On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3587-05.
The opinion of the court was delivered by: Simonelli, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Carchman, R. B. Coleman and Simonelli.
This matter involves the tragic death of a four-year-old child, Joseph Wiggan (Joseph), who burned to death while a passenger in a car driven by his father, defendant Jasford Wiggan. Joseph's mother, plaintiff Hyacinth Thorpe, administratrix ad prosequendum and general administratrix of the child's estate, sought damages against defendant for negligence in failing to remove his son from the car before the fire started.*fn1 Plaintiff appeals from the November 28, 2007 order granting defendant's motion in limine dismissing her complaint with prejudice pursuant to the doctrine of parental immunity. We reverse and remand for trial.
The following facts are summarized from the record. On the evening of June 17, 2004, at approximately 9:00 p.m., defendant was driving his 1993 BMW westbound on Route 78 in Springfield. Joseph was secured in a child's safety seat directly behind the driver's seat. There are differing versions of how the incident occurred. In one version, defendant allegedly stated the following to a State Police detective during a telephone conversation on October 6, 2005:
[Defendant] informed this detective that he had been traveling west on [Route 78.] He began to notice that his car was emitting smoke. He heard "2 bangs," & he smelled the smoke also, so he pulled his vehicle over to the right shoulder. He then got out & walked around the vehicle to check, but was unable to determine from where the smoke was coming. But there was smoke inside the passenger compartment, & then suddenly there was a lot of smoke & there was fire in the back. He opened the door to try to reach [his] son, but there was so much smoke. [He] couldn't get him out. [He] kept trying. It was so hot & so much smoke. Then [he does not] know what happened. Some people stopped but [he] guess[ed] nobody could help. [He] wound up in the hospital. [He] got burned.
In another version, defendant testified at his deposition on February 28, 2007 that while driving in the middle lane of Route 78 westbound, he heard two bangs from underneath the car or the trunk and smelled smoke. He then saw smoke inside the car. Believing that a tire might be the cause, he opened his window. The car then "blew up in flames." He reached into the back seat, tried to pull Joseph from the car seat but was unsuccessful. He then pulled the burning car to the shoulder, parked, ran to a bush and rolled to put out the fire on his body. By the time he returned to the car, Joseph was dead.
Defendant suffered third-degree burns over thirty-seven percent of his body. He had prolonged treatment at the Burn Unit of St. Barnabas Medical Center, including many weeks in a medically-induced coma. Investigators subsequently determined that the fire originated beneath the driver's seat, spread to the center console and then spread to the passenger and back seat areas. There is no evidence that the fire was set intentionally. The exact cause of the fire is unknown.
Plaintiff conceded that she has no claim against defendant under the deposition version, and no claim for willful and wanton conduct. Plaintiff's only claim lies under the State Police version, which she contends constitutes ordinary negligence. Defendant stipulated to that version for the purpose of the in limine motion. He argued that his decision to leave his son in the car, away from the dangers of the highway, while he inspected the vehicle was a legitimate exercise of his discretion as a parent supervising his child, thus entitling him to parental immunity. The motion judge agreed, concluding that:
[U]nder the facts known to [defendant] at the time, his choice was, the decision he had to make was how to care for his child when the car was disabled on the highway at night. He had a choice and that's clearly what the issue is here that's been [narrowed] by the parties. The choice was what was he to do. Should he have removed the child immediately at that time? Or should he check out the car, the noises, and the smoke that he was aware of before removing the child? That's basically the issue here. Which choice was he to make?
And it seems to me that this is similar to [DeMarco v. DeMarco, 274 N.J. Super. 257 (Law Div.), aff'd, 274 N.J. Super. 210 (App. Div.), certif. denied, 138 N.J. 264 (1994)] in which this is the situation in which the parent must be allowed to exercise their discretion and make a choice even if it's the wrong choice.
So there being no willful or wanton conduct that would remove the actions of [defendant] from  parental immunity here, it appears to me that this was an exercise of judgment on his part. Perhaps he would now wish that he could go back and make a different decision, but I  think that this falls within the area ...