## Facts

- Three-year-old Ashley Cay McLellan lived primarily with her mother, Stacey Zellmer, and her stepfather, Joel Zellmer, after the couple married and moved into Joel’s home in September 2003.
- On December 3, 2003, Ashley stayed home sick from day care, and Joel agreed to care for her.
- Joel reported that he left Ashley watching a video in her bedroom while he went downstairs; later he found a backyard sliding door open and discovered Ashley floating in the home swimming pool.
- Ashley was resuscitated but died two days later in the hospital.
- Ashley’s mother and biological father, as co-personal representatives of Ashley’s estate, sued Joel for wrongful death and related tort claims, including negligence and negligent supervision, and also alleged willful and wanton misconduct.
- Joel sought summary judgment based on parental immunity, asserting he stood in loco parentis because he acted as a parent and provided support; Stacey disputed that he assumed a parental role, including disputing his financial support and authority to discipline.

## Issues

1. Whether Washington should abolish parental immunity for negligent parental supervision in favor of a “reasonable parent” standard.
2. Whether parental immunity applies to a stepparent, and if so, under what requirements for in loco parentis status.
3. Whether parental immunity should have an exception for wrongful-death actions brought on behalf of a child’s estate.
4. Whether in loco parentis status could be resolved as a matter of law on summary judgment on the record presented.

## Decision

- The court reaffirmed parental immunity as a bar to liability for negligent parental supervision, while allowing liability for willful or wanton failure to supervise.
- The court declined to create an exception to parental immunity for wrongful-death actions.
- The court held that a stepparent is protected by parental immunity to the same extent as a biological or adoptive parent only if the stepparent stands in loco parentis to the child.
- The court ruled that in loco parentis is a fact question on this record and reversed summary judgment, remanding for further proceedings.

## Legal Principles

- Parental immunity in Washington precludes tort liability for ordinary negligence in parental supervision decisions, reflecting a limited zone of discretion in performing parental functions.
- Parental immunity does not bar claims based on willful or wanton failure to supervise.
- A stepparent does not receive parental immunity solely by marriage to a legal parent; immunity applies only if the stepparent actually stands in loco parentis.
- In loco parentis status is fact-intensive and generally unsuitable for resolution on summary judgment where the record contains material factual disputes.
- Parental immunity applies even when the action is styled as wrongful death on behalf of the child’s estate, absent proof of conduct outside the immunity’s scope.

## Conclusion

The court preserved Washington’s parental-immunity rule for negligent supervision, extended the protection to stepparents only upon proof of in loco parentis status, rejected a wrongful-death carve-out, and required a fact-finder to resolve disputed evidence on whether the stepparent assumed a parental role.


Zellmer v. Zellmer, 164 Wn.2d 147, 188 P.3d 497 (Wash. 2008)