232 W. Va. 64, 750 S.E.2d 280 (W. Va. 2013)
Kimberly Landis and Alva Nelson filed a product liability action on behalf of their minor child, A.N., in the United States District Court for the Northern District of West Virginia.1
On February 28, 2010, then seven-year-old A.N. was severely burned while attempting to start a fire in his family’s fireplace at the family residence.2 A fire had been burning throughout the day.3 That evening, while A.N.’s mother, father and brother were upstairs, A.N. asked his mother for permission to roast a marshmallow in the fireplace.4 A.N.’s mother gave him permission and he went downstairs by himself to the fireplace.5
Believing that the fire had died out, A.N. stacked kindling wood in the fireplace and applied Diamond Fire Starter Gel to the wood. A.N.’s parents left the fire starter gel bottle on a stand next to the fireplace that was within A.N.’s reach. The bottle’s directions for use state that it should be stored away from heat and flame and directs users to “keep out of reach of children.” As A.N. was spraying the gel into the fireplace, it allegedly touched a hot ember causing a flame to “flashback” through the bottle cap igniting the vapors within the bottle. This caused an explosion resulting in A.N. suffering severe burns over sixty-five percent of his body.6
The plaintiffs asserted product liability causes of action for strict liability, negligence, and breach of warranty against Stull Technologies, Inc., the manufacturer of the bottle cap; CKS Packaging Inc., the manufacturer of the bottle; Packaging Services Company, Inc., the producer of the fire starter gel; Hearthmark, LLC, d/b/a Jarden Home Brands, the distributor of the fire starter gel; and Wal-Mart Stores, Inc., the store where the fire starter gel was purchased. The parents did not assert any causes of action of their own, nor did they seek any damages.7
Each of the defendants denied the material allegations contained in the complaint and asserted contribution counterclaims and comparative negligence defenses against A.N.’s parents. The defendants also raised the defenses of product misuse and intervening causation due to A.N.’s parents’ conduct. While initially brought as counterclaims, the District Court ordered that the defendants’ claims against A.N.’s parents shall be considered third-party complaints.8 The plaintiffs filed a motion to strike Defendant Stull’s comparative negligence defense. The District Court denied the plaintiffs’ motion without prejudice and invited the parties to seek certification. After completing some discovery, the District Court certified four questions to this Court.9
Whether, in a product liability action brought for injury to a child, the parental immunity doctrine precludes a defendant from asserting a contribution claim against the parents of the child?10
The right of contribution is derivative in the sense that it may be brought by a joint tortfeasor on any theory of liability that could have been asserted by the injured plaintiff.11 Because the parental immunity doctrine prevents a child from bringing a civil action against his or her parents, defendants are likewise unable to pursue a contribution claim against the parents.12
Yes. Kimberly Landis and Alva Nelson filed the product liability action on behalf of their minor child A.N. for injuries sustained in the February 28, 2010 incident at the family residence involving Diamond Fire Starter Gel.13 The defendants asserted contribution counterclaims against the parents after the District Court recharacterized them as third-party complaints.14 The parental immunity doctrine bars any direct claim by A.N. against the parents for leaving the gel bottle within reach.15
Therefore the derivative contribution claims fail under the rule requiring common liability.16
The parental immunity doctrine precludes a defendant from asserting a contribution claim against the parents of the child.17
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Justice Davis concurs with the majority on the limited holding that the parental immunity doctrine precludes the defendants from asserting a contribution claim against the child's parents.18 She concurs only with Syllabus point 1 and parts company with the remainder of the decision.
She argues that the other holdings permit defendants to blame the parents indirectly, which eviscerates the parental immunity doctrine and deprives the injured child of a full recovery.19
Whether, in a product liability action brought for injury to a child, an allegedly negligent parent may be included as a third-party defendant for the allocation of fault even though the parental immunity doctrine bars a defendant from asserting a contribution claim against the parents of the child?20
A proper assessment of the total amount of the plaintiff's contributory negligence under our comparative negligence rule must be ascertained in relation to all parties whose negligence contributed to the accident and not merely those defendants involved in the litigation.21 The parental immunity doctrine does not prohibit the negligence of a parent from being asserted as a defense.22
Yes. On the established facts, Kimberly Landis and Alva Nelson filed suit on behalf of A.N. after the February 28, 2010 fireplace incident in which the parents had left the fire starter gel bottle within the child's reach contrary to label warnings.23 The defendants raised comparative negligence defenses and the District Court treated the claims as third-party complaints.24 Under the Bowman rule, fault must be compared with all contributing parties including the immune parents so that A.N.'s recovery is measured against the combined negligence of defendants and parents.25
An allegedly negligent parent may be included as a third-party defendant for the allocation of fault even though the parental immunity doctrine bars a defendant from asserting a contribution claim against the parents of the child.26
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Justice Davis dissents from this holding. She argues that allowing parents to be named as third-party defendants for fault allocation lets defendants do indirectly what the child cannot do directly.27 Davis contends that the majority has eviscerated parental immunity and deprived the injured child of a full recovery by reducing the damages the product defendants must pay.28
She stresses that the policy of preserving family harmony requires that parents not be blamed even indirectly for their child's injuries.29
Whether, in a product liability action brought for injury to a child, the parental immunity doctrine precludes a defendant from asserting the defense of abnormal product use by the child’s parents to establish the negligence or fault of the parents?30
The defense of abnormal use may carry with it the companion defense of contributory negligence.31 Comparative negligence is available as an affirmative defense in a cause of action founded on strict liability so long as the complained of conduct is not a failure to discover a defect or to guard against it.32 The parental immunity doctrine does not prohibit the negligence of a parent from being asserted as a defense.
No. The established facts show that the parents left the Diamond Fire Starter Gel bottle on a stand next to the fireplace within seven-year-old A.N.'s reach on February 28, 2010, despite label directions to store away from heat and keep out of reach of children.33 The defendants raised the defense of abnormal product use by the parents.34 Because this Court has never extended parental immunity to bar such product liability defenses and the Morningstar rule permits abnormal use to support contributory negligence, the defense remains available against the parents' conduct.35
The parental immunity doctrine does not preclude a defendant from asserting the defense of abnormal product use by the child’s parents to establish the negligence or fault of the parents.36
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Justice Davis dissents from this holding. She maintains that permitting the abnormal use defense allows defendants to shift fault to the parents for their supervisory decisions in storing the fire starter gel near the fireplace and within reach of the seven-year-old child.37 Davis concludes that the majority has expanded exceptions to parental immunity beyond recognition and undermined the policy of preserving family harmony by letting tortfeasors blame parents indirectly.38
She warns that the decision effectively abrogates the doctrine and leaves the child with an imperfect recovery against only the product defendants.39
Whether, in a product liability action brought for injury to a child, the parental immunity doctrine precludes a defendant from asserting, as a defense, that the conduct of a parent was an intervening cause of the child’s injuries?40
An intervening cause must be a negligent act or omission which constitutes a new effective cause and which operates independently of any other act, making it, and only it, the cause of the injury.41 An intervening cause can be established only through the introduction of evidence by a defendant that shows the negligence of another party or a nonparty.42 The parental immunity doctrine does not prohibit the negligence of a parent from being asserted as a defense.
No. Under the established facts, Kimberly Landis and Alva Nelson sued on behalf of A.N. for burns suffered on February 28, 2010 when the child used the fire starter gel that the parents had left accessible near the fireplace.43 The defendants raised intervening causation based on the parents' conduct.44 Because an intervening cause defense may be proven by evidence of nonparty negligence and this Court has never applied parental immunity to bar such causation defenses, the defendants may introduce the parents' conduct as an intervening cause.45
The parental immunity doctrine does not preclude a defendant from asserting, as a defense, that the conduct of a parent was an intervening cause of the child’s injuries.46
Related opinions on this issue
Justice Davis dissents from this holding. She argues that treating parental conduct as an intervening cause permits defendants to reduce their liability by blaming the parents for the child's injuries through their discretionary decisions on product storage and supervision.47 Davis warns that the decision effectively abrogates parental immunity and leaves the injured child with an imperfect right of recovery against only the product defendants.48
She maintains that the policy against judicial interference with parental discretion forbids this indirect blame.49