Rewriting state law, one at a time.

A child's untimely death

ROY A. DUDDY

On Saturday, September 23, 2000, at 4 p.m., 32- year-old Brett Ennis was riding his motorcycle home on Route 102 in Londonderry, New Hampshire. He and a friend had spent the day cleaning and polishing their motorcycles for a fund-raising bike ride. His longtime fiancee, Catrina Graves, was driving her car immediately behind him. They had just eaten lunch and were planning to rent a movie to watch that evening.

The two-lane Route 102 handles a large volume of traffic at a speed limit of 50 mph. As Brett approached the intersection with Parmenter Road, Franklin Estabrook of Wilmington, Massachusetts, pulled his car into the intersection in front of him. Brett swerved to his left but was unable to avoid the car. The collision threw Brett off his bike: He struck the car's hood, cartwheeled through the air, and landed on his back in the middle of the road.

Catrina screamed as she watched the accident. She saw Brett fly through the air and saw his feet, then his head, hit the payvement. She swerved sharply to the right to avoid the car, then immediately stopped. She ran to Brett's side, where she saw blood coming from his mouth. She tried to clear his mouth and loosen his jacket and sweat-shirt. His eyes were open, but he wasn't moving. She held his hand and tried to comfort him, crying all the while, until emergency personnel arrived.

Catrina followed the ambulance to Southern New Hampshire Medical Center, where she stayed at Brett's side for almost 30 hours until he was removed from life support. He had been kept on life support so his organs could be donated and so his son from a former marriage could arrive from Arkansas to say good-bye.

Catrina and the Ennis family, who were and remain very close, sought counseling almost immediately after the accident to try to deal with the tragedy. Catrina still sees a psychologist.

About a month after the accident, Catrina and Brett's father came to see me. During our meeting, I saw clearly that Catrina and Brett--along with his family--had a genuine love for one another that had developed over seven years. Catrina saw the Ennis family weekly, and Brett's parents treated her as though she were their own daughter. She called them Mona and Dad.

Catrina also had a good relationship with Brett's son. In fact, she and Mr. Ennis both felt that the son should receive any insurance recovery obtained by Brett's estate. She was more concerned about ensuring that the boy be taken care of than she was about her own future. The family set up a special fund for his benefit, and more than 2,500 attendees at Brett's funeral contributed to it.

This young woman had suffered more egregiously than almost anyone I had met in more than 20 years of law practice. She was completely selfless in her dealings with her fiance's son and his family. I felt that if ever there were a case to question the state supreme court about whether a bystander--not related by blood or marriage to the decedent with having deep, familial ties--can recover for negligent infliction of emotional distress, this was it.

But I knew this was going to be difficult. I explained to Catrina and Mr. Ennis that New Hampshire does not recognize common law marriage, so she could not sue for negligent infliction of emotional distress. Also. because the couple were engaged but not married, Catrina was not entitled to participate in the distribution of the estate. Unless the state supreme court changed its position on the claim of negligent infliction of emotional distress, she would have no recalls of recovery.

I began to research whether other jurisdictions had recognized this type of action. My colleagues John Wolkowski and Charles Moser gathered information to support the social and demographic aspects of the claim. I also posted the factual scenario on the New Hampshire Trial Lawyers Association's list server bill received no positive feedback, only reminders that precedent was against us.

When I was satisfied that the cause of action stood a viable chance of being allowed by the state supreme court, I filed stilt.

As expected, defense counsel filed a motion to dismiss, stating that New Hampshire does not allow all unmarried cohabitant to sue for negligent infliction of emotional distress. We began to draft our brief objecting to this motion, knowing it would be the sole basis for the acceptance or denial of an appeal to the state supreme court. Moser look most of the writing responsibility, but we each reviewed and helped prepare the final version. We filed the objection in November 200l, and within a month the trial court--as expected--dismissed the case.

In April 2002, the state supreme court agreed to hear our appeal. The New Hampshire Trial Lawyers Association agreed to file an amicus brief, and we worked closely with James Townsend, who volunteered to write it.

Catrina and the Ennis family were present lot oral argument before the court in January 2003. We argued that allowing cohabitating partners to bring emotional distress claims would not be an unlimited expansion of liability, as this demographic included less than 7 percent of all households in New Hampshire. In addition, we contended that societal mores were more accepting of cohabitant relationships. The justices asked probing questions of both me and my opponent, and at the close of the oral argument, I was unsure whether we would prevail.

Oil March 3, 2003, a divided court issued a 3-2 ruling, holding that Catrina Graves "may recover damages for emotional distress its a result of witnessing the collision." (1) The case was reversed and remanded for trial to the superior court. The parties later reached a confidential settlement.

In a recent conversation, Catrina told me, "It is amazing how something like this changes you. But I can honestly say I am happy with who I have become. I know part of me will always grieve for what should have been, but I am finally eager for what is yet to come."

Note

(1.) Graves v, Estabrook, 818 A.2d 1255, 1257 (N.H. 2003).

ROY A. DUDDY practices law in Bedford, New Hampshire.

A child's untimely death

Dennis R. Weaver

The telephone message was one I had received many times in my practice as a trial lawyer: "Potential wrongful death case, please call...." However, my return call revealed facts unlike any i had ever heard.

The mother of a 16-year-old boy explained how her ex-husband, the boy's father; had beaten and suffocated him to death in his front yard. The father, angry over an unfinished chore, knocked the child to the ground and smothered him while the stepmother sprayed the child's face with a garden hose.

The boy survived overnight, but died the next day of compressional asphyxiation. The autopsy indicated that the length and intensity of din compression were the same as if a vehicle had been atop his body.

Despite the compelling facts, I dutifully informed the mother that children and their estates were prohibited from suing a parent for injury or death in Alabama. Fortunately, she refused to take no tar an answer. While maintaining my position that there could be no claim, I agreed to thoroughly review the law on parental immunity.

My research confirmed that this doctrine was alive and well in Alabama. However, I also discovered that many other jurisdictions had abandoned or revised their parental immunity laws, so the issue seemed ripe for challenge in our state. Armed with a historical perspective of the law on this issue an d a determined client, I agreed to take the case.

We filed a wrongful death claim in state court, the first time I knowingly filed a claim that was not permitted under Alabama law. To shield against potential sanctions, I began the complaint as follows:

  Plaintiff herein asserts a new theory of
   recovery and cause of action in this complaint.
   Counsel for the plaintiff has researched
   the issue of permissible claims by
   the estate of a deceased minor against a parent
   and/or stepparent, particularly for conduct
   beyond simple negligence, under
   Alabama law and the laws of other jurisdictions,
   and asserts that there are reasonable
   grounds to believe thai Ibis action should be
   and will be recognized in Alabama. Plaintiff
   and her counsel admit that this complaint
   may be subject to dismissal on motion of the
   defendants and that the issue may be more
   appropriately addressed by the Alabama
   Supreme Court on appeal.

I hoped this would make my intentions clear to the judge and avoid wrangling over whether the claim was "frivolous." As we had expected, our case was dismissed, and we appealed to the state supreme court.

Before filing the suit, I had discussed the case with both the National Crime Victim Bar Association and the Alabama Trial Lawyers Association. Both groups expressed interest in the case and filed amicus briefs for the appeal. Their support proved invaluable as we fought to change the law in Alabama.

The issues presented to the stale supreme court were straightforward: We asked whether the state should

* abrogate the parental immunity doctrine, which bars an unemancipated minor front bringing a tort action against his or her parent

* recognize an exception to the parental immunity doctrine for a parent's wanton or intentional conduct that causes injury to a child

* recognize as an exception to the parental immunity doctrine a claim for the wrongful death of a child against his or her parent.

The argument for change was equally straightforward but compelling. In adopting the doctrine of parental immunity in 1937, the Alabama Supreme Court cited the reason behind it as "the protection of family control and harmony, and [this reason] exists only where suit, or the prospect of suit, might disturb the family relations." (1) This is not met where a civil claim involves a parent's wanton orintentional conduct that results in the injury or death of a child.

In this case of a 16-year-old boy who had been killed by his father and stepmother, it was the death of the child, not the law suit, that disrupted family harmony.

We requested oral argument for the appeal, then waited. I could hardly believe my eyes when I received notice in January 2003 that the court would hear the case.

In both the brief and oral argument, I presented the horrific facts of the case and argued that the doctrine of parental immunity did not serve its stated purpose in this circumstance. The justices seemed to agree but trod many questions about the possible complications of allowing a child to sue a parent for injury or death under any circumstance. Anticipating this line of questioning, I had researched each state's position on the Issue of parental immunity and discovered that Alabama was the only state with common-law parental immunity that had not abrogated or substantially modified the doctrine.

In July 2003, the Alabama Supreme Court, in a 5-4 decision, created the state's first exception to the doctrine of parental immunity, recognizing tire right of a child's estate to bring a wrongful death claim for willful and intentional conduct of a parent that results in the child's death. (2) Although this exception is more limited than those in most other jurisdictions, we hope it has begun the steady erosion of the parental immunity doctrine in Alabama.

Parental immunity, then and now

Outlining the history of the parental immunity doctrine was key to convincing the Alabama Supreme Court to change Alabama's law.

The doctrine was first recognized in the United States in 1891 by the Mississippi Supreme Court. (1) By 1905, two more states--Tennessee and Washington (2)--had adopted it, forming the "great trilogy" and laying the foundation for tire majority of states to follow suit.

Alabama adopted the doctrine in 1937, following a New Hampshire case holding it to be the common law. (3) The Alabama Supreme Court later refused to modify or revise the doctrine, saying it was the legislature's prerogative to do so. (4) However, in a subsequent case, this court abandoned that position and held that the doctrine was judicially created and could be judicially qualified. (5) At the time of my research, Alabama had created only one narrow exception to parental immunity: for sexual assault proven by clear and convincing evidence. (6) This exception gave me a glimmer of hope.

Almost as quickly as states had adopted parental immunity, they began to l carve out exceptions to it. Many jurisdictions chose to abrogate parental immunity altogether, finding that the original rationales for adopting the doctrine were either outdated or without merit.

New Hampshire, the jurisdiction the Alabama Supreme Court had relied on in adopting the doctrine, had abandoned it in 1966 in favor of a child's right to sue. (7) This trend continued in many jurisdictions in the following years. Each of the rationales that once led courts to adopt parental immunity had, upon thoughtful reflection, been found to be little more than rhetoric with no basis in fret or law.

Seven jurisdictions declined to adopt parental immunity in the first instance. Most of these courts reasoned that children should have the same right to recover for their injuries as other citizens. (8) Eleven jurisdictions have completely eliminated the doctrine. (9) Nine states have created an exception to parental immunity for torts involving motor vehicle accidents, (10) and 11 states for intentional or malicious conduct. (11) Nine states have modified the parental immunity doctrine so that it applies only when the parent is acting within the parental relationship. (12)

Notes

(1.) Hewellette v. George, 9 So. 885,886 (Miss. 1891).

(2.) McKelvey v. McRelvey, 77 S.W. 664, 664 (Tenn, 1903); Roller v. Roller, 79 P. 788, 789 (Wash. 1905).

(3.) Owens v. Auto Mut. Indem. Co., 177 So. 133, 134 (Ala. 1937); Dunlap v. Dunlap, 150 A. 905 (N.H. 1930).

(4.) Hill v. Giordano, 477 So. 2d 164, 164 (Ala. 1984).

(5.) Hurst v. Capitell, 539 So. 2d 264, 265 (Ala. 1989).

(6.) Id.

(7.) Briere v. Briere, 224 A.2d 588,590 (N.H. 1966).

(8.) District of Columbia, Hawaii, Nevada, North Dakota, South Dakota, Utah, and Vermont.

(9.) Arizona, California, Minnesota, Missouri, New Hampshire, New Mexico, New York, Ohio, Oregon, Pennsylvania, and South Carolina.

(10.) Alaska, Connecticut, Florida, Idaho, Kansas, Maine, Mississippi, Montana, and Rhode Island.

(11.) Arkansas, Colorado, Georgia, Illinois, Indiana, Maryland, Nebraska, North Carolina, Oklahoma, Washington, and Wyoming.

(12.) Delaware, Iowa, Kentucky, Massachusetts, New Jersey, Tennessee, Texas, Virginia, and Wisconsin.

Notes

(1.) Owens v. Auto Mut. Indem. Co., 177 So. 133, 134 (Ala. 1937).

(2.) Newman v. Cole, No. 1012110, 2003 WL 21674960 (Ala. July 18, 2003).

DENNIS R. WEAVER is a partner with the law firm of Weaver Tidmore in Bimingham, Alabama.