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applying definition of willful and wanton conduct to parental immunity doctrine
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No. 92SC693
Decided January 10, 1994
Certiorari to the Colorado Court of Appeals
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Cooper Kelley, P.C., Kay J. Rice, John R. Mann, Denver, Colorado, Attorneys for Petitioners
Feder, Morris, Tamblyn Goldstein, P.C., Leonard M. Goldstein, Mark D. Thompson, Denver, Colorado, Attorneys for Respondents
In Roter by Margolin v. Terror Min. Co., 847 P.2d 188 (Colo.App. 1992), the Colorado Court of Appeals reversed the trial court's summary judgment and reinstated the tort claims brought by unemancipated minor children against their father. We granted certiorari in order to decide whether our parental immunity doctrine bars such claims. We reverse that part of the court of appeals' decision regarding the children's claims of willful and wanton misconduct, an exception to the parental immunity doctrine, but affirm that court's reversal of the trial court's summary judgment and reinstatement of the children's claims of negligence under the business or employment exception to the parental immunity doctrine.
I
Petitioner David L. Roter, M.D. (Dr. Roter) incorporated Terror Mining Corporation, Inc. (TM) as a Colorado corporation in 1981 and was TM's only shareholder. TM was organized for the purpose of mining gold for commercial gain in Eldora, Colorado. Dr. Roter, who worked for TM on a part-time basis, was TM's only employee.
Dr. Roter, an orthopedic surgeon by profession, generally worked for TM on weekends.
On May 12, 1984, Dr. Roter was engaged in work activities in furtherance of TM's business. While so employed, Dr. Roter attempted to transport a large spool of mining cable from an upper driveway to a lower storage area using TM's Mercedes Unimog. The Unimog was equipped with both a 1600 pound front end loader and a 2000 pound counterweight. The counterweight was secured to the posterior bed of the Unimog with a steel restraining band. Dr. Roter was the only person authorized to operate the Unimog and purportedly had extensive experience driving the vehicle.
A Mercedes Unimog is an off-road construction vehicle designed to accommodate multiple tasks including transporting heavy equipment to job sites, snowplowing, sweeping, front-end loading, trenching and backfilling. Much like a pick-up truck in appearance, the Unimog rides high above the ground on oversized tires. The Unimog has several attachments which can be fitted at the front, middle or rear of the vehicle.
After Dr. Roter had loaded the steel cable in the front end loader, his two daughters, Alyssa Roter and Amber Roter (the Roter children), who were then two and four years of age respectively, asked Dr. Roter if they could ride in the rear of the Unimog. Dr. Roter agreed and placed the Roter children in the rear bed of the vehicle. With the mining cable in place, he then proceeded to drive the Unimog down a gravel and dirt road that runs parallel to, and roughly thirty to forty feet above, a stream known as Boulder Creek. The road has a grade of approximately seven percent (7%).
Soon after Dr. Roter began driving the Unimog, the counterweight broke loose, propelling the counterweight forward. The resulting shift in the position of the counterweight threw the Unimog apparatus out of balance, causing Dr. Roter to lose steering control of the vehicle. Dr. Roter attempted to offset the shift in weight by lowering the front-end loader, however, this maneuver caused the Unimog to veer toward the edge of the road and toward the creek below. Unable to control the Unimog, Dr. Roter immediately jumped out of the vehicle and tried to rescue the Roter children from the rear of the Unimog. Before he could reach them, however, the Unimog ran over the edge of the road, whereupon the Roter children were thrown into Boulder Creek. As a result, the children sustained severe injuries.
II
On June 11, 1990, by and through their mother and conservator, Stacy Margolin, the Roter children filed suit in the district court to recover damages for all past and future medical expenses, pain and suffering, permanent disabilities, exemplary damages and for attorney fees and costs with interest. In their verified complaint, the Roter children specifically alleged that their injuries were "the direct and proximate result of Defendant Roter's negligence, carelessness and/or recklessness."
Stacy Margolin initiated these proceedings pursuant to her authority as conservator in accordance with an order of the Probate Court of Boulder County. Under § 13-81-103(1)(a), 6A C.R.S. (1987), applicable to "persons under a disability," e.g., minor children, the two-year statute of limitations for filing tort claims is tolled until either the disability is removed or a legal representative such as a conservator is appointed by a probate court; see also Tenney v. Flaxner, 727 P.2d 1079 (Colo. 1986).
The defendants, Dr. Roter and TM, moved for summary judgment on the grounds that, there being no genuine issue of material fact as a matter of law, the tort action filed by the Roter children was barred under the doctrine of parental immunity. The Roter children argued in opposition to the motion that two exceptions to the parental immunity doctrine that have been adopted by this jurisdiction were applicable to this case, i.e., that Dr. Roter engaged in willful and wanton misconduct and that the incident arose out of Dr. Roter's pursuit of a business or employment activity. As such, the Roter children asserted that Dr. Roter was not protected under our parental immunity doctrine.
Finding the "events which led to the injuries" suffered by the children "undisputed," the district court entered summary judgment in favor of Dr. Roter and TM. That court granted the defendants' motion and dismissed all claims filed by the Roter children on the grounds that, first, the exception to the parental immunity doctrine that is based upon a finding of willful and wanton misconduct by a parent did not apply to the instant case, inasmuch as the Roter children failed to demonstrate a genuine issue of material fact and that their complaint "allege[d] no facts which could conceivably support a finding of willful and wanton or intentional misconduct." Additionally, the district court ruled that the business or employment exception to the parental immunity doctrine was inapplicable to this case because
the parental immunity doctrine is a question of law for the court's determination [and g]iven the policy reasons for the doctrine, that determination can only be based on whether the children were under parental supervision of their father at the time of the injury. If they were, the doctrine applies even though the operative act of negligence . . . was within the course and scope of a business activity.
Thus the district court also concluded that because Dr. Roter put his children in the flatbed of the Unimog "in the exercise of parental supervision," a decision that "had nothing to do with [his mining] business," as a matter of law, the doctrine of parental immunity barred the action brought against Dr. Roter.
Following the district court's entry of summary judgment in this matter, the Roter children appealed to the court of appeals. In Roter by Margolin v. Terror Min. Co., Inc., 847 P.2d 188 (Colo.App. 1992), the court of appeals reversed the trial court's summary judgment in favor of Dr. Roter and TM, first, on the ground that disputed material factual issues as to whether Roter's conduct was willful and wanton existed. The court of appeals' analysis on this issue is as follows:
The record discloses that the [Roter children] alleged, both in their complaint and in their submissions in opposition to summary judgment, a number of undisputed circumstances in support of their position that Roter's conduct went beyond simple negligence and constituted willful and wanton misconduct. Specifically, [they] cited their young age . . ., their unrestrained position in the open rear bed of the Unimog, together with the fact that it was not designed to carry persons. They [also] note the danger resulting from their proximity to the insecurely fastened counterweight and the steep grade of the road being traveled. They likewise point out that, because of their positions relative to that of Roter while operating the machine, he could not get to them in case of an emergency.
Roter, 847 P.2d at 190. The court of appeals thus concluded that the Roter children alleged facts in the complaint and in opposition to the defendants' motion sufficient to support an inference that Dr. Roter's conduct fell within the "willful and wanton misconduct" exception to the parental immunity doctrine, and that as such, summary judgment was inappropriate.
Additionally, the court of appeals reversed the district court's ruling that Dr. Roter's actions did not fall within the limited business or employment exception to the parental immunity doctrine. In support of its judgment, the court of appeals noted that the record
discloses undisputed evidence in support of [the Roter children's] position that they were injured during [Dr.] Roter's exercise of his corporate duties. In this regard, [the Roter children] cite [Dr.] Roter's status as the sole shareholder of the corporation and his being the only authorized driver of the Unimog, which Roter had acknowledged was mostly used on the corporation's mining property. [The Roter children] bolster their position with [Dr.] Roter's admission that he was using the Unimog the day of the accident "in the furtherance of the corporation's business."
Id. The court of appeals concluded that these "undisputed facts, likewise, would be sufficient to support a reasonable factual inference that [the Roter children] were, indeed injured . . . while [Dr. Roter] was engaged in [the] acts of his corporation . . . ." Roter, 847 P.2d at 190-91. Accordingly, that court held that the trial court erred in entering summary judgment in favor or Dr. Roter because a genuine issue of material fact was raised by the Roter children. Roter, 847 P.2d at 191.
The court of appeals also held that the district court's "dismissal of the claim against [TM] on summary judgment was improper," but that "the resolution of the factual issues concerning `willful and wanton' and `course of employment' may well be determinative of [TM's] liability here." Roter by Margolin v. Terror Min. Co., 847 P.2d 188, 191 (1992).
We granted the petition for certiorari filed by Dr. Roter and TM in order to resolve the following two issues: (1) whether the court of appeals erred in holding that it reasonably could be inferred from the undisputed facts that Dr. Roter's conduct was willful and wanton, rendering summary judgment based on application of the parental immunity doctrine inappropriate; and (2) whether the business or employment exception to the parental immunity doctrine should apply when a parent is acting both in the course of employment and in a parental capacity. Because we find the record does not support a reasonable inference that Dr. Roter's conduct was willful and wanton, we reverse the court of appeals' holding that Dr. Roter's conduct was willful and wanton and instruct the court of appeals to reinstate summary judgment as to the first issue. However, inasmuch as Dr. Roter was engaged in business or employment activities at the time of the accident, we affirm the court of appeals' determination that summary judgment is inappropriate, as a matter of law, regarding the second issue. Thus, because the business or employment exception to our parental immunity doctrine applies to those acts arising out of occupational pursuits, such as those undertaken by Dr. Roter, we hold that Dr. Roter is excluded from the protection that might otherwise be accorded him under that doctrine.
III
A. Qualified Parental Immunity
We recently reviewed the history and purpose of the doctrine of parental immunity in Schlessinger v. Schlessinger ex rel. Schlessinger, 796 P.2d 1385 (Colo. 1990). In Schlessinger, we noted that the doctrine of parental immunity was first announced in Hewellette v. George, 68 Miss. 702, 9 So. 885 (1891), overruled by Glaskox ex rel. Denton v. Glaskox, 614 So.2d 906 (Miss. 1992), a case decided at the turn of the century wherein a minor child alleged false imprisonment against her parent for maliciously committing her to an insane asylum. In Hewellette, the Mississippi Supreme Court denied liability against the parent in order to preserve "the peace of society . . . and to subserve the repose of families." Hewellette, 68 Miss. at 711, 9 So. at 887. In Schlessinger, we articulated additional bases for continuing to recognize the parental immunity doctrine. These include:
the maintenance of family harmony and tranquility; the preservation of legitimate parental authority and control of the children; the prevention of fraudulent or collusive suits between family members, especially when the parent is covered by liability insurance; and the safeguarding of family assets lest they be depleted in favor of one child at the expense of other children.
Schlessinger, 796 P.2d at 1387 (citations omitted).
Although we have acknowledged the foregoing purposes that underlie the parental immunity doctrine, we have long rejected a rule of absolute immunity and instead have adopted a rule of "qualified" parental immunity. See, e.g., Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640 (1963). In explaining our position with respect to the qualifications that can exempt a parent from immunity in tort actions, we referred, in Schlessinger, to two earlier cases in which we discussed our reasons for adopting the "willful and wanton misconduct" and the "business or employment" exceptions to the doctrine of parental immunity. It is with the benefit of this precedent that we again address our exceptions to the parental immunity doctrine.
The overwhelming majority of jurisdictions recognize exceptions to the parental tort immunity doctrine. Furthermore, more than one-half of the states have found that parents may be liable to their children for injuries caused by their negligence. See Glaskox ex rel. Denton v. Glaskox, 614 So.2d 906 (Miss. 1992) for a comprehensive list of decisions wherein courts have adopted this view. In Glaskox, the court which first announced the doctrine, the Mississippi Supreme Court, rejected continued allegiance to its application. Id. See also, Rousey v. Rousey, 528 A.2d 416, (D.C.App. 1987) (concluding that parental immunity is a vestige from a bygone era when children were without legal protection from their parents); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980) (holding that the only disruption to family harmony is the injury, not the lawsuit that follows; collusion issue, moreover, is resolved by maintaining faith in the competence of trial judges to recognize and deal with such matters). The Restatement also recommends abolition of the doctrine (commenting that "[c]onstant criticism of the immunity has led to its erosion by the development of numerous exceptions to it . . . until there are now very few jurisdictions if any, in which the immunity exists in any complete form"). Restatement (Second) of Torts § 895G cmt. d.
See Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974) and Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640 (1963).
B. The Willful and Wanton Misconduct Exception
In Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974), we upheld the trial court's dismissal of a child's claim in simple negligence against a parent because "the liability of a parent can be predicated only upon wilful and wanton misconduct," Horton, 186 Colo. at 156, 526 P.2d at 308, but not simple negligence. Elaborating on this principle, in Schlessinger we stated that in contrast to simple negligence
willful and wanton misconduct involves a purposeful act or omission which the actor should have realized was dangerous to another but nonetheless was committed recklessly and without regard to the other's safety. When a parent engages in such misconduct and causes injury to the child, the parent's behavior no longer is simply a failure to use reasonable care, but rather takes on a character which the law is unwilling to tolerate and becomes a matter of public concern.
Schlessinger, 796 P.2d at 1388 (citations omitted and emphasis added).
Consistent with our view that willful and wanton misconduct connotes acts or omissions that extend beyond mere unreasonableness, other jurisdictions have limited this exception to cases wherein a parent causes injury to his or her child due to driving while intentionally intoxicated. See, e.g., Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982) (holding where parent became willfully and intentionally intoxicated and drove vehicle with child as passenger while so intoxicated and at excessive speed, family immunity doctrine presents no bar to child's claim); Winn v. Gilroy, 296 Or. 718, 681 P.2d 776 (1984) (upholding wrongful death action where parent drove automobile while intoxicated with children as passengers); see also, Restatement (Second) of Torts § 895G cmt. e. ("A common application of the exception has been in the case of a parent who injures his child by his drunken driving of an automobile.").
In summary, before the willful and wanton misconduct exception removes the mantle of protection afforded a defendant under the parental immunity doctrine, the defendant's conduct must go beyond mere unreasonableness; it must be "purposeful" and committed without regard to the child's safety. See also Steeves v. Smiley, 144 Colo. 5, 9-10, 354 P.2d 1011, 1014 (1960) (concluding that where defendant pursues a highly hazardous course with the knowledge that tragic consequences are highly probable, defendant's conduct is reckless or wanton, and not merely negligent or careless); Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954) (holding ordinary or simple negligence should be considered as resulting from a passive mind, while a willful and wanton disregard is the result of an active and purposeful intent); Millington v. Hiedloff, 96 Colo. 581, 45 P.2d 937 (1935) (recognizing that negligence has in it no element of willfulness, but involves a state of mind in which the person fails to give attention to the character of his acts or omissions or to weigh their consequences; in comparison, willful acts and omissions are conscious acts, the possible consequences of which are considered and present in the mind); section 13-21-102(1)(b), 6A C.R.S. (1987) (establishing that willful and wanton conduct, for purposes of awarding exemplary damages, "means conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to the consequences, or of the rights and safety of others") (emphasis added); Restatement (Second) of Torts § 500 ("wanton and willful misconduct" used by some courts "to refer to conduct intended to cause harm to another").
In their verified complaint as to the nature of Dr. Roter's culpability, the Roter children specifically alleged "negligence," or the "failure to exercise due care" in their first claim for relief against Dr. Roter; in their second claim for relief, the Roter children alleged "careless driving"; in their third and final claim for relief, they alleged "reckless driving." In the Roter children's filings in opposition to Dr. Roter's and TM's summary judgment motion, they offered no additional facts, by affidavit or counter affidavit, which we consider to be relevant and which reflect purposeful conduct on the part of Dr. Roter. Rather, the only conduct by Dr. Roter which is purported to give rise to these allegations includes "putting [the Roter children] in an open bed of a truck with a [2000] pound weight," and "dr[iving the] vehicle in a careless and imprudent manner without due regard for the terrain and incline of the mountain property."
Although the complaint refers to the counterweight as weighing 500 pounds, the parties later agreed that it weighed one ton or 2000 pounds. In his deposition, Dr. Roter stated that the counterweight weighed approximately 2000 pounds; later, in their brief in opposition to Dr. Roter/TM's summary judgment motion, the Roter children also note that the counterweight weighed 2000 pounds.
As discussed earlier, in order to fall within the scope of the willful and wanton misconduct exception to the parental immunity doctrine, the Roter children would need to allege in their complaint or assert in their response in opposition to Dr. Roter's motion, facts that would, at the least, raise an inference that when Dr. Roter placed his children in the bed of the Unimog for the purpose of transporting the spool of cable, he did so consciously, knowingly, with reckless disregard of, or intentionally having considered that the tragic consequences which occurred were "highly probable." See Steeves, Pettingell and Millington, supra.
Moreover, it is settled that a plaintiff opposing a defendant's summary judgment motion must counter statements of fact averred by the defendant and raise an inference sufficient to establish the existence of a genuine issue of material fact. C.R.C.P. 56; Artes-Roy v. City of Aspen, 856 P.2d 823 (Colo. 1993) (holding that when a motion for summary judgment is filed, an adverse party must set forth specific facts showing that a genuine issue of material fact exists for trial); Trinity Broadcasting v. Westminster, 848 P.2d 916, 925 n. 11 (Colo. 1993) (noting that after moving party for summary judgment meets initial burden nonmovant bears burden of establishing that there is a triable issue of fact); see also Klancher v. Anderson, 113 Colo. 478, 158 P.2d 923 (1945).
Thus, where the record fails to show the existence of a genuine disputed factual issue, summary judgment is appropriate. Civil Service Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991) (movant for summary judgment can satisfy his burden of establishing nonexistence of genuine issue of material fact by demonstrating that there is an absence of evidence in the record to support non-moving party's case).
In the present case the facts are undisputed, and those facts neither establish nor imply that Dr. Roter's conduct was "willful and wanton," as we have defined that language. The only relevant allegation made by the Roter children on this point is that of "reckless driving," and the facts they cite to support this allegation are limited to the following recitation: "By placing Plaintiffs in an open flatbed wherein a [2000] pound counterweight was situated, Defendant Roter acted in such a manner as to indicate wanton and willful disregard of the safety of Plaintiffs." We thus conclude that Dr. Roter's act of placing his children in the open flatbed of the Unimog while transporting a spool of cable, standing alone, is not a fact that suggests that he purposefully placed his children at risk for the tragic accident.
The Roter children's first and second claims for relief sound in ordinary negligence.
We therefore disagree with the court of appeals' holding that the facts alleged in the Roter children's complaint and their opposition to defendants' motion are sufficient to support an inference by a reasonable fact finder that Dr. Roter's conduct was "purposeful," and "in reckless disregard of [the Roter children's] safety." Roter, 847 P.2d at 190. From the pleadings alone, we cannot reasonably infer a state of mind, purpose, or desire of Dr. Roter to subject the Roter children to the risk of the harm suffered. Moreover, the Roter children have failed to meet their obligations under Rule 56 in their opposition to the motion for summary judgment filed by the defendants. Thus we concur with the district court that while the facts alleged by the Roter children might suggest that Dr. Roter's conduct on the date of the accident was unreasonable or negligent, plaintiff children failed to sufficiently plead specific facts and support their opposition to the summary judgment motion so as to present a factual basis upon which a reasonable inference could be drawn that Dr. Roter purposefully pursued an activity that he had considered, more likely than not, would result in the tragic accident injuring the Roter children. See 6 Jeremy C. Moore et al., Moore's Federal Practice § 56.17[42] (2d ed. 1993) (while issues alleging negligence are not ordinarily susceptible to summary adjudication, summary judgment may be rendered for defendant where the plaintiff fails to establish that the defendant's conduct rose to the level of wanton or willful conduct, a fact necessary for recovery). Because we are unwilling to extend liability under the willful and wanton misconduct exception of our parental immunity doctrine to unreasonable acts, thoughtlessness, or inattention, we reverse the court of appeals on this issue.
Comment b of the Restatement (Second) § 500 may be instructive here: b. Perception of risk. Conduct cannot be in reckless disregard of the safety of others unless the act . . . is itself intended, notwithstanding that the actor knows of facts which would lead any reasonable [person] to realize the extreme risk to which it subjects the safety of others. It is reckless for a driver of an automobile intentionally to cross a through highway in defiance of a stop sign if a stream of vehicles is seen to be closely approaching in both directions, but if his failure to stop is due to the fact that he has permitted his attention to be directed so that he does not know that he is approaching the crossing, he may be merely negligent and not reckless. So too, if his failure to stop is due to the fact that his brakes fail to act, he may be negligent if the bad condition of the brakes could have been discovered by such an inspection as it is his duty to make, but his conduct is not reckless.
C. The Business or Employment Exception
In Schlessinger we also cited to Trevarton, supra, a case in which we discussed the second exception to the parental immunity doctrine and held that it was proper "to deny the parent's claim to immunity where the injuries are inflicted by the parent in the performance of duties relating to business as distinguished from parental duties." Trevarton, 151 Colo. at 423, 378 P.2d at 643. See also Schlessinger at 1387 (citing Trevarton for the proposition that "when a parent causes injury to a child in the performance of business or employment duties, there is no valid reason to deny the child a remedy in tort for the parent's negligence"). As we indicated in both Trevarton and Schlessinger, the reason for recognizing this exception is that parental duties vis-a-vis business undertakings are ordinarily distinct and exist independently of one another; as such, tort immunity predicated upon notions of the preservation of family harmony, domestic felicity, parental authority, and so forth, lacks either a logical or public policy justification for extension of the same immunity to activities which are sufficiently separate and distinct from parental acts. See Schlessinger, 796 P.2d at 1387 (holding "a person's business or employment activities . . . deserve no special protection under the mantle of parental immunity"); Trevarton, 151 Colo. at 423, 378 P.2d at 642 ("A rule which so incongruously shields conceded wrongdoing bears a heavy burden of justification.") (quoting Badigian v. Badigian, 9 N.Y.2d 472, 174 N.E.2d 718 (1961) (dissenting opinion by Fuld, J.) (overruled by Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192 (1969); Stamboulis v. Stamboulis, 401 Mass. 762, 579 N.E.2d 1299 (1987) (where child was injured while at parent's place of business, family immunity doctrine will not protect parent because the prior distinction between motor vehicle and non-motor vehicle negligence has no rational justification); see also Note, The "Reasonable Parent" Standard: An Alternative to Parent-Child Tort Immunity, 47 U. Colo. L. Rev. 795 n. 3 (1976) (courts that recognize the "business or employment" exception to the parental immunity doctrine have done so on the ground that in these contexts, the existence of a parent-child relation is "merely fortuitous and thus, not a bar to an otherwise valid claim").
In the case before us, the Roter children assert, and Dr. Roter concedes, that Dr. Roter was an employee of TM, that he was the only authorized driver of the Unimog, that the Unimog was used primarily on the property of TM, and finally, that at the time of the accident he was engaged "in the furtherance of [TM's] business." Based on these undisputed facts, we agree with the court of appeals that the business or employment exception should be available to the Roter children, inasmuch as it is clear that Dr. Roter's actions were undertaken in the course and scope of his business undertaking or employment duties. While it is arguable that Dr. Roter was also engaged in the discharge of his parental duties when he permitted his children to ride in the back of the Unimog, we believe that this was a fortuitous circumstance, one which should not absolve Dr. Roter from his allegedly negligent conduct, nor deny the Roter children the right to recover appropriate damages, if ultimately proven. We further note that this case is factually analogous to Trevarton, and to the cases that we cited in support of our holding in that case. Finally, we believe that the principles established in Trevarton are directly applicable to the present dispute.
In his brief supporting his summary judgment motion, Dr. Roter asserts that because TM was "never a money making enterprise," and that on the day of the accident he "was under no business obligation to move the spool of cable," and finally, that he was not "provided any compensation for his activities," the business or employment exception to the parental immunity doctrine cannot apply. This argument is not persuasive. Dr. Roter also testified that TM was incorporated in July, 1981, that TM was organized and operated for profit, and that TM was then attempting to commercially exploit and benefit from the rising price of gold. There is no disagreement that TM was a bona fide corporation at the time of the accident. Under our corporate law, a corporation comes into existence as a corporation de jure upon the issuance of a certificate of incorporation, Bowers Bldg. Co. v. Altura Glass Co., Inc., 694 P.2d 876 (Colo.App. 1984), and without more, its existence is continuous; hence a defendant corporation cannot deny corporate status merely because such status becomes improvident, Grand River Bridge Co. v. Rollins, 13 Colo. 4, 21 P. 897 (1889); see also Colorado Finance Co. v. B.F. Bennet Oil Co., 110 Colo. 1, 129 P.2d 299 (1942) (the cloak of corporate protection or liability may not be shed or donned to suit the personal whim or caprice of corporation's officers). That Dr. Roter considered the activities of TM to be at the time limited to a non-income producing weekend enterprise does not ipso facto transfigure his business corporation into a "hobby." Contractors Heating Supply Co. v. Scherb, 163 Colo. 584, 432 P.2d 237 (1967) (holding that, standing alone, without evidence of fraud or some other wrong being perpetrated, informalities in conduct of the business and affairs of the corporation do not form basis for piercing corporate veil).
In Trevarton, an unemancipated minor child sought to recover damages from his father for the injuries he sustained as the result of the alleged negligence of his father. At the time of the accident, the father was engaged in cutting, felling and loading trees. The child was sleeping near the operation at the time, when a felled tree was dragged across him. In allowing the child to maintain the negligence action against his father, we joined the numerous other courts that "deny the parent's claim to immunity where the injuries are inflicted by the parent in the performance of duties relating to business as distinguished from parental duties." Trevarton at 643.
Two cases we cited as authority to support the adoption of the business or employment exception involved situations in which minor children were injured as a result of their parents' negligent driving of motor vehicles in the scope and course of their business or employment. See Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939) and Lusk v. Lusk, 113 W. Va. 17, 166 S.E. 538 (1932). Both cases, in which the respective courts applied the business or employment exception, involved facts similar to those in the case before us; neither Worrell nor Lusk presented clear-cut factual distinctions between the discharge of the parents' duties and the furtherance of their business or employment activities. Thus we read Trevarton to extend to cases where a parent negligently causes harm to his or her child while engaged in acts within the course and scope of his or her business or vocation, regardless of whether the parent is also, technically speaking, supervising the activities of the child at the time. This approach eliminates the futility of inquiring into the degree of parenting present at the time of the negligently-caused injury. As we stated in Schlessinger,
[i]t is virtually impossible in today's complex society to categorize with any degree of precision those activities which are at the core of the parental relationship from those that are not, just as it is equally difficult to identify those activities which are uniquely familial in character from those that are not. Our decisions in Trevarton, 151 Colo. 418, 378 P.2d 640, and Reaves, 186 Colo. 149, 526 P.2d 304, make clear that what is of legal significance in determining the cognizability of a child's tort claim against a parent is whether the claim . . . arises out of the parent's pursuit of business or employment activities.
Schlessinger, 796 P.2d at 1390.
We therefore decline to engage in the futile attempt to "precisely categorize" parental duties, and instead hold that the dispositive issue is whether the parent's negligence arises out of the parent's pursuit of his or her business or employment activities, and not whether the parent was simultaneously engaged in conduct that theoretically could be classified as a parenting act.
To hold otherwise would render the business or employment exception illusory inasmuch as it could be argued that whenever one's children are present, a parent is engaged in parenting activities.
Accordingly, we find that the court of appeals was correct in concluding that because the record
discloses undisputed evidence . . . sufficient to support a reasonable factual inference that [the Roter children] were indeed, injured, as in Trevarton v. Trevarton, while their parent was engaged in acts of his corporation or of his employment by the corporation . . . a genuine issue of fact has been raised and summary judgment must be denied.
Roter, 847 P.2d at 190-91. The court of appeals' reversal of the district court's summary judgment on this issue is thus affirmed.
IV
Because the Roter children did not set forth genuine issues of material fact as to whether Dr. Roter's actions constituted willful and wanton misconduct, summary judgment was properly entered for Dr. Roter and TM. As such, we reverse the court of appeals' judgment on this issue and remand to that court with directions to enter partial summary judgment in favor of Dr. Roter and TM. Because it is undisputed that Dr. Roter was engaged in employment activities in furtherance of a business enterprise at the time of the accident, however, we hold that the business or employment exception to our parental immunity doctrine should be available to the Roter children, and hence summary judgment in favor of defendants is inappropriate. We therefore affirm the court of appeals' determination that summary judgment is improper as to the issue of whether the business or employment exception to the parental immunity tort doctrine exempts Dr. Roter from the action brought by the Roter children.
The court of appeals' opinion is affirmed in part, reversed in part, and the case is returned to the court of appeals with directions to remand to the district court for further proceedings consistent with the views expressed herein.
CHIEF JUSTICE ROVIRA concurs in part and dissents in part, and JUSTICE VOLLACK joins in the concurrence and dissent. JUSTICE LOHR concurs in part and dissents in part, and JUSTICE KIRSHBAUM joins in that part of the dissent addressing part IIIB of the majority opinion. JUSTICE KIRSHBAUM specially concurs in part IIIC.