Zellmer v. Zellmer

164 Wash.2d 147, 188 P.3d 497 (2008)


Joel (D) was 3-year-old Ashley’s stepfather. On December 3, Ashley stayed home sick, and D agreed to take care of her. At 5 pm he started a video for Ashley in her bedroom and went to build a fire. An hour later he realized she was not in her room. The sliding glass door was open, and D found Ashley floating in the pool. She died two days later. Ferguson, D’s wife, and Ashley’s mother, and McLellan, the biological father, sued D for wrongful death. D moved for summary judgment under parental immunity. Ps disputed this assertion and denied that D supported Ashley financially. D had been unemployed throughout their marriage and spent little time with Ashley. D and Ashley were not even close, and D did not stand in loco parentis. P claimed that D was short and impatient with Ashley. The time that they lived together was marked by turmoil and Ferguson claiming that D assaulted her twice and she had to take Ashley to go stay with her parents. McLellan paid child support and exercised his visitation rights, and Ashley referred to him as Dad. P cast doubt on D’s version of the events in that Ashley would have never wandered outside in her pajamas on a cold December night. A few days after they were married D purchased a $200,000 accidental death insurance policy for Ashley naming himself as co-beneficiary. There was an ongoing criminal investigation and D refused to cooperate. D got summary judgment under parental immunity. The Court of Appeals recognized stepparents 'do not earn the benefit of immunity simply by virtue of marriage to a legal parent.' It held a stepparent who is obligated to financially support a stepchild under the family support statute, is shielded by parental immunity from liability for negligent supervision of the child. Because such an obligation generally arises when a stepparent is married to the child's primary residential parent and lives in the same household with the child, the Court of Appeals concluded such a stepparent would be protected by parental immunity, except in 'rare circumstances.' The Court of Appeals affirmed the trial court.