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### IN THE COURT OF APPEALS OF THE STATE OFWASHINGTON 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 No. 73964-6-1 DIVISION ONE UNPUBLISHED OPINION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 ratherthanjointly. 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 referto members ofthe Smelserfamily bytheirfirst 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 ofthe 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 soughtto havefault allocated amongst allentities who caused the injuries, including Ronald. Dillon and Derrick moved for partial summaryjudgment. 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 courtfurther 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 complaintdid not allege that Ronald was responsible for their injuries.No. 73964-6-1/3
The case proceeded to trial. Atthe close ofthe evidence, Dillonand 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. Thetrial courtdenied 

### 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. 

### Thejury found that both Paul and Ronald were negligent. It found that the 

### negligence ofeach was a proximate cause of Derrick's injuries. But, it found that neitherdefendant'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 courtenteredjudgmentagainstonly Paul, inthe amount of$15,112.70 plus costs. Dillonand 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 thejury 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 notenteringjudgmentjoint 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 multipleentities responsible forNo. 73964-6-1/4
the plaintiff's injuries. RCW4.22.070(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 negligentorrecklesstoward the person orpropertyofthe actororothers."
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. RCW4.22.070(1). RCW4.22.070(1) provides a single exception: entities 

### immune fromliability underTitle 51 RCW. Under the expressio unius estexclusio 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 ofincapacity and immunity. Id at462-63. An immune entity is capable offault 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 inJenkins

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 negligentNo. 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 willfulmisconduct.
. . .
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 ofwillful 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 ofthe 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 ofconduct protected bythe parental immunity doctrine." 164 Wn.2d at
163. When a child injures a third party as a result of his parent's negligentfailure 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 liabilitythreshold 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

6No. 73964-6-1/7 accompanying parents' duty to their child is different. To be liable to their children for a failure to supervise, parents mustdo morethan fail to exercise ordinarycare— their conduct must rise to the level ofwillful 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 theirchildren to supervise them. The cases go no furtherthan 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 offact to allocate fault to parents with parental immunity. Here, the parties have agreed that Ronald did not commitwillful or wanton misconduct. The allegation is that Ronald negligently 

### supervised his children. Therefore, Ronald would have been immunefrom liability to Dillonand Derrick, had they made a claim against him. But, thejury 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 thejury to allocate fault
to Ronald. 

### Dillon and Derrickfurther argue that once thejury allocated fault to Ronald, the trial court should have found both defendantsjointly and severally liable. They 

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

### defense byfailing 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 negligentorengaged inwillful misconductthatwas a proximate causeNo. 73964-6-1/8 

### of their injuries. Derrick and Dillon themselves never argued that Ronald's failure to supervise was a proximate cause ofthe accident. Yet, only a plaintiffcan assert 

### thatanotherperson is liable tothe plaintiff. Mailloux, 76 Wn. App. at 511. Ifa party 

### otherthan the plaintiffproves 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 thatRonaldwas liableto them, Ronaldwas notobliged toassertthe parentalimmunitydefenseorriskwaiving itbyfailingto 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 

### permittingthejuryto allocatefaulttoRonald and byenteringjudgmentagainstonly
Paul.

II. Unavoidable Accident Defense 

### Dillon and Derrick also contend thatthe trialcourterroneously allowed Paul 

### toargue thattheaccidentwas unavoidable. They assertthatthetrial courterred in permitting hearsay evidence thatsupported this defense.3 They claim thatthe 3Dillon 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" wasimproperadmission ofhearsay. They argue that"[sjtanding alone theadmission ofthis highlyprejudicial, unsupportable hearsayevidence shouldbe 

### deemed as grounds for a new trial." Appellants sought to exclude it because it was being offered onlytoestablishfault on the part ofthe children. No faultwas allocated to the children. The statement appeared to support Paul's unavoidable accident defense inthat 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 claimfornegligentinfliction ofemotionaldistresswas basedon witnessing his brotherbeing run overbythevehicle, notbywherehis brotherwas 

### positionedwhen hewas runover. Thefactual basisforthenegligenceofthefather was the lack of supervision. Whether Derrick was playing on the bumper or 

## positioned in someothermannerwhere hecould bestruckbythevehicle is ofno

8No. 73964-6-1/9


### trial court erred in instructing thejury on unavoidable accidents. And, they argue thatthe trial court should have found Paul negligent as a matter of law. But, thejuryfound Paul negligent. Indoing so, itnecessarily 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 errorthat does not affectthe 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 wentto 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 notknow where he was and was not adequately supervising him. Assuming without deciding the admission was erroneous, the appellants do not demonstrate prejudice.