Donegan v. Davis.

310 Ga.App. 446

714 S.E.2d 49

11 FCDR 2242

DONEGAN et al.

v.DAVIS.

No. A11A0507.

Court of Appeals of Georgia.

July 1, 2011.

Bryan Cabot Brunson, Brian Keith Panessa, Atlanta, for appellants.Kristin L. Hall, Atlanta, for appellee.ADAMS, Judge.

Plaintiff/appellant James Donegan, as next friend of his son, Michael “Buddy” Donegan, brought suit against the child's mother, appellee Dorothy DeAnn Davis, and others seeking to recover damages for injuries Buddy suffered when the vehicle in which he was riding, which was being driven by Davis, collided with another vehicle. Additionally, Donegan asserted individual claims for medical expenses and loss of Buddy's services. The trial court granted Davis's motion for summary judgment, finding that the claims on behalf of the minor child, an unemancipated minor, were barred by the public policy doctrine of parental or family immunity and also dismissed the remainder of the claims with prejudice. Donegan appeals.

1.

It is well established in Georgia that an unemancipated minor may not sue a parent for injury arising from a negligent act. Clabough v. Rachwal, 176 Ga.App. 212, 213, 335 S.E.2d 648 (1985); Coleman v. Coleman, 157 Ga.App. 533, 278 S.E.2d 114 (1981). Public policy reasons which support the parental or family immunity include: (1) disturbance of domestic tranquility, (2) danger of fraud and collusion, (3) depletion of the family exchequer, (4) the possibility of inheritance, by the parent, of the amount recovered in damages by the child, and (5) interference with parental care, discipline and control. Clabough, supra.

Blake v. Blake, 235 Ga.App. 38, 39, 508 S.E.2d 443 (1998). However, it is also true that

“[w]hile, under the public policy of this State, an unemancipated minor child has no cause of action against a parent for simple negligence, such child may maintain an action for personal injury against a parent for a wilful or malicious act, provided it is such an act of cruelty as to authorize forfeiture of parental authority.” Wright v. Wright, 85 Ga.App. 721(2), 70 S.E.2d 152 (1952).

Buttrum v. Buttrum, 98 Ga.App. 226, 105 S.E.2d 510 (1958).

As is pertinent to these issues, the record shows that Donegan is the biological father of Buddy and that he legitimated his son. At the time of the collision, Donegan, Davis and Buddy lived together. It appears undisputed that Donegan no longer lives with Buddy and Davis and that Davis is now Buddy's primary caretaker and means of support.

The record further shows that the accident in which the child was injured occurred when Davis collided with the vehicle in front of her, when that vehicle slowed in response to a collision between two other vehicles. The collision caused extensive damage to the vehicles and Buddy was ejected from the vehicle. The child suffered serious injuries as a result of the accident, and was air lifted from the scene to the hospital.

After an officer at the scene smelled a strong odor of an alcoholic beverage coming from Davis's breath and noticed that her eyes were glossy and her speech was slurred, a blood alcohol test was performed on Davis, which revealed a blood alcohol content of 0.1999 grams, and Davis subsequently pled guilty to DUI. Davis also paid a fine for “child seat belt viol[ation].” Additionally, Donegan points to the fact that the medical records attached to his response to Davis's motion for summary judgment indicate that Buddy was in his car seat at the time of the accident, but “the seat was not restrained to the car.”

Pointing to these facts—that the evidence indicates Davis was extremely intoxicated and she lacked the capacity to properly attach the car seat to the car, Donegan argues that Davis's conduct constituted a wilful and malicious act amounting to an act of cruelty sufficient to sever the parental relationship, and thus the trial court erred by granting summary judgment on the basis that Buddy's claims were barred by the doctrine of family immunity. ¹

First, we note that the evidence Donegan points to in support of his contention that the car seat was improperly attached to the car is contained in Buddy's medical records and is...