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Sunday, February 1, 2009

No Immunity for father in death of 4 year old who was left strapped in smoke filled car Thorpe v. Wiggan


DOCKET NO. A-1995-07T2









Argued September 29, 2008 - Decided

Before Judges Carchman, R. B. Coleman and

On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-

Jack Wurgaft argued the cause for appellant
(Javerbaum Wurgaft Hicks Kahn Wikstrom &
Sinins, attorneys; Mr. Wurgaft, of counsel
and on the brief).

Stephen O. Mortenson argued the cause for
respondent (Mortenson & Pomeroy, attorneys;
Mr. Mortenson, of counsel and on the brief;
Karen E. Heller, on the brief).


January 29, 2009

January 29, 2009
The opinion of the court was delivered by
This matter involves the tragic death of a four-year-old
child, Joseph Wiggan (Joseph), who burned to death while a
passenger in a car driven by his father, defendant Jasford
Wiggan. Joseph's mother, plaintiff Hyacinth Thorpe,
administratrix ad prosequendum and general administratrix of the
child's estate, sought damages against defendant for negligence
in failing to remove his son from the car before the fire
started.1 Plaintiff appeals from the November 28, 2007 order
granting defendant's motion in limine dismissing her complaint
with prejudice pursuant to the doctrine of parental immunity.
We reverse and remand for trial.
The following facts are summarized from the record. On the
evening of June 17, 2004, at approximately 9:00 p.m., defendant
was driving his 1993 BMW westbound on Route 78 in Springfield.
Joseph was secured in a child's safety seat directly behind the
driver's seat. There are differing versions of how the incident
occurred. In one version, defendant allegedly stated the

Plaintiff abandoned her claims against defendant for negligent
maintenance and/or operation of the car and for negligence in
causing the fire. She also voluntarily dismissed with prejudice
her claims against defendant BMW of North America, LLC.
following to a State Police detective during a telephone
conversation on October 6, 2005:
[Defendant] informed this detective
that he had been traveling west on [Route
78.] He began to notice that his car was
emitting smoke. He heard "2 bangs," & he
smelled the smoke also, so he pulled his
vehicle over to the right shoulder. He then
got out & walked around the vehicle to
check, but was unable to determine from
where the smoke was coming. But there was
smoke inside the passenger compartment, &
then suddenly there was a lot of smoke &
there was fire in the back. He opened the
door to try to reach [his] son, but there
was so much smoke. [He] couldn't get him
out. [He] kept trying. It was so hot & so
much smoke. Then [he does not] know what
happened. Some people stopped but [he]
guess[ed] nobody could help. [He] wound up
in the hospital. [He] got burned.

In another version, defendant testified at his deposition
on February 28, 2007 that while driving in the middle lane of
Route 78 westbound, he heard two bangs from underneath the car
or the trunk and smelled smoke. He then saw smoke inside the
car. Believing that a tire might be the cause, he opened his
window. The car then "blew up in flames." He reached into the
back seat, tried to pull Joseph from the car seat but was
unsuccessful. He then pulled the burning car to the shoulder,
parked, ran to a bush and rolled to put out the fire on his
body. By the time he returned to the car, Joseph was dead.
Defendant suffered third-degree burns over thirty-seven
percent of his body. He had prolonged treatment at the Burn
Unit of St. Barnabas Medical Center, including many weeks in a
medically-induced coma. Investigators subsequently determined
that the fire originated beneath the driver's seat, spread to
the center console and then spread to the passenger and back
seat areas. There is no evidence that the fire was set
intentionally. The exact cause of the fire is unknown.
Plaintiff conceded that she has no claim against defendant
under the deposition version, and no claim for willful and
wanton conduct. Plaintiff's only claim lies under the State
Police version, which she contends constitutes ordinary
negligence. Defendant stipulated to that version for the
purpose of the in limine motion. He argued that his decision to
leave his son in the car, away from the dangers of the highway,
while he inspected the vehicle was a legitimate exercise of his
discretion as a parent supervising his child, thus entitling him
to parental immunity. The motion judge agreed, concluding that:
[U]nder the facts known to [defendant]
at the time, his choice was, the decision he
had to make was how to care for his child
when the car was disabled on the highway at
night. He had a choice and that's clearly
what the issue is here that's been
[narrowed] by the parties. The choice was
what was he to do. Should he have removed
the child immediately at that time? Or
should he check out the car, the noises, and
the smoke that he was aware of before
removing the child? That's basically the
issue here. Which choice was he to make?
And it seems to me that this is similar to
[DeMarco v. DeMarco, 274 N.J. Super. 257
(Law Div.), aff’d, 274 N.J. Super. 210 (App.
Div.), certif. denied, 138 N.J. 264 (1994)]
in which this is the situation in which the
parent must be allowed to exercise their
discretion and make a choice even if it's
the wrong choice.

So there being no willful or wanton conduct
that would remove the actions of [defendant]
from [] parental immunity here, it appears
to me that this was an exercise of judgment
on his part. Perhaps he would now wish that
he could go back and make a different
decision, but I [] think that this falls
within the area of circumstances where there
should be no judicial intrusion upon his

On appeal, plaintiff contends that defendant's decision to
leave Joseph in the car had nothing to do with providing for the
child's emotional and physical needs or fostering the child's
care and well-being. Rather, defendant negligently supervised
Joseph by failing to remove him from the car prior to the time
the fire started.
"[T]he doctrine of parental immunity . . . preclude[s]
liability in cases of negligent supervision, but not for a
parent's willful or wanton failure to supervise his or her
children." Foldi v. Jeffries, 93 N.J. 533, 549 (1983). "There
are certain areas of activities within the family sphere
involving parental discipline, care, and control that should and
must remain free from judicial intrusion. Parents should be
free to determine how the physical, moral, emotional, and
intellectual growth of their children can best be promoted."
Id. at 545. For this reason, the doctrine only applies, "in
special situations that involved the exercise of parental
authority and customary child care." Id. at 551. Thus, where
willful and wanton conduct is not at issue, the immunity will
only apply if a defendant's conduct "implicates customary child-
care issues or a legitimate exercise of parental authority or
supervision." Buono v. Scalia, 179 N.J. 131, 138 (2004) (citing
Foldi, supra, 93 N.J. at 549). "[A]ny conduct that does not
reflect a legitimate child-rearing decision is excluded from the
immunity doctrine altogether, preserving in all respects a
traditional negligence claim." Id. at 145. "Ultimately,
whether conduct implicates parental decision-making . . . will
depend on the totality of circumstances in a given case, subject
to a fact-sensitive analysis by the trial judge and, when
warranted, by a jury." Id. at 138.
There being no claim here of willful or wanton conduct, the
only question is whether, under the totality of circumstances,
defendant's decision to leave Joseph in the car implicates
customary child-care issues or a legitimate exercise of parental
authority or supervision. A legitimate child-rearing decision
existed where a parent decided to let his young child ride a
bicycle within the confines of a neighborhood block party in the
parent's presence. Id. at 134. Our Supreme Court held that
such a decision "falls within the purview of parental philosophy
involving a child's upbringing, entitling [the parent] to
immunity as a matter of law[,]" and "'falls within the realm of
activities which partake of the everyday exigencies of regular
household existence [] that [should be] exempted from simple
negligence liability[.]'" Id. at 141-42 (quoting Foldi, supra,
94 N.J. at 550). However, the Court cautioned that "[c]rossing
a street, driving a car, and a multitude of similar activities
simply do not implicate legitimate child-rearing issues and,
therefore, fall outside the purview of the immunity doctrine."
Id. at 141.
Likewise, we have found a legitimate child-rearing decision
in a number of cases. See Horn v. Price, 255 N.J. Super. 350,
354 (App. Div. 1992) (a mother’s decision whether it was
appropriate for her child to leave the mother's vehicle "clearly
involved parental supervision as [the mother] was in the best
position to know the limitations and capabilities of her own
child") (citing Foldi, supra, 93 N.J. at 546); DeMarco, supra,
274 N.J. Super. at 263 (a mother's decision to continue driving
her daughter to a crisis center for treatment instead of
stopping the car when the daughter threatened to jump from it
was a decision "made in [the mother's] capacity as a parent as
to how best to care for her child's emotional needs at the
time[,]" and involved "an essential element of providing
customary child care[,] which should be free from judicial
intrusion."); Verni v. Harry M. Stevens, Inc., 387 N.J. Super.
160, 214 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007)
(a parent's decision to remove a child from a car seat because
the child was ill and soiled her clothing constituted "the type
of ordinary child care decision a parent must make every day.")
Conversely, in France v. A.P.A. Transport Corp., 56 N.J.
500, 507 (1970), our Supreme Court did not find a legitimate
child-rearing decision where two children were injured in an
automobile accident while passengers in their father's car. Id.
at 502. The Court recognized that "there may be areas involving
the exercise of parental authority and care over a child which
should not be justiciable in a court of law." Id. at 507.
However, the Court concluded that parental immunity does not
shield a parent for injuries a child suffers "as a result of the
negligent operation of a motor vehicle." Ibid.
We found no legitimate child-rearing decision in Mancinelli
v. Crosby, 247 N.J. Super. 456 (App. Div. 1991). There, a
seven-year-old child, accompanied by her mother, was permitted
to cross a busy street in the middle of the block away from the
crosswalk. Id. at 458. The child sustained injuries when
struck by a car. Ibid. Applying the Foldi analysis, we
concluded that the mother's negligence was not protected by
parental immunity, holding that:
This was not a matter of customary
child care, discipline or supervision. This
was simple, garden-variety negligence by the
parent which exposed both the parent and the
child to injury. Although [the mother] may
have literally exercised parental authority
in transporting her child across the street,
this is not the sort of exercise of parental
authority in child-rearing intended for
protection by the parental immunity

. . . .

This case simply involves a mother's
negligence in attempting to cross a street
with a child at a dangerous location without
making proper observation. Denial of
parental immunity in this action does not
constitute judicial intrusion into a
parent's philosophy of child rearing[,] but
only simple recognition of the parent's
breach of a duty of due care which we all
generally owe to both ourselves and others
in the community.

[Id. at 461.]

In Murray by Olsen v. Shimalla, 231 N.J. Super. 103 (App.
Div. 1989), a ten-year-old boy sued his father for injuries
incurred by the igniting of gasoline obtained from the father’s
unlocked storage shed. Id. at 105. Based on the evidence, we
concluded that parental immunity applied if the jury found that
the father negligently exposed his son to the risk of injury
from the misuse of gasoline, by permitting the child access to
and use of the gasoline for his ATV without parental
supervision. Id. at 108-09. Conversely, we concluded that
parental immunity did not apply if the jury found that the
father negligently exposed children, including his son, to the
risk of injury when he stored gasoline in an unlocked shed. Id.
at 109-10.
Applying the Foldi analysis, we conclude that defendant's
conduct is not protected by parental immunity. Under the
version of the facts stipulated for the purpose of the in limine
motion, defendant left his four-year-old child in a smoke-filled
car, strapped in a car seat with no way of escape, exposing him
to injury. This was not a matter of customary child care,
discipline or supervision. It had no connection whatsoever to
any unique philosophy of child-rearing, nor was it designed to
promote Joseph's physical, moral, emotional, and intellectual
growth. This case simply involves a father exposing his son to
the risk of injury by not removing him from the car before the
fire erupted. Whether or not defendant's conduct constitutes
negligence is for a jury to decide.
Reversed and remanded for trial.