority over child or reasonable parental
discretion with respect to provisions of food, clothing, housing, and other
care); Broadwell by Broadwell v. Holmes, 871 S.W.2d 471, 476-77 (Tenn.
1994) (finding parental immunity limited to conduct that “constitutes the
exercise of parental authority, the performance of parental supervision,
and the provision of parental care and custody”); Jilani by and through
Jilani v. Jilani, 767 S.W.2d 671 (Tex. 1989) (holding immunity extends
to acts involving exercise of parental authority and provision of care and
necessities); Goller, supra note 14 (abrogating immunity except for acts of
ordinary parental authority and discretion).
21
See, e.g., Kirchner v. Crystal, 15 Ohio St. 3d 326, 474 N.E.2d 275 (1984)
(abolishing blanket immunity doctrine in toto with no exceptions); Falco
v. Pados, 444 Pa. 372, 282 A.2d 351 (1971) (abrogating doctrine and
noting minors can sue parents in property and contract); Elam v. Elam, 275
S.C. 132, 268 S.E.2d 109 (1980) (abolishing doctrine and noting minors
can sue parents in property and contract).
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have replaced it with either a “reasonable parent” rule or the
approach followed by the Restatement (Second) of Torts. 22
2. Parental Immunity Doctrine
in Nebraska
The first Nebraska case to formally recognize the doctrine
of parental immunity was the 1959 case of Pullen v. Novak. 23
In Pullen, we identified three earlier cases that established the
framework for the doctrine in Nebraska: Nelson v. Johansen, 24
Clasen v. Pruhs, 25 and Fisher v. State. 26 All three cases involved
claims of cruel parental treatment of a minor child.
22
See 4 Restatement (Second), supra note 7, § 895G, comment k. at
431 (rejecting tort immunity between parent and child based solely on
relationship but recognizing not all acts or omissions undertaken in
course of parent-child relationship will result in liability because some
conduct is protected by parental discipline privilege and, to be tortious,
parental conduct should be “palpably unreasonable”). See, e.g., Broadbent
v. Broadbent, 184 Ariz. 74, 907 P.2d 43 (1995) (holding status as parent
does not bar suit, but adopting reasonable parent test for suits of minors
against parents); Gibson v. Gibson, 3 Cal. 3d 914, 479 P.2d 648, 92 Cal.
Rptr. 288 (1971) (overruling prior adoption of doctrine and adopting
reasonable and prudent parent test); Rousey v. Rousey, 528 A.2d 416 (D.C.
1987) (declining to adopt doctrine and instead endorsing approach of 4
Restatement (Second), supra note 7, § 895G); Anderson v. Stream, 295
N.W.2d 595 (Minn. 1980) (abolishing doctrine and adopting reasonable
parent standard); Hartman by Hartman v. Hartman, 821 S.W.2d 852 (Mo.
1991) (abrogating doctrine and adopting reasonable parent test); Winn v.
Gilroy, 296 Or. 718, 681 P.2d 776 (1984) (agreeing with 4 Restatement
(Second), supra note 7, § 895G, approach and focusing on nature of
parent’s negligent act).
23
Pullen, supra note 1.
24
Nelson v. Johansen, 18 Neb. 180, 24 N.W. 730 (1885).
25
Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903).
26
Fisher v. State, 154 Neb. 166, 47 N.W.2d 349 (1951).
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Well over a century ago, in Nelson, 27 we considered a neg-
ligence claim brought on behalf of a 10-year-old girl who was
sent by her parents to work for and live with the defendant and
his family. It was alleged the defendant sent the child out in
bitterly cold weather to walk some distance back to her par-
ent’s home without sufficient clothing, which caused her to
become “badly frozen” and remain bedridden in “great pain”
for a long time. 28 We affirmed the jury verdict in favor of the
child, reasoning in part that the defendant stood in the relation
of the child’s parent and it was his “duty to see that she was
properly clothed [and if] he failed in this through negligence he
would be liable for the consequences.” 29
The 1903 case of Clasen 30 was the first Nebraska case to
expressly limit tort recovery by minors against parents. In
Clasen, a 6-year-old child was sent by her parents in Germany
to live with an aunt in Nebraska. Eventually, the aunt returned
the child to her parents, after which the child, through a next
friend, sued the aunt seeking damages for cruel and inhuman
treatment. It was alleged the aunt had unnecessarily beaten,
tortured, and whipped the child, and had denied her proper
food and clothing, causing permanent injury to her health and
growth. The jury returned a verdict in favor of the child. On
appeal, the aunt admitted she stood in loco parentis to the
child but argued that a parent should not be held liable in tort
for correcting a child unless the parent acted with “wicked
impulses” or the punishment was “of such a nature as to seri-
ously injure the life, limbs or health of the child.” 31 We noted
there was some authority for a rule that a parent cannot be
27
Nelson, supra note 24.
28
Id. at 181, 24 N.W. at 730.
29
Id. at 183, 24 N.W. at 731.
30
Clasen, supra note 25.
31
Id. at 283, 95 N.W. at 642.
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held liable for punishment that “falls short of maiming or
disfiguring . . . or seriously injuring or endangering life and
health” 32 of the child. But we declined to adopt such a rule,
preferring instead to follow “the trend of a long line of well
considered cases” 33 that predicated the child’s right of recovery
on proof that the parental treatment was unreasonable or cruel.
We reasoned:
That much of the welfare of society rests on the proper
exercise of parental authority is self-assertive, but that
there is and should be a reasonable limitation on the
right of parents to punish their offspring, is an elemental
principle of modern civilization. The question then is,
what is the right, and what [is] the proper limitation of
the right, and who shall judge when the right has been
exceeded? 34
Clasen answered that question by announcing the rule that “[a]
parent, teacher or master is not liable either civilly or criminally
for moderately correcting a child, pupil or apprentice, but it is
otherwise if the correction is immoderate and unreasonable.” 35
This principle from Clasen would eventually be cited by this
court as support for both the parental immunity doctrine 36 and
for the related parental discipline privilege. 37
32
Id.
33
Id. at 284, 95 N.W. at 642.
34
Id. at 283, 95 N.W. at 642.
35
Id.
36
Pullen, supra note 1.
37
See, e.g., Cornhusker Christian Ch. Home v. Dept. of Soc. Servs., 227 Neb.
94, 106, 416 N.W.2d 551, 560 (1987) (recognizing that rule announced in
Clasen was “a restatement of the common-law rule that was later codified
in the criminal defense provision of § 28-1413”). See, also, 1 Restatement
(Second) of Torts, §§ 147 and 150 (1965) (regarding parental discipline
privilege).
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In Fisher, 38 a mother was charged with manslaughter after
her 4-year-old son died. The mother admitted hitting the child
with a stick when he was disobedient, but she maintained the
punishment was moderate and appropriate. The State offered
medical evidence that an examination conducted a few hours
after the child’s death revealed he was extremely malnour-
ished and had abrasions, contusions, and lacerations on his
face, neck, arms, chest, and scalp. His scalp was reportedly
twice the normal thickness due to the formation of scar tis-
sue caused by repeated trauma. A doctor testified the cause of
death was repeated trauma to his head and malnutrition. We
affirmed the mother’s manslaughter conviction, reiterating the
general principle announced in Clasen that a parent or one
standing in the relation thereof “‘is not liable either civilly or
criminally for moderately and reasonably correcting a child,
but it is otherwise if the correction is immoderate and unrea-
sonable . . . .’” 39
(a) Pullen v. Novak
The principles articulated in Nelson, Clasen, and Fisher
were all cited as support when this court formally recognized
the doctrine of parental immunity in Pullen. 40 In that case, a
toddler was injured when he was struck by a backing vehicle
in his parents’ driveway while in his father’s care. The vehicle
that struck the child was being driven by the father’s friend,
who at the time was helping the father return a customer’s
vehicle that had been serviced at the repair shop where the
father worked.
Through a next friend, the toddler brought a negligence
action against his father, the father’s friend, and the father’s
38
Fisher, supra note 26.
39
Id. at 176, 47 N.W.2d at 355.
40
See Pullen, supra note 1, citing Nelson, supra note 24; Clasen, supra note
25; and Fisher, supra note 26.
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employer. The father was dismissed from the action on grounds
the toddler, “being an unemancipated minor child as shown in
the petition, has no right of action against the parent for the
negligent tort of such parent.” 41 The father’s employer was
subsequently dismissed on summary judgment, and the claim
against the father’s friend proceeded to trial but was dismissed
by the court at the close of the plaintiff’s evidence. The plain-
tiff appealed, assigning error to the dismissal of the claims
against the friend and the employer, but not the father.
In addressing whether the father’s employer could be vicari-
ously liable for the toddler’s injuries, we noted such liability
depended on whether the father could himself be liable in tort
to his minor son. On that question, we first considered parental
immunity cases from other jurisdictions, observing:
The cases from other jurisdictions run strongly to the
effect that an unemancipated minor, such as appellant
was and is, cannot maintain an action against his parent,
or any other person standing in that relation to the minor,
to recover damages for negligence . . . . The reason for
the rule is stated in Meece v. Holland Furnace Co., 269
Ill. App. 164, as follows: “It is a rule of common law
based upon public policy that a minor child cannot sue
his father in tort unless a right of action is authorized
by statute.” 42
We then cited Nelson, Clasen, and Fisher for the proposition
that “Nebraska has adopted a modified version of this rule.” 43
The rule we articulated in Pullen was not one of blanket
immunity. Rather, we announced a rule that allows uneman-
cipated minors to recover from a parent in tort “‘where the
child is subjected to . . . brutal, cruel, or inhuman treatment,’”
41
Pullen, supra note 1, 169 Neb. at 214, 99 N.W.2d at 20.
42
Id. at 223, 99 N.W.2d at 25.
43
Id.
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but which generally prohibits minors from “maintain[ing] an
action against his parents, or any other person standing in
that relation to the minor, to recover damages for ordinary
negligence.” 44
Until the instant appeals, we have not been asked to limit
the parental immunity rule announced in Pullen. But we have,
in two reported opinions we address next, 45 discussed the pos-
sibility of expanding the doctrine’s application.
(b) Post-Pullen Cases
In Frey v. Blanket Corp., 46 we discussed the potential appli-
cability of the parental immunity doctrine to the ordinary
negligence of court-appointed guardians in the performance
of their duties on behalf of their ward. In Frey, the guardian
placed the adult ward in an institution, where a roommate later
fatally assaulted her. The ward’s estate sued the guardian for
negligently failing to supervise the ward’s placement and liv-
ing conditions. The trial court granted the guardian’s motion
for summary judgment, finding the doctrine of quasi-judicial
immunity applied and entitled the guardian to absolute immu-
nity from suit.
On appeal in Frey, we concluded quasi-judicial immu-
nity did not apply to the guardian merely because she had
been court appointed. We also suggested that quasi-judicial
immunity was not necessary to protect court-appointed guard-
ians from exposure to liability for ordinary negligence in
the performance of their duties, reasoning that a guardian’s
duty to a ward was “equivalent to that owed by a parent to
an unemancipated minor child.” 47 We noted that Clasen and
44
Id. at 223, 224, 99 N.W.2d at 25.
45
See, Richards, supra note 6; Frey, supra note 3.
46
Frey, supra note 3.
47
Id. at 107, 582 N.W.2d at 341.
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Pullen ­recognized that a minor may recover against a parent
in tort only for brutal, cruel, or inhuman treatment, and we
suggested that parental immunity may protect court-appointed
guardians for ordinary negligence in supervising their wards.
But Frey reversed the judgment and remanded the cause for
further proceedings without actually applying the parental
immunity doctrine.
In Richards v. Meeske, 48 we again discussed the parental
immunity doctrine without applying it. In that case, a 9-year-
old girl was injured when her father allowed her to operate an
all-terrain vehicle on the farm where he lived and worked. A
negligence action was brought on behalf of the child against
her father and the owner of the farm. The farm owner success-
fully moved for summary judgment, and the trial court certi-
fied the ruling as final for purposes of appeal. 49 We reversed
the summary judgment, finding the lower courts had not
analyzed the claim against the farm owner using the proper
premises liability framework. But our opinion also addressed
an issue the lower courts had not considered: whether the
farm owner had a duty to protect the child from the allegedly
negligent parenting decision of her father. In that regard, we
observed the parental immunity doctrine might also limit the
landowner’s duty:
Here, a policy consideration might prevent the impo-
sition of a duty on [the landowner] to protect a child
lawfully on the land from negligent parenting decisions
. . . . Courts have traditionally recognized that parents
are entitled to discretion in how they raise and discipline
their children. As a result, courts have been hesitant to
impose tort liability because of a legitimate parental deci-
sion. This court, for example, has adhered to a modified
48
Richards, supra note 6.
49
See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).
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version of the parent-child tort immunity, holding that a
child cannot recover in tort from his or her parent unless
“‘the child is subjected to . . . brutal, cruel, or inhuman
treatment.’” Pullen v. Novak, 169 Neb. 211, 223, 99
N.W.2d 16, 25 (1959). See, also, Frey v. Blanket Corp.,
255 Neb. 100, 582 N.W.2d 336 (1998). 50
Richards questioned whether the public policy interest under-
pinning the parental immunity doctrine “suggests that pos-
sessors of land should not be required to protect a child law-
fully on the land from the negligent parenting decisions of the
child’s parent, at least when those decisions are not palpably
unreasonable.” 51 But Richards ultimately decided it was not
appropriate to answer that question, in part because the claim
against the child’s father was still pending before the trial
court. We thus reversed the summary judgment and remanded
the cause for further proceedings without expressing an opinion
on whether Nebraska landowners have a duty to protect a child
lawfully on the land from negligent parenting decisions.
3. Arguments of Parties
Appellants present two basic arguments in support of their
request to reverse the decisions of the district court. First, they
argue the parental immunity doctrine, as applied in Nebraska,
only precludes tort actions by unemancipated minors against
their parents for negligent acts involving the exercise of paren-
tal discretion. Appellants argue that our cases have never
applied the doctrine to an automobile negligence claim, and
they suggest such claims do not ordinarily implicate the exer-
cise of parental discretion or authority. As such, they suggest
the district court erred by expanding the doctrine to bar auto-
mobile negligence claims.
50
Richards, supra note 6, 268 Neb. at 911-12, 689 N.W.2d at 346.
51
Id. at 912, 689 N.W.2d at 346.
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Alternatively, appellants argue that if Nebraska’s parental
immunity doctrine does broadly bar all negligence actions by
minors against their parents except those involving cruel or
inhuman treatment, then either it should be modified to permit
automobile negligence actions like the ones at issue here or it
should be abrogated altogether. In support of this alternative
argument, appellants generally suggest that the doctrine is out-
dated and that the national trend is to either limit or abrogate
parental immunity. They also argue that the doctrine, if applied
to bar automobile negligence cases by a child against a parent,
is inconsistent with the Legislature’s 2010 repeal of the guest
statute in Nebraska. 52
Appellee responds that the district court correctly applied
the parental immunity doctrine to bar the instant automobile
negligence actions. Appellee argues, “A fair reading of Pullen,
and of Nebraska precedent as a whole, shows that Nebraska
has long adopted a broad parental-immunity doctrine that
applies to all general-negligence claims.” 53 Appellee opposes
abrogation or modification of Nebraska’s parental immunity
doctrine, arguing the historical justifications for the doctrine
remain applicable to modern families. Appellee also suggests
the Legislature’s repeal of the guest statute did not reference
or impact the continued viability of the parental immunity doc-
trine in Nebraska.
4. Does Nebraska’s Modified Parental
Immunity Doctrine Apply to Bar
Automobile Negligence Claims?
As stated, the modified parental immunity doctrine as artic-
ulated in Pullen bars unemancipated minors from suing a
parent, or one standing in that relation, for conduct involving
52
See 2010 Neb. Laws, L.B. 216, § 1 (repealing Neb. Rev. Stat. § 25-21,237
(Reissue 2008) effective July 15, 2010).
53
Brief for appellee in cases Nos. S-19-729 and S-19-730 at 5.
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“ordinary negligence,” 54 but allows such suits when the con-
duct involves “‘brutal, cruel, or inhuman treatment.’” 55 It is
apparent, then, that Nebraska’s doctrine is not a blanket bar on
all negligence claims because it expressly allows tort claims
alleging brutal, cruel, or inhuman treatment of a child by a
parent. But we have not had occasion to precisely define the
class of “ordinary negligence” claims to which the doctrine
does apply.
Appellee argues Nebraska’s doctrine broadly bars all
“general-negligence claims” 56 except those alleging brutal,
cruel, or inhuman treatment. Appellants disagree and argue that
Nebraska’s doctrine has always been limited to that class of
negligence claims involving parental discretion in the treatment
of their child.
[4] We conclude it is not necessary, in this case, to define
the outermost limits of Nebraska’s modified parental immu-
nity doctrine. But we generally agree with appellants that the
doctrine, as adopted and applied in Nebraska by this court,
has always been confined to that class of ordinary negligence
claims involving conduct related to parental authority, discre-
tion, or decisionmaking in the supervision, care, and treatment
of a minor child.
Pullen announced and applied the doctrine to bar a claim
related to a father’s conduct in failing to supervise his toddler
in the driveway. 57 Clasen and Nelson both allowed tort recov-
ery by a child who was injured by the mistreatment of someone
standing in loco parentis. 58 And to the extent our post-Pullen
cases discussed the potential application of the parental
54
Pullen, supra note 1, 169 Neb. at 224, 99 N.W.2d at 25.
55
Id. at 223, 99 N.W.2d at 25.
56
Brief for appellee in cases Nos. S-19-729 and S-19-730 at 5.
57
See Pullen, supra note 1.
58
See, Clasen, supra note 25; Nelson, supra note 24.
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immunity doctrine in other contexts, Frey involved apply-
ing the doctrine to the conduct of a court-appointed guardian
who was alleged to have negligently supervised her ward and
Richards considered applying the doctrine to limit a landown-
er’s duty to protect children on the land from allegedy negli-
gent parental decisionmaking regarding the child. 59
[5] All of our reported opinions developing, applying, and
discussing the doctrine have involved allegations of negli-
gence relating directly to the treatment or supervision of a
child or ward by a parent or one standing in relation to a par-
ent. Stated differently, we have neither applied nor discussed
applying the parental immunity doctrine to conduct that did
not involve the exercise of parental authority, discretion, or
decisionmaking regarding the supervision, care, and treatment
of a minor child. And our application of the doctrine has been
entirely consistent with the expressed reasons for adopting a
modified immunity rule in Nebraska: to protect “the proper
exercise of parental authority,” 60 to recognize that “parents
are entitled to discretion in how they raise and discipline their
children,” 61 and to protect against “tort liability because of a
legitimate parental decision.” 62 We consider these justifica-
tions for the doctrine to be as valid today as when Clasen and
Pullen were decided.
Consequently, because appellants are correct that this court
has never applied the parental immunity doctrine beyond that
class of claims alleging ordinary negligence in the exercise of
parental authority, discretion, or decisionmaking in the supervi-
sion, care, and treatment of a minor child, we agree there is no
need to expressly modify the doctrine to exclude automobile
59
See, Richards, supra note 6; Frey, supra note 3.
60
Clasen, supra note 25, 69 Neb. at 283, 95 N.W. at 642.
61
Richards, supra note 6, 268 Neb. at 911, 689 N.W.2d at 346.
62
Id.
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negligence cases. Claims of negligence in the operation of a
motor vehicle rarely involve the exercise of parental author-
ity or discretion in the supervision, care, and treatment of a
child, 63 which likely explains why Nebraska has no reported
cases in which the parental immunity doctrine has been applied
to such a case.
[6] In the instant appeals, the allegations of negligence
against Nolasco were limited to driving at an unreasonable
speed, failing to keep a reasonable lookout, and failing to exer-
cise proper control of her vehicle. Because none of this alleged
conduct pertains in any respect to the exercise of parental
authority, discretion, or decisionmaking in the supervision,
care, and treatment of a minor child, the claim falls outside the
scope of Nebraska’s modified parental immunity doctrine.
We therefore hold that the negligence actions in this case,
as currently alleged, are not barred by the doctrine of parental
immunity and should not have been dismissed on that basis.
And because the negligence claims presented here do not actu-
ally implicate the continued viability of the parental immu-
nity doctrine, we leave for another day the question whether
Nebraska’s modified parental immunity doctrine should be
revisited in any respect.
V. CONCLUSION
For the foregoing reasons, we reverse the summary judg-
ments in favor of Nolasco’s estate and remand the causes
to the district court for further proceedings consistent with
this opinion.
Reversed and remanded for
further proceedings.
Heavican, C.J., not participating.
Cassel, J., concurs in the result.
63
See, e.g, Cates, supra note 20; Winn, supra note 22; Dellapenta, supra
note 19.