ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DAVID W. CRAIG MARK J. ROBERTS
SCOTT A. FAULTLESS JULIA BLACKWELL GELINAS
Craig Kelley & Faultless LUCY R. DOLLENS
Indianapolis, Indiana Locke Reynolds LLP
COURT OF APPEALS OF INDIANA
C. M. L., by his mother and natural guardian )
Karen E. Brabant, )
and KAREN E. BRABANT, individually, )
vs. ) No. 78A01-0303-CV-99
REPUBLIC SERVICES, INC., d/b/a )
Lees Hauling and Trash Removal, and )
KENNETH BRABANT, )
APPEAL FROM THE SWITZERLAND SUPERIOR COURT
The Honorable John D. Mitchell, Judge
December 16, 2003
OPINION - FOR PUBLICATION
C.M.L. appeals the trial courts grant of summary judgment to Republic Services, Inc.
(Republic) and Kenneth Brabant (Kenneth). Specifically, C.M.L. challenges the trial courts determinations
that C.M.L.s cause of action was barred by the parental immunity doctrine and
the Indiana Guest Statute. For the reasons stated herein, we decline to
extend the parental immunity doctrine to apply to stepparents or to bar claims
arising out of business activities. In addition, we find that the Guest
Statute does not bar the action. Consequently, we reverse.
Facts and Procedural History
In July 2001, nine-year-old C.M.L. accompanied Kenneth on his garbage collection route
for Republic. During the route, C.M.L. was asleep under a blanket on
the passenger seat. On one particular stop, Kenneth exited the truck to
collect some garbage. Unbeknownst to Kenneth, C.M.L. also exited the truck, stood
on the ground between the hydraulic tank and the truck cab, and urinated.
When Kenneth returned, he assumed C.M.L. was still asleep under the blanket
and pulled the truck forward to the next stop. At this point,
Kenneth suddenly realized C.M.L. was not under the blanket and had been struck
by the truck. C.M.L. suffered serious injuries as a result of being
hit by the truck.
Kenneth and Karen Brabant (Karen), C.M.L.s mother, have been married since 1995 and
were married at the time of the accident. Kenneth is not the
biological father of C.M.L. nor has he adopted C.M.L.; however, C.M.L. considers Kenneth
to be his father. At the time of the accident, Kenneth financially
supported C.M.L. and provided him with health insurance.
In May 2002, C.M.L., by Karen, filed a complaint against Republic and Kenneth,
alleging negligence. In August 2002, Republic and Kenneth filed for summary judgment,
arguing that the parental immunity doctrine and the Indiana Guest Statute barred C.M.L.s
claim. In September 2002, Kenneth and Karen separated and began living apart;
however, Karen stated that the separation had nothing to do with the pending
lawsuit. Following the separation, Kenneth no longer financially supported C.M.L. Thereafter,
in December 2002, C.M.L. filed a cross-motion for summary judgment on the same
issues as the motion filed by Republic and Kenneth. The trial court
held a hearing and subsequently granted summary judgment in favor of Republic and
Kenneth, finding that the parental immunity doctrine and the Indiana Guest statute barred
C.M.L.s negligence action. C.M.L. now appeals.
Discussion and Decision
C.M.L. argues that the trial court erred by granting summary judgment in favor
of Republic and Kenneth. In particular, C.M.L. argues that his claim is
not barred by the parental immunity doctrine or by the Indiana Guest Statute.
When reviewing the grant or denial of summary judgment, this Court applies
the same legal standard as a trial court: summary judgment is appropriate where
no designated genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law.
Munsell v. Hambright, 776
N.E.2d 1272, 1278 (Ind. Ct. App. 2002), trans. denied. The standard of
review is not altered by cross motions for summary judgment on the same
issues. Id. A party appealing the denial of summary judgment carries
the burden of persuading this Court that the trial courts decision was erroneous.
Id. Moreover, when the material facts are not in dispute, our
review is limited to determining whether the trial court correctly applied the law
to the undisputed facts; and, if the issue presented is purely a question
of law, we review the matter de novo. Am. Family Ins. Co.
v. Globe Am. Cas. Co., 774 N.E.2d 932, 935 (Ind. Ct. App. 2002),
trans. denied. In addition, our standard of review is not changed by
the trial courts entry of findings of fact and conclusions thereon. Merrill
v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1264 (Ind. Ct. App. 2002),
trans. denied. Although the findings and conclusions provide valuable insight into the
trial courts decision, they are not binding upon this Court. Id.
I. Parental Immunity Doctrine
C.M.L. first argues that the trial court erred by granting summary judgment in
favor of Republic and Kenneth on the basis of the parental immunity doctrine.
Before we determine whether parental immunity bars C.M.L.s claim, we first review
the history of the parental immunity doctrine in Indiana.
History of the Parental Immunity Doctrine
The immunity between parent and child did not exist at common law.
Restatement (Second) of Torts: Parent & Child § 895G(b) (1979). In the
United States, the concept of parental immunity originated in Hewlett v. George, 9
So. 885 (Miss. 1891), abrogated by Glaskox v. Glaskox, 614 So. 2d 906
(Miss. 1992). In Hewlett, the court held that even though a person
wrongfully confined in an insane asylum has the general right to sue for
damages, a child may not sue a parent for such damages. Id.
at 887. Specifically, the court found:
[S]o long as the parent is under obligation to care for, guide, and
control, and the child is under reciprocal obligation to aid and comfort and
obey, no such action as this can be maintained. The peace of
society, and 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.
The first Indiana case to consider the parental immunity doctrine was Treschman v.
Treschman, 28 Ind. App. 206, 61 N.E. 961 (1901). In Treschman, a
stepmother severely injured her minor stepdaughter by repeatedly banging the childs head intentionally
against a brick wall. The stepdaughter then sued her stepmother for damages.
After trial, the jury returned a verdict for the stepdaughter. The
stepmother appealed, arguing that the suit should be barred by the doctrine of
parental immunity. On appeal, this Court explained:
That a stepfather or a stepmother stands in loco parentis to an infant
child is true, in a limited sense. A person cannot be said
to occupy that relation unless he is invested with the rights and charged
with the duties of a parent. A father is legally bound to
support his child, but he is not legally bound to support a stepchild.
He may lawfully decline to receive the children of his wife by
a prior marriage into his family. He may voluntarily assume such a
relation to stepchildren that the doctrine as to compensation for services and necessities
will be the same as with reference to his natural children. But
his marriage to the mother of infant children does not of itself place
him in loco parentis to such children.
Treschman, 61 N.E. at 962. The Court also indicated that when the
suit was filed the father and stepmother had been living apart and that
the stepmothers acts were grievous and malicious. Id. at 963. In
the end, the Court held that the intentional act of a stepmother against
her stepchild was not barred by parental immunity and affirmed the jury verdict.
Id. at 963, 966.
Notwithstanding Treschman, parental immunity was held to bar claims based on the intentional
and negligent acts of a biological parent against a child in Smith v.
Smith, 81 Ind. App. 566, 142 N.E. 128 (1924). In Smith, a
son sued his father for acts of personal violence and for negligently failing
to send him to school for an education. The father demurred, and
judgment was entered against the son. On appeal, the son argued that
he should be allowed to sue his father. In determining that he
did not have such a right, the Court cited to the policy argument
put forth in Hewlett, which stated:
It is well established that a minor child cannot sue his parent for
a tort. The peace of society, and 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.
Smith, 142 N.E. at 128. It also distinguished Treschman, finding that in
the one charged with the tortious acts was the stepmother of the minor
involved, and no showing appears that she stood in loco parentis to such
minor at the time of the infliction of the injury on which the
action is based . . . . True, the opinion in that
case contains a discussion, which appears to indicate that a minor child, under
certain extreme circumstances, might maintain an action against its parent for damages arising
from the infliction of personal injuries, but so much of the opinion as
appears to so hold is purely obiter dictum, as no such question was
involved in that action.
Id. at 128-29.
The notion that the parental immunity doctrine precluded recovery by a child against
a parent for negligent actions was reaffirmed in Vaughan v. Vaughan, 161 Ind.
App. 497, 316 N.E.2d 455 (1974). There, a boy was injured while
visiting a cemetery with his parents. The boys grandfather sued the parents
on the boys behalf, arguing that the parents were negligent in their supervision.
The parents moved to dismiss based on parental immunity, and the trial
court granted the motion. The injured child asked the court to abrogate
the parental immunity doctrine and to overrule Smith. On appeal, this Court
refused to abrogate parental immunity and found that Smith remained valid and binding
law. Vaughan, 316 N.E.2d at 457. In particular, this Court recognized
the ageless observation first announced in Smith:
From our knowledge of the social life of today, and the tendencies of
the unrestrained youth of this generation, there appears to be much reason for
the continuance of parental control during the childs minority, and that such control
should not be embarrassed by conferring upon the child a right to civil
redress against the parent. . . .
Id. (quoting Smith, 142 N.E. at 129). We also noted that under
extreme circumstances [parental] immunity may not exist, however, a failure to supervise .
. . would not be sufficient, in our opinion to qualify.
B. Application of the Doctrine
Although parental immunity protected a parent for negligent actions against a child, Buffalo
v. Buffalo, 441 N.E.2d 711 (Ind. Ct. App. 1982), limited the doctrine by
not affording its protection to a non-custodial, biological father. In that case,
the parents of an unemancipated minor child were divorced. The mother was
given sole physical custody, and the father had rights to reasonable visitation and
was ordered to pay child support. One day, while the child was
visiting his father, the fathers dog bit the child, causing injury. Thereafter,
the child sued the father, and the trial court dismissed the action based
on parental immunity. The child appealed, arguing that the doctrine of parent-child
immunity does not preclude a suit for negligent injury by an unemancipated minor
child against a non-custodial parent where the marriage of the childs parents was
dissolved prior to the childs injury. Id. at 712. We agreed
and reversed. Id. at 712, 714. In so deciding, this Court
explained that the public policy behind parental immunity namely, to promote the
domestic peace and tranquility of the family was not applicable to these
facts because the peace and tranquility of this marriage had been broken irretrievably
before [the child] was injured. Id. at 712-13.
Surprisingly, our supreme court had not spoken on the application of the parental
immunity doctrine in Indiana until Barnes v. Barnes, 603 N.E.2d 1337 (Ind. 1992).
Barnes determined, notwithstanding Smith, that there is no parental immunity for intentional,
felonious acts committed by a parent against a child. There, the seventeen-year-old
biological daughter of John Barnes alleged that he had raped her when she
was fifteen and sued him for damages. At the time she filed
her complaint, her parents marriage dissolution had been final for over three months.
After a jury trial, the daughter was awarded significant damages. Barnes
appealed, and another panel of this Court reversed and ordered dismissal based on
parental immunity. The daughter sought and was granted transfer. In arriving
at its decision, the supreme court explained that the parental immunity doctrine was
in a state of flux in American jurisprudence. Id. at 1340.
The Court looked to principles articulated in Treschman and Vaughan to support the
proposition that parental immunity should not be absolute. Id. at 1342.
In the end, the Court found that the case did not present an
opportunity to abrogate parental immunity; rather, it found that existing Indiana case law
on the parental immunity doctrine directed that where intentional felonious conduct had been
averred, the doctrine did not preclude the action. Id. at 1341-42.
This Court recently applied the parental immunity doctrine to bar an action that
alleged negligent acts by a joint custodial parent against a child. In
Cooley v. Hosier, 659 N.E.2d 1127 (Ind. Ct. App. 1996), trans. denied, divorced
parents shared joint physical custody of their son. After the dissolution was
final, the parents moved back in together. One day while the mother
was at home with the son, he ingested drain cleaner and was injured.
The father, on behalf of the son, sued the mother for damages,
alleging negligent supervision. The mother then moved for and was granted summary
judgment on the basis of parental immunity. On appeal, another panel of
this Court affirmed and found that [c]ourts in this state have traditionally recognized
that parents enjoy immunity from tort liability in actions brought against them by
their unemancipated minor children. Id. at 1130 (citing Barnes, Vaughan, and Smith).
In addition, the panel distinguished Buffalo where the claim was brought against
a non-custodial parent and the family unit had been broken already; whereas, in
Cooley, the claim was against a parent with joint physical custody and the
family unit had been reestablished when the parents began living together again.
Id. at 1131. Moreover, the Court focused on the joint custody situation
and stated that it rendered [the parents] equally responsible for providing lifes daily
necessities as well as continuous security and affection to [the child]. Both
[parents] were obliged to exercise control, discipline, and responsibility over their child.
Based on the above cases, it is apparent that the parental immunity doctrine
has not been abrogated in Indiana and still has limited application.
See footnote Intentional
acts committed by a biological parent as well as negligent acts of a
non-custodial parent without joint custody are not afforded protection under parental immunity.
However, the doctrine still bars claims based on the negligent acts committed by
a custodial parent or by a non-custodial parent with joint custody.
We are now being asked to decide for the first time whether parental
immunity bars an action brought by a stepchild against a stepparent for negligent
supervision occurring during the course of the stepparents business activities. Based on
two independent grounds, as explained below, we find that parental immunity does not
bar such an action.
1. Stepparent v. Parent
C.M.L. urges us not to extend the parental immunity doctrine to include stepparents.
In support of his argument, C.M.L. notes that no Indiana case dealing
with parental immunity has ever applied the doctrine to bar a claim against
a stepparent. The only Indiana case we can find that addressed parental
immunity as relating to a stepparent is Treschman, where the stepparent repeatedly thrust
the stepchilds head against the wall, causing serious bodily injury. However, in
Treschman, the fact that the tortfeasor was the stepparent was not the sole
reason that the parental immunity doctrine did not apply. In addition, the
Court noted that this was an intentional act and that the parents were
separated when the suit was filed. Treschman, 61 N.E. at 963.
Thus, we cannot solely rely on Treschman for the proposition that parental immunity
does not apply to stepparents.
Nevertheless, we agree that parental immunity should not apply to a stepparent.
It is a basic tenet in our state that parents have a legal
obligation to support their dependent children. Levin v. Levin, 626 N.E.2d 527,
532 (Ind. Ct. App. 1993), summarily affd by 645 N.E.2d 601 (Ind. 1994).
In addition, parents are equally responsible to provide for a childs daily
necessities and are obligated to exercise control, discipline, and responsibility over the child.
Cooley, 659 N.E.2d at 1131. Because of these parental obligations, it
makes sense to provide a parent who bears such a duty with immunity
for harms occurring while reasonably exercising that duty. Moreover, merely because a
parent is immune from tort liability does not mean a parent escapes the
financial obligation to continue to support a child. See Ind. Code ch.
31-16-6 (child support orders). On the other hand, under Indiana law,
a stepparent has no legal obligation to support his stepchildren. Patrick v.
Patrick, 517 N.E.2d 1234, 1237 (Ind. Ct. App. 1988); see also Treschman, 61
N.E.2d at 962 ([a] father is legally bound to support his child, but
he is not legally bound to support a stepchild). Thus, where a
stepparent is responsible for harming a stepchild, if this Court were to afford
that stepparent the same immunity as a natural parent, that stepparent could avoid
tort liability through the parental immunity doctrine as well as freely leave the
harmed child to be supported by his biological parents. This outcome is
Republic and Kenneth counter that Kenneth freely provided for C.M.L.s needs, and thus,
he stood in loco parentis and assumed the responsibility of a parent without
needing to adopt C.M.L. Consequently, the argument goes, he should be afforded
the protection of parental immunity. In support of their argument, Republic and
Kenneth direct our attention to Sturrup v. Mahan, 305 N.E.2d 877 (Ind. 1974),
overruled on other grounds by Ind. High Sch. Athletic Assn v. Carlberg, 694
N.E.2d 222 (Ind. 1997), rehg denied.
See footnote In
Sturrup, the supreme court found,
based on the Indiana High School Athletic Associations (IHSAA) constitution and by-laws, that
legal guardians were to be considered as parents when determining whether transfer students
maintained athletic eligibility upon a change of parental residence. Id. at 881-82.
The situation in Sturrup is quite different from the one presented here.
First, this case deals with parental immunity, which was not at issue
in Sturrup. Also, the supreme court in Sturrup was interpreting the IHSAAs
constitution and by-laws to determine whether the IHSAA applied them correctly. We
have no such language to interpret in this case. Therefore, we find
Sturrup to be inapposite.
Republic and Kenneth also cite to
Treschman to support the claim that Kenneth
should be granted immunity for having voluntarily assume[d] the obligations of a parent.
Treschman, 61 N.E. at 962. We agree that a stepparent may
voluntarily assume the obligations of a parent; but, in order to benefit from
the parental immunity doctrine, a stepparent must take the formal step of becoming
invested with the rights and charged with the duties of a parent.
Id. We find that this language means that a stepparent must take
some action, such as adopting a stepchild, in order to be protected by
the parental immunity doctrine.
See footnote To the extent that other cases hold otherwise,
we disagree. Indiana law does not require a stepparent to support a
See Ind. Code § 31-9-2-88 (defining parent for family and juvenile
law purposes as the biological or adoptive parent). Consequently, we conclude that
in order to benefit as a parent, one must assume the obligations of
a parent. In this case, because Kenneth did not take the formal
step of becoming invested with the rights and charged with the duties of
a parent, we find that Republic and Kenneth are not entitled to parental
2. Business Activity
Parental immunity also does not extend to Kenneth because he was engaged in
a business activity as an employee of Republic when this accident occurred.
This is the first Indiana case to determine whether the parental immunity doctrine
should apply where the childs injury occurred in an employment situation.
According to the Restatement (Second) of Torts § 895G(f):
Still another exception [to the parental immunity doctrine], recognized by several of the
courts, is that there is no immunity for bodily harm inflicted by conduct
that is merely negligent, if the harm is inflicted in the course of
a business activity carried on by the defendant. The explanation usually given
is that the parent has not injured his child while acting in his
capacity as a parent but rather in his capacity of one conducting a
business enterprise and that the enterprise should have no parental immunity. A
factor of importance affecting this conclusion that sometimes has been mentioned is that
business enterprises customarily carry liability insurance and that so far as the enterprise
and the insurance are concerned the fact that the victim is a child
of the insured is essentially irrelevant.
We agree with the reasoning of the Restatement. We find that Kenneth
was not acting in his capacity as a stepparent when he struck C.M.L.
with his truck; rather, he was acting in his capacity as a garbage
collector. Because Kenneth was engaged in a business activity when he injured
C.M.L., we conclude that the parental immunity doctrine would not bar C.M.L.s claim
against Kenneth. II. Guest Statute
Because Kenneth may not benefit from the doctrine of parental immunity, Republic may
not benefit either. However, even supposing Kenneth were granted personal immunity as
a parent under this scenario, we do not believe that Kenneths immunity should
bar C.M.L.s claim against Republic. This is so because parental immunity is
a personal immunity that does not extend to an employer or any other
third party. See Restatement (Second) of Torts § 895G(h). Because C.M.L.
was injured while Kenneth was performing business activities for Republic, neither Republic nor
Kenneth is entitled to seek the protection of the parental immunity doctrine.
C.M.L. also argues that the trial court erred by finding that the Indiana
Guest Statute barred his complaint. The Guest Statute provides:
The owner, operator, or person responsible for the operation of a motor vehicle
is not liable for loss or damage arising from injuries to or the
death of . . . the persons child or stepchild . . .
resulting from the operation of the motor vehicle while the parent, spouse, child
or stepchild, brother, sister, or hitchhiker was being transported without payment in or
upon the motor vehicle unless the injuries or death are caused by the
wanton or willful misconduct of the operator, owner, or person responsible for the
operation of the motor vehicle.
Ind. Code § 34-30-11-1 (emphasis added). The Guest Statute is in derogation
of the common law; thus, it must be strictly construed against limiting a
claimants right to bring suit. Akers v. Sebren, 639 N.E.2d 370, 371
(Ind. Ct. App. 1994), trans. denied. Strict construction means a close and
conservative adherence to the literal or textual interpretation. Id. (quotation omitted).
Where the legislature adopts a statute in derogation of the common law, we
will presume that it is aware of the common law and does not
intend to make any change therein beyond what it declares, either in express
terms or by unmistakable implication. Id. In construing the Guest Statute,
we are cognizant of the cardinal rule of statutory construction that a statute
clear and unambiguous on its face need not and cannot be interpreted by
a court, which must hold it to its plain meaning. Coplen v.
Omni Rests., Inc., 636 N.E.2d 1285, 1287 (Ind. Ct. App. 1994). The
words of the Guest Statute must be accorded their common meaning unless a
different purpose is clearly manifest from the statute itself. Id.
There is no dispute about the underlying facts of this case. C.M.L.
was riding along with Kenneth while Kenneth was working for Republic collecting garbage.
At some point on the route, C.M.L. exited the garbage truck to
urinate. While he was standing on the ground, urinating in between the
hydraulic tank and the truck cab, Kenneth believing C.M.L. still to be
asleep on the passenger seat began driving the truck away and struck
C.M.L. with the truck. Thus, the only question before us is whether
the Guest Statute bars C.M.L.s claim against Republic and Kenneth. Where the
only allegation of error is that the trial court misapplied the law, our
task on review is to apply the law correctly to the undisputed facts.
Id. at 1286.
C.M.L. argues that he was not in or upon the garbage truck when
he was injured, and therefore, the statute should not bar his claim.
Republic and Kenneth counter that the terms in or upon as found in
the Guest Statute are ambiguous, and we should therefore interpret their meaning.
We find that the terms in or upon are not ambiguous and refuse
to interpret their meanings. Instead, we apply their plain meanings and determine
that under these facts C.M.L. was not in or upon the garbage truck
when he was struck. We find that the Guest Statute does not
bar his claim.
We find that a stepparent may not receive the benefit of the parental
immunity doctrine unless the stepparent takes the formal step of becoming invested with
the rights and charged with the duties of a parent. We also
find that the parental immunity doctrine does not apply if a parent is
acting in a business capacity when causing an injury to a child.
In addition, because the undisputed evidence shows that C.M.L. was not in or
upon the vehicle when he was injured and because the statutory terms are
unambiguous, we conclude that the Indiana Guest Statute does not bar this action.
KIRSCH, J., and BAILEY, J., concur.
We hereby deny Appellants Motion for Oral Argument.
We note that the parental immunity doctrine has received constant criticism, leading
to its erosion by the development of numerous exceptions in many jurisdictions.
Restatement (Second) of Torts § 895G(d). There are now very few jurisdictions,
if any, in which the doctrine exists in a complete form. Id.
Republic and Kenneth also cite to Indiana High School Athletic Association v.
Carlberg, 694 N.E.2d 222 (Ind. 1997), rehg denied; however, they failed to provide
a pinpoint citation, and we are unable to locate any related issue in
the opinion. We will not search the authorities cited by a party
in order to find legal support for its position. Young v. Butts,
685 N.E.2d 147, 151 (Ind. Ct. App. 1997). Therefore, we only consider
There is further support for denying parental immunity to those who stand
in loco parentis in Restatement (Second) of Torts § 895G(i).
Because we are not presented with a situation where Kenneth had been
appointed the legal guardian of C.M.L., we need not discuss whether this formal
step would be sufficient to bestow a stepparent with parental immunity. But
see Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 745-46
(Ind. 1999) (stating that guardians are not protected under the parental immunity doctrine).
In addition, Republic and Kenneth argue that the public policy reason for
the parental immunity doctrine is to promote peace in families; however, we are
at a loss to see how family tranquility would be served by the
additional injury of denying a harmed child access to the courts. See,
e.g., Sorenson v. Sorenson, 339 N.E.2d 907 (Mass. 1975).
Because we find the statutory language to be unambiguous, we need not
address Republic and Kenneths arguments addressing alternative interpretations of the terms.