Torts II, Pages 666–670

Zellmer v. Zellmer

Supreme Court of Washington, 2008


Defendant was supervising his stepdaughter when he left her in her room upstairs for an hour while he was in the basement. The girl left her room, found the sliding door open, and went outside to the pool. Defendant then found her floating in the pool and called 911, but she died two days later. Defendant had been unemployed since his marriage to the girl's mother and hence did not financially support them.

Defendant's Argument:

The doctrine of in loco parentis shielded defendant from liability for negligence in his stepdaughter's death.

Procedural History:

  • Trial court granted summary judgment, concluding that marriage was enough for parental immunity, even without in loco parentis.

  • Court of appeals affirmed, holding that a stepparent is shielded from liability when he has an obligation of financial support.


Is a stepparent shielded from liability to his stepchild?


  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 667, Bottom

    A parent is not immune when acting outside his or her parental capacity. . . . Even when acting in a parental capacity, a parent who abdicates his or her parental responsibilities by engaging in willful or wanton misconduct is not immune from suit.

    But this court has consistently held a parent is not liable for ordinary negligence in the performance of parental responsibilities.


    This is the majority rule.

  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 670

    No court has allowed a stepparent to claim parental immunity solely by virtue of his or her marriage to the injured child's biological parent. . . . On the other hand, a stepparent standing in loco parentis has a common law duty to support and educate a child to the same extent as does a natural parent.


While interspousal immunity was abolished in Washington and there is a trend away from the parental immunity doctrine, an important public policy interest in some form of parental immunity, and a majority of jurisdictions do apply it when the stepparents stand in loco parentis.


Defendant would be shielded if he was actually acting in loco parentis as he alleges, so this issue must be tried. Reversed and remanded.