## Facts

- A child living in an apartment complex nearly drowned in the complex’s swimming pool shortly before turning two, was rescued and revived, and later died from resulting injuries.
- The child’s mother sued the apartment owners and property manager for negligence, asserting (1) wrongful-death damages in her own right and (2) a survival claim on behalf of the child’s estate.
- The defendants alleged the mother was negligent solely in her “management, supervision, and control” of the child.
- The jury found total damages of $285,492.28 for wrongful death and $50,969 for the survival claim, and apportioned responsibility 55% to defendants and 45% to the mother.
- The trial court reduced the mother’s wrongful-death recovery by her percentage of responsibility but awarded the estate the full survival damages; it denied defendants’ request to obtain contribution from the mother for 45% of the survival award.
- The court of appeals allowed contribution against the mother in the survival action, concluding parental immunity did not bar that claim.
- The Texas Supreme Court reviewed and reinstated the trial court’s denial of contribution.

## Issues

1. Whether, in a child’s survival action, a defendant may obtain contribution from a parent whose only alleged negligence is negligent supervision of the child, or whether parental immunity bars such contribution.

## Decision

- The Texas Supreme Court reversed the court of appeals and affirmed the trial court’s judgment denying contribution against the mother in the survival action.
- The court held parental immunity barred any negligence claim by the child (and thus the estate) against the parent for negligent supervision, eliminating the predicate for derivative contribution.
- The court rejected the argument that the parent waived reliance on parental immunity by not affirmatively pleading it, treating the bar as established as a matter of law on the pleadings.

## Legal Principles

- A contribution claim is derivative of the plaintiff’s right to recover against the party from whom contribution is sought; if the plaintiff has no cause of action, contribution is unavailable.
- Parental immunity bars an unemancipated minor’s tort claim against a parent for negligent supervision and related parental care, control, and discipline decisions.
- A survival action is purely derivative of the decedent’s own cause of action; the estate takes no greater rights than the decedent had during life.
- Comparative responsibility and contribution statutes do not create contribution rights where substantive law (including immunity doctrines) eliminates the underlying liability absent clear legislative abrogation.
- Parental immunity applicable to negligent supervision remains a bar to liability, and thus to derivative contribution, even when the child has died and the claim is pursued by the estate.

## Conclusion

Because the child could not have sued the parent for negligent supervision due to parental immunity, the estate likewise lacked such a claim in the survival action; therefore, the defendants had no derivative right to contribution from the parent for the percentage of fault attributed to her.


Shoemake v. Fogel, Ltd., A.T., 826 S.W.2d 933 (Tex. 1992)