## Facts

- Marietta Sepaugh and Paul LaGrone divorced after a contentious marriage; Sepaugh was named sole managing conservator of their son, Frank, and LaGrone was a possessory conservator with visitation.
- LaGrone later lived in a two-story home with his two other sons, Cole and Sam; the boys slept in upstairs bedrooms and LaGrone slept in a downstairs master bedroom.
- On December 24, 2002, Frank (age 13) was staying overnight at LaGrone’s home for Christmas visitation, along with LaGrone’s son Cole and Frank’s friend John Overby; Sam slept downstairs in LaGrone’s room.
- A fire broke out in the early morning hours; LaGrone and Sam escaped through a window and Sam called 911.
- LaGrone and first responders attempted to rescue the boys upstairs but were unsuccessful; Frank, Cole, and Overby died.
- Sepaugh brought wrongful-death and survivorship claims alleging negligence and negligence per se based on LaGrone’s alleged failure to provide functional or audible smoke detectors in all sleeping areas as required by municipal ordinance.
- LaGrone moved for summary judgment asserting the affirmative defense of parental immunity; the trial court rendered a take-nothing summary judgment based solely on that defense.

## Issues

1. Whether parental immunity barred negligence and negligence-per-se claims premised on a parent’s alleged failure to comply with municipal smoke-detector ordinances in the parent’s home.
2. Whether municipal safety ordinances limited parental discretion in a way that prevented application of parental immunity.
3. Whether LaGrone’s status as possessory (not managing) conservator, the visitation setting, or the existence of liability insurance removed or narrowed parental immunity.
4. Whether Sepaugh’s derivative claims were barred if the child’s underlying claim was barred by parental immunity.

## Decision

- The court of appeals affirmed the take-nothing summary judgment for LaGrone.
- The court held parental immunity barred the negligence and negligence-per-se claims because the alleged conduct arose from parental discretion in providing a home and living conditions.
- The court rejected the argument that smoke-detector ordinances curtailed parental discretion so as to defeat immunity.
- The court declined to limit parental immunity based on conservatorship status or the visitation context.
- The court rejected an insurance-based exception to parental immunity.
- The court held derivative claims were barred because the child’s underlying claim was barred.

## Legal Principles

- Under Texas law, parental immunity bars tort suits by a child (and claims dependent on the child’s right to recover) for alleged negligence arising from a parent’s discretionary decisions in providing a home and shelter.
- A negligence-per-se theory based on violation of a municipal safety ordinance does not, by itself, eliminate parental immunity when the alleged conduct falls within protected parental functions.
- Parental immunity does not turn on which parent is managing versus possessory conservator when the parent is exercising parental authority during visitation in the parent’s home.
- Texas courts will not create an insurance exception to parental immunity absent controlling authority.
- If the child’s claim is barred by parental immunity, derivative claims arising from the same injury are also barred.

## Conclusion

The court held that parental immunity barred wrongful-death, survivorship, and derivative claims alleging negligence and negligence per se based on a father’s alleged failure to comply with smoke-detector ordinances in his home during visitation, and it affirmed summary judgment for the father.


Sepaugh v. LaGrone, 300 S.W.3d 328 (Tex. App.—Austin 2009)