*1 ATTWOOD, and as Mother and Next Individually Janice of Richard Breck The Estate of Friend ATTWOOD v.
Richard Breckenridge ATTWOOD 81-177 Court Arkansas
Supreme delivered Opinion May *2 Drake, Matthews, Young, Holmes ér Bridges, appellant. Gilbert, Gantt, Cox,
Coleman, Martin G. & by: Ramsay for appellee. Attwood, Barron, W. Special Justice. Janice Jr., John Breck mother next friend Richard and as
individually Attwood, below court contending this brings appeal the estate of dismissing her complaint against erred was dismissed The suit Breckenridge Attwood. Richard Procedure, Rule (b) Rules of Civil to Arkansas pursuant granted. relief can be to state facts upon for failure that the The lower court found in the complaint. to the claim asserted was bar she and Richard pled In her complaint, appellant to July were divorce some time prior Attwood Breckenridge 3,1979 with their respect that he had visitation rights further pled Breck Attwood. Appellant Richard 3, 1979, became Breckenridge Richard Attwood on July a vehicle and drove intoxicated intentionally willfully and also child as a passenger while so intoxicated with the limit, speed drove in excess of the greatly posted at a speed roadway and vehicle to leave the thereby causing *3 overturn, himself the Richard injuring killing Breck Attwood. on grounds:
On reversal two appeal, appellant urges the The doctrine violates immunity minors of rights unemancipated constitutional the protection guaranteed laws as equal States Constitu- Fourteenth Amendment United from suing tion in minor children precludes of for the injuries their caused parents the parents; in Richard
(2) The automobile accident from the was injured Breck Attwood resulted the father’s of father but from voluntary negligence willful, such reckless intentional actions and doctrine is inapplicable. not rule on As we have held times we do many if the can otherwise be constitutional questions litigation resolved, two we consider the of first second appellant’s Ark. for reversal. points County Searcy Stephenson, of 54, 424 (1968). S.W.2d 369 dismiss, to Ark- motion to pursuant Appellee’s filed Procedure, (6), essentially Rules (b) ansas Civil Rule 12 same as new filing demurrer before enactment Hill, A demurrer admits well fact. Files any rules. pled Ark. L. A. Green Seed Company S.W.2d Williams, 463, 438 S.W.2d Arkansas v. Ark. We, therefore, assume for purposes resolving issues herein that the facts recited presented complaint are true.
This
again
into focus the
im
appeal
brings
munity
doctrine. This Court
immunity
Rambo,
Rambo
195 Ark.
468 (1938),
S.W.2d
held
that an
minor child could not sue a parent
for an involuntary tort. The court reasoned that to permit
a suit
such
would
with
interfere
over
parent’s authority
would,
therefore,
the child and
encourage disobedience.
This
turn would
interfere with
family harmony.
doctrine,
next
When
called
to rule on
this
upon
this
Court
refused to extend the doctrine to
include
intentional
committed by an
father
adoptive
on his
son.
adopted
Brown
Cole,
198 Ark.
(1939). Recently, this
“We are not persuaded by contention appellant’s *4 has doctrine become a immunity legal anachronism. Nor do we that believe con- policy siderations of family harmony prevention collusion and fraud are no longer valid. Although more than 40 years since we still have Rambo elapsed believe in the of the unit. ...” sanctity so- This Court has stated its belief that it approves called promotes family doctrine because harmony, preserves fraud col- discipline prevents out, however, lusion. It should be that since Leach pointed Leach, 599, v. have 227 300 15 spouses been tó sue each other torts. In permitted for unintentional case, that this expressly rejected argument preservation harmony required prohibition 234 interesting spouses. It to note that is
suits between change Legislature fit to the law has never seen Arkansas permitting noteworthy can that brothers such suits. It also emancipated sue their children can sisters and adult sue appropriately perhaps parents. this should be So more parental immunity doctrine. called jurisdictions in around the review of cases various A immunity country pertaining parental doctrine change philosophy been a in the of this that there has reveals right country to be free from and that the the individual many perhaps paramount in instances to the Rigdon parental immunity v. behind the doctrine. reasons 1970). Rigdon, (Ky. in 465 This was stated Black S.W.2d921 (Me. following 1979) Solmitz, 409 634 in the manner: v. A.2d strong application “The trend the board across in a rule of tort cases reflects a of growing recognition sweeping application
that such a
protection
of the interests favored
results
excessive
derogation
general principle
wrong
remedy.”
there should be no
without
such a trend has mushroomed is evidenced
the fact
abrogated
thirteen
the doctrine at least
states have now
Other
insofar motor vehicle accidents are concerned.1
jurisdictions that have been confronted with the doctrine for
apply
first
time have refused to
auto
Wood,
119,
mobile
cases.
v.
135Vt.
Wood
370
(1977);Rupert
Stienne,
v.
191
90 Nev.
528 P.2d
A.2d
(1974);
(Alas. 1967).
Hebel,
8
1013
Hebel v.
435
Some
P.2d
repudiated
states
the doctrine
non automobile
Gibson,
Gibson v.
3
3d
648
related cases.
Cal.
P.2d
479
Comer,
Williams,
(W.
1976);
1Lee v.
224
v.
S.E.2d 721
Va.
Williams
Sorensen,
(Del. 1976);
369 Mass.
Sorensen
N.E.2d
A.2d
Klein,
1, 199
(1972); Falco
(1975);
Plumley v.
Mich.
N.W.2d
907
Pados,
372, 282
(1971); Rigdon Rigdon,
465 S.W.2d
444 Pa.
A.2d
1971);
Streenz v.
Kauffman,
Va.
S.E.2d 190
(Ky.
Streenz,
Smith v.
Gelbman,
(1970):
106Ariz.
Gelbman
P.2d 282
*5
500,
N.Y.2d 434, 245
(1969);
Transport Corp.,
France
56 N.J.
v. APA
N.E.2d 192
267
Kelman,
(1968);
(1968);
631
Silesky v.
Minn.
490
281
N.W.2d
A.2d
Briere,
Wells,
1967);
N.H.
(N.D.
364
Briere v.
107
Nuelle v.
432,
154 N.W.2d
(1966).
588
224 A.2d
Honolulu,
484,
Peterson v.
(1971);
51 Haw.
“(1) parent or to the other reason of that rela- liability by solely tionship. Repudiation general immunity does
establish for an liability act or omission that because of child parent is otherwise relationship privileged is not tortious.”
Over the
been
years many
have
made to the
exceptions
thereby
For
it does not
eroding
example,
further.
to chidren of
or those who are
apply
legal age
already
Lancaster,
at the time of
emancipated
the tort. Lancaster v.
536,
Miss.
The doctrine is not
(1952).3
Trunk N.W.2d App. what it called the elected to follow (1966), to recover dam- rule which children permits “Wisconsin” from ootside the injuries respiting for acts ages legal but to action yet subject relationship, parents not of parental and common failures in ordinary performance be feel that we should aware state present duties. We law while this case. deciding herein, we addressing the issue assume presented and the child’s following allegations to be true. Appellant his were divorced and the father was exercising father in willfully so he and doing, While privilege. visitation drove his vehicle while intoxicated and tentionally became did drive at a as a and with his child passenger so intoxicated was limit and what of the speed excess greatly speed the roadway to leave the vehicle thereby and caused prudent overturn, to the child. death injury his and causing to if tantamount willful true are Certainly allegations these issue us to the at hand. conduct. This brings and wanton a is, preclude the parental should conduct? for willful wanton suing from child in Ellis S. Ferguson, W.2d This Court such conduct as follows: (1964) described to deliberately “It defendant necessary prove if it injure intended to It is is shown person. enough indifferent the defendant inten- consequences that acted in such a the natural and tionally way of his act was to the consequence probable There is a constructive intention plaintiff. into the inten- consequences entering willful, tional act law and in this imputes offender mere way charge negli- which otherwise would be becomes reason of a reckless or gence disregard wrong.” willful probable consequences (emphasis added) AMI
Willful wanton conduct also defined in Civil 2d 401 as follows:
“ . knew . . or should person reasonably surrounding light circumstances known naturally probably result his conduct would injury disregard conduct in reckless he continued such and that consequences.” *7 immunity parental The issue of whether a minor bar a should parent suit an impression in is of first for a one willful jurisdictions. Arkansas, been addressed in other but has Every conduct case we have found has made such Thus, parental exception in doctrine.5 parent supra, a held that a who takes the court Hoffman, he is while in an with him and drives child automobile abdicating responsi temporarily parental his intoxicated is bility parental consequently, and, im is entitled to encouragement munity purpose of the the as which has its gill, responsibilities. supra, performance of those In Cow following comments: court made the question the father “The that confronts us whether capacity parent acting his he took the in as a when was brought Before death ... to his son. ... course father, solving problem suppose while let that a us gun seizing brutally daughter drunk, a beats his or acting say in such a shoots her. Should we exercising parental manner, function he a drunken was keeping en- with the it not be more in would lightened day his drunken to declare that views preroga- parental scope his outside the of action was within To hold that such action tives. drunken authority scope parental thé child would outlaw parent the mantle .. to her. . close all courtrooms this.” such as nonliability for a case intended never was this.” Bartshe, 1971); Rigdon, supra; Groves (Wyo. 99 v. 480 5Oldman P.2d Groves, (W. Rodebaugh, supra; v. 1968); 158 Va. S.W.2d 710 Hoffman 31, (1965); Murphy, 69 Wash. Tracy, 406 Stevens v. 323 Wash. 2d P.2d Matsoukas, (1957); N.E.2d Nudd v. 7 Ill. 2d P.2d 668 2d Aboussie, 1954) (Tex. App. Civ. Aboussie v. 270 S.W.2d (1952) and Wright Wright, (dictum); App. Ga. Boock, Cowgill Ore. 218 P.2d 2S8 to discipline right parent of preserving
The issue 45 Cal. Emery, Emery children was addressed his minor noted that That court P.2d 218 2d children is the basic his minor right discipline parent’s this, court on commenting rule. In behind the policy follows: stated as to rear and on the parent duty the law imposes
“Since and confers the right prescribe his child discipline for its development, conduct course reasonable discretion the performance has a wide not include but that discretion does functions beyond to inflict personal injuries the right willfully ... While reasonable parental discipline. the limits of to sue his to allow a minor seem repugnant a minor it more to leave repugnant we think parents, *8 damage redress for the he has suffered child without A willful or malicious conduct. reason of his parent’s individual, freedom other has a to right like every from such injury.” of the limits be an excellent statement as to believe this to
We right discipline. a parent’s Nudd, for the sake of it was acknowledged supra, be prohibited suits for should
family harmony, and suits for willful also public required but policy stated The court misconduct should be permitted. wanton its as follows: position a child
“To such misconduct deprive tolerate will a deprive relief not foster but will unity social without corresponding of redress person any common law.” injury long benefit for an at recognized should be proven The fact that willfullness has to We think fraud or collusion from being problem. preclude scope that a willful the beyond is clear is in Arkansas. doctrine as it is applied Ellis, perpetrates if a supra, person stated that This intent to injures tort which a constructive person, a willful out points be case also the will person imputed. ure inj This negligence. mere more than conduct is that willful supra, where in Cowgill, described is also distinction stated: court are misconduct and willful and serious
“Negligence conduct The latter involves in kind. different entirely nature, doing the intentional of a criminal quasi likely that it knowledge either with something reckless a wanton and or with in serious result consequences.” itsof disregard probable that to argument challenge then met the The court disrupt harmony a suit would such permit as follows: stating in overstepping of the father conduct wrongful “By relationship, peace, bounds of the been already the home had tranquility security ceases, reason the rule When disrupted. ceases.” added) (emphasis
itself above, that an we conclude For the reasons stated for a willful tort. his parent minor sue remanded. The reversed judgment George Hickman, Adkisson, JJ., Smith and Rose C.J., dissent.
Holt, not participating. J.,
George Smith, Our only dissenting. Justice, Rose doctrine the discussing three precedents A child can distinction: clear simple adhered to a in loco his or against person against a suit maintain the voluntary injury intentional or for an parentis In the injury. involuntary not an unintentional but held we the case, involving negligence, simple pioneer Rambo, 195 Ark. Rambo was not maintainable. action an upheld we instance In.the next S.W.2d deliberately having an father’s based upon adoptive action — Brown tort. his an intentional son adoptive poisoned Cole, 245,-122 Ark. A.L.R. 1348(1939). 129 S.W.2d case, the third mere we refused to involving negligence, In the family immunity arguments abandon despite Inmon, Thomas similar to those now 221, Ark. presented. S.W.2d the today’s opinion majority present quotes of its conclusion dictum from one Arkansas case support —dictum because it was a statute guest only case presenting the simple negligence, with reversed and judgment being dismissed. Ellis the cause Ferguson, being 154 (1964). But the distinction laid controlling down our two guest statutes not that between unin- Instead, tentional and intentional torts. difference between and willful and miscon- simple negligence wanton duct in disregard of the rights others. Ark. Stat. Ann. §§ For -915 statute (Repl. 1979). guest 75-913 reason cases should not be even persuasive precedents regard with rule. family immunity
In the case at bar we can feel sure from the record before us that this father did not drive his car with intention of killing himself and injuring child. Had the father lived it is doubtful cause of action him would have any been asserted in behalf of his son. is so injured because fairly represents the attitude that within the prevails overwhelming majority American — families so an attitude held that even human firmly greed will not induce the members of the engage lawsuit its mockery a collusive sole having purpose enrichment of the and its lawyers expense at Here, however, insurance situation is company. so, because the father is dead. decision typical, Even become a so precedent, precedent fundamentally wrong and so to our cases that I cannot let it contrary prior go into books can. without it as best I protesting C.J.,
Adkisson, J., join Hickman, in this dissent.