Langley v. Langley
Texas Court of Appeals
UNPUBLISHED, 2004 WL 2804828
November 24, 2004
Summary of Opinion
Michelle Langley was injured when she was kicked by a horse owned by her father and his current wife. She sued for the injury, but the trial court said she could not sue her own father and step-mother for the injury under the doctrine of family immunity. In this opinion, the Court of Appeals upholds that decision and says that the doctrine of family immunity applies to a step-parent, as well as to a parent.
Text of Opinion
This appeal concerns a suit for personal injuries. Appellant's minor daughter Michelle suffered injuries when she was kicked by a horse owned by Appellees J.D. Langley and Jacqueline Langley. Michelle is the child of Appellant and J.D. Langley by their former marriage. Jacqueline Langley is J.D. Langley's current wife. Appellant appeals the trial court's granting of summary judgments for Appellees. By cross-point, Appellees contend that the trial court erred in overruling their objections to Appellant's summary judgment affidavits. We will affirm.
Appellant sued on the theories of negligence and attractive nuisance. Appellees filed three motions for summary judgment. In one motion, they contended that there was no evidence of attractive nuisance. In another, they moved for summary judgment on Appellant's theory that Appellees negligently failed to prevent the horse from injuring Michelle. In a third, they moved for summary judgment on Appellant's negligence theories on the affirmative defenses of parental immunity and immunity under Texas Civil Practice and Remedies Code Chapter 87, which limits liability for certain equine activities. See Act of May 23, 1995, 74th Leg., R.S., ch. 549, 1995 Tex. Gen. Laws 3318 (amended 2001) (current version at TEX. CIV. PRAC. & REM.CODE ANN. ch. 87 (Vernon Supp.2004-2005)). The trial court granted all three motions, and rendered judgment for Appellees. On appeal, Appellant complains only of the judgment on the third motion, which disposed of her negligence claims; she does not complain of the judgment that disposed of her attractive nuisance claim.
Appellant's first and second issues concern parental immunity. Appellant's first issue concerns only Jacqueline Langley. In it, Appellant contends that Jacqueline could not have parental immunity, because Jacqueline is a stepparent, not a parent. Stepparents can enjoy parental immunity. McGee v. McGee, 936 S.W.2d 360, 367 (Tex.App.óWaco 1996) (op. on orig. submission); id. at 369-70 (1997, pet.denied) (op. on reh'g). We overrule Appellant's first issue. [FN1]
FN1. Appellant presents the issue, "Does the common law doctrine of parental immunity protect a stepparent from all liability, as a matter of law, against allegations that her negligent and grossly negligent conduct caused the near-fatal injury of her six-year-old stepdaughter?" Appellant briefly, in the course of two paragraphs, alludes to the question of fact as to whether Jacqueline Langley was acting in loco parentis for Michelle. See McGee, 936 S.W.2d at 369-70 (op. on reh'g). We do not understand the latter question to be "fairly included" within Appellant's issue, or adequately briefed as an issue. See Tex.R.App. P. 38.1(e), (h). In any case, Appellant's affidavit, on which she relies, states, in relevant part:
Pursuant to court ordered visitation, Michelle would visit J.D. Langley and Jacqueline Langley's house, sometimes every other weekend.... Michelle has never considered Jacqueline Langley to be her mother. I have never consented to Jacqueline Langley to exercise any parental control over Michelle. I have made it clear on several occasions to J.D. Langley and Jacqueline Langley that Jacqueline has no authority to act as a mother of Michelle, including in the role as step mother.
We would not consider this to raise a fact issue on parental immunity. Cf. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex.2002). Moreover, although we do not reach Appellees' cross-point concerning Appellant's affidavits, we note that Appellant's affidavit does not represent that the facts stated in it are true. See Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994) (orig.proceeding) (per curiam).
Appellant's second issue concerns both J.D. Langley and Jacqueline Langley. In it, Appellant contends that Appellees did not have parental immunity because they were engaged in a "business activity" at the time of Michelle's injuries. Parental immunity does not apply when the parent is exercising "business authority" over the child, such as when the parent is the child's employer. Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 936 (Tex.1992); e.g., Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971). But parental immunity does apply to a parent's exercise of "parental authority." Shoemake at 935-36. Appellant's Second Amended Original Petition alleged that Appellees "were negligent in failing to supervise Michelle." The responsibilities of "management, supervision and control" over the child "entail exactly the sort of parental authority that remains protected under" parental immunity. Id. at 936. We overrule Appellant's second issue.
The trial court did not err in granting summary judgment on parental immunity, and thus did not err in rendering judgment for Appellees.
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