Thorpe v. Wiggan, 405 N.J. Super. 68, (2009).
The doctrine of parental immunity has always protected parents from judicial intervention in normal child rearing decisions. The New Jersey Superior Court Appellate Division recently reexamined this doctrine in Thorpe v. Wiggan. This matter involves the tragic death of a four year-old child, Joseph Wiggan, who burned to death while a passenger in a car driven by his father. This is a negligence acting being brought by the child’s mother against defendant for failing to remove his son from the car before the fire started. The plaintiff appealed the order dismissing her complaint, and the appellate court reversed and remanded for a new trial.
There are two versions of the facts. The first was relayed by defendant to a state police detective via telephone. In this version, he was driving on Route 78 when he noticed that his car was emitting smoke. He then heard “2 bangs,” & he smelled the smoke also, so he pulled over into the shoulder. He got out of the vehicle checked around and so the car was full of smoke. His child was in the back seat, but he was unable to get him out. He wound up in the hospital. He got burned.
The second version of the events, the defendant claims he heard the same “2 bangs,” and he believed a tire blew up. The care then “blew up in flames.” He pulled the car to the shoulder, ran into the bushes and rolled to put the fire out that was on him. Plaintiff conceded that she had no claim against defendant for his second version of the events. Plaintiffs only claim lies under the State Police version.
“[T]he doctrine of parental immunity…preclude[s] liability in cases of negligent supervision, but not for a parent’s willful or wanton failure to supervise his or her children.” Foldi v. Jeffries, 93 N.J. 533, 549, 461 A.2d 1145 (1983). “There are certain areas of activities within the family sphere involving parental discipline, care, and control that should and must remain free from judicial intrusion. Parents should be free to determine how the physical, moral, and emotional, and intellectual growth of their children can best be promoted.” Id. At 545, 461 A.2d 1145. For this reason, the doctrine only applies, “in special situations that involved the exercise of parental authority and customary child care.” Id. At 551, 461 A.2d 1145. Thus, where willful and wanton conduct is not at issue, the immunity will only apply if a defendant’s conduct “implicates customary child-care issues or a legitimate exercise of parental authority or supervision.” Buono v. Scalia, 179 N.J. 131 (2004). “[A]ny conduct that does not reflect a legitimate child-rearing decision is excluded from the immunity doctrine altogether, preserving in all respects a traditional negligence claim.” Id. At 145. “Ultimately, whether conduct implicates parental decision-making … will depend on the totality of circumstances in a given case, subject to a fact-sensitive analysis by the trial judge and, when warranted, by a jury.” Id. At 138.
The court in this case applied the Foldi analysis and concluded “that defendant’s conduct is not protected by parental immunity. Under the version of the facts stipulated for the purpose [of this appeal], defendant left his four-year old child in a smoke-filled car, strapped in a car seat with now way of escape, exposing him to injury. This was not a matter of customary child care, discipline or supervision. It had no connection whatsoever to any unique philosophy of child-rearing, nor was it designed to promote joseph’s physical, moral, emotional, and intellectual, growth. This case simply involves a father exposing his son to the risk of injury by not removing him from the car before the fire erupted. Whether or not defendant’s conduct constitutes negligence is for a jury to decide.”