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From Products Liability Law Daily, October 18, 2013

Application of parental immunity doctrine to products liability claims clarified

By Pamela C. Maloney, J.D.

The application of the parental immunity doctrine in products liability actions involving injuries to a child barred contribution claims against the parents by manufacturers, distributors and sellers of a fire starter gel and the manufacturers of the bottle cap and bottle used for the gel, the West Virginia Supreme Court of Appeals stated in response to questions certified by a federal district court in West Virginia (Landis v. Hearthmark, LLC, October 17, 2013, Ketchum, M.). However, the defendants could raise the comparative negligence and misuse by the child’s parents as a defense to liability and as an intervening cause in accident.

Background. A 7-year-old child suffered severe burns over 65 percent of his body when the fire starter gel he was using to restart a fire in the fireplace in his parents’ home allegedly touched a hot ember, causing a flame to flashback through the bottle cap and ignite the vapors within the bottle of the gel. The parents filed a products liability action in federal court against the manufacturer of the bottle cap, Stull Technologies, Inc.; the manufacturer of the bottle, CKS Packaging Inc.; the producer of the fire starter gel, Packing Services Co., Inc.; the distributor of the fire starter gel, Hearthmark, LLC; and the retail seller of the fire starter gel, Wal-Mart Stores, Inc. (collectively “defendants”). The defendants asserted contribution counterclaims and comparative negligence defenses against the parents, along with misuse and intervening cause defenses based on the parents’ conduct. The federal court certified to the West Virginia Supreme Court of Appeals four questions regarding the application of the West Virginia law on the parental immunity doctrine.

Parental immunity doctrine. The parental immunity doctrine prohibits a child from bringing a civil action against his or her parents and, in its original form, operated as an absolute bar to a lawsuit by a child for personal injuries caused by a parent. The application of the doctrine has narrowed and many states have either abolished it or restricted its application. In West Virginia, the courts have recognized a number of exceptions to the application of the doctrine including actions in which a parent intentionally or willfully causes injury or death to a child, and as a defense in an action brought by a parent for the wrongful death of a child.

Contribution claim. Against this backdrop, the court addressed the first certified question which was whether the parental immunity doctrine precluded a defendant from asserting a contribution claim against the parents of a child in a products liability action.

According to the court, the parental immunity doctrine remains in effect in West Virginia, and, therefore, the child in this case was prevented from bringing a civil action against his parents. Because the defendants’ right of contribution was derivative of the rights of the injured child, the defendants were likewise unable to pursue a contribution claim against the parents.

Comparative fault defense. The court answered the second certified question—whether an allegedly negligent parent could be included as a third-party defendant for the allocation of fault, even though the parental immunity doctrine barred a defendant from asserting a contribution claim against the parents of an injured child—in the affirmative. In a prior decision (Bowman v Barnes, 168 W.Va. 111, 282 S.E.2d 613 (1981)), the court had rejected the parents’ argument that defendants were only permitted to compare their relative degrees of fault among those parties against whom they had a viable claim for contribution. This holding had not been restricted to parties seeking contribution but encompassed the negligence of an alleged tortfeasor with immunity. The court also pointed to the West Virginia statute (W.Va. Code §55-7-24(a)(1)), which requires consideration of the proportionate fault of each of the parties in the litigation at the time of the verdict. Finally, the court cited another earlier opinion (Cole v. Fairchild, 198 W.Va. 736, 482 S.E.2d 913 (1996)), for the proposition that the parental immunity doctrine did not prohibit the negligence of a parent from being asserted as a defense. Thus, even though the doctrine barred the defendants from asserting a contribution claim against the parents, the parents could be included as third-party defendants for the purpose of allocation of fault.

Misuse/abuse of product defense. The third certified question involved whether in a products liability action brought for injury to a child, does the parental immunity doctrine preclude a defendant from asserting the defense of abnormal product use (or misuse of the product) by the child’s parent to establish the negligence or fault of the parents. The defendants alleged that the parents’ abnormal use occurred when they stored the bottle of fire gel product near the fireplace within reach of a 7-year-old child. The parents argued that any abnormal use defense could only be directed toward the child who was the only one using the product and not at the parents because their prior use, misuse, or abnormal use of the fire gel product had no bearing on the question of whether the child had misused the product. The court determined that because the defense of abnormal use could carry with it the companion defense of contributory negligence, the parental immunity doctrine did not preclude the defendants from asserting the parents’ abnormal use to establish their negligence or fault.

Intervening cause. The final question certified for the court’s consideration was whether the parental immunity doctrine precluded a defendant from asserting, as a defense in a products liability action for injury to a child, that the conduct of a parent was an intervening cause of the child’s injuries. The parents conceded that their conduct could be relevant to demonstrate intervening causation, and allowing the defendants to raise this defense was in keeping with underlying law, which provides that intervening causation arises only when the negligence of a party other than the defendant intervened and became the only proximate cause of the injury.

The case number is 13-0159.

Attorneys: Dino S. Colombo (Colombo & Stuhr, PLLC) for Kimberly Landis. Thomas Mannion, Esq. (Mannion & Gray Co., LPA) for Packaging Service Co., Lindsey M. Saad, Esq. (Flaherty Sensabaugh Bonasso, PLLC) for Stull Technologies, Inc. Edward A. Smallwood, Esq. (Swartz Campbell LLC) for C.K.S. Packaging, Inc. Larry W. Blalock, Esq. (Jackson Kelly PLLC) for Hearthmark, LLC and Wal-Mart Stores, Inc.

Companies: Packaging Service Co.; Stull Technologies, Inc.; C.K.S. Packaging, Inc.; Hearthmark, LLC; Wal-Mart Stores, Inc.

MainStory: TopStory DefensesLiabilityNews HouseholdProductsNews WestVirginiaNews

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