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Torts—Negligence—Contributory Negligence of One Parent Is Imputed to the Other to Diminish the Latter's Recovery for the Death of a Minor Child

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Torts—Negligence—Contributory Negligence of One Parent Is Imputed to the Other to Diminish the Latter's Recovery for the Death of a Minor Child University of Arkansas at Little Rock Law Review Volume 5 Issue 2 Article 6 1982 Torts—Negligence—Contributory Negligence of One Parent is Imputed to the Other to Diminish the Latter's Recovery for the Death of a Minor Child Reid Harrod Follow this and additional works at: https://lawrepository.ualr.edu/lawreview Part of the Torts Commons Recommended Citation Reid Harrod, Torts—Negligence—Contributory Negligence of One Parent is Imputed to the Other to Diminish the Latter's Recovery for the Death of a Minor Child, 5 U. ARK. LITTLE ROCK L. REV. 289 (1982). Available at: https://lawrepository.ualr.edu/lawreview/vol5/iss2/6 This Note is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. TORTS-NEGLIGENCE---CONTRIBUTORY NEGLIGENCE OF ONE PARENT IS IMPUTED TO THE OTHER TO DIMINISH THE LATTER'S RE- COVERY FOR THE DEATH OF A MINOR CHILD. Stull v. Ragsda/e, 273 Ark. 277, 620 S.W.2d 264 (1981). The appellants, Donald and Youvanna Stull, were parents of the decedent, four year old Windy Stull. While Donald was away at work, Youvanna put Windy down for a nap and later fell asleep herself. Without awakening her mother, Windy left the house and crossed the adjacent highway where she was struck and killed by a truck driven by the appellee, James Ragsdale. Youvanna Stull instituted a wrongful death and survival' ac- tion against Ragsdale. On interrogatories, the jury apportioned 25% of the negligence to Ragsdale and 75% to Youvanna Stull, awarded each parent damages for mental anguish,2 and awarded funeral ex- penses to the estate. The trial court entered judgment only for the funeral expenses in favor of the estate, determining that Youvanna Stull was barred from recovery by her own negligence 3 and that her negligence should be imputed to Donald Stull, barring his recovery as well. The Arkansas Supreme Court upheld the imputation of the mother's negligence to the father, but allowed him to recover the original jury award reduced by the percentage of negligence attrib- uted to his wife. Stull v. Ragsdale, 273 Ark. 278, 620 S.W.2d 264 4 (198 1). Because the present system of liability based on fault is grounded in a philosophy of individualism, an individual is gener- 1. The Arkansas wrongful death and survival statutes are codified at ARK. STAT. ANN. §§ 27-901 to -906 (1979). 2. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), interpreted the Arkansas wrongful death statute to provide that any recovery by the administratrix for the wrongful death of the deceased would be for the benefit of the deceased's next of kin. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), further interpreted the statute to allow recov- ery for mental anguish. 3. ARK. STAT. ANN. § 27-1765 (1979) provides in pertinent part: "If the fault charge- able to a party claiming damages is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claim- ing party is not entitled to recover such damages." 4. The holding in Stull raises two issues. The first concerns the use of the doctrine of imputed contributory negligence to bar the recovery of an innocent parent for the wrongful death of a child because of the other parent's negligent supervision of the child. The second relates to the proper application of the Arkansas comparative fault statute, set out supra note 3. 289 290 UALR LAW JOURNAL [Vol. 5:289 ally made accountable only for his own misconduct.' However, there are many situations in which the negligence of one party is imputed to a totally innocent individual merely because of some re- lation between them.6 Such imputed conduct may be used in two distinct contexts. First, it may be used to make an innocent party vicariously liable for the blameworthy conduct of another based on the existence of an agency relationship between the two.7 Thus, a master may be held liable for the negligent acts of his servant8 or an innocent individual may be responsible for the negligence of an- other with whom he is engaged in a joint enterprise.9 Various rea- sons have been given for imposing vicarious liability in such situations, including (1) that the innocent party has an actual or po- tential right to control the conduct of the negligent party, (2) that it is necessary to allow an injured plaintiff to reach a financially re- sponsible defendant, and (3) that it constitutes a rule of policy, a deliberate allocation of risk. 10 In contrast to this use of the fiction of imputed conduct to facilitate the plaintiff's recovery, it may also be used to defeat an innocent plaintiffs claim against a negligent de- fendant because of the concurring negligence of a third party who stands in some relation to the plaintiff." During the early stages of its development, the doctrine of im- puted contributory negligence was commonly applied to a variety of 5. 2 F. HARPER & F. JAMES, THE LAW OF TORTS § 23.1 (1956). 6. Id at § 26.1. 7. "Agency is a familiar and conspicuous branch of the law where the liability of the principal for the acts of his agent may be and often is expressed in terms of the fiction of imputed conduct." Gilmore, Imputed Negligence, I Wis. L. REV. 193, 194 (1921). 8. "Under the doctrine of respondeat superior, an employer will be liable for the negli- gence of an employee committed while the employee is within the scope of his employ- ment." Lundberg v. State, 25 N.Y.2d 467, 470, 306 N.Y.S.2d 947, 950, 255 N.E.2d 177, 179 (1969) (citing Sauter v. New York Tribune, Inc., 305 N.Y. 442, 113 N.E.2d 790 (1953)). The Arkansas court has long recognized the doctrine. E.g., Gray v. McLaughlin, 207 Ark. 191, 179 S.W.2d 686 (1944); Hunter v. First State Bank, 181 Ark. 907, 28 S.W.2d 712 (1930); Robinson v. St. Louis, I.M. & S. Ry., 111 Ark. 208, 163 S.W. 500 (1914); Ward v. Young, 42 Ark. 542 (1884). 9. The imputation of negligence between members of a joint enterprise is based on principles of partnership and agency. Although it is most often used to bar a plaintiffs recovery by imputing contributory negligence, it is also available to impute vicarious liabil- ity to one member of a joint enterprise for the negligent acts of another member. 2 F. HARPER & F. JAMES, supra note 5, at § 26.13; Black & White, Inc. v. Love, 236 Ark. 529, 367 S.W.2d 427 (1963). 10. 2 F. HARPER & F. JAMES, supra note 5, at §§ 26.1-26.5; W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 69 (4th ed. 1971); Laski, The Basis of Vicarious Liability, 26 YALE L.J. 105 (1916). 11. E.g., W. PROSSER, supra note 10, at § 74. It is with the use of the fiction in this second context, often called imputed contributory negligence, that Stull is concerned. 1982] NOTES relationships outside the traditional agency and employment catego- ries which define the limits of vicarious liability. 12 In these cases the courts often imposed a fictitious agency relationship as an expedient means to bar recovery. 13 The origin of the doctrine is generally traced to the 1849 English case of Thorogood v. Bryan,' 4 in which the court held that an injured omnibus passenger had so identified himself with the driver by selecting that mode of conveyance that his recovery against a negligent third party would be defeated by the concurring negligence of his driver. 15 Among the reasons given for the decision was that the plaintiff exercised a degree of control over the driver. '6 Although Thorogood was overruled in England thirty- nine years later, 7 it was adopted by several American jurisdictions during the interim.' 8 However, its rule that contributory negligence may be imputed based solely on the driver-passenger relationship has since been rejected everywhere, 9 largely because it is recog- nized that passengers generally have no actual or potential control in those cases and because it is "against all legal rules" to impute contributory negligence on the basis of a relation which would not support the imposition of vicarious liability.20 The Arkansas Supreme Court never recognized Thorogood2' and in Railway Co. v. Harrel22 expressly rejected the imputation of contributory negli- gence in a factual situation similar to that in Thorogood.23 Similarly, contributory negligence has been imputed to third 12. W. PROSSER, supra note 10, at § 74. Eg., Thorogood v. Bryan, 8 C.B. 115, 137 Eng. Rep. 452 (1849) (driver's negligence imputed to passenger to bar the latter's recovery); Hart- field v. Roper, 21 Wend. 615 (N.Y. 1829) (father's negligence imputed to minor child); Texas & Pac. R. Co. v. Tankersley, 63 Tex. 57 (1885) (bailee's negligence imputed to bailor). 13. Gilmore, supra note 7, at 195. 14. 8 C.B. 115, 137 Eng. Rep. 452 (1849). 15. Id at 132, 137 Eng. Rep. at 458. 16. Id 17. Mills v. Armstrong, The Bernia, 13 App. Cas. 1 (1888). 18. The doctrine of imputed contributory negligence based on the theory of identifica- tion was first adopted in the United States in Brown v.
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