Gosnell v. Middlebrook

Guernsey, J. On March 10, 1987, plaintiffs John L. Gosnell and his wife, Lori A. Gosnell, filed their complaint in the Marion Municipal Court for Marion County, seeking to recover damages relating to injuries alleged to have been received by John L. Gosnell by reason of the deliberate and intentional acts of “the defendants.” Joined as defendants were Darren Middle-brook and Terren Middlebrook, both minors, and Gloria Lawhorn and Ronald Lawhorn, alleged to be their custodial parents having custody and control of the minors during all times material to the complaint. Before the matter went to trial on the issues joined the trial court rendered summary judgment against the plaintiffs and for defendant Ronald Lawhorn based on his motion and his affidavit to the effect that he is not the parent of the minor defendants, they being the children of his wife by her former marriage. Plaintiffs filed no evidentiary documentation permitted by Civ. R. 56 to the contrary. The trial court found that the statutoiy liability of parents under R.C. 3109.10 is in derogation of common law, that the statute must be strictly construed, and that pursuant to the “plain meaning” thereof, defendant Ronald Lawhorn was entitled to summary judgment, which is thereupon rendered, certifying that there is no just reason for delay. It is from this judgment that the plaintiffs appeal, their sole assignment of error being error of the trial court in granting summary judgment “for the reason that a ‘step-parent’ is a ‘parent’ within the meaning of R.C. Sec. 3109.10.” The statutory liability, if any, of parents for the torts of their minor children is set forth in R.C. 3109.10, in the following words: “Any person is entitled to maintain an action to recover compensatory damages in a civil action, in an amount not to exceed two thousand dollars and costs of suit in a court of competent jurisdiction, from the parents who have the custody and control of a child under the age of eighteen, who willfully and maliciously assaults the person by a means or force likely to produce great bodily harm. * * *” Although the plaintiffs have cited two cases from other jurisdictions in support of their claim that a stepparent is subject to such liability, we find neither case applicable here. Instead we are constrained, as was the trial court, by the pronouncement of the Supreme Court in Motorists Mut. Ins. Co. v. Bill (1978), 56 Ohio St. 2d 258, 261, 263, 10 O.O. 3d 398, 399,400, 383 N.E. 2d 880, 882, 883: “Under the common law, parents were not held liable in damages for the torts of their minor children simply because of the parent-child relationship. * * * *94 “Over the years, many states, including Ohio, have enacted statutes in derogation of the common law which have imposed upon parents legal responsibility for the consequences of the tortious acts of their children which resulted in damages to others. [[Image here]] “* * * However, we believe it to be the general view that these laws having been enacted in derogation of the common law, and having not been enacted primarily as a remedial measure, but equally as a form of penalty, courts should construe the liability to be imposed upon the parents in a strict, rather than a liberal, manner. * * *” We know of no place in Ohio law where the mere fact of marriage to a child’s natural parent gives to a person not a natural parent any rights of custody or control, or imposes upon that person obligations of support or responsibility with respect to a child of the natural parent. In our opinion strict construction of R.C. 3109.10 requires that the word “parents” in the first sentence thereof be limited in its application to the natural parents of the minor child whose tort is involved. We are of the further opinion that in the light of the words of the statute even liberal construction would not permit the word “parents” therein to be extended to a stepparent not shown to have any legal right of custody or obligation of control over the minor child involved. Accordingly, we find no merit to the assignment of error and conclude that the judgment must be affirmed. Judgment affirmed. Miller, P.J., and Cole, J., concur. J. Thomas Guernsey, J., retired, of the Third Appellate District, was assigned to active duty pursuant to Section 6(C), Article IV, Ohio Constitution.