For reasons set forth below, this Court prefers to adopt the more modern approach of the Restatement (Second) of Torts § 895(g) (1977), which simply recognizes that in limited circumstances a parent is privileged from liability with respect to certain causes of action. Among those causes of action for which a parent is privileged is a claim of negligent supervision, a cause of action that is not recognized at law in the State of South Dakota.
On the day of the accident, Jeremiah was accompanying his father, Brad Brunner on the Brunner farm. Jeremiah's mother, Laurie Brunner, was ill and unable to care her son at that time so the responsibility of supervising Jeremiah fell to Brad Brunner, who brought the boy to the truck and sat with him in the cab while the augers were operating. Brad Brunner was under no time constraints to move the grain immediately. During the course of the unloading, he found it necessary to leave the truck to inspect the operation of the augers. Before leaving the truck, Brunner told the boy to stay in the truck, so he locked the doors and walked over to where the sweep auger was operating to determine that everything was operating properly. Brad Brunner entered an adjoining grain bin, losing visual contact with the truck and his son. Upon exiting the bin, Mr. Brunner found Jeremiah standing near the portable grain auger, and had already suffered a traumatic amputation of the right hand. Third-party defendants have made a motion for summary judgment alleging that Lear-Siegler is barred by the doctrine of parental immunity from bringing a contribution claim against Jeremiah's father and his business partnership. Lear-Siegler defends against the summary judgment motion on the grounds that the State of South Dakota has never recognized the doctrine of parental immunity, and, to the contrary, has statutorily mandated access to the courts to all persons. As a result, Laure Brunner filed a suit on behalf of Jeremiah against Hutchinson Division, Lear-Siegler, Inc. Lear-Siegler subsequently filed a third-party complaint seeking indemnity and/or contribution from third-party defendants Brad Brunner and H.L. Brunner & Sons.
Was the third-party complaint against Brad Brunner proper?
The Court was not persuaded that the conduct of third-party defendant Brad Brunner on the day of the injury transgressed the boundaries of the privilege accorded acts of parental authority and discretion. Defendant nowhere alleges that Brad Brunner acted willfully or maliciously toward Jeremiah, but instead attempts to distinguish Brunner's supervision of Jeremiah as being different from mere negligence on the grounds that the father "physically brought" his son into a dangerous area. Whether an act is one involving a discharge of parental authority and discretion does not rest upon the presence or absence of an affirmative act on the part of the parent. If such were the case, then any parent who takes a child to a playground and lets the child play upon such potentially hazardous equipment as a tall slide or a teeter-totter would be open to suit either directly or upon contribution. It simply becomes all too easy to circumvent the parental privilege by characterizing the parent's conduct as an affirmative step toward placing the child in danger. The fact that Jeremiah Brunner was in his father's company for purposes of supervision sufficiently implicates functions of parental authority and discretion as to fall within that privilege.