Sepaugh v. Lagrone

300 S.W.3d 328 (2009)

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Nature of the Case

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Facts

Frank was the only child of a marriage between M and F that ended in a contentious divorce. M was awarded sole managing conservatorship while F was named possessory conservator and awarded visitation rights. F remarried and had two more sons, Cole and Sam. Sam and Cole were living with f in a two-story, four-bedroom house. Frank lived with M, subject to F’s visitation rights. A fire occurred during the early morning hours of December 24, 2002--Christmas Eve. Frank was spending the Christmas holidays with F and his younger half-brothers. John Overby, another boy, and friend of Cole and Sam was also spending the night. Frank, Cole, and Overby stayed upstairs, while Sam fell asleep downstairs in F's room. F was awakened by the fire and he and Sam managed to escape the burning dwelling through a window. Frank, Cole, and Overby all perished in the fire. M sued F for damages under the wrongful death and survivorship statutes. F raised parental immunity as an affirmative defense. The district court granted F's motion and rendered judgment that M take nothing on her claims. M appealed. M claims that parental immunity, as a matter of law, does not bar her claims because they are predicated on F's breach of a duty imposed by city ordinance to have smoke and fire detectors rather than the sort of discretionary parenting decision that parental immunity protects.