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James K. Eagan, Guardian of the Property and Next Friend of Laura M. Calhoun and Kevin v. Calhoun, Minors v. John C. Calhoun

Parent-child immunity: doctrine does not bar wrongful death action filed by child against parent based on the murder or voluntary manslaughter by that parent of the child's other parent.

IN THE COURT OF APPEALS OF MARYLAND No. 109 September Term, 1996 __________________________________________

JAMES K. EAGAN, GUARDIAN OF THE PROPERTY AND NEXT FRIEND OF LAURA M. CALHOUN AND KEVIN J. CALHOUN, MINORS

v.

JOHN C. CALHOUN

__________________________________________ Bell, C.J. Eldridge Rodowsky Chasanow Karwacki Raker Wilner, JJ. __________________________________________ Opinion by Wilner, J. __________________________________________ Filed: August 26, 1997

This case constitutes another assault on the doctrine of parent-child immunity, adopted into the Maryland law in Schneider v. Schneider, 160 Md. 18, 152 A. 498 (1930) and, with but limited exceptions, retained consistently since then. See, most recently, Renko v. McLean, ___ Md. ___, ___ A.2d ___ (September Term, 1996, No. 77, Opinion filed July 30, 1997). Here, however, the claimant shall have a measure of success. We shall hold that the doctrine does not bar a wrongful death action filed on behalf of an unemancipated minor child against the child's parent when the action is based on the murder or voluntary manslaughter by that parent of the child's other parent.

I. BACKGROUND A. The Immunity Doctrine And Its Exceptions We have traced the nature and history of the parent-child immunity doctrine on several occasions recently and need not do so again, in any significant detail, in this case. See Frye v. Frye, 305 Md. 542, 505 A.2d 826 (1986); Warren v. Warren, 336 Md. 618, 650 A.2d 252 (1994), and Renko v. McLean, supra. The doctrine was judicially created as a precept of common law. In Frye v. Frye, supra, we stated its basis as being the protection of family integrity and harmony and of parental discretion in the discipline and care of the child, and we posited that the doctrine "enhances the public policy in that it subserves the repose of families and the best interests of society by preserving the peace and harmony of society and of the families composing society." Frye, 305 Md. at 552, 505 A.2d at 831. In Warren v. Warren, supra, 336 Md. at 625, 650 A.2d at 255, we noted three other policy justifications for the doctrine: preservation of parental discipline and control, prevention of

fraud and collusion, and the threat that litigation between parents and children would deplete family resources. As we further observed in Warren: "In the years since Schneider, we have deviated from the basic doctrine in only three instances. First, a minor child who has suffered harm from cruel, inhuman, or outrageous conduct at the hands of a parent may bring suit for monetary damages. Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951). Second, an emancipated child may sue his parent in tort for claims arising after the child reaches the age of majority. Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617 (1957). Finally, a child may sue the business partner of his parent for negligence committed in the operation of the parent's partnership. Hatzinicolas v. Protopapas, 314 Md. 340, 550 A.2d 947 (1988)." Id. That is the current state of the Maryland law. Subject to those three exceptions, the doctrine of parent-child immunity continues to exist in this State. Renko v. McLean, supra. The exception at issue here is the one recognized in Mahnke v. Moore. Mahnke v. Moore was an unusual case. A minor child, by her grandfather, filed suit against her father's estate for "personal injuries caused by atrocious acts committed by her father in her presence." 197 Md. at 63, 77 A.2d at 923. The child alleged that, in her presence, her father shot her mother in the head with a shotgun, that he kept the child in the home with the dead body for six days, and that he then drove the child to his home in New Jersey where, in her presence, he shot and killed himself with a shotgun, causing his blood to spatter on her face and clothing. Those acts, she averred, caused her to suffer shock, mental anguish, and nervous and physical injuries. Relying on the doctrine of parent-child
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immunity, the trial court dismissed the complaint. We reversed. We noted that, at common law, there was no legal impediment to tort actions by children against their parents and that the immunity doctrine originated with an 1891 Mississippi case, Hewlett v. George, 9 So. 885 (Miss. 1891), holding that a minor child could not maintain an action in tort against his parent for wrongful confinement in an insane asylum. The Mississippi court cited no authority for that proposition and drew no distinction in its broad grant of immunity between acts of negligence due to an error in judgment and wilful, wanton, and malicious acts. We observed that, despite its shaky foundation, the broad doctrine was accepted by a number of other States, including Maryland, although New Hampshire, in Dunlap v. Dunlap, 150 A. 905, 910 (N.H. 1930) put a limit on it, declaring that "[t]he father who brutally assaults his son or outrages his daughter ought not to be heard to plead his parenthood and the peace of the home as answers to an action seeking compensation for the wrong." That case, we noted, was cited by this Court in Schneider v. Schneider, supra, 160 Md. at 22, 152 A. at 499. In Mahnke, we essentially adopted the view of the New Hampshire court that, although the doctrine was useful within the bounds of a normal parent-child relationship, it had no rational justification where that foundation did not exist. We acknowledged that parental authority needed to be maintained and that a child should forgo a recovery of damages "if such recovery would unduly impair discipline and destroy the harmony of the family." 197 Md. at 68, 77 A.2d at 926. Thus, we confirmed that "[o]rdinarily, the parent is not liable for damages to the child for a failure to perform a parental duty, or for excessive

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punishment of the child not maliciously inflicted, or for negligent disrepair of the home provided by the father." Id. Those acts, we said, "grow out of and pertain to the relation of parent and child." Id. But, we added: "[W]hen, as in this case, the parent is guilty of acts which show complete abandonment of the parental relation, the rule giving him immunity from suit by the child, on the ground that discipline should be maintained in the home, cannot logically be applied, for when he is guilty of such acts he forfeits his parental authority and privileges, including his immunity from suit. Justice demands that a minor child shall have a right of action against a parent for injuries resulting from cruel and inhuman treatment or for malicious and wanton wrongs." Id. In that particular case, we held that "there can be no basis for the contention that the daughter's suit against her father's estate would be contrary to public policy, for the simple reason that there is no home at all in which discipline and tranquillity are to be preserved." Id. The question before us is whether the peg represented by this case can fit into that hole.

B. Factual And Procedural History On May 13, 1992, John Calhoun kicked a ladder on which his wife, Gladys, was standing as she cleaned a gutter on the roof of their home, causing her to fall to her death. There was more than ample evidence establishing that John's conduct was wilful and deliberate. After observing Gladys fall to the ground, in an obviously helpless condition,

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John, who had CPR training, did nothing to help her, either directly or by calling for assistance. Instead, he let her lie there, unattended, for about ten hours. He went about other business, picked up his two children, Laura and Kevin, from school, took them to a softball game and out to dinner, denied that he knew where their mother was, and kept them away from the back of the house where he knew her body was lying. It was not until late that night that his nephew who had come to the home to help search for Gladys, discovered the body. John disclaimed any knowledge of how she came to be lying there. There was evidence that Gladys did not die instantly from the fall but survived for some period of time; there was also some evidence, sharply contested by John, that her fatal injury may have come from blows inflicted with a blunt instrument rather than from the fall itself. In three interviews with the police, John maintained that he was not at home when Gladys fell and was unaware that she had fallen. On June 6, 1992, however, after the police confronted John with their knowledge that he was having an affair with another woman and that he wanted a divorce from Gladys but was concerned about the financial implications of a divorce, John confessed to having caused his wife's death, stating that, after a sharp exchange with her, he "got mad and kicked the right foot of the ladder and the ladder twisted slightly." Following an autopsy, the medical examiner opined that Gladys died of head injuries sustained in a fall from the ladder and that the manner of death was homicide. On the basis of this and other evidence, John was charged with second degree murder, voluntary manslaughter, and reckless endangerment. On March 11, 1993, he entered into a plea agreement under which he pled guilty to voluntary manslaughter, and, on June 24,

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1993, he was sentenced to prison for five years. In anticipation of his incarceration, John placed Laura and Kevin in the temporary care of family friends, and, on April 13, 1993, he approved a consent order by the Circuit Court for Howard County awarding temporary custody of the children to that couple. Laura was eleven and Kevin was nine when their mother was killed. In September, 1993, the court appointed James Eagan as guardian of the children's property. On February 10, 1994, Eagan, in his capacity as guardian, filed this action against John, asserting that, "[a]s a direct result of [John's] wrongful acts which caused the death of their Mother, [Laura] and [Kevin] have suffered and will continue to suffer pecuniary loss, mental anguish, emotional pain and suffering, and the loss of the society, companionship, comfort, protection, care, training, guidance and love of their Mother" and seeking, for each child, $10 million in damages. In an amended answer to the complaint, John averred that the children's claim was barred by the doctrine of parent-child immunity. He contended that the doctrine applied to wrongful death actions and that such an action could not be brought against a father predicated on the death of the children's mother. In an effort to meet that defense and with an eye on this Court's decision in Mahnke v. Moore, Eagan filed an amended complaint adding the alternative assertions that John's conduct was (1) intentional, outrageous, intolerable, without legal justification or excuse, influenced by hatred or spite, and performed in order to deliberately injure or cause damage to Gladys, or (2) so reckless, wanton or wilful as to be tantamount to an intentional disregard of Gladys's rights.

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John pressed his immunity defense through two motions for summary judgment and through motions for judgment made at the conclusion of the plaintiff's case and at the end of the entire case. Those motions were denied upon a finding that the plaintiff had presented sufficient facts to place the case within the exception to the immunity doctrine set forth in Mahnke v. Moore. The court submitted a three-part verdict sheet for the jury to consider. The first question asked whether, on the claim that John committed a wrongful act that caused Gladys's death, the jury found for Laura and Kevin or for John. If the verdict on that issue was for the children, which it was, the jury was instructed to answer the second question. That asked whether, with respect to the claim that John's wrongful act was atrocious, showed a complete abandonment of the parental relation, was intentional, wilful, or malicious, the jury found for the children or for John. The jury declined to answer that question, leaving the space blank. The third question, which was to be answered only if the jury found for the children in question one or questions one and two, asked for the jury's assessment of damages. The jury awarded a total of $2,360,000, broken down as follows: (1) economic damages to Laura: $70,000; (2) economic damages to Kevin: $90,000; (3) compensation to Laura for mental anguish, emotional pain, loss of society, companionship, comfort, protection, parental care, attention, advice, counsel, training, and guidance: $1 million; (4) compensation to Kevin for similar loss: $1 million; (5) compensation to Laura for education that she reasonably expected would be paid by Gladys: $100,000; and (6) similar compensation to Kevin: $100,000.

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Concerned about the jury's failure to respond to the second question, Eagan asked that it be resubmitted in separate parts. John, who had objected to the question initially, objected to its resubmission. The court agreed with John, ruling that, once the jury found in favor of the children on question one, they could award damages without answering question two. John appealed the judgments against him to the Court of Special Appeals, which reversed and remanded the case for a new trial. Calhoun v. Eagan, 111 Md. App. 362, 681 A.2d 609 (1996). The appellate court considered four issues, all in the context of whether John was entitled to the protection of parent-child immunity. The court first addressed Eagan's claim that the immunity doctrine did not apply to a wrongful death action. His argument was that the children's action derived from the action that Gladys would have had if she had survived and that, as her action would not have been barred, theirs was not. The court rejected that argument, concluding that a wrongful death action under Maryland Code,

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