MARHOEFER v. NACOZY (1991)

When an adult child provides assistance to an aged parent, what is the nature of the duty owed by the son or daughter to the parent?   Is the child held to an ordinary standard of care, or is the parent-child relationship a “special relationship”, such as that of custodian and ward, in which a higher duty of care, a duty to affirmatively act to prevent harm, inheres?   Although no reported decisions squarely resolve this question, for the reasons which follow, we have determined that precisely because the relationship of an adult child to an aged parent is “special”, the duty is one of ordinary care.   Moreover, the reasonableness of the child's conduct toward the parent must itself be viewed in light of this most human of relationships.

FACTUAL AND PROCEDURAL BACKGROUND

Jean Nacozy (Jean) lived alone in her Mission Valley condominium.   Jean's daughter lives in Los Angeles, and one son lives in Texas.¹  Jean's other son, Frank Nacozy (Frank), who also resides in San Diego, visited and telephoned Jean on a frequent basis.   Although Jean was 76 years old, she had not been declared incompetent, nor did she have a guardian appointed to handle her affairs.   Frank did, however, lend assistance to Jean on a regular basis.

On September 30, 1986, at about noon Frank left his work and went to Jean's condominium to pick her up for a dental appointment.   Jean lived on the second story of the condominium complex.   Frank held Jean's arm and walked with her down to the first level of the complex.   After reaching the first level, they walked toward the parking lot.   Jean instructed Frank to bring the car around and pick her up.   Frank left Jean standing on a stairway consisting of four steps and two handrails between the first level and the parking lot.

As Frank walked toward his car, he turned around and saw Jean lying on the sidewalk at the bottom of the steps.   He did not see her fall.   Frank went to Jean's aid.   He examined her.   She appeared somewhat dazed at first, but he saw no visible signs of injury.  (Frank had no medical training.)   Although a neighbor went to call paramedics, Jean did not want to be taken to the hospital and requested she instead be taken to her dental appointment.   Frank complied with her wishes.

After the dental appointment, Frank took Jean back to her condominium and spent a couple of hours there with her.   At approximately 3 p.m., Jean went to bed and Frank went back to work.   During the afternoon, Frank telephoned Jean from work a few times, but did not get any answer.

At about 7 p.m. that evening, Frank returned to Jean's condominium and there found her unconscious.   Frank called the paramedics who took Jean to the hospital.   Jean lapsed into a coma caused by a subdural hematoma.   There were no visible signs of this injury, and it required a neurological examination and X-ray to ascertain the existence of the injury, which was in no way discoverable by Frank.   Jean never recovered, and she died on February 5, 1987.

George Marhoefer, special administrator of Jean's estate, Priscilla Marhoefer and Paul Nacozy later filed a first amended complaint for damages for personal injuries,² asserting Frank was under a duty to protect Jean, and also negligently failed to provide medical care.   Frank answered the complaint, and his motion for summary judgment, asserting he owed no duty to Jean, was granted on June 14, 1990.

STANDARD OF REVIEW

“A summary judgment may be granted only if no material triable issue of fact exists.   The moving parties' affidavits must set forth facts entitling them to a judgment as a matter of law.”  (Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 503, 238 Cal.Rptr. 436;  Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.)  “Designed to resolve litigation by avoiding needless trials [citation], the purpose for summary judgment ‘is to penetrate evasive language and adept pleading and to ascertain by means of affidavits, the presence or absence of triable issues of fact’ [citation].”  (Tollefson v. Roman Catholic Bishop (1990) 219 Cal.App.3d 843, 852, 268 Cal.Rptr. 550, quoting Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   Where there are no triable fact issues and the parties' contentions involve questions of law alone, summary judgment is proper.  (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 503, 238 Cal.Rptr. 436;  Ferrell v. Southern Nevada Off–Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 313, 195 Cal.Rptr. 90.)

Consequently, the trial court's role in ruling on a motion for summary judgment is strictly confined to determining whether material issues of fact exist, and not to deciding the merits of any of those issues.  (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   Finally, “ ‘[i]n examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.’ ”  (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851–852, 94 Cal.Rptr. 785, 484 P.2d 953, quoting Stationers Corps. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)   In actions founded on negligence, whether a duty exists in a particular case is, of course, a question of law.   (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

DISCUSSION

This is an action between family members for asserted negligent conduct by a son towards his mother.   As has been observed, “[f]ew topics in the law of torts have proved to be more difficult.   This is true particularly ․ where the question is as to the civil liability of [family members], ․ to one another․   Here there is waged a battle between conflicting conceptions of the family and between ideas of individual and relational rights and duties.”   Prosser and Keeton on Torts (5th ed. 1984) section 122, page 901.  “As plaintiffs themselves recognize, the crucial issue is whether [defendant] had a legal duty to protect [the decedent] from harm.   The first amended complaint does not set forth facts which give rise to such a legal duty, based on either general negligence principles or on the existence of a special relationship.”   (Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1012, 272 Cal.Rptr. 222.)   In this case also the complaint is insufficient so far as it relies on the existence of a claimed “special relationship” between an adult child and a parent, but the grant of summary judgment was erroneous in light of other allegations.

I. SPECIAL RELATIONSHIP

 The general rule as to the duty to assist another is set forth in Restatement Second of Torts section 314:  “The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.”   There is, in short, no general duty to come to the rescue of another absent the existence of a special relationship between the parties.

Comment (b) to Restatement Second of Torts section 314 A ³ (“Special Relations Giving Rise to Duty to Aid or Protect”) “state[s] exceptions to the general rule․   The duties stated in this Section arise out of special relations between the parties, which create a special responsibility, and take the case out of the general rule.   The relations listed [see fn. 3, ante ] are not intended to be exclusive, and are not necessarily the only ones in which a duty of affirmative action for the aid or protection of another may be found.   There may be other such relations, as for example that of husband and wife [or parent and child], where the duty is recognized by the criminal law, but there have as yet been no decisions allowing recovery in tort ․”  (Italics added.)

The only relevant parent-child duty “recognized by the criminal law” in California is the duty to support an indigent parent set forth in Penal Code section 270c.⁴  No question as to such duty is here involved;  instead the argument comprehends a different duty, and one unknown to the criminal law:  the affirmative duty to come to the aid of another.

An analogous question was presented in Megeff v. Doland (1981) 123 Cal.App.3d 251, 176 Cal.Rptr. 467.   There it was urged that a daughter had a “special relationship” with her father because she had assumed his custody and control over his conduct, and was therefore liable to third persons injured by the father's conduct.⁵  (Id. at p. 256, 176 Cal.Rptr. 467.)   The court found that the daughter had no legal authority over her father, and “lacked both the ability of control and the concomitant legal responsibility.   There being no triable issue of material fact as to duty, summary judgment was properly granted.”  (Id. at p. 261, 176 Cal.Rptr. 467.)

 Thus we derive the resolution of the contention advanced by the other children against Frank, that he should be held to an affirmative duty by reason of the “special relationship”.⁶  In this case, as in Megeff, supra, the adult child was in no sense a legal custodian of the parent, and thus lacked authority over the conduct of the parent.   Because an asserted duty based upon a “special relationship” requires that we find either breach of a statute, which is not present, or custodial authority, which is also absent, there is no triable issue of material fact as to the existence of a duty of affirmative action based upon the “special relationship” of parent and child.   Because no such duty exists here, summary judgment was proper on this issue.

II. DUTY OF ADULT CHILD TO PARENT

Absent a “special relationship”, what then is the nature of the duty owed to a parent by an adult child who is providing assistance to the parent?   Again, no reported cases address this question.   We must therefore consider analogous matters, analyzing them in light of the policy concerns which are necessarily present in any discussion of these questions.⁷

The California Supreme Court in Gibson v. Gibson (1971) 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 overruled Trudell v. Leatherby (1931) 212 Cal. 678, 300 P. 7, which had decided an unemancipated minor could not sue a parent for negligence.   In reversing this holding the court pointed out that “[t]he threat to parental authority and discipline is the only one of the traditional arguments for immunity which was not fully answered by [earlier decisions of the court].”  (Gibson v. Gibson, supra, 3 Cal.3d at p. 920, 92 Cal.Rptr. 288, 479 P.2d 648.)

This matter involves the converse question:  in an action by a parent against an adult child, does a broadly-stated liability dissolve natural bonds of affection and care between child and parent to the point that a more particularized standard should apply?   Given “the general rule of liability” (Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 891, 193 Cal.Rptr. 733), this question may seem anachronistic.   In a rapidly aging population such as ours, however, this consideration is far from trivial.

Here the Gibson case offers useful guidance on parent-child liability:  “The standard to be applied is the traditional one of reasonableness, but viewed in light of the parental role.   Thus, we think the proper test of a parent's conduct is this:  what would an ordinarily reasonable and prudent parent have done in similar circumstances?”  (Gibson v. Gibson, supra, 3 Cal.3d at p. 921, 92 Cal.Rptr. 288, 479 P.2d 648, italics in original.)

 This standard is equally applicable to the question before us.   The standard to be applied in cases involving the duty of an adult child to his aged parent should also be “the traditional one of reasonableness, but viewed in light of the [filial] role.”   The proper test to be applied is this:  what would an ordinarily reasonable and prudent son or daughter have done with respect to the parent in such circumstances?

 Under this view, Frank is held only to the ordinary duty of care owed by one human to another, with the proviso that this duty be “viewed in the light of [Frank's] role” as Jean's son, rather than as a stranger.   In practical terms, this means Frank's actions with respect to his mother should of course be reasonable, but the reasonableness of his actions must also be judged in light of the fundamental fact that he is Jean's son.

As one example, a stranger coming to the aid of a fallen elderly person who appeared confused and disoriented might reasonably be required to summon medical aid, while a child, with superior knowledge of the prior condition of the victim, might instead reasonably determine the parent's condition was in fact normal, no apparent injury was suffered, and thus there was no need to summon medical assistance.   We decline to impose a higher standard in these matters because we do not believe public policy is properly served by making adult children the involuntary trustees of their parents' continuing welfare.

The contrary position, that children are in effect to be guarantors of the well-being of their parents, however aged and infirm, would have most pernicious consequences.   Nothing could be worse than the spectacle of an elderly parent whose children feared to provide the support, care, and affection required by nature, lest they be held liable for the consequences, however faintly related, of any adverse alteration at all in their parent's condition, just as Jean's other children here seek to hold Frank liable for not having taken some alternative action which in hindsight might have resulted in a different outcome.⁸

This court has, long ago and in a different context, set forth a view strongly supportive of this position.  “Upon what basis can there be attached to the necessity of lifelong care a legal relationship different from that attaching to casual or temporary assistance by a [son or daughter]?   We apprehend none.   If the conduct in question is solely related to and arises out of the natural and expected amenities between [child and parent], public policy would suggest the undesirability of requiring the [family members] to evaluate the possible legal effect of such conduct on each occasion.”  (Workman v. City of San Diego (1968) 267 Cal.App.2d 36, 40, 72 Cal.Rptr. 509.)   That holding applies with even greater force to the matter now before us.

III. SUMMARY JUDGMENT

 Insofar as Frank's asserted liability was founded upon the existence of a “special relationship”, summary judgment was proper.   It was also alleged, however, that Frank was negligent in not obtaining medical care for Jean after her fall.   Supporting this allegation are the declaration of the plaintiff concerning the state of Jean's health, and the deposition testimony of one of Jean's neighbors who attempted to assist her after the fall.   When “the affidavits of the moving party are strictly construed and those of his opponent liberally construed”, we are unable to agree with the trial court's conclusion that no material triable issue of fact exists.   Therefore, Frank was not entitled to summary judgment.

DISPOSITION

The judgment is reversed.

Because there are triable factual issues I agree we must reverse the summary judgment.   In my view doing so here does not require us to deal in such broad terms with the question of a child's duty to his or her parent[s] in circumstances other than on the facts contained in the record before us.

Frank agreed to take his mother to her dental appointment.   There is no question he had to be careful in driving her there.   It should also be clear that he had to act reasonably when he left her unattended on the stairs.   Whether he did so is an unresolved factual question.

George Marhoefer's declaration explains that his grandmother had a number of problems not the least of which was her drinking and cardiac arrythmia.   He had frequently observed her suffering shortness of breath, dizziness and loss of equilibrium.   His declaration therefore raises the factual issue whether Frank acted reasonably in leaving his mother at the top of the stairs where if she got dizzy she would tumble down.   Thus even though conceptually there may be no duty for a child to chauffeur an elderly parent for medical or dental care, once assuming that burden a child must act in a reasonable manner.   Accordingly here regardless of the abstract question of duty we must reverse the summary judgment.

FOOTNOTES

FOOTNOTE.  

1.   Priscilla Marhoefer, her son George as administrator of Jean's estate, and Priscilla's brother Paul Nacozy are the plaintiffs in this action against the other brother.

2.   The causes of action are a survivor's action (Prob.Code, § 573) and wrongful death (Code Civ. Proc., § 377, subd. (a)).

3.   “(1) A common carrier is under a duty to its passengers to take reasonable action“(a) to protect them against unreasonable risk of physical harm, and“(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.“(2) An innkeeper is under a similar duty to his guests.“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.“(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”

4.   Penal Code section 270c states in part:  “[E]very adult child who, having the ability so to do, fails to provide necessary food, clothing, shelter, or medical attendance for an indigent parent is guilty of a misdemeanor.”Here, of course, the predicate for any liability whatsoever is indigency, and whatever the state of Jean's finances (see fn. 8, infra ) she was not “an indigent parent”.

5.   Here, of course, the injury was to the parent as to whom the “special relationship” is urged rather than a third person, but this distinction does not make a difference in the analysis.

6.   “Special relationships, which remove bystander status and invoke a duty to rescue or protect, are often based on economic considerations․”  Stangle v. Fireman's Fund Ins. Co. (1988) 198 Cal.App.3d 971, 975, 244 Cal.Rptr. 103.   As the list of “special relationships” set forth in footnote 3, ante demonstrates, the economic benefit typically conferred by the victims gives rise to the higher standard of care by the business recipients of those benefits.   Nothing in the commercial model of these relationships has to do with the care of a child for a parent.

7.   “The question of negligence ․ is more accurately analyzed when the word ‘duty’ is eliminated, with the focus solely on the issue of whether liability should be imposed.   This issue, in turn, is best analyzed by determining whether public policy considerations justify making an exception to the general rule of liability.  [Citations.]”  (Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 891, 193 Cal.Rptr. 733, italics added.)

8.   The heart of the complaint herein is that Jean's estate has been diluted by the expenses associated with caring for her in the coma.   The discussion is also heavily colored by other complaints about the transfer of assets from Jean to Frank.   In these cases there will always be a tension between the extremes of providing all possible medical care at every instance, in which case the other heirs will later seek to charge the care providing child for those expenditures as unnecessary, and failure to provide enough medical attention, in which case the other heirs will seek damages from the care providing child to compensate for the loss of the parent's society and affection.  (Cf. Mace et al., “The 36–Hour Day” (1981) pp. 203–216.)   All of these matters seem more properly resolved in a probate action rather than in a suit for tort liability, and we note the pendency of precisely such an action involving these parties.

RODRIGUEZ, Associate Justice Assigned.* FN* In denying review, the Supreme Court ordered that the opinion be not officially published.

HUFFMAN, J., concur.