{ "id": 8523966, "name": "DAVID LINER, as ADMINISTRATOR of the ESTATE OF AMBRA D. RICHARDSON and VERONICA RICHARDSON v. RONALD and LINETTA BROWN", "name_abbreviation": "Liner v. Brown", "decision_date": "1994-11-15", "docket_number": "No. 9321SC1118", "first_page": "44", "last_page": "55", "citations": [ { "type": "official", "cite": "117 N.C. App. 44" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "81 ALR2d 1155", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "19 ALR2d 423", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "6 A.L.R. 4th 1066", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1981, "pin_cites": [ { "parenthetical": "discussion of courts that extend parent-child immunity doctrine to persons standing in loco parentis and courts that do not" } ], "opinion_index": 0 }, { "cite": "367 N.E.2d 429", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "431", "parenthetical": "parental immunity does not extend to those having temporary control and custody of minor such as grandparents or others" } ], "opinion_index": 0 }, { "cite": "188 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552332 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0646-01" ] }, { "cite": "210 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "24 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550610 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/24/0307-01" ] }, { "cite": "118 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "pin_cites": [ { "page": "15-16" } ], "opinion_index": 0 }, { "cite": "185 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656989 ], "year": 1923, "pin_cites": [ { "page": "584-85" } ], "opinion_index": 0, "case_paths": [ "/nc/185/0577-01" ] }, { "cite": "418 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "513", "parenthetical": "our Supreme Court recognized that parent-child immunity doctrine does not bar tort claims for injuries unemancipated minors have suffered as a result of a parent's willful and malicious conduct" }, { "page": "514" } ], "opinion_index": 0 }, { "cite": "332 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505607 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "93", "parenthetical": "our Supreme Court recognized that parent-child immunity doctrine does not bar tort claims for injuries unemancipated minors have suffered as a result of a parent's willful and malicious conduct" }, { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0090-01" ] }, { "cite": "374 N.W.2d 683", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1985, "pin_cites": [ { "parenthetical": "in accord with Andrews'" } ], "opinion_index": 0 }, { "cite": "446 N.Y.S.2d 169", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "173" }, { "page": "174" } ], "opinion_index": 0 }, { "cite": "319 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "311 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683884 ], "year": 1984, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0586-01" ] }, { "cite": "259 N.W.2d 170", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1977, "pin_cites": [ { "page": "174", "parenthetical": "intent to assume parental status can be inferred from parties' acts and declarations" } ], "opinion_index": 0 }, { "cite": "267 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562261, 8562198, 8562231, 8562300, 8562174 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0378-04", "/nc/300/0378-02", "/nc/300/0378-03", "/nc/300/0378-05", "/nc/300/0378-01" ] }, { "cite": "263 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551066 ], "year": 1980, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0701-01" ] }, { "cite": "2 F.2d 170", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1288887 ], "year": 1924, "pin_cites": [ { "page": "174", "parenthetical": "person in loco parentis is one \"assuming the parental character or discharging parental duties\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/2/0170-01" ] }, { "cite": "208 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "435" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549215 ], "year": 1974, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0230-01" ] }, { "cite": "240 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "year": 1978, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "270 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "123", "parenthetical": "evidence, inter alia, that child, his mother, and defendant lived together from September 1978 to January 1979 appropriate for jury determination of whether defendant was a person acting in loco parentis" } ], "opinion_index": 1 }, { "cite": "48 N.C. App. 656", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552634 ], "year": 1980, "pin_cites": [ { "page": "662", "parenthetical": "evidence, inter alia, that child, his mother, and defendant lived together from September 1978 to January 1979 appropriate for jury determination of whether defendant was a person acting in loco parentis" } ], "opinion_index": 1, "case_paths": [ "/nc-app/48/0656-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "68 N.C.L. Rev. 1317", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1990, "opinion_index": 1 }, { "cite": "342 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "885", "parenthetical": "\"If the doctrine is to be abolished ... , it should be done by legislation and not by the Court\"" } ], "opinion_index": 1 }, { "cite": "316 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700149 ], "year": 1986, "pin_cites": [ { "page": "494", "parenthetical": "\"If the doctrine is to be abolished ... , it should be done by legislation and not by the Court\"" } ], "opinion_index": 1, "case_paths": [ "/nc/316/0489-01" ] }, { "cite": "422 Mich. 579", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1965355 ], "year": 1985, "pin_cites": [ { "page": "593", "parenthetical": "\"The clear judicial trend is to abolish or limit the availability of the parental immunity defense to both parents and other caretakers alike.\"" } ], "opinion_index": 1, "case_paths": [ "/mich/422/0579-01" ] }, { "cite": "30 L.Ed.2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 1 }, { "cite": "405 U.S. 925", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731488, 11731687, 11731752, 11731823, 11731569, 11731891, 11731604, 11731958, 11732023, 11732090, 11731644, 11731517 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/us/405/0925-01", "/us/405/0925-06", "/us/405/0925-07", "/us/405/0925-08", "/us/405/0925-03", "/us/405/0925-09", "/us/405/0925-04", "/us/405/0925-10", "/us/405/0925-11", "/us/405/0925-12", "/us/405/0925-05", "/us/405/0925-02" ] }, { "cite": "183 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "279 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568277, 8568374, 8568311, 8568344, 8568410 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/nc/279/0394-01", "/nc/279/0394-04", "/nc/279/0394-02", "/nc/279/0394-03", "/nc/279/0394-05" ] }, { "cite": "182 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "228" } ], "opinion_index": 1 }, { "cite": "12 N.C. App. 17", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547000 ], "year": 1971, "pin_cites": [ { "page": "18" } ], "opinion_index": 1, "case_paths": [ "/nc-app/12/0017-01" ] }, { "cite": "143 N.Y.S.2d 1", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1955, "pin_cites": [ { "page": "4", "parenthetical": "\"[n]o good reason\" exists why parent-child immunity should be applied to a natural parent and not in the case of one standing in loco 'parentis" } ], "opinion_index": 1 }, { "cite": "286 A.D. 327", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2909444 ], "year": 1955, "pin_cites": [ { "page": "331", "parenthetical": "\"[n]o good reason\" exists why parent-child immunity should be applied to a natural parent and not in the case of one standing in loco 'parentis" } ], "opinion_index": 1, "case_paths": [ "/ad/286/0327-01" ] }, { "cite": "598 So.2d. 801", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7505763 ], "year": 1992, "pin_cites": [ { "page": "804", "parenthetical": "\"foster parents should be afforded some protection by the parental immunity doctrine\"" } ], "opinion_index": 1, "case_paths": [ "/so2d/598/0801-01" ] }, { "cite": "77 Mich. App. 639", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2164821 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "646-47", "parenthetical": "one \"who voluntarily assumes parental responsibility and attempts to create a home-like environment for a child should be granted immunity from judicial interference to the same extent as a natural parent\"" }, { "page": "649" }, { "page": "649" } ], "opinion_index": 1, "case_paths": [ "/mich-app/77/0639-01" ] }, { "cite": "178 Ga. App. 316", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 462526 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "317" }, { "page": "788" } ], "opinion_index": 1, "case_paths": [ "/ga-app/178/0316-01" ] }, { "cite": "453 F.Supp. 1033", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4019094 ], "year": 1978, "pin_cites": [ { "page": "1035", "parenthetical": "uncle stood in loco parentis to child who resided with and was cared for by him; to rule otherwise \"might have the effect of discouraging the . . . voluntary and unselfish . . . caring for a child in need of parental support and guidance . . . .\"" } ], "opinion_index": 1, "case_paths": [ "/f-supp/453/1033-01" ] }, { "cite": "69 L.Ed.2d 976", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1981, "pin_cites": [ { "parenthetical": "\"To conclude that foster parents can never stand in loco parentis to a child in their care would be unrealistic\"" } ], "opinion_index": 1 }, { "cite": "452 U.S. 964", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1313568, 1313890, 1313896, 1313897, 1313994, 1313738, 1313712, 1313714, 1313587, 1313876, 1313746, 1313818, 1313692 ], "year": 1981, "pin_cites": [ { "parenthetical": "\"To conclude that foster parents can never stand in loco parentis to a child in their care would be unrealistic\"" } ], "opinion_index": 1, "case_paths": [ "/us/452/0964-06", "/us/452/0964-04", "/us/452/0964-09", "/us/452/0964-11", "/us/452/0964-13", "/us/452/0964-10", "/us/452/0964-12", "/us/452/0964-08", "/us/452/0964-07", "/us/452/0964-02", "/us/452/0964-05", "/us/452/0964-01", "/us/452/0964-03" ] }, { "cite": "424 A.2d 178", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "181" }, { "page": "180" } ], "opinion_index": 1 }, { "cite": "120 N.H. 791", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4448847 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "796" }, { "page": "796" } ], "opinion_index": 1, "case_paths": [ "/nh/120/0791-01" ] }, { "cite": "2 S.E. 453", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1887, "pin_cites": [ { "page": "453", "parenthetical": "It is \"settled law\" that the relationship of in loco parentis may exist between grandparent and grandchild." } ], "opinion_index": 1 }, { "cite": "96 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "year": 1887, "pin_cites": [ { "page": "132", "parenthetical": "It is \"settled law\" that the relationship of in loco parentis may exist between grandparent and grandchild." } ], "opinion_index": 1 }, { "cite": "64 N.W.2d 781", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1954, "pin_cites": [ { "page": "784", "parenthetical": "stepfather who voluntarily assumed in loco parentis position is entitled to same protections and benefits as a natural parent" } ], "opinion_index": 1 }, { "cite": "242 Minn. 211", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1768547 ], "year": 1954, "pin_cites": [ { "page": "215", "parenthetical": "stepfather who voluntarily assumed in loco parentis position is entitled to same protections and benefits as a natural parent" } ], "opinion_index": 1, "case_paths": [ "/minn/242/0211-01" ] }, { "cite": "438 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "447", "parenthetical": "although an in loco parentis relationship \"[tjypically . . . terminates upon divorce,\" stepfather held to stand in loco parentis beyond divorce from mother under circumstances of the case" } ], "opinion_index": 1 }, { "cite": "113 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522407 ], "year": 1994, "pin_cites": [ { "page": "385", "parenthetical": "although an in loco parentis relationship \"[tjypically . . . terminates upon divorce,\" stepfather held to stand in loco parentis beyond divorce from mother under circumstances of the case" } ], "opinion_index": 1, "case_paths": [ "/nc-app/113/0382-01" ] }, { "cite": "153 A.2d 332", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1959, "opinion_index": 1 }, { "cite": "56 N.J. Super. 357", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 398875 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/nj-super/56/0357-01" ] }, { "cite": "52 A.2d 564", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1947, "opinion_index": 1 }, { "cite": "25 N.J. Misc. 180", "category": "reporters:state", "reporter": "N.J. Misc.", "case_ids": [ 435452 ], "year": 1947, "opinion_index": 1, "case_paths": [ "/nj-misc/25/0180-01" ] }, { "cite": "478 A.2d 351", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1984, "pin_cites": [ { "page": "355", "parenthetical": "citing Schneider v. Schneider, 25 N.J. Misc. 180, 52 A.2d 564 (1947) and D. v. D., 56 N.J. Super. 357, 153 A.2d 332 (1959)" } ], "opinion_index": 1 }, { "cite": "97 N.J. 154", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1384010 ], "year": 1984, "pin_cites": [ { "page": "162", "parenthetical": "citing Schneider v. Schneider, 25 N.J. Misc. 180, 52 A.2d 564 (1947) and D. v. D., 56 N.J. Super. 357, 153 A.2d 332 (1959)" } ], "opinion_index": 1, "case_paths": [ "/nj/97/0154-01" ] }, { "cite": "188 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "652" } ], "opinion_index": 1 }, { "cite": "14 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552332 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "647" }, { "page": "647" } ], "opinion_index": 1, "case_paths": [ "/nc-app/14/0646-01" ] }, { "cite": "210 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "504" } ], "opinion_index": 1 }, { "cite": "24 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550610 ], "year": 1974, "pin_cites": [ { "page": "308" } ], "opinion_index": 1, "case_paths": [ "/nc-app/24/0307-01" ] }, { "cite": "374 N.W.2d 683", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1985, "pin_cites": [ { "page": "689", "parenthetical": "\"The clear judicial trend is to abolish or limit the availability of the parental immunity defense to both parents and other caretakers alike.\"" } ], "opinion_index": 1 }, { "cite": "259 N.W.2d 170", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "173", "parenthetical": "one \"who voluntarily assumes parental responsibility and attempts to create a home-like environment for a child should be granted immunity from judicial interference to the same extent as a natural parent\"" }, { "page": "174-75" }, { "page": "174" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1162, "char_count": 27412, "ocr_confidence": 0.744, "pagerank": { "raw": 4.7072269468495393e-07, "percentile": 0.9288624549153252 }, "sha256": "8000ec730e21c0ee388c0922567d72f13a9a0278264137b7fc99ad063b5c1a43", "simhash": "1:0323e02e6c7f2b08", "word_count": 4466 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCRODDEN concurs.", "Judge JOHN concurs in part and concurs in part only in the result with separate opinion." ], "parties": [ "DAVID LINER, as ADMINISTRATOR of the ESTATE OF AMBRA D. RICHARDSON and VERONICA RICHARDSON v. RONALD and LINETTA BROWN" ], "opinions": [ { "text": "GREENE, Judge.\nDavid Liner (Liner), as administrator for the estate of Ambra D. Richardson (Ambra), appeals from a judgment entered in Forsyth County Superior Court on 21 July 1993, granting Ronald and Linetta Brown\u2019s (defendants) motion for summary judgment based on parental immunity in Liner\u2019s claim for wrongful death. Defendants appeal from that part of the judgment denying their motion for summary judgment as to the claim of Veronica Richardson (Ms. Richardson) for negligent infliction of emotional distress.\nMs. Richardson and Dennis Richardson (Mr. Richardson) are the divorced parents of Ambra, born 7 June 1987. Mr. Richardson is the brother of defendant Linetta Brown. By order dated 27 April 1990, Judge Loretta C. Biggs (Judge Biggs) adjudicated Ambra to be a dependent and neglected juvenile, placed her in the legal and physical custody of the Forsyth County Department of Social Services (DSS), and gave DSS \u201cplacement responsibility for said minor\u201d with the \u201ccause [to] be reviewed within ninety days of the April 25, 1990, hearing.\u201d In addition, Judge Biggs ordered Ms. Richardson, beginning on 27 April 1990 and \u201ccontinuing until further order of the Court,\u201d to \u201cpay to the Clerk of Superior Court of Forsyth County . . . the sum of $30.00 per week for the support and maintenance of Ambra Dean Richardson. Said Clerk shall remit said payments to the minor\u2019s caretaker at the following address: Mrs. Linetta Brown . . . .\u201d Judge Biggs ordered Mr. Richardson to \u201ccontinue to make without fail his $30.00 per week child support payment for the support and maintenance of\u2019 Ambra. Judge Biggs also found that Ambra \u201chas been placed by the DSS with her paternal aunt, Linetta Brown, since the DSS assumed custody of the minor . .. [and] [i]t is the DSS\u2019s intent to maintain temporary placement of the minor with Mrs. Brown.\u201d\nIn March of 1990, DSS temporarily placed Ambra in the home of defendants, who were not licensed foster parents, and this arrangement continued after Judge Biggs\u2019 27 April 1990 order. Ambra had spent weekends with defendants for about eighteen months prior to March of 1990. On 21 June 1990, Ambra drowned in defendants\u2019 swimming pool.\nOn 19 June 1992, Liner and Ms. Richardson (plaintiffs) filed a complaint in Forsyth County Superior Court, Liner alleging wrongful death and Ms. Richardson alleging negligent infliction of emotional distress. On 17 August 1992, defendants filed an answer and defenses, stating that \u201c[o]n the occasion referred to in the complaint the defendants stood in loco parentis to Ambra D. Richardson who had been placed with defendants and lived with the defendants, with the defendants functioning as [her] parents\u201d so that \u201cthe doctrine of parental immunity is applicable to any claims against the defendants for bodily injury to or the wrongful death of Ambra . . . and also is applicable to the derivative claim of Veronica Richardson for alleged emotional distress resulting from [Ambra\u2019s] death.\u201d\nIn her affidavit, Ms. Richardson stated:\n7. Throughout the time from April 25, 1990 through June 21, 1990, I:\na. regularly visited with Ambra or attempted to regularly visit with Ambra;\nb. tried to see that Ambra received proper psychological care; and,\nc. stayed in constant touch with [DSS] regarding Ambra\u2019s welfare; and,\n8. It was my intention after consenting to relinquish the custody of Ambra on April 25, 1990 to do everything in my power to continue to provide love, affection and support to Ambra, to comply fully with the terms of all Court Orders pertaining to me, and to seek reinstitution of my custody over Ambra upon review of the case by the Court.\nMs. Richardson stated in her deposition that she visited Ambra \u201cseveral times a week\u201d at defendants\u2019 house or at day care, and she \u201craised some [C]ain [with DSS] about Ambra having two black eyes, a swollen nose, and her left cheek swollen and blue after [defendants] had her. And [she] went down to the daycare . . . and [she] took pictures of\u2019 Ambra. ETom March until 21 June 1990, Ms. Richardson paid child support \u201cthrough the child support office over at the courthouse\u201d and had paid for Ambra\u2019s support \u201cthrough June 22nd.\u201d Ms. Richardson stated her \u201cpsychological evaluation had come in the day before [Ambra] died that did state [she] was a proper and fit mother to raise [her] child.\u201d She was \u201cpending the starting of parenting classes which [DSS] wanted [her] to do.\u201d\nMr. Brown stated in his affidavit that after Ambra was adjudicated a neglected and dependent juvenile, he and Mrs. Brown \u201cnaturally wished to continue [their] growing relationship with Ambra and to have her live on a continuous basis as a part of [their] family.\u201d \u201cIn every respect during this period of time, we were the persons who served and functioned as Ambra\u2019s parents.\u201d\nOn 14 October 1992, plaintiffs filed a motion for summary judgment and submitted defendants\u2019 affidavits and Ms. Richardson\u2019s affidavit and deposition in support. On 2 April 1993, defendants filed a motion for summary judgment. By judgment signed 21 July 1993, the trial judge found and concluded that \u201c[t]he defendants\u2019 motion for summary judgment as to the claim of Veronica Richardson for negligent infliction of severe emotional distress should be and the same hereby is denied.\u201d The trial judge granted defendants\u2019 motion for summary judgment as to the wrongful death claim because defendants were \u201cin loco parentis to the decedent and, therefore, [are] entitled to parental immunity which bars [Liner\u2019s] claim.\u201d\nWe first dismiss defendants\u2019 appeal as to Ms. Richardson\u2019s claim for negligent infliction of emotional distress because a denial of a motion for summary judgment is not appealable. Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 344 (1978).\nThe issues presented are (I) whether defendants stood in loco parentis to Ambra; and (II) if so, whether they are entitled to parental immunity as to the wrongful death claim.\nI\nThis Court has defined the term in loco parentis to mean \u201cin the place of a parent\u201d and has defined \u201cperson in loco parentis\u201d as \u201cone who has assumed the status and obligations of a parent without a formal adoption.\u201d Shook v. Peavy, 23 N.C. App. 230, 232, 208 S.E.2d 433, 435 (1974); see also Howard v. United States, 2 F.2d 170, 174 (1924) (person in loco parentis is one \u201cassuming the parental character or discharging parental duties\u201d); Black\u2019s Law Dictionary 787 (6th ed. 1990) (person in loco parentis is one \u201ccharged, factitiously, with a parent\u2019s rights, duties, and responsibilities\u201d); N.C.G.S. \u00a7 7A-517(16.1) (1993) (in loco parentis defined in juvenile code as one, other than parents or legal guardian, who has assumed status and obligation of a parent without being awarded legal custody by a court). A person does not stand in loco parentis \u201cfrom the mere placing of a child in the temporary care of other persons by a parent or guardian of such child. This relationship is established only when the person with whom the child is placed intends to assume the status of a parent\u2014 by taking on the obligations incidental to the parental relationship, particularly that of support and maintenance.\u201d State v. Pittard, 45 N.C. App. 701, 703, 263 S.E.2d 809, 811, disc. rev. denied, 300 N.C. 378, 267 S.E.2d 682 (1980); see 67A C.J.S., Parent and Child \u00a7\u00a7 153-158, at 548-55 (1978); 59 Am. Jur. 2d, Parent and Child \u00a7 75, at 217-18 (1987); 3 Robert E. Lee, North Carolina Family Law \u00a7 238, at 98-100 (1963). Therefore, whether defendants stood in loco parentis to Ambra at the time of her death is a question of intent \u201cto assume parental status\u201d and depends on all the facts and circumstances of this case. See Hush v. Devilbiss Co., 259 N.W.2d 170, 174 (Mich. App. 1977) (intent to assume parental status can be inferred from parties\u2019 acts and declarations).\nThe facts and circumstances of this case do not support a determination that defendants stood in loco parentis to Ambra. Although Mrs. Brown was Ambra\u2019s aunt, DSS had both legal and physical custody of Ambra pursuant to Judge Biggs\u2019 27 April 1990 order. Judge Biggs ordered the matter to be reviewed in ninety days, when one of the essential aims of such a review hearing \u2014 \u201cto reunite the parent(s) and the child, after the child has been taken from the custody of the parent(s)\u201d \u2014 would be considered. In re Shue, 311 N.C. 586, 596, 319 S.E.2d 567, 573 (1984). Defendants were therefore aware they were obliged, at all times, to surrender Ambra\u2019s placement with them should the court reinstate custody with Ms. Richardson or should DSS choose a different placement for Ambra. Furthermore, during the two months Ambra lived with defendants, Ms. Richardson regularly visited Ambra and made payments \u201cfor the support and maintenance of Ambra\u201d to the clerk of court who in turn was to deliver such payments to Mrs. Brown pursuant to Judge Biggs\u2019 27 April 1990 order. Ms. Richardson continued to love and care for Ambra\u2019s well-being as evidenced by her photographing the bruises she noticed on Ambra\u2019s body after being placed in defendants\u2019 care and contacting DSS about the bruises. Ms. Richardson also obtained a psychological evaluation showing she was a fit parent, tried to insure \u201cthat Ambra received proper psychological care,\u201d and was about to begin parenting classes requested by DSS. The mere fact defendants were obligated to provide and did in fact provide a stable environment for Ambra for a two month period does not transform the relationship of defendants with Ambra into one of parent-child. Defendants, like foster parents, have a \u201cunique responsibility clearly differing] from the supervisory functions of a natural parent.\u201d Andrews v. County of Otsego, 446 N.Y.S.2d 169, 173 (1982). Defendants, like foster parents, \u201cmust strive to provide a stable environment and at the same time, encourage, rather than discourage, the relationship of the foster child and natural parent and ease the return of the child to the natural parent.\u201d Id; see also N.C.G.S. \u00a7\u00a7 7A-517(5) & (16.1) (in juvenile code, our legislature, while specifically including foster parents within definition of caretaker, did not include foster parents within definition of in loco parentis). For these reasons and from all the facts and circumstances of this case, defendants did not intend to assume the status of Ambra\u2019s parents and did not stand in loco parentis to Ambra; therefore, summary judgment in favor of defendants should be reversed. See Mayberry v. Pryor, 374 N.W.2d 683 (Mich. 1985) (in accord with Andrews').\nII\nEven if we determined defendants stood in loco parentis to Ambra, they are not entitled to claim immunity based on the parent-child immunity doctrine. North Carolina recognizes the parent-child immunity doctrine that an unemancipated minor child cannot maintain an action based on ordinary negligence against his or her natural parent; however, the doctrine does not apply where it \u201chas been specifically abolished or amended by the legislature.\u201d Doe v. Holt, 332 N.C. 90, 93, 418 S.E.2d 511, 513 (1992) (our Supreme Court recognized that parent-child immunity doctrine does not bar tort claims for injuries unemancipated minors have suffered as a result of a parent\u2019s willful and malicious conduct); see N.C.G.S. \u00a7 1-539.21 (1993) (abolishes parent-child immunity doctrine where injury to child arises out of operation of motor vehicle owned or operated by child\u2019s parent). Defendants argue that the parent-child immunity doctrine extends to those standing in loco parentis; therefore, \u201cas a result of their parental relationship with [Ambra], the wrongful death claims asserted by the plaintiff in behalf of her estate are barred as a matter of law by the doctrine of parental immunity.\u201d We disagree.\nThe parent-child immunity doctrine is intended to serve several public policies, foremost among them \u201cmaintenance of family harmony.\u201d Doe, 332 N.C. at 95, 418 S.E.2d at 514. The policy seeks to preserve parental authority and security of the home and protect the financial resources of the family. Small v. Morrison, 185 N.C. 577, 584-85, 118 S.E. 12, 15-16 (1923). In North Carolina, the parent-child immunity doctrine extends to stepparents standing in loco parentis, Morgan v. Johnson, 24 N.C. App. 307, 210 S.E.2d 503 (1974); Mabry v. Bowen, 14 N.C. App. 646, 188 S.E.2d 651 (1972), because applying the parent-child immunity doctrine to the stepparent situation, which is more permanent in nature than those having temporary custody and control, furthers the public policies underlying the doctrine.\nWhere, however, the interests of the natural parent and child are united, and the child was only with defendants on a temporary basis, it is difficult to see how the policies of avoiding \u201cpotential strife between parent and child,\u201d of protecting the family\u2019s financial resources, and of preserving parental authority and security of the home apply. Andrews, 446 N.Y.S.2d at 174. The \u201crationale behind the rule loses its persuasive force as one considers situations involving other than the actual parent.\u201d Gulledge v. Gulledge, 367 N.E.2d 429, 431 (Ill. App. 1977) (parental immunity does not extend to those having temporary control and custody of minor such as grandparents or others). Because extension of the parent-child immunity doctrine to one having temporary custody and control of a child would not further the policies underlying the doctrine, defendants are not entitled to enjoy immunity from Liner\u2019s wrongful death claim based on the doctrine. See Romualdo R Eclavea, Annotation, Liability of Parent for Injury to Unemancipated Child Caused by Parent\u2019s Negligence\u2014Modern Cases, 6 A.L.R. 4th 1066 (1981) (discussion of courts that extend parent-child immunity doctrine to persons standing in loco parentis and courts that do not). For these reasons, defendants cannot claim they were immune from Liner\u2019s wrongful death claim on behalf of Ambra even if we determined defendants stood in loco par-entis to Ambra, and summary judgment should not have been granted for defendants based on parental immunity.\nDismissed in part, reversed in part.\nJudge McCRODDEN concurs.\nJudge JOHN concurs in part and concurs in part only in the result with separate opinion.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge John\nconcurring in part and concurring in part only in the result.\nI concur in the majority\u2019s dismissal of defendants\u2019 appeal as to plaintiff\u2019s negligent infliction of emotional distress claim, but specifically disagree with and do not join the majority holding that parent-child immunity may not be afforded to persons standing in loco par-entis. Nonetheless, because I believe the circumstances of the case sub judice raise an issue of fact as to whether defendants stood in loco parentis to the minor child Ambra, I am compelled to concur in the result reversing allowance of defendants\u2019 motion for summary judgment as to plaintiffs\u2019 wrongful death claim. However, my vote is to reverse and remand for determination by the trier of fact as to the issue of defendants\u2019 status.\nAlthough defendants neither possessed an official governmental license as foster parents nor received any compensation or reimbursement for their care of the child, I believe the majority properly characterizes their relationship vis-a-vis Ambra as that of foster parents. However, the majority suggests that in view of the terminable nature of defendants\u2019 association with Ambra and the \u201ctemporary\u201d nature of foster care in general, see 3 Robert E. Lee, North Carolina Family Law, \u00a7 238, at 190-91 (4th ed. 1981), neither defendants nor any foster parent could intend permanently to assume parental obligations and thus could never stand in loco parentis. The majority further relies upon the temporary nature of foster parent status to deny parent-child immunity even to a foster parent who may truly stand in loco parentis. In each respect, I must disagree.\nFirst, the very nature of an in loco parentis relationship, contrary to natural parenthood or adoption, affixes \u201crights and duties temporary [as opposed to permanent] in nature,\u201d Miller v. Miller, 97 N.J. 154, 162, 478 A.2d 351, 355 (1984) (citing Schneider v. Schneider, 25 N.J. Misc. 180, 52 A.2d 564 (1947) and D. v. D., 56 N.J. Super. 357, 153 A.2d 332 (1959)). Indeed, we have previously specifically recognized this impermanence. See Duffey v. Duffey, 113 N.C. App. 382, 385, 438 S.E.2d 445, 447 (1994) (although an in loco parentis relationship \u201c[tjypically . . . terminates upon divorce,\u201d stepfather held to stand in loco parentis beyond divorce from mother under circumstances of the case). Additionally, the in loco parentis association \u201cexists at the will of the party assuming the obligations of a parent [and] may be abrogated by such party at any time.\u201d 67A C.J.S. Parent & Child \u00a7 154 (1978). Thus, emphasis upon the characteristic impermanence of foster care to support exclusion of foster parents from in loco parentis status, itself impermanent, is circuitous at best.\nFurther, despite the \u201ctemporary\u201d nature of in loco parentis, both the consequent rights and duties are, \u201cas the words imply, substantially the same as between parent and child . . . .\u201d 59 Am. Jur. 2d Parent and Child \u00a7 75 (1987) (emphasis added). Because an in loco par-entis relationship arises only \u201cwhen one is willing to assume all the obligations and to receive all the benefits associated with one standing as a natural parent to a child,\u201d 67A C.J.S. Parent & Child \u00a7 154 (1978) (emphasis added), imposition of every duty of parenthood without affording those protections recognized in the law is neither consistent nor fair. See London Guarantee & Accident Co. v. Smith, 242 Minn. 211, 215, 64 N.W.2d 781, 784 (1954) (stepfather who voluntarily assumed in loco parentis position is entitled to same protections and benefits as a natural parent).\nAs a natural extension of the foregoing principles, this Court, as the majority correctly concedes, has acknowledged in loco parentis status and application of parental immunity to circumstances involving stepparents, see Mabry v. Bowen, 14 N.C. App. at 647, 188 S.E.2d at 651-52 and Morgan v. Johnson, 24 N.C. App. at 308, 210 S.E.2d at 504; see also Dodson v. McAdams, 96 N.C. 128, 132, 2 S.E. 453, 453 (1887) (It is \u201csettled law\u201d that the relationship of in loco parentis may exist between grandparent and grandchild.).\nIn addition, other jurisdictions have rejected automatic exclusion of foster parents from the position of in loco parentis and accorded them parent-child immunity as well. See In re Diana P., 120 N.H. 791, 796, 424 A.2d 178, 181 (1980), cert. denied, 452 U.S. 964, 69 L.Ed.2d 976 (1981) (\u201cTo conclude that foster parents can never stand in loco parentis to a child in their care would be unrealistic\u201d); Mathis v. Ammons, 453 F.Supp. 1033, 1035 (E.D. Tenn. 1978) (uncle stood in loco parentis to child who resided with and was cared for by him; to rule otherwise \u201cmight have the effect of discouraging the . . . voluntary and unselfish . . . caring for a child in need of parental support and guidance . . . .\u201d); Brown v. Phillips, 178 Ga. App. 316, 317, 342 S.E.2d 786, 788 (1986) (where natural parents\u2019 custodial rights had been \u201csevered\u201d by the juvenile court and child was placed in custody of county department of family and children services, to allow parents to sue foster parents standing in loco parentis for alleged negligence would violate state public policy favoring parental immunity); Hush v. Devilbiss Co., 77 Mich. App. 639, 646-47, 259 N.W.2d 170, 173 (1977) (one \u201cwho voluntarily assumes parental responsibility and attempts to create a home-like environment for a child should be granted immunity from judicial interference to the same extent as a natural parent\u201d); Mitchell v. Davis, 598 So.2d. 801, 804 (Ala. 1992) (\u201cfoster parents should be afforded some protection by the parental immunity doctrine\u201d); Rutkowski v. Wasko, 286 A.D. 327, 331, 143 N.Y.S.2d 1, 4 (1955) (\u201c[n]o good reason\u201d exists why parent-child immunity should be applied to a natural parent and not in the case of one standing in loco 'parentis).\nMoreover, as stated in an early decision of this Court, abolishment of parent-child immunity is \u201cfor our Legislature or for our Supreme Court,\u201d Evans v. Evans, 12 N.C. App. 17, 18, 182 S.E.2d 227, 228, cert. denied and appeal dismissed, 279 N.C. 394, 183 S.E.2d 242 (1971), cert. denied, 405 U.S. 925, 30 L.Ed.2d 797 (1972), and not for this Court, however meritorious we might find such action. Mabry, 14 N.C. App. at 647, 188 S.E.2d at 652; see also Mayberry v. Pryor, 422 Mich. 579, 593, 374 N.W.2d 683, 689 (1985) (\u201cThe clear judicial trend is to abolish or limit the availability of the parental immunity defense to both parents and other caretakers alike.\u201d); Lee v. Mowett Sales Company, Inc., 316 N.C. 489, 494, 342 S.E.2d 882, 885 (1986) (\u201cIf the doctrine is to be abolished ... , it should be done by legislation and not by the Court\u201d); Harlin Ray Dean, Jnr., It\u2019s Time to Abolish North Carolina\u2019s Parent-Child Immunity, But Who\u2019s Going to Do It?\u2014Coffey v. Coffey and North Carolina General Statutes Section 1-539.21, 68 N.C.L. Rev. 1317 (1990).\nAbsent abolition of parent-child immunity, and bearing in mind we are bound by this Court\u2019s previous decisions involving stepparents, see In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), I submit that foster parents may, under appropriate circumstances, stand in loco parentis, and if so situated are entitled to the rights and benefits of natural parents, including parent-child immunity.\nAmong factors which have been recognized as applicable to a determination of whether a party stands in loco parentis are \u201cthe age of the child; the degree to which th\u00e9 child is dependent on the person claiming to be standing in loco parentis-, the amount of support, if any, provided; the extent to which duties commonly associated with parenthood are exercised,\u201d Hush, 77 Mich. App. at 649, 259 N.W.2d at 174-75; the amount of time the child has lived with the person and the degree to which a \u201cpsychological family\u201d has developed, In re Diana P., 120 N.H. at 796, 424 A.2d at 180.\nIn the case sub judice, particularly in view of the relatively short period of time the child lived with defendants on a full-time basis, I believe consideration of the foregoing factors raises an issue of fact as to whether defendant foster parents stood in loco parentis to Ambra. See State v. Hunter 48 N.C. App. 656, 662, 270 S.E.2d 120, 123 (1980) (evidence, inter alia, that child, his mother, and defendant lived together from September 1978 to January 1979 appropriate for jury determination of whether defendant was a person acting in loco parentis).\nConcerning such determination, the majority cites Michigan authority for the proposition that the \u201c[i]ntent to assume parental status can be inferred from [the parties\u2019] acts and declarations,\u201d Hush, 77 Mich. App. at 649, 259 N.W.2d at 174, but follows with a recitation of certain acts and declarations of the child\u2019s natural mother as bearing upon the determination of whether the defendant foster parents stood in loco parentis to Ambra. I agree it is established that the requisite \u201cintention may be shown by the acts and declarations of the persons alleged to stand in [the] relationship [of in loco parentis].\u201d 67A C.J.S. Parent & Child \u00a7 154 (1978) (emphasis added). However, the acts or sentiments of a natural parent do not appear to have been determined relevant either by the Michigan court cited or indeed by any other authority. If so, certain other uncontra-dicted evidence in the case sub judice would be pertinent \u2014 for example, Ms. Richardson\u2019s refusal to remove her boyfriend from her home following a child abuse investigation concerning Ambra and her later consent to placing custody of the child in DSS.\nIn sum, I conclude that under our existing law foster parents and those similarly situated may stand in loco parentis to a minor child and avail themselves of the parent-child immunity doctrine during the duration of that relationship. Further, the evidence of defendants\u2019 status in the case sub judice was not conclusive as a matter of law, and there remains an issue of fact as to whether defendant foster parents stood in loco parentis to Ambra. Accordingly, I concur in the result of reversal of the trial court\u2019s summary judgment in favor of defendants, but rather vote to remand for resolution of the in loco parentis issue by the trier of fact.", "type": "concurrence", "author": "Judge John" } ], "attorneys": [ "Crawford, Whitaker & Hough, P.A., by William A. Hough, III and David R. Crawford, for plaintiff-appellant/appellee David Liner, as Administrator of the Estate of Ambra D. Richardson.", "Nichols, Caffrey, Hill, Evans & Murrelle, by William L. Stocks and Richard J. Votta, for defendant-appellants/appellees." ], "corrections": "", "head_matter": "DAVID LINER, as ADMINISTRATOR of the ESTATE OF AMBRA D. RICHARDSON and VERONICA RICHARDSON v. RONALD and LINETTA BROWN\nNo. 9321SC1118\n(Filed 15 November 1994)\n1. Parent and Child \u00a7 2 (NCI4th)\u2014 wrongful death \u2014 decedent\u2019s aunt \u2014 not in loco parentis\nThe trial court erred in a wrongful death action by granting summary judgment for defendants based on parental immunity because they claimed to be in loco parentis to decedent where the decedent, Ambra, was the child of Veronica Richardson and Dennis Richardson, who are divorced; Ambra was adjudicated to be a dependent and neglected juvenile and placed in the legal and physical custody of the Forsyth County Department of Social Services; Ambra was placed with her paternal aunt, Linetta Brown; and she drowned in the Browns\u2019 swimming pool. Whether defendants stood in loco parentis is a question of intent to assume parental status and depends on all the facts and circumstances of the case. Here, DSS had both legal and physical custody, with a ninety day review having been ordered, having as an essential goal reuniting the parent and child; defendants were aware that they were obliged at all times to surrender Ambra\u2019s placement with them should the court reinstate custody with the mother or should DSS choose a different placement; and Ms. Richardson continued to love and care for Ambra\u2019s well-being as evidenced by her actions. The mere fact that defendants were obligated to provide and did provide a stable environment for Ambra for a two month period does not transform the relationship into one of parent-child.\nAm Jur 2d, Parent and Child \u00a7\u00a7 75 et seq.\nLiability of parent or person in loco parentis for personal tort against minor child. 19 ALR2d 423.\n2. Parent and Child \u00a7 13 (NCI4th)\u2014 wrongful death \u2014 parent-child immunity \u2014 paternal aunt \u2014 temporary custody and control\nSummary judgment should not have been granted for defendants in a wrongful death action where defendants claimed parental immunity, even if they stood in loco parentis to the victim, because extension of the parent-child immunity doctrine to one having temporary custody and control of a child would not further the policies underlying the doctrine.\nAm Jur 2d, Parent and Child \u00a7\u00a7 138 et seq.\nFamily relationship other than that of parent and child or husband and wife between tortfeasor and person injured or killed as affecting right to maintain action. 81 ALR2d 1155.\nJudge John concurring in part and concurring in part only in the result.\nAppeal by plaintiff and defendants from judgment entered 21 July 1993 in Forsyth County Superior Court by Judge Melzer Morgan. Heard in the Court of Appeals 23 August 1994.\nCrawford, Whitaker & Hough, P.A., by William A. Hough, III and David R. Crawford, for plaintiff-appellant/appellee David Liner, as Administrator of the Estate of Ambra D. Richardson.\nNichols, Caffrey, Hill, Evans & Murrelle, by William L. Stocks and Richard J. Votta, for defendant-appellants/appellees." }, "file_name": "0044-01", "first_page_order": 76, "last_page_order": 87 }