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Hatzinicolas v. Protopapas12/9/1988
"The doctrine usually called the parent-child immunity rule exists in Maryland." Frye v. Frye, 305 Md. 542, 543, 505 A.2d 826, 827 (1986). The immunity includes actions sounding in negligence. Id. at 567, 505 A.2d at 839. In this negligence action an unemancipated infant sues the business partner of one of the infant's parents and alleges negligence arising out of the conduct of the partnership business. The Court of Special Appeals extended parental immunity to the defendant. Hatzinicolas v. Protopapas, 73 Md. App. 271, 533 A.2d 1311 (1987). In so doing that court was persuaded by one aspect of the rationale in David v. David, 161 Md. 532, 157 A. 755 (1932) which held that a wife could not maintain a negligence suit against the partnership of which her husband was a member. For reasons hereinafter explained we conclude that parent-child immunity should not be extended to a parent's partner or partnership and we disapprove of the implications to the contrary in David.
The record on which the legal issue is presented consists of the complaint and admissions of fact. Petitioner, the infant plaintiff, Niki Hatzinicolas (Niki), who was born October 20, 1983, is the daughter of Evgenia Hatzinicolas (Evgenia) and Michael Hatzinicolas (Michael). Niki resides with both of her parents. Michael and the respondent, Nicholas Protopapas (Protopapas), were partners in a business known as Hopkins Carry Out. The two partners had no written partnership agreement. They purchased an automatic slicing machine which was operated on the premises of their partnership business. At the machine's rear were a rotating wheel and chain mechanism normally covered by a metal plate. The complaint stated that
" n or about December 4, 1984, while the [slicing machine] was in use as an automatic slicer, the minor Plaintiff was on the premises of Hopkins Carry Out, when she went to the rear of the shop and placed her right hand on or near the chain and gears of the [slicing machine]. Her ring-finger and middle finger were forced
into the gears, the metal guard of the [slicing machine] having fallen off or otherwise not being present on the back of the machine at that time."
Niki, by Evgenia, her mother and "next friend", sued Protopapas "t/a Hopkins Carry Out." The plaintiff alleged that
"Protopapas t/a Hopkins Carry Out was negligent by failing to maintain the establishment in a proper and safe manner for its invitees, that [Protopapas] knew or should have known of the dangerous condition of the [slicing machine], should have maintained additional protection or barriers between persons such as Plaintiff and the [slicing machine], and was in other respects negligent."
Protopapas obtained summary judgment based on parent-child immunity. Following affirmance of the judgment by the Court of Special Appeals, we granted the plaintiff's petition for certiorari.
Our analysis begins by construing the complaint as fleshed out by the admitted facts. The theory of liability is that the defendant's duty arises as a possessor of land, or of chattels, or both. The admissions of fact make clear that the possession and alleged breach of duty are by Protopapas and by Michael, as partners and joint tortfeasors. The claim, however, is asserted only against Protopapas. The nonjoinder is permissible. Under the Uniform Partnership Act, Md.Code (1975, 1985 Repl.Vol), Title 9 of the Corporations and Associations Article (CA), the tort liability of partners is joint and several. See CA ยงยง 9-305 and 9-30
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