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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DILLON SMELSER, individually, and

DERRICK SMELSER, individually,

Appellants,

v.

JEANNE PAUL, individually, and RONALD

SMELSER, individually,

Respondents.

No. 73964-6-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: April 4, 2016

Appelwick, J. — Dillon and Derrick Smelser argue the trial court erred in

permitting the jury to consider Paul's defense that the automobile-pedestrian

accident was unavoidable. They argue the trial court erroneously applied RCW

4.22.070 to the fact of Ronald Smelser's parental immunity when it entered

judgment against Paul severally rather than jointly. We affirm.

FACTS

On April 16, 1998, Jeanne Paul visited Ronald Smelser at his house in

Orting. Ronald's1 two young boys, Dillon and Derrick, were playing in a field that

1We refer to members of the Smelser family by their first names for clarity.

No disrespect is intended.
No. 73964-6-1/2

wrapped around part of the house. At the time, Dillon was five years old and

Derrick was two years old.

When Paul got in her truck to leave, she backed up her truck a few truck

lengths before turning to go forward out of the driveway. As she started to drive

forward, Paul heard a "thunk" noise. She had hit Derrick. He was underneath the

truck. Ronald pulled him out, and Derrick was bleeding profusely from his head.

Ronald immediately sought medical care for Derrick.

Dillon and Derrick sued Paul in 2011. They argued that Paul breached her

duty to exercise reasonable care in operating her vehicle, and as a result caused

Derrick's physical injuries and Dillon's emotional injuries. Paul responded to the

complaint. As an affirmative defense, Paul argued that Ronald caused Dillon's

and Derrick's injuries. Paul sought to have fault allocated amongst all entities who

caused the injuries, including Ronald.

Dillon and Derrick moved for partial summary judgment. They contended

that the trier of fact could not allocate fault to Ronald, because he had parental

immunity. The trial court denied this motion, ruling that the trier of fact would

determine Ronald's percentage of fault, because he was a potential nonparty at

fault. The court further determined that any amount of fault attributable to Ronald

would be reduced from the verdict.

Consequently, Dillon and Derrick added Ronald as a party. But, their

amended complaint did not allege that Ronald was responsible for their injuries.
No. 73964-6-1/3

The case proceeded to trial. At the close of the evidence, Dillon and Derrick

moved for judgment as a matter of law. They asserted that Ronald must be

dismissed from the case, because he did not act negligently. The trial court denied

the motion, ruling that under RCW 4.22.070, the trier of fact must allocate fault

amongst all entities who may have caused the accident.

The jury found that both Paul and Ronald were negligent. It found that the

negligence of each was a proximate cause of Derrick's injuries. But, it found that

neither defendant's negligence was a proximate cause of Dillon's injuries. The jury

found that Derrick's general damages were $16,000, in addition to $14,225.40 in

undisputed expenses. The jury allocated fault between Paul and Ronald on a

50/50 basis. But, the trial court entered judgment against only Paul, in the amount

of $15,112.70 plus costs. Dillon and Derrick appeal.

DISCUSSION

I. Application of RCW 4.22.070

Dillon and Derrick assert that the trial court misinterpreted RCW 4.22.070

and incorrectly permitted the jury to allocate fault to Ronald despite his parental

immunity. And, they contend that once the court submitted the issue of Ronald's

fault to the jury, the court erred by not entering judgment joint and severally.

Washington's tort reform statute has abolished joint and several liability,

except in limited situations, replacing it with proportionate liability. See RCW

4.22.070; Mailloux v. State Farm Mut. Auto. Ins. Co., 76 Wn. App. 507, 511-12,

887 P.2d 449 (1995). The proportionate liability scheme requires the trier of fact

to allocate the percentage of fault attributable to multiple entities responsible for
No. 73964-6-1/4

the plaintiff's injuries. RCW 4.22.070(1). The statute lists entities whose fault shall

be determined, including, "entities immune from liability to the claimant, but shall

not include those entities immune from liability to the claimant under Title 51

RCW."2 Id. But, judgment shall not be entered against an entity that is immune

from liability to the claimant. Id. Fault, for purposes of this statutory scheme, is

defined as "acts or omissions, including misuse of a product, that are in any

measure negligent or reckless toward the person or property of the actor or others."

RCW 4.22.015.

RCW 4.22.070(1) plainly does not provide an exception for parental

immunity. It requires the trier of fact to determine the percentage of fault

attributable to every entity that caused the plaintiff's injuries. Id Fault must be

allocated to such an entity, regardless of whether it is a defendant, third party

defendant, entity released by the plaintiff, or an entitv immune from liabilitv to the

plaintiff. RCW 4.22.070(1). RCW 4.22.070(1) provides a single exception: entities

immune from liability under Title 51 RCW. Under the expressio unius est exclusio

alterius canon of statutory construction, the expression of one item in a category

implies that other items are excluded. Landmark Dev., Inc. v. City of Roy, 138

Wn.2d 561, 571, 980 P.2d 1234 (1999). Had the legislature envisioned an

exception for entities with parental immunity, it would have included such an

exception in RCW 4.22.070(1).

Previous courts have clarified the meaning of this statutory scheme. In

Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994), the court held

2Title 51 RCW is Washington's workers' compensation statute.
No. 73964-6-1/5

that a four year old child is not an "entity" to which fault can be allocated under

RCW 4.22.070(1). Considering the definition of fault in RCW 4.22.015, the court

determined that an entity "must be a juridical being capable of fault." jd. at 461.

Because children under the age of six lack the mental capacity to be negligent, a

four year old child cannot be considered an "entity" for purposes of RCW

4.22.070(1). jd at 461-62. In reaching this holding, the court explicitly

distinguished the concepts of incapacity and immunity. Id at 462-63. An immune

entity is capable of fault but has been excused from liability for policy reasons, but

a child is mentally incapable of fault, jd at 463. Therefore, fault could not be

allocated to either of the injured children here. However, no case has held that

parents are not juridical beings or entities for purposes of allocating fault under

RCW 4.22.070(1) because of parental immunity.

Dillon and Derrick assert that parents entitled to parental immunity are not

entities to which fault can be allocated under RCW 4.22.070. They contend that

parental immunity is different from other immunities. They argue that parental

immunity is not an "immunity" at all, but rather a recognition that there is no duty

to supervise one's children. And, they assert that an entity that does not breach a

duty cannot be at fault under RCW 4.22.015.

We disagree with Dillon and Derrick's interpretation of parental immunity.

Recently, the Washington Supreme Court reaffirmed its earlier holding in Jenkins

v. Snohomish County Public Utility District No. 1, 105 Wn.2d 99, 713 P.2d 79

(1986) that parents are immune from liability to their children for negligent
No. 73964-6-1/6

supervision, but not for willful or wanton misconduct. Zellmer v. Zellmer, 164

Wn.2d 147, 161, 188 P.3d 497 (2008). The Jenkins court stated.

Washington has continued to follow the rule of parental

immunity where the parent may have been negligent but was not

engaged in willful misconduct. . . .

There is, however, a point at which parental neglect properly

becomes a matter of public concern. With this in mind, our rule

remains that where parental negligence rises to the level of willful or

wanton misconduct, the doctrine of parental immunity will not

preclude liability. Willful and wanton misconduct falls between

simple negligence and intentional tort. It is sufficient that the actor

"know, or has reason to know, of circumstances which would bring

home to the realization of the ordinary reasonable [person] the highly

dangerous character of his conduct."

105 Wn.2d at 105-06 (alteration in original) (quoting Foldi v Jeffries, 93 N.J. 533,

549-50, 461 A.2d 1145 (1983)). The Zellmer court describes this rule as limiting

"the scope of conduct protected by the parental immunity doctrine." 164 Wn.2d at

163.

When a child injures a third party as a result of his parent's negligent failure

to supervise, the parent may be liable to the third party. See Eldredqe v. Kamp

Kachess Youth Servs.. Inc., 90 Wn.2d 402, 408, 583 P.2d 626 (1978); Carey v.

Reeve. 56 Wn. App. 18, 22-23, 781 P.2d 904 (1989). The liability threshold is the

failure to exercise reasonable care in controlling the child's known dangerous

proclivities. Sun Mountain Prod., Inc. v. Pierre, 84 Wn. App. 608, 614-15, 929 P.2d

494 (1997). Should that same conduct by the parent also result in injury to the

child, the child will not be able to recover damages from the parent. This is not

because no duty to supervise existed. It is because the standard of care

6
No. 73964-6-1/7

accompanying parents' duty to their child is different. To be liable to their children

for a failure to supervise, parents must do more than fail to exercise ordinary care—

their conduct must rise to the level of willful and wanton misconduct. This policy

decision protects family autonomy and parental decision-making. See Zellmer,

164 Wn.2d at 159. No Washington case has stated that parents have no duty to

their children to supervise them. The cases go no further than preventing the child

from recovering for injuries caused by the lack of ordinary care in supervision, as

opposed to willful or wanton misconduct.

We conclude that RCW 4.22.070(1) permits the trier of fact to allocate fault

to parents with parental immunity. Here, the parties have agreed that Ronald did

not commit willful or wanton misconduct. The allegation is that Ronald negligently

supervised his children. Therefore, Ronald would have been immune from liability

to Dillon and Derrick, had they made a claim against him. But, the jury could have

found that Ronald's action or inaction caused harm to Derrick and/or Dillon.

Therefore, we hold that trial court did not err in permitting the jury to allocate fault

to Ronald.

Dillon and Derrick further argue that once the jury allocated fault to Ronald,

the trial court should have found both defendants jointly and severally liable. They

contend that parental immunity does not apply, because Ronald waived the

defense by failing to raise it, and Paul did not have standing to assert it herself.

Derrick and Dillon never asserted that Ronald was liable to them. In their

amended complaint, they stated only that Paul claimed that Ronald was

concurrently negligent or engaged inwillful misconduct that was a proximate cause
No. 73964-6-1/8

of their injuries. Derrick and Dillon themselves never argued that Ronald's failure

to supervise was a proximate cause of the accident. Yet, only a plaintiff can assert

that another person is liable to the plaintiff. Mailloux, 76 Wn. App. at 511. If a party

other than the plaintiff proves that a person is a proximate cause of the plaintiff's

damages, the person at fault is not liable to the plaintiff, jd at 512. Because the

plaintiffs here never argued that Ronald was liable to them, Ronald was not obliged

to assert the parental immunity defense or risk waiving itbyfailing to do so. Ronald

could not be held liable to the plaintiffs jointly or severally.

We hold that the trial court correctly interpreted RCW 4.22.070(1) by

permitting the jury to allocatefault to Ronald and byentering judgment against only

Paul.

II. Unavoidable Accident Defense

Dillon and Derrick also contend that the trial court erroneously allowed Paul

to argue that the accident was unavoidable. They assert that the trial court erred

in permitting hearsay evidence thatsupported this defense.3 They claim that the

3 Dillon and Derrick argue that the admission of the medical intake record

which contained the sentence, "He is a usually healthy child who was playing on

the front bumper of a raised 4x4 truck which was being driven by his father's

girlfriend" was improper admission of hearsay. They argue that "[sjtanding alone

the admission ofthis highly prejudicial, unsupportable hearsay evidence should be

deemed as grounds for a new trial." Appellants sought to exclude it because it

was being offered only to establish fault on the part ofthe children. No fault was

allocated to the children. The statement appeared to support Paul's unavoidable

accident defense in that she would not have been able to see him on her bumper

from the driver's seat. But, the jury clearly rejected that theory and found her

negligent. Dillon's claim for negligent infliction of emotional distress was based on

witnessing his brother being run overbythe vehicle, not by where his brother was

positioned when hewas run over. The factual basisfor the negligence of thefather

was the lack of supervision. Whether Derrick was playing on the bumper or

positioned in some other manner where he could be struck by the vehicle is of no

8
No. 73964-6-1/9

trial court erred in instructing the jury on unavoidable accidents. And, they argue

that the trial court should have found Paul negligent as a matter of law.

But, the jury found Paul negligent. In doing so, it necessarily rejected Paul's

unavoidable accident defense. Therefore, any error relating to this defense was

harmless. See Brown v. Spokane County Fire Prot. Dist. No. 1, 100Wn.2d 188,

196, 668 P.2d 571 (1983) (noting that an error that does not affect the outcome of

the trial is not grounds for reversal).

We are also unpersuaded by Dillon and Derrick's argument that this

defense confused the jury about Dillon's negligent infliction of emotional distress

claim. This defense went to the issues of Paul's negligence and proximate cause.

One element of Dillon's claim was that the negligence of one of the defendants

caused Derrick's injuries. As the jury found that Paul's negligence proximately

caused Derrick's injuries, this element was met. Therefore, any error relating to

Paul's unavoidable accident defense cannot have affected Dillon's claim.

We affirm.

WE CONCUR:

consequence tdjthe fact that his father did not know where he was and was not

adequately supervising him. Assuming without deciding the admission was

erroneous, the appellants do not demonstrate prejudice.