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Click here for the full text of this decision FACTS:While married, Amy A. McCullough and Richard A. Godwin had a son, Kaleb, on Nov. 21, 1995. McCullough and Godwin divorced in October 1997. By the final divorce decree, McCullough and Godwin were named joint managing conservators of Kaleb. McCullough was awarded possession of Kaleb. On Friday, June 27, 2003, Godwin picked up Kaleb from McCullough to exercise his visitation rights. On Sunday, June 29, 2003, Godwin and Kaleb traveled to Brandon M. and Shellie S. Stairs’ home for a planned outing on Cedar Creek Lake. Once at the lake, this group and others traveled by boat to Jet Boat Cove. Godwin traveled to the cove in a boat owned by his friend Kevin Hazelip. Kaleb traveled to the cove in the Stairs’ boat. Early that afternoon, the group, which also included Godwin’s friend Mark Johannesen and his two minor children, arrived at the cove. The boats anchored, and Godwin left Hazelip’s boat and waded over to the Stairs’ boat. Godwin removed Kaleb from the Stairs’ boat and took off the flotation vest that Kaleb wore. Kaleb swam and played on the shore and in the water at the cove along with several other children. Meanwhile, Godwin and others visited with one another, listened to music and consumed alcoholic beverages. The children congregated near the Stairs’ boat and played on and around an inflatable water toy brought by the couple. Kaleb and the other children were playing a game they called “shark,” where the children would place themselves inside the open portion of the tube while the tube was upside down. At one point, Godwin, who had also used the tube, instructed Kaleb to stop playing “shark,” because Godwin could not see Kaleb. Approximately one hour after the time he was last seen by anyone, Shellie Stairs discovered Kaleb’s body beneath the surface of the water. His upper torso had become ensnared between the tube and the nylon cloth while the tube was upside down. Although kept on life support for some time afterward, Kaleb later died. McCullough sued Godwin and the Stairs on Oct. 10, 2003, asserting wrongful death, survival, negligence and gross negligence causes of action, and seeking compensatory and exemplary damages. Subsequently, Godwin and the Stairs all filed motions for summary judgment. In his motion, Godwin claimed that the parental immunity defense barred McCullough’s action. In their motion, the Stairs argued that they had no duty to supervise Kaleb, because Godwin was in possession of Kaleb at all times. Alternatively, the Stairs argued that McCullough had no evidence to support that they owed Kaleb a legal duty. The Stairs further argued that McCullough’s claims do not satisfy the elements for exemplary damages. McCullough responded to the defendants’ motions. Subsequently, McCullough amended her petition and alleged additional duties owed by the defendants to Kaleb apart from a duty to supervise. Ultimately, the trial court granted Godwin’s and the Stairs’ respective motions for summary judgment. McCullough appealed. HOLDING:Affirmed. The elements of the parental immunity defense are: 1. the plaintiff is an unemancipated minor; 2. the defendant is the plaintiff’s parent; 3. the defendant was exercising parental authority or discretion; 4. the defendant was negligent in exercising the parental authority or discretion; and 5. the defendant’s negligence caused the plaintiff to suffer personal injury. Texas courts have specifically held that the doctrine does not apply: 1. when a parent commits a willful, malicious or intentional wrong against a child or abandons or abdicates his parental responsibility; 2. when the act complained of arises outside of a normal family relationship of a parent to a child, such as a business activity in which the child is the employee and the parent is the employer; and 3. when damages are caused to the child by the parent’s negligently operating a motor vehicle. On the other hand, parents have immunity from their child’s cause of action for injuries arising out of essentially parental activities involving issues of supervision, discipline, provision of a home, provision of food, schooling, medical care, recreation and family chores. The court found that Kaleb’s case appears to fit the doctrine. The record indicates that 1. 7-year-old Kaleb was an unemancipated minor; 2. Godwin was Kaleb’s father; 3. Godwin was supervising Kaleb during recreation, a parental activity; 4. Godwin was allegedly negligent in his supervision of Kaleb during this activity; and 5. Godwin’s alleged breach of his duty of care contributed to Kaleb’s death. McCullough argued that her summary judgment proof raised a fact issue concerning whether Godwin abandoned and abdicated his parental duty. McCullough alleges that Godwin was intoxicated in spite of language in the divorce decree prohibiting the consumption of alcohol during periods of visitation. McCullough further cites evidence that Godwin did not make any provision for Kaleb’s health and safety by providing sunscreen, a life vest or supervision while Kaleb played on the water toy. But McCullough, the court stated, cited no authority supporting her claim that such actions amount to abandonment and abdication of parental responsibility. The court stated that Godwin’s behavior did not constitute desertion or abandonment. Similarly, the court dismissed McCullough’s argument that Godwin’s negligence and gross negligence rose to the level of malice, another exception to the parental immunity doctrine. In addition, the court stated that the issue of abandonment and abdication of Godwin’s parental duties is not an element of the parental immunity doctrine, but rather an exception thereto. Thus, the court held that Godwin was not required to negate pre-emptively exceptions to the parental immunity doctrine. The court also rejected McCullough’s argument that the parental immunity doctrine is unconstitutional. As for McCullough’s claims against the Stairs, the court found no evidence that they were aware that Godwin was not supervising Kaleb. As such, the court concluded that the couple reasonably could have relied on the fact that Godwin would adhere to his fundamental statutory duty of care, custody and protection with regard to Kaleb. Thus, in spite of the Stairs’ knowledge of the inherent risks of boating and the warnings imprinted on the inner tube, the court held that a reasonable person under the circumstances would not foresee that a child, whose parent was present and had a duty of care with regard to that child, would suffer a fatal injury while playing on an inner tube floating in approximately 3 feet of water. OPINION:Worthen, C.J.; Worthen, C.J., Griffith and Hoyle, J.J.

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