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Maryland’s top court might soon revisit its decades-old precedent that a prohibition on minor children suing their parents survives the child’s death, thus barring a youngster’s estate from suing an allegedly negligent mother or father for wrongful death.
Attorney Michael S. Warshaw, who represents the estate and mother of a child who died in his father’s care, said Wednesday that he will ask the Court of Appeals to review and overturn a lower court ruling that the “parent-child immunity” doctrine essentially never ends.
In its controversial decision, the Court of Special Appeals said this month that it was bound by the Court of Appeals’ 32-year-old ruling barring wrongful death claims based on a parent’s alleged negligence. The intermediate appellate court added it would have upheld the doctrine even if it were not bound by the precedent in Smith v. Gross.
Parent-child immunity achieves the important public interest of “shielding from judicial interference matters related to family integrity, harmony, and the exercise of parental discretion in the discipline and care of children,” Judge Christopher B. Kehoe wrote for the court. “(S)ocial mores, expectations and values have (not) changed sufficiently…for us to abrogate the doctrine of parent-child immunity in its entirety.”
The Court of Special Appeals rendered its reported decision in upholding the dismissal of a lawsuit claiming that Timothy Heidenberg’s negligent supervision led to his 21-month-old son’s drowning in a swimming pool at the father’s house.
The lawsuit was brought by the boy’s mother, Claudia Grier, as personal representative of her late son’s estate and as a surviving family member.
Heidenberg and Grier are estranged, as they were at the time of their son Michaelangelo’s death in July 2016. Grier was Michaelangelo’s custodial parent, with Heidenberg provided visitation rights.
The Court of Special Appeals’ decision barring the estate of Michaelangelo’s lawsuit under the parent-child immunity doctrine also nullified Grier’s personal wrongful-death claim. Under Maryland law a surviving family member may sue for wrongful death only if the decedent’s estate could bring a wrongful death claim.
Warshaw, Grier’s attorney, declined to comment on the case beyond saying he plans to appeal to the high court. Warshaw is of counsel at Royston, Mueller, McLean & Reid LLP in Towson.
Heidenberg’s attorney, Lorraine Lawrence-Whittaker, said Wednesday that the Court of Special Appeals decision was “as expected” in light of existing precedent. She said she was surprised the court issued the ruling as a reported decision, and thus applicable in all similar cases statewide, because “it didn’t seem to really go over any new ground” regarding the parent-child immunity doctrine.
Lawrence-Whittaker is with Lawrence Whittaker PC in Ellicott City.
Grier’s legal team argued in vain at the Court of Special Appeals that the “common law, judicially created” parent-child immunity doctrine “exists solely for the public policy purpose of preserving the integrity and authority of the parent-child relationship.” The doctrine “serves no purpose, and has no application, in the case where either parent or child dies, and there is no longer a relationship to protect.”
Heidenberg’s team countered that the Maryland General Assembly has not disturbed the Court of Appeals’ 1990 decision in Smith barring wrongful death claims based on a parent’s alleged negligence. The only exception the legislature has drawn to the doctrine is to permit lawsuits against a parent whose negligent driving caused the child’s injury or death and an insurance policy would provide liability coverage for the negligence, the legal team argued.
The Court of Special Appeals agreed.
“(I)n Smith v. Gross, the parental relationship between the father and the child ended when the child died as a result of the parent’s negligence,” Kehoe wrote in an opinion joined in its entirety by Judge Michael W. Reed. “The Court (of Appeals) held that parent-child immunity barred the wrongful death claim. We do not see how the present case can be distinguished from Smith v. Gross in this regard.”
In a separate opinion, Judge Kevin F. Arthur agreed that the court was bound by the precedent in Smith but said that “social mores, expectations and values” have changed regarding parent-child immunity.
“If it were my decision, which it is not in view of stare decisis and the limits on our power as an intermediate appellate court, I would abrogate the doctrine in order to permit a recovery in this case,” Arthur wrote.
An appeal to the high court would mark the second time the case has come before the Court of Appeals.
In the first instance, Heidenberg appealed lower court decisions allowing the estate’s and mother’s wrongful death claims to proceed based on the courts’ conclusion then that the father’s parent-child immunity from suit died with Michaelangelo.
The Court of Appeals heard Heidenberg’s appeal on June 7, 2019, but declined to issue a ruling, stating without explanation four days later that it had “improvidently granted” his request for review and sent the case back for trial.
Before the trial started, the Howard County Circuit Court reconsidered its earlier holding and ruled that parent-child immunity had survived, prompting Grier’s appeal.
The Court of Special Appeals rendered its decision in Claudia Grier et al. v. Timothy Heidenberg, No. 2523, September Term 2019.
