Shoemake v. Fogel, Ltd. - 826 S.W.2d 933 (Tex. 1992)

Rule:

A defendant's claim of contribution is derivative of the plaintiff's right to recover from the joint defendant against whom contribution is sought.

Facts:

One month before her second birthday, Miranda Gilley nearly drowned in the swimming pool at her apartment complex. The child was rescued and temporarily revived, but four months later died from the injuries she had suffered. Her mother, Janet Shoemake, then brought the present suit against the apartment complex owners, Fogel, Ltd. A.T. and Federal Group I, and the apartment complex manager, International Property Management, Inc. In addition to seeking damages in her own capacity for wrongful death, Shoemake brought a survival action in her capacity as representative of the child's estate. The jury awarded $ 285,492.28 to Shoemake on her wrongful death claim, and $ 50,969 to the child's estate in the survival action. Considering the negligence that caused the near-drowning, the jury attributed a total of fifty-five percent to the Fogel defendants, and the remaining forty-five percent to Janet Shoemake. As to the wrongful death action, the trial court reduced Shoemake's recovery by forty-five percent, in accordance with the findings on comparative negligence. In connection with the survival action, Fogel argued that a similar result should obtain. The trial court rejected Fogel’s argument and rendered judgment for the estate in the full amount of the jury verdict, along with pre-judgment interest. The court of appeals reversed, holding that the requested contribution was available under sections 33.012 and 33.016 of the Texas Civil Practice and Remedies Code. Shoemake appealed, arguing that Fogel was barred from contribution against Shoemake, because the doctrine of parental immunity barred Miranda Gilley’s estate from recovering damages against Shoemake. 

Issue:

Did the doctrine of parental immunity bar Miranda Gilley’s estate from recovering damages against Shoemake? 

Answer:

Yes.

Conclusion:

The court reversed the court of appeals and affirmed the trial court, holding that Shoemake could recover the entire amount awarded by the jury without judgment being reduced by a percentage of Shoemake’s contributory negligence. The court held that based upon the defense of parental immunity, the child, if alive, could not have recovered against Shoemake, and Fogel was not allowed to an offset based upon Shoemake’s contributory negligence under Tex. Civ. Prac. & Rem. Code §§ 33.012 and 33.016.