Cates v. Cates

(No. 73630. al., et CATES,

HEATHER Minor, Appellees, TIMO- al., CATES et THY Appellants.

Opinion August 1993. filed HARRISON, J., part. took no

MILLER, C.J., dissenting.

Theodore J. MacDonald, Jr., and J. Todd Hayes, Burroughs, Broom, Hepler, MacDonald Hebrank, & Edwardsville, for appellants. Fiss,

Rhonda D. Fiss, Neubauer & of Fairview Heights, appellees. opinion

JUSTICE FREEMAN delivered the court: 9, 1985, Cates, was a years,

On June Heather aged father, in an her Timo- automobile driven passenger At the his time, transporting girl- Cates. Cates was thy friend, her minor son Heather to his home for As Cates’ auto an intersection of evening. approached an two State it collided with automobile highways, Heather by Phillip driven Darwin. was seriously injured as a result the accident. At the time of the incident, Cates was his visitation as a non- exercising privileges custodial parent.

Heather, friend, her mother and next plaintiff, by filed a action in the Schmittling, negligence Cates Nancy circuit court of against St. Clair Darwin’s County Phillip Sons, Inc., estate and a construction com- Keeley in the area around the pany engaged repairing highway collision site at the time of the accident. Heather subse- amended her Cates as an ad- quently complaint, naming ditional defendant and had as- alleging Schmittling signed to Heather her Cates for medical rights against and other costs in expenses Heather’s behalf. expended State Farm Mutual Automobile Insurance Company, insurer, Schmittling’s subrogor intervened as a all defendants to recover uninsured motorist’s benefits under her paid Schmittling policy.

Cates filed motion for summary judgment, alleging that the Heath- doctrine parent-child immunity precluded er’s action as well as the action. subrogation The trial court Cates’ motion for granted summary judg- actions, ment with respect stating both “[i]t *** to the of the paren- difficult determine that purpose it to tal served by applying would be case,” it was to follow obliged facts of but that precedent.

Plaintiff from that appealed portion order granting summary judgment on defendant’s favor basis of the tort parent-child doctrine. The ap pellate court concluded that this court had not adopted doctrine, but the doctrine had been recognized Foley appellate court Foley App. 577. After the doc examining trine’s treatment, rationale history, the appellate court concluded that the doctrine should be abolished. However, court appellate declined to fashion a rule abolishing doctrine as concerning general area of negligence and decided to abrogate in cases of partially automobile In negligence. so, the doing court stated that it was mindful factors, of a number of including that au tomobile insurance is mandatory Illinois. (225 Ill. App. 517.) The court appellate thus reversed and re manded. We granted defendant’s petition leave to ap (134 Ill. R. peal 315). We now affirm the appellate court.

ISSUES We must determine whether the trial court properly granted summary judgment for defendant. The parties raise two issues: whether this court has adopted par- ent-child tort doctrine; immunity and whether that doc- trine bars action plaintiff’s alleged negligent of an operation automobile.

STANDARD OF REVIEW No genuine issue of exists; material fact therefore, our sole function is to determine whether judgment defendant was correct as a matter of law. See Scottish & York International Insurance In Group/Guarantee surance Co. v. Comet Casualty Co. (1990), Northbrook National 881; Insurance v. Co. Nehoc Service, Advertising Inc. (1989), 448; 196 Ill. App. see also Outboard Marine v. Corp. Liberty Mutual In surance Co. Ill. 2d 90.

DISCUSSION Defendant’s appeal on the that the premised belief trial court adhered to precedent and deter correctly mined that the parent-child bars plaintiff’s negligence action. Defendant argues that court appellate ignored binding authority (Stallman v. Youngquist (1988), 267; 125 Ill. 2d Gerrity Beatty 47; (1978), 71 Ill. 2d Mroczynski v. McGrath

Ill. 2d Nudd v. Matsoukas Ill. 2d 608) which recognizes of the application parent-child tort im munity doctrine the area of negligence. According to defendant, court appellate failed to realize the dis tinction between obiter dictum and judicial dictum when it considered these several decisions and wrongly assumed that this court had not recognized parent- child tort doctrine in the area of negligence. Defendant thus maintains that the appellate decision ab rogating doctrine in automobile cases negligence vio lates the rule of stare decisis and should be reversed.

Plaintiff counters that the appellate court could parti- ally abrogate the doctrine in automobile cases because the question whether parent-child tort immu- nity bars parent-child negligence actions has never been decided this court. Plaintiff acknowledges court has discussed the doctrine in the cases cited by defendant, but disputes those discussions’ precedential effect. According plaintiff, this court has only tangen- tially discussed application tort immu- nity doctrine in the area of negligence in determining other issues.

To evaluate the effect of precedential this court’s pro- nouncements concerning the parent-child tort

80

doctrine, must examine rules general we preliminarily statements. governing judicial

The term “dictum” is used as an abbrevia generally dictum, tion of obiter or opinion which means a remark an or as a expression opinion uttered Such by way. rule is not as or general binding authority precedent within the stare decisis rule. (Board Trustees Police Pension Fund v. Illinois Human Comm’n Rights C.J.S. Courts 447, 456; 141 Ill. 21 (1986), §142 hand, the other an (1990).) opinion On expression a in case argued a counsel and upon point deliberately court, not essential to the passed upon by though dictum, dictum. cause, if is a disposition judicial Cassidy Scovill Co. v. Manufacturing (See Alton Chicago Rhoads v. & R.R. Co. 462, 470; Ill. Law v. Grommes 158 Ill. dictum C.J.S. Courts §142

494; see also 21 (1990) (such dictum should considered a judicial distinguished be dictum).) from a mere obiter dic further, And a judicial tum entitled to much weight, and should be followed C.J.S. Courts found to be erroneous. (21 unless §142 Law, 492; Rhoads, 227 Ill. 328 (1990); (where see dictum judicial considered be expression opinion obi determination).) held to have force of Even judicial ter dictum of a court of last resort can tantamount be a decision and therefore in the absence of a con binding trary C.J.S. Courts §142 decision of that court. See (1990). stare decisis cannot be ex- the rule

Additionally, from what was decided tended to implications However, must to the given former case. that effect be court higher contained in the decision of a implications in a are as author- implicit holding and that the premises Courts 139(b) itative as the itself. C.J.S. holding § (1990). instant case relied on Nix

The in the appellate court v. Smith Ill. 465, 470, (1965), which states that a “judicial is a opinion response to the issues before the court, others, and these like must read in opinions, be the light of the issues that were the before court for determination.” (Cf v. Palmer People (1984), 104 Ill. . (precedential scope decision limited to facts before court).) The Nix court accordingly distinguished the au cited the because the issues before thority by plaintiff the in court those decisions did not relate to the issue before the Nix court. in Nix

We believe that the rule and its application are at necessarily odds with the mentioned previously rules concerning judicial dicta. Our preliminary inquiry remains the same in either case. To what extent was the issue of parent-child tort immunity previously before court so that dictum on that point would be considered judicial dictum and thus have the force of a judicial de- termination? we must Accordingly, examine the authority cited defendant within by the context it arose.

The parent-child tort immunity first ap American case law in Hewlett v. George peared Miss. 9 So. 885, which held that are im parents mune from tort actions their brought by unemancipated minor children. Our appellate court quickly adopted doctrine in Foley 61 Foley 580. App. defendant, According this court first recognized the parent-child tort doctrine 61 immunity later years Nudd, 7 Ill. 2d 608. Plaintiff that Nudd argues did not hold that the parent-child tort doctrine barred negligence actions because the court did not decide that issue.

Nudd involved a tort action a child against his fa- ther, which alleged willful and wanton operation an Nudd court granted leave to appeal automobile. “re-examin[ej” “rule of as an- immunity” Holland Furnace Co.

nounced in Meece v. doctrine prevented tort (parent-child under a brought child’s action father’s against employer, superior of respondeat father’s alleging neg theory The Nudd court charac (Nudd, 7 Ill. 2d at ligence). father the issue as whether a minor could sue his terized Foley on for willful and wanton misconduct. Relying Meece, law and pub defendant that common argued a child’s action his par lic policy prohibited Hewlett After Illinois had noting adopted ent. in Foley, from tort liability” “rule of parental that Meece restated doctrine, that other jurisdictions held, rule’s been con logic had likewise but had noted that cases, attacked in several the court vincingly had tort actions foreign jurisdictions approved several Nudd then the defend distinguished parents. of not determinative being pa ant’s cited authority and rental tort in the context of willful wanton the underlying misconduct. to the Referring public policy conduct, the court doctrine with respect negligent stated: justification prevent policy might

“While this be such scope parental the the negligence suits mere within of public policy that should relationship we do conceive and obtaining a minor from redress for wilful prevent part parent.” (Emphasis misconduct on the of a wanton 619.) added.) (Nudd, 7 Ill. 2d at

The court continued: not feel that the announcement “We do of legislature. the The doctrine should be left to of the courts. It

immunity, goes, by as far as it was created doc interpret modify and especially for them to pub with considerations correspond prevalent trine to policy (Emphasis added.) (Nudd, social needs.” lic Ill. 2d at

The Nudd court concluded that the thereby parent-child tort doctrine did not bar the child’s action against his father for willful and misconduct in wanton the of a vehicle. operation the doctrine of tort

Clearly, immunity, its were in history underlying policies Nudd. argued The issue before the court was whether the doctrine should in case willful apply where and wanton miscon duct was We Nudd alleged. believe doc recognized dictum, trine by judicial of a way having ju force determination, dicial and then the doctrine “modified]” based on the policies the case before presented by it. (Nudd, Ill. at 619.) used language precatory by the court in referring to the policy doc underlying trine’s in application cases demon negligence merely strates a reservation judgment concerning strength of in the if policy negligence. area Certainly a court the view that its is to expresses job interpret and a doctrine which modify recognized way it has judi cial so, dictum and court then does that doctrine has been by the court. This court accepted certainly was also aware, doctrine, recognizing the the doctrine tra ditionally negligence. actions precluded sounding (See Nudd, 616-17, Meece, at 611, 7 Ill. 2d citing App. 164.) Although Nudd of par decided question ent-child tort area torts, in the of intentional judicial dictum doctrine’s recognized the existence area of recognition and that carried the full force determination. judicial doc recognition

trine is further its reference in apparent by subsequent decisions v. (1966), of this court. McGrath (Mroczynski 34 451, referring Ill. 2d 454-55 dictum under (obiter and that lying stating policy harmony Nudd); Koby doctrine was “review[ed]” 84 Education

lanski v. Board Chicago Ill. 2d (1976), Nudd to hold that Mroczynski teach on and (relying parentis in loco are under the School Code ers standing Tanari v. School extent as parents); immunized same Nudd and Directors (citing (1977), to his child ab injuries is not liable for stating, “parent Gerrity Beatty and misconduct”); sent wilful wanton (citing Kobylanski, Mroczynski and 71 Ill. 2d 47 (1978), Nudd and that, general on public policies, based stating for suing parents rule in children from prevented State Thomas v. Board Educa Chicago mere negligence); Nudd and Mroczynski tion (citing 77 Ill. 2d 165 actions for negli for that children not maintain may rule v. Baumgartner Cockrum their parents); gence Thomas dictum (obiter citing Ill. 2d 193 and not sue parents rule that children recognizing may approval, and Through frequent repetition negligence).) the rule has become established. Kobylanski disputed that the dissent

We note that the rule well-set represented statements majority’s (Kobylanski, 178-79 (Goldenhersh, 63 Ill. 2d at tled law. Schaefer, Simi JJ.).) and J., dissenting, by Ward joined Tanari, concurred, Goldenhersh specially Justice larly, existed, if it should be rule, supported by urging (Tanari, than Nudd. 69 Ill. 2d at 639-40 other authority with J., agree We (Goldenhersh, concurring).) specially than dis these statements rather support defendant into settled developing the view that the rule was pel law; views, all, after did not represent these several Courts (1990) C.J.S. majority’s viewpoint. §142 Cf. (dicta, approval, may through frequent repetition impor same strength same or substantially have attached to precedents). tance v. Youngquist

Stallman 125 Ill. 2d repre parent- an instance where the application sents in an automobile child tort case also Stallman v. Young (See was before this court. quist 859, on remand (1987), 129 Ill. 3d App. 683.) Although “it unnecessary” [was] the court “to reach the issue concerning the status of the parental (Stallman, immunity doctrine” at 269), the court vacated the to the ex appellate judgment tent that the ruling to effect a in the purported change status of the doctrine. The Stallman court’s statement that the expressing appellate judgment was vacated was dictum, merely judicial defendant, as implied by it was a ruling invalidated the appellate judgment. That is ruling consistent with this court’s previous state ments recognizing parent-child tort immunity doc trine in the area of negligence. sum,

In while this court has not rendered a decision holding that the parent-child tort doctrine immunity bars actions, its recognition of the doctrine in area of the common and law subsequent confirmations of that recognition have precedential effect. The appellate court misperceived the effect of those several pronounce- not, ments. We do however, reverse its decision. We must consider yet whether the tort parent-child immu- doctrine nity bars plaintiff’s automobile negligence action.

Defendant that the argues parent-child doctrine is in Illinois and long-standing recognized ap- plying negligence cases all court districts. appellate Defendant claims that the decision appellate below abol- ished the in toto. Assuming that per- spective, defendant argues that: (1) preservation of the relationship in Illinois recognized as a worthy public policy goal; (2) the immunity’s purpose is to protect and child from an to en- opportunity in fraud gage collusion; and (3) elimination of the im- will threaten munity parents’ authority to discipline control their children; (4) abrogation of the immunity courts to the exercise of second-guess pa-

would allow matters; (5) family rental discretion day-to-day stands to custodial and non- doctrine as it applies should be custodial parents; (6) applied existence insurance. irrespective liability that the recognized policy Plaintiff responds originally har- immunity, preservation bases for fraud, of not suffi- collusion and do mony prevention its in automobile justify application negligence ciently negligence cases. Plaintiff contends that an automobile child her father young action brought by very has does not where divorce al- disrupt family harmony it is the occurred. Plaintiff further contends that ready to itself, legal not the action rem- subsequent and' injury harmony. those which damages, disrupts edy of collu- Moreover, according any possibility plaintiff, fraud in cases is overcome resort easily by sion and such cross-examination, of evidence and a review discovery, Plaintiff also skepticism. argues of heightened degree this case and collusion are virtually impos- that in fraud of Heather’s is inde- injuries sible because the extent ascertainable. pendently we there is reason recognize good

Preliminarily, his as if the deci- argue appeal appellate for defendant to in all areas of parent- sion below abolished the facts of this Although appeal child law. negligence characterizes negligence concern automobile and plaintiff the issue as whether the to automobile immunity applies cases, understand that the entire area we negligence The en- is necessarily implicated. parent-child negligence necessarily impli- tire is parent-child negligence area of there is no fundamental distinction be- cated because situations and other negligence tween automobile on par- child (parent riding bicycle, scenarios negligence in lawnmower, child on riding parent pushing ent child ex- both acknowledged This fact swing). backyard pressly jurisdictions which con implicitly have issue fronted the tort (Com immunity.

pare 86, 89-90, Streenz Streenz 106 Ariz. 282, J.,

P.2d (McFarland, dissenting) (“Although is an case, automobile negligence striking down doctrine is not limited to this im field. The plications in it majority opinion plain make that the area have opened is they analogous Gertrude Stein’s Rose; famous a tort If is a is a tort. the immunity from suit is removed for an tort, automobile it follows it is logically that for all ex removed acts—for negligent ample, those occur in the may sanctity home”); 758, Nocktonick v. Nocktonick Kan. 611 P.2d 143 (Schroeder, J., dissenting) (same);

with Turner v. Turner (Iowa 1981), (ab 304 N.W.2d 786 rogation of general area negligence, although case concerned merely automobile accident); Rigdon v. Rigdon (Ky. 1970), S.W.2d 921 (same).) The difficulty discriminating between parent- child automobile and all other forms negli gence is also revealed those decisions which limit the scope of their holdings to negligence. automobile Almost without exception, these cases on the of li rely existence ability insurance to (See Hollister, do so. Parent-Child A Immunity: Doctrine in Justification, Search 50 of Fordham L. 489, Rev. 511 Beal, (1982); “Can I Sue Mommy?” An a Analysis Tort Woman’s Liability of for Prenatal Injuries to Her Child Alive, Born 21 San Diego 325, L. Rev. (1984); see also Nocktonick v. Nocktonick (1980), 758, 227 Kan. 611 P.2d Hebel v.

Hebel (Alaska 1967), not, 435 P.2d do 8.) however, We consider such basis a sound reason to impose liability.

(Schenk v. Schenk (1968), 199, 205.) caveat, Having significant we expressed approach the question of whether the tort immunity negli alleged action which plaintiff’s

doctrine bars of an automobile. gent operation unknown doctrine was

The tort parent-child- in American case law law and arose at common English “the decisions, great termed result of three often as the mi- 703, (married, 9 So. 885 (Hewlett, 68 Miss. trilogy” for malicious impris- from mother suing nor child barred v. McKelvey McKelvey onment insane asylum); from su- child 388, (minor 77 S.W. 664 barred 111 Tenn. v. Roller inhumane for cruel and punishment); ing parent 242, 79 P. 788 child Roller (minor 37 Wash. Hollister, Par- rape)). (See father for suing barred from A Doctrine Search Immunity: ent-Child of Justifica- cases tion, 489, 495 These (1982).) L. Rev. 50 Fordham the immu- policies justify several public articulated of pa- harmony, preservation of family nity: preservation by way analogy to control children rental authority of a depletion the avoidance and spousal immunity, child’s sib- injured the detriment of assets to exchequer” to as the “family referred lings (commonly 352, 361, Dunlap 84 N.H. (Dunlap rationale) for the justifications Because most of 905, 909). 150 A. to a of a parent the relationship concerned control and whose his custody minor child under not gener- did was responsible, he support minor chil- emancipated child or to an adult ally apply d, §895G, Comment of Torts (Second) dren. Restatement at 428 (1979). against par the immunity development

Despite com and American English both litigation, ent-child property contract allowed mon law has always Torts McCurdy, (See and child. actions between Relation, Harv. L. Rev. in Domestic Between Persons The Decline & Ingram, Barder (1930); 68 Ill. B.J. 596 Immunity, Tort Doctrine Parent-Child nine Other at Fordham L. Rev. (1980); 89 prior indicates that to the im century authority teenth parents children were allowed to sue their munity, and intentional torts. Torts negligent (See McCurdy, both Relation, Persons in Domestic 43 Harv. L. Rev. Between Keeton, Keeton on (1930); 1030 W. Prosser & Torts §122, (5th at 904-07 ed. did 1984).) “really What Hewlett was to a new rule of establish character exceptional than rather enforce a rule already (Dunlap, established.” at 358, case).) Nonetheless, 84 N.H. 150 A. at 908 (citing of States majority quickly doctrine. adopted was in Foley decided Illinois after Hewlett. shortly With out citing authority, Foley holding based its a minor child not sue could his for mistreatment on a re luctance interfere with a parent’s “govern” right his child. at Foley, 579. basis, such

With extreme cases as its legal criticism doctrine fol- inevitably (Dunlap, 905; lowed. 84 N.H. 150 A. 43 Harv. L. Annot.,

Rev. see 6 A.L.R.4th (1981).) 1066 The majority legal scholars who have discussed the immu- nity doctrine criticize it sharply a suggest variety modifications. See Keeton, & W. Prosser Keeton on Torts (5th 1984); ed. Pipino, In Best Whose Inter- §122 est? Exploring Continuing the Parental Viability of Immunity Doctrine, 53 Ohio St. (1992); L.J. 1111 Hollis- ter, Parent-Child Immunity: A Doctrine Search of Justification, Fordham L. Rev. (1982); Grobart, Parent-Child Tort Illinois, Immunity U. Chi. Loy. (1986);

L.J. 303 Torts McCurdy, Between Persons in Do- Relation, mestic 43 Harv. L. Rev. (1930).

Concerning area of general negligence, vari- ous jurisdictions have basically followed one two broad approaches defining scope immunity. jurisdictions various have either: (1) fully abrogated the all concerning types of parent-child negligence applied standard limits actionable liability the doc- (2) partially abrogated

between or parent-child; trine to all of respect types with The ef- out to its reach. by carving practical exceptions often fect two broad approaches of either these n.49 Annot., 1066, no See 6 A.L.R.4th 1078 different. (1981). 25) jurisdictions (approximately

A sizeable number have the doctrine and a standard abrogated applied fully either Gollar on liability relying limiting parent-child (Gollar White 402, 122 N.W.2d 193 20 Wis. or Gibson v. Gibson 914, 479 3 Cal. 3d standard), 648, (reasonable standard). P.2d 92 Cal. 288 Rptr. parent The Pa Jilani v. Jilani: The Erosion Of McLeod, (See Texas, Immunity rental Tort Doctrine In Hous. L. 28 In Whose Best Interest? 717, Rev. 718 n.8 (1991); Pipino, Im Parental Exploring Continuing Viability of Doctrine, 1111, St. 1119 see munity (1992); 53 Ohio L.J. York Annot., 1066, (1981).) also 6 A.L.R.4th 1078 New Spencer follow Holodook v. hand, courts, on other 338, 364 859 35, N.Y.2d 324 N.E.2d N.Y.S.2d (1974), 36 Parent” See The “Reasonable (New York standard). An to Parent-Child Tort Immu Standard: Alternative nity, 47 U. Colo. L. Rev. 53 St. L.J. at Ohio (1976); 1119, 1120 (1992). the Gollar standard, his par a child sue may

Under ent in for conduct where conduct negligent except *** ex an authority volves “an exercise of parental [or] to the discretion with ordinary parental respect ercise food, medical and dental provision clothing, housing, (Gollar, 413, services, care.” 20 Wis. 2d at and other at limitation 198.) first embraces N.W.2d in the second area of has been parental discipline; of legal terpreted concerning only performance duties, a duty such as to supervise. duties and moral Co. (Thoreson v. Milwaukee & Transport Suburban Ar 231, 246-47, 201 N.W. (1972), 56 Wis. 2d standard, under the Gollar a child could not sue guably, his for a failure to maintain the residence parent instance, in some manner a failure to secure (for carpet ing). California,

In courts stand- apply parent reasonable ard to test the of all viability negligence actions between (Gibson, and child. at at parent Cal. 3d P.2d 653, 92 Cal. at 293 an rea- Rptr. (“what would ordinarily sonable and have in similar circum- prudent parent done York, And in New a child sue his stances?”).) may conduct that a failure to negligent except parent’s supervise the child is not as an recognized actionable tort; there exists no on the legal duty part parents to Holodook, their children. supervise 50-51, 36 N.Y.2d at 324 346, N.E.2d at 364 N.Y.S.2d at 871.

States which a form of apply the Gollar standard in- clude Texas v. (Felderhoff (Tex. 473 1971), Felderhoff 928, 933; S.W.2d Jilani v. Jilani (1988), Tex. Sup. 136,

Ct. J. 767 S.W.2d 671 (immunity allowed where al- acts leged involve a reasonable exercise of parental au- or the thority exercise of discretion ordinary parental with to respect provisions care and necessities of child)), Michigan v. Klein (Plumley 1, 388 Mich.

8, 199 169, N.W.2d 172-73 (immunity abrogated except where parent exercising reasonable or parental authority discretion)), Kentucky (Rigdon Rigdon 1971), 465 (Ky. 921, (same

S.W.2d as Gollar no enumeration except of parental duties)), and Arizona (Streenz v. Streenz 86, 89, 106 Ariz. 282, 471 P.2d ‘role (“ pa- should not be usurped by as to judiciary terfamilias intrafamilial activities involving care parental discipline, and control’ ”)). contrast,

In Illinois stands group jurisdic- tions, a which have minority, the doc- partially abrogated trine out by carving to it. The exceptions taken approach by Illinois and this however, group jurisdictions, is of develops the law which

considered problematic, v. Jack Cummings arbitrary. (See ten inconsistent son J., dissenting) 73 (Webber, 57 Ill. App. should be the doctrine (“Either The piece or left intact. standing altogether abolished Schenk, can in this case and taken meal approach, result, there exists confusion”).) As nothing lead to but Illinois, regarding no framework comprehensive L. Rev. at 803-04 See 47 U. Colo. of the scope immunity. tort alternative approaches (comparing immunity). three major on consistently

Illinois courts have relied im for the parent-child considerations public policy harmony, (1) doctrine: the preservation munity collusion, and (3) of fraud and (2) discouragement (See authority discipline. of parental preservation Applied Doctrine Immunity The Parental Tort Ross, Reason. A Rule Without Death Actions: Wrongful Fairtrace, 511 N.E.2d Chamness v. 1987), 13 So. (5th Dist. 175, 177-78 L.J. U. consistently espoused have more Illinois courts (1988).) McAr rationale. See of family harmony the preservation Tort Immu Parent-Child v. Youngquist: Stallman dle, the Exami This Doctrine Will Illinois Ever Give nity: Deserves?, 19 J. Marshall it Analysis nation and L. Nudd, (“only” 7 Ill. 2d at 619 807, 814-15 (1986); Rev. of negligence in area might justify policy and strife between create litigation is “reluctance Bank National & Illinois family unit”); members Trust Co. 234, (doctrine 238 3d App. (1980), in toto because of contemporary not be abolished should v. Wilkosz Wilkosz (1984), harmony); need for family v. Gerrity see also (same); 124 Ill. 3d App. Beatty 47, 49. 71 Ill. 2d doctrine, by narrowed courts have

Yet, Illinois public pol- the doctrine’s it, where creating exceptions Nudd, In do not to be served. icy purposes appear court recognizing immunity by “modif[ied]” an in an automobile accident case will exception where ful (Nudd, and wanton misconduct was 7 Ill. 2d alleged.

at Nudd 619.) viewed the defendant father’s implicitly conduct, on wet a red speeding pavement running light, as “the beyond scope relationship.” parental (Nudd, 7 Ill. 2d at 619.) Nudd considered that “only” policy a reluctance justifying parental immunity, to create litigation strife, was not served family upholding where the conduct of that immunity was nature. 7 Ill. 2d at (Nudd, 619.) Nudd reasoned that bar a suit for ring conduct which was not nature did not foster family but harmony, only deprived child of redress for his Nudd al injuries. accordingly lowed intrafamily litigation. Nudd, however, Following the parent-child tort doctrine remained as a immunity bar to negligence actions. courts,

Illinois however, have carved out additional exceptions to the in the area of An immunity negligence. exception to the rule is now recognized where a. child sues a deceased parent. (Johnson v. Myers (1972), 2 Ill. App. (when 3d the family is dis relationship death, solved by basis for the doc policy trine ceases to exist as well); but see Marsh v. McNeill 136 Ill. App. tort immu (parent-child nity barred death action wrongful by representative deceased estates parents’ tort living daughter see feasor); also v. Edgington Edgington (1990), 193 Ill. Another

App. allows children to sue exception grandparents. Gulledge Gulledge (1977), 51 Ill. App.

3d 972 (rationale behind loses force persuasive when relations more distant than are involved); see also Busillo v. Hetzel

3d 682.

94 the parent- of courts also reject application

Illinois con third-party as a bar to tort immunity child parents. allegedly negligent against tribution actions 195; Moon v. 3d App. v. 128 Ill. Beery (1984), (Hartigan 657; v. Busch Larson 127 Ill. 3d (1984), App. Thompson court The Larson 965.) Ill. 3d App. kamp (1982), had restricted Illinois decisions (1) reasoned that several rather the child’s doctrine, (2) injury the of application the (3) prevalence the family, the suit disrupted than of the against possibility mitigated of insurance liability con allowed a third-party Larson disharmony. domestic the argument a despite against parent tribution action asserting himself by defend might the parent In Harti his injuries. or discrediting child’s negligence allowed was contribution action a gan, third-party on was based the action though even of conduct child, a realm of supervision negligent relationship.” of the parental within the “scope clearly Ill. (1968), v. at Schenk Schenk 7 Ill. 2d (Nudd, right reasoned that Hartigan 2d App. the immunity over application prevailed contribution family. outside the parties as a to actions by bar allows a parent-child Another exception to the general is owed alleged duty action where App. v. Jackson (See Cummings public. not as dis to is general public owed (breach duty to family as breach of owed family unity duty ruptive with keeping is in Nudd’s members).) exception This to applied is as insupportable the immunity view sug It also relationship. conduct outside on actions based confinement of gests du or a breach constituting conduct however, relies on Schenk Schenk Cummings, ties. signif created a more doc to the parent-child icant exception trine. because, legal is significant as exception Schenk it courts have recognized,

commentators well as other also the Gollar standard and similar conceptually as fully abrogating susceptible being interpreted Hollister, A (See Immunity: rule. Parent-Child Rev. Justification, Doctrine In 50 Fordham L. Search of 489, 512 National Bank & n.151 Illinois quoting 234, Trust Co. v. Turner 83 Ill. 3d (ap App. of appears ap court Illinois to have

pellate adopted similar to Gollar the ex proach abrogated and “ cept for caused ‘mere the injuries within negligence scope parental ”); Pedigo Rowley v. relationship’ 201, 204, Idaho (1980), 101 610 P.2d 563 (citing stating Schenk and “Illinois has also limited the applica tion of the doctrine of rather immunity, but than the enumerating exceptions as Wisconsin did in *** White, Gollar v. Illinois looks to whether the con duct of arises out the family relationship and is directly connected with family purposes”); Gibson Gibson 914, 922, 3 Cal. 3d 648, 653, 479 P.2d Cal. Rptr. Schenk among decisions (classifying which have abrogated the fully and “allow children to sue Schenk, their parents tort”).) also, With Illinois became somewhat among the unique jurisdictions various a parent-child permitting negligence automobile action without on the relying existence of as liability insurance the underlying (See rationale. 21 San Diego L. Rev. at reasons, these 338-39.) For the rationale Schenk bears close examination.

Schenk concerned the dismissal of father’s a automo- bile negligence complaint against his for the daughter failure to state cause of action. alleged The complaint that the had daughter her auto and negligently operated run her vehicle into her father as he walked on the street. Schenk looked to Nudd’s concept conduct as “ falling either within or the beyond ‘scope the paren- ” at 100 Ill. relationship.’ (Schenk, 203.)

tal App. the paren then characterized that conduct within Schenk immunized remained after relationship tal Nudd arising either the of a out of being duty performance the or for the or objectives activities family relationship Looking the various historical purposes family. exception the intentional rec exceptions, including Nudd, concluded that traditional ognized Schenk no the immu harmony longer rationale family supported Schenk, 204-05.) at The (See rule. nity App. court, nonetheless, that no reason to found there was eliminate the for conduct out of the “arising connected with fam family relationship directly where the objectives,” was ily purposes product intrafamily (Schenk, merely living. 2d at court that fa finally concluded a cause of it con

ther’s stated action because complaint no his was allegation daughter’s tained conduct re was to a and the owed purpose duty alleged lated doing so, rejected In general Schenk public. the action should allowed because of argument be the existence of insurance. however, in to two referring examples

Unfortunately, should re negligence of the of which type parent-child immunized, Zepeda referred to Nudd and main Schenk 240, concerned (1963), 41 Ill. which both Zepeda App. (denial duties parental violations narrower alleged affection, financial care, aid, home, a pleasant guidance, than those broad duties connected with etc.) conceivably did some clarifica “family purpose.” attempt a Schenk by stat “family sphere tion immunized purpose” the to courts from keep doctrine was ing necessary every for over becoming responsible “supervision day and to liti prevent conduct of child” parent in negligence or is not the ordinary “over what is gation 2d at (Schenk, App. of a household.” operation the of its exam expansive language Because cited, however, Schenk unclear which as was about ples relationship, automobile pects parent-child beyond negligence, protected by immunity. Argua remained however, to articulate standard bly, attempted Schenk a to pertaining negligence general approximates standard, Gollar terms of a rationale. it is Nonetheless, clear that Schenk intended to per mit even automobile actions be to the yond preliminary pleading stage. Referring parent’s and child’s individual on the rights be street, stated, the court “It seems thus clear to us that reason and justice require rule should as an stand bar to redress for insuperable not. injuries occasioned the exercise of those rights.” (Schenk, 100 Ill. 2d at see also Nocktonick v. 758,

Nocktonick Kan. 611 P.2d 135, as (citing abolishing Schenk parental automobile negligence cases).) Notably, Delaware Court Supreme impliedly adopted Schenk’s reasoning concerning the demise of family it more harmony, but a clearly articulated standard applied to negligence in general. See (Del. Schneider v. 1979), Coe 405 A.2d in auto not (driving unique parent-child rela tionship and does into bring question the validity of State control, supervision authority and discretion in Beal, I supervising child); “Can Sue Mommy?” Analysis An Woman’s A Tort Liability Alive, Prenatal Injuries Her Child Born 21 San Diego L. Rev. 338-43 (1984).

Unfortunately, many appellate Illinois decisions after Schenk looked to its lan expansive “family purpose” Thus, and not to the guage rationale. children underlying were from prevented their for the suing parents negli gent operation of an auto because and child were en route to a lesson v. Hogan 106 piano (Hogan (1982), a pro to visit going were 104); they

Ill. 3d because App. 3d v. Tenuta 83 Ill. college (Eisele (1980), App. spective child another going pick up were 799); they because and, in v. Wilkosz 904); 124 Ill. 3d (Wilkosz App. (1984), his case, exercising the father was the instant because 3d rights (225 App. visitation noncustodial parental v. & Trust Co. also Illinois National Bank See 509). with Turner (disagreeing 83 Ill. 3d 234 (1980), App. facts in com that the absence of and Cummings Schenk in no immunity a results showing family purpose plaint allegation an affirmative that there must be holding and v. Masny 185 Ill. Setinc of no family purpose); exception 19 (no family purpose 3d App. necessary of fuel in is a storing garage negligent

because model airplanes). of family activity flying “adjunct” that Schenk distin imply decisions appellate Other other forms negligence automobile guished between for the the reason fail to articulate but negligence, v. Heap National Bank See Cosmopolitan distinction. that (holding 128 Ill. App. for failure to his father a child’s action against barred loose stair by permitting household premises maintain Ackley Ackley way carpeting); actions against child’s barred (holding provid ordinance housing father for violation handrails). stairway ing of Schenk as well reasoning have considered

We A public of those exceptions. Cummings approve har- family principle preserving on policy based of intrafam- kind against every necessarily argues mony intrafamily variety The allowance of litigation. ily the family reveals by exception actions in rationale, principle, an absolute apparently harmony not, as a or is considerations other fact balanced Fordham (Cf. consideration. matter, a viable practical truth, traditional policy In L. Rev. viable, as Schenk The longer is no

harmony recognized. to a concern with preventing litigation focus has shifted conduct associated with the concerning intimately par- The dem- consistently ent-child relationship. exceptions the is dissolved family relationship- onstrate that where exist re- or where that has ceased to with relationship the immunity to conduct rise to the spect giving injury, the ex- will not This is so because applied. immunity be ists to further the only parent-child relationship, where that the relationship impacted, policies sup- the doctrine lose their porting persuasive strength. (See The Parent” An “Reasonable Standard: Alternative to Parent-Child Tort Immunity, 47 U. Colo. L. Rev. 795, (1976).) themselves tend to exceptions thereby the arbitrariness of the traditional highlight underlying See 50 Fordham L. 489. public policies. Rev.

Both the traditional and collusion ra- family harmony tionales are diminished. If accordingly negligence actions between and child are parent maintainable where the al- is owed to leged duty the or where the general public conduct is the beyond relationship, these poli- cies offer little support. note,

We parenthetically, the vari considering how ous to the exceptions doctrine reveal the erosion of the traditional family harmony rationales, and anticollusion that the doctrine has been extended in one yet area.

This court has sections 24—24 and 34—84a interpreted of the School Code as effectively extending parent-child in loco immunity standing teachers parentis under the (Ill. 122, Code. Rev. Stat. ch. 84a.) (Kobylanski, 63 Ill. 2d 165 (tort

pars. 24— 34— parentis loco liability of teacher standing no greater than so that parent teacher’s limited to liability willful and wanton conduct); Gerrity, see also 71 Ill. 2d 47; Thomas, Tanari, How ever, in teachers the allowing de parent-child immunity in loco granted the School them

fense Code because status, court did not reexamine the public parentis doc tort underlying policies to negli as trine, applied nor scope also the and child. Notably, cases between gence teachers applied parameters defined status statutorily are with their fully congruent Thus, protec a teacher is allowed parentis. in loco extent he acts to the immunity only tion of See parentis. of his duties in loco within confines teacher’s dis (immunity 71 Ill. 2d at 51 Gerrity, protects and supervisory authority). ciplinary tort immunity promotes The notion that parent-child negligence, justifica- in the area of harmony on, has now been discounted. largely tion most relied that, more scholars legal recognize Without exception, it if which dis- not, often than is the injury, anything, 307; L.J. at the U. Chi. family. (See Loy. rupts Spare Tort the Immunity: & Parental Rooney, Rooney 1161, L. Rev. Parent, Eng. 25 New Liability, the Spoil re- a child an avenue to obtain Providing 1165 (1991).) not har- against family of those does work injuries dress in small of cases where percentage Even mony. insurance and are injuries child has no liability or parent per- where an older child would serious, or the case authority, challenge parent’s an action haps bring which, does apparently, disrupt harmony the suit cannot The that exist; capacity. the law does not have this reality. evidence Cummings exceptions Schenk on the ra- The insurance traditional liability impact It is now ignored. for the cannot be tionales insur- the existence of liability generally recognized and child parent the actual adversity ance eliminates 307; Chi. L.J. at U. (See Loy. actions. 758, 769, 611 227 Kan. v. Nocktonick Nocktonick 369 Mass. P.2d Sorensen Sorensen 350, 364, insurance liability N.E.2d Where and child are ad- present, parent only nominally verse; Further, the “real” defendant is the insurer. neg- actions between and child are ligence parent rarely in cases brought, where insurance is This except present.

is not to say should be allowed be- liability simply cause insurance exists. liability agree We with defendant in that should respect. Liability be allowed where the reasons for its preclusion do not exist for whatever rea- son. The fact that liability insurance under- significantly cuts a traditional basis for the rule is a however, reality, which must be considered courts.

Also, when the effects of considered, insurance are the Nudd decision becomes susceptible additional in- terpretation. Arguably, the immu- policy underlying was not nity Nudd, served in not because disharmony al- ready existed in the the conduct family, was not in fact that egregious, but because it was apparent the court that father and child were not adverse the tor- regarding tious conduct or institution of the suit. Although Nudd court did not reach plaintiff’s arguments concern- ing the presence insurance liability and the fact that the suit, permitted the existence of those re- alities is not to be overlooked. the child Clearly, and fa- ther were only adverse, nominally the case of auto- mobile negligence cases involving insurance. existence widespread of insurance result-

ing diminished adversity parties on the impacts tradi- tional policies against collusion and fraud. Defendant ar- gues that parent-child, is threatened relationship it with an presenting to collude and opportunity defraud. Numerous authorities have out pointed even in cases where collusion and fraud exist, our may adver- sarial legal system, through its skilled attorneys, discov- ery, examinations and reviews, is evidentiary adequately equipped to deal with such problems and does so daily

other intrafamily litigations and areas law. We believe stronger argument to be true. The generally this rationale is that it forms an insufficient basis to a class of litigants. (See, e.g., redress whole Lee deny 593, 585, 721, 224 S.E.2d Comer W. Va. L. at A rule 50 Fordham Rev. which seeks to attack fraud incidentally by withholding legal protection claimants, claims, for all of the of their regardless justice which, a medieval however “employs technique satisfy- *** defendants, it ing keeping bemay scarcely with the function of a modern acknowledged legal sys- Sanders, tem.” Leflar & Mental Suffering its Con- Law, sequence 43, 7 Ark. L. Sch. Bull. U. —Arkansas (1939). has the hus- legislature fact that our abolished also a re-

band-wife demonstrates immunity luctance to adhere to the traditionally espoused both ba- 625, ses for immunities. Act intrafamily (See Pub. 85— 1987, eff. Bl. Rev. Stat. ch. January (amending the two doctrines are funda- 1001).) Although par. different, on the being based mentally spousal immunity wife, doctrine has of husband and each been legal unity See policies. the same typically supported by public 734 F.2d 1245 Beyer (7th 1984), Moran v. Cir. (spousal related to intentional torts rationally marital maintaining harmony). statute’s purpose doc- argues abolishing Defendant to utilize parent-child trine will allow divorced parents as a for their negligence continuing battlefield litigation non- animosities between a promote disharmony lacks argument custodial and the child. This advantage have not taken such parents merit. Divorced are on the rec- actions which allowed based rule. Nor do di- to the ognized exceptions taken advantage vorced have parents appear contribution in third-party rule immunity of the absence situations. likely is more that a child’s injury

Recognizing the institu- as opposed family disharmony cause of any thus suit any that suit, argues defendant also tion of a should and disharmony existing that serves to exacerbate has dis- If the injury disagree. disallowed. We therefore be relieve it. can an action family, potentially harmonized fiction original harkens back to the Further, this argument a suit disharmony, of the apparent family that regardless rather than makes worse better. things applica to limit attempt with Schenk’s agree

We fully doctrine to instances tort immunity tion of the parent-child relationship. correctly Schenk related to the parent-child been traditionally prem that the has recognized Brown, Rights, Prenatal (See ised on that relationship. Prenatal and Immunity The Intersection Parental or Tradi Exception Activity” Rights: “Nonfamily 749, 755 So. Ill. U. L.J. Negligence? tional Concepts of L. at 804 (“The purpose 47 U. Colo. Rev. (1985); scope exemp also defines granting that also demonstrate tion”).) Cummings Nudd determines the parame nature of the conduct necessarily Schenk, are not con Also, like we immunity. ters of the af rationale harmony the traditional family vinced today. for the rule fords a sufficient basis that the Schenk, are convinced However, also like we other public pol- today by supported in deciding involved concerns. Courts should be icy which concern decisions matters and child between make are be- equipped those persons uniquely unnec- otherwise would of that to allow relationship; cause matters into family courts obtrusively inject essarily matters, decide. Such are ill-equipped which they definition, discipline, supervi- discretion involve Schenk, also Like we are convinced sion and care.

those underlying policies ought to determine the scope the immunity.

Unfortunately, stated, previously Schenk is less than clear about the standard which should be More- applied. over, Schenk’s expansive language, on focusing such con- cepts as “purpose,” has lent itself to judicial interpreta- tions which miss the point the underlying rationale. Given the interpretation problems associated with Schenk and its apparent similarity rationale to the Gollar stand- ard, we a believe modification of its exception is appropri-

ate. We wish to clarify Schenk so exception that “pur- pose” and “objective” are not paramount. alsoWe wish to tailor the to exception conform to standards utilized by jurisdictions which have limited parent-child negligence actions to a more discernible area. The destination of an automobile trip, location of a vehicle, or the purpose that dangerous substances are on kept household premises should not be determinative of whether an child injured can maintain a negligence action against his parent. The duty which such a child alleges his complaint is not premised on those facts. The test for the to exception parent-child immunity should search no further than the which duty is alleged. See 21 San L. Diego Rev. at 343 (discussing refinement of following Schenk).

We believe the more appropriate based inquiry, yet on the Schenk rationale, would not concern whether “family purposes” were furthered aby conduct, parent’s but whether the alleged conduct concerns parental discretion in discipline, supervision and care of the child. Looking Schenk, Cummings, well as the various foreign jurisdic- tions, which have grappled with the problem of a creating discernible {Gollar, standard Gibson and Holodook), we conclude that should afford protection conduct inherent to the parent-child such con- relationship; duct constitutes an exercise of parental and su- authority or an of discretion in the pervision over child exercise limited areas of con- of care to the child. These provision skills, intuition, affection, wis- knowledge, duct require dom, faith, humor, background, experience, perspective, and culture a and his or her child can parent which only situation; to the our bring legal system ill-equipped decide the reasonableness of such matters.

The standard we thus focuses developed primarily have relationship, on conduct inherent to the which conduct we describe the Gollar standard by approximating without its enumerated duties. Such a standard is consist- ent with other the im- jurisdictions abrogated have in order to achieve in the area of munity greater clarity parent-child negligence. standard we have created is not, however, as extreme we do not abrogate because fully the immunity, but on an Our standard also rely exception. allows broader area of conduct to remain im- negligent Thus, standard, munized. under our parental discretion in of care provision includes maintenance of the family home, treatment, medical A of the child. supervision child to sue a may attempt alleging that the child wet, fell on a home, floor in the freshly mopped but the would bar such an action because the parent was exercising his discretion in providing maintaining for the child. housing

We note as well that in Illinois must conform parents their treatment of their children within certain ac socially limits or face criminal ceptable and civil actions the by State. Such actions are instituted of the fact regardless Further, parental authority thereby circumscribed. there is no as to the area of intentional applied torts. 7 Ill. 2d (Nudd, There exist limits to yet paren tal authority those here. beyond recognized

In case, we are to the im- asked consider whether munity bars action which the plaintiff’s alleged of an negligent operation automobile aby parent. Apply- ing created, we have we conclude that the standard of an is not negligent automobile conduct inher- operation ent to the such parent-child conduct does relationship; a in represent parent’s decision-making disciplining, super- or for his child. vising caring (See Schneider v. Coe (Del. 1979), (Del. 1976), A.2d Williams v. Williams 369 A.2d 669 (impliedly reasoning Schenk adopting applied to automobile The negligence cases).) duty Cates owed his vehicle on State was operating highways owed to the and not to Heather general public as his child. The of a even negligent operation exercising vehicle when visitation does not conduct privileges constitute inherent to the im- parent-child relationship. cannot to munity doctrine be bar a applied negligence action, such conduct. alleging

We disagree argument with defendant’s that eliminat- ing cases will automobile threaten to children or parental authority discipline inject courts into matters exercise of concerning the discretion. A action father for negli- child’s her gent an fa- operation of automobile does not usurp ther’s an discipline her. Neither does such authority action allow a court father’s exercise second-guess of discretion in day-to-day matters which bear on the par- relationship. ent-child

We there recognize may be concern our decision opens litigation parent door to between and child over ordinary household accidents. There exist fears that may the standard fashion a sue we would allow child to today his or her for a caused slip-and-fall injury freshly by floors; or mopped might collude, kitchen that parents pur child, a and then sue one another on posefully injure behalf that, fears to ignore child. Such reality prior children been their day, parents have allowed to sue under variety (Cummings, circumstances (child struck riding motorist to sue bicycle permitted ordi city trees in violation to trim for failure litigation 199 (parent-child Schenk, nance); alleged automobile operation negligent allowed where purpose)), family was unrelated allegation such because (brother of a household other members that reality and are wife, grandparent) child and and sister, husband and household slip- for similar one another free to sue entirely collusive similar also maintain and could and-fall injuries in every involvement about judicial concerns Any actions. collusive suits would or over negligence household day relationships in the case of these have to be present under one brought cases as in those parent-child as well are not swamped Our courts the immunity’s exceptions. suits with collusive be such actions or negligence with child, and or sister wife, and grandparent tween husband insurance and homeowners’ typical brother because for the insured and resi liability coverage excludes policy also gener insured household. Such policies dents of the claims or suits (contribu coverage liability exclude ally a third who has party insured tion) brought against any We do not per an insured or a household member. injured a child is now change ceive that this situation will because do we perceive to sue his or her Neither parent. able fraudulent present more parents any encouraged will be brother, wife, or sister claims than would husband to sue their encouraged par or that will more children be his The fact remains ents than would husband wife. exist, there is little mo coverage

where insurance does insur of auto liability tivation to sue. Just as existence intrafamily for allowing ance has increased the pressures negligence, in the area of automobile of all kinds litigation liability coverage insurance so the absence of homeowners’ in this area litigation to stifle intrafamily would appear negligence. courts have that some Illinois

We further recognize cases that par- held several automobile ent-child tort doctrine a bar to immunity operates pre vent the representative a deceased child’s estate from maintaining death action the wrongful par Lawber v. Doil ent/spouse (See (1989), tortfeasor. 191 Ill. The 323.) basis for the de upholding immunity spite the death the child was to the tortfeasor prevent from in sharing which any benefits inure the tort might feasor of the marriage because between the two parents. actions; We are not here concerned with such such cases separate and may present unique considerations.

In the sum, parent-child tort doctrine devel immunity era oped an which was different from the vastly present; changed our has and society myriad countless ways. parent-child The relationship has been both benefi and cially affected these detrimentally by changes. We seek in this instance to and uphold preserve forms an integral of that component relationship, parental Yet, and discretion. we must consider authority also the real needs of our very children in world. In this today’s are regard, we mindful that the tort parent-child doctrine created the courts was and it is especially them to and interpret modify correspond Nudd, with and social prevailing public policy needs. 7 Ill. 2d at 619. court

Accordingly, judgment is af- appellate firmed.

Affirmed. JUSTICE took no in the consider- part HARRISON ation or decision of this case. MILLER,

CHIEF JUSTICE dissenting: I agree cannot with decision majority’s modify parent-child doctrine. This is a subject consideration, appropriately legislative reserved to I for that reason dissent. dicta, itself dic though discussion majority’s existence of a rule

tum, demonstrates decision State, today’s a rule that in this tort immunity although explains, As the majority dramatically. changes immu the rule of held that this has not specifically court actions between parent governs negligence nity that doctrine child, consistently approved the court has Beatty Gerrity (See, e.g., dicta. through judicial 47; (1966), v. McGrath Mroczynski 71 Ill. 2d 7 Ill. 2d v. Matsoukas Ill. 2d Nudd v. Youngquist More Stallman recently, of a lower court’s court portions vacated doctrine, abrogating judgments partially of the rule was unneces that an examination concluding The court has the applied in that case. sary appellate Davis e.g., in a of factual settings (see, variety 282; 3d v. (1991), Edgington v. Ill. Grinspoon App. Ill. 3d Lawber v. Doil (1990), 193 Edgington App. ex 191 Ill. 3d that court has drawn (1989), App. 323); in the tortious con to the rule in cases which ceptions the of the relationship duct fell outside scope 199) v. 100 Ill. 2d or (Schenk (1968), App. Schenk v. (Johnson which the tortfeasor died subsequently 844). Myers (1972),

In and of the precedents, general view of these of us, abrogation nature of the issue I believe that before doctrine, the in whole or immunity part, whether action, and should accomplished through legislative be rule sure, fiat. To was not be by judicial not lack the au- creation, a and we do originally judicial of or eliminate it. But the scope even thority modify a of is immunity protection fundamentally question is resolved and hence a matter better public policy, Prudence, than and legislature by judiciary. should our action here. power, guide of are Expressions public policy found primarily State, the constitution and statutes of and sec only (American Federation in its decisions. ondarily judicial State, & v. County Municipal Employees State Illi nois Kirk v. Financial Secu 246, 260; 124 Ill. rity Insurance Co. Routt 367, 374; 75 Ill. 2d Life Barrett The preferred role of the as an legislature expositor public policy simply court, reflects the basic that a principle constrained by it, particularity specific controversy before ill-suited to broad singularly making pronouncements of The policy. legislature, with its different vastly functions resources, is better a able undertake ex thorough amination of the different concerns that underlie a mat ter such this. as is not judicial branch equipped perform mission. in the area of

Any change im plicates number interests. The most important sig nificant of these is the traditional of a responsibility par ent for deciding questions involving supervision, care, and control of a minor child. Determining as of that pects should no relationship longer be immunized a careful requires appraisal parental obligation in light of modern conditions Moreover, and circumstances. the majority acknowledges, actions involving parents children are generally brought because insurance liability provides a source of potential (156 Ill. 2d at recovery. 100-01.) Modification of the doctrine could sub affect stantially existing underwriting standards of measurements risk. But the effects of to far-reaching day’s statute, decision do not even end there. teach By ers stand parentis, loco and the provisions School Code our traditional rules codifying will also reexamination. 105 require ILCS 5/34— 5/24— see Thomas v. Board Educa 84a Chicago (West 1992); of tion 77 Ill. 2d Kobylanski Chicago Board Education 63 Ill. 2d 165. of

Any doubt that modification of the is, bottom, at a question public is a policy dispelled by consideration of the used in the language majority opin- ion. The very terms employed by majority describ- ing developments this area of the law the es- betray sentially legislative function conducted in the being Thus, case. present court declares:

“A public policy based on the principle preserving fam ily harmony necessarily argues against every kind in trafamily litigation. The allowance of a variety intra family negligence actions exception reveals that the rationale, harmony an apparently absolute princi ple, is in fact balanced other considerations or is not, matter, as a practical a viable consideration. [Cita *** immunity exists only further the par tion.] [T]he ent-child relationship, and where that relationship is not impacted, policies supporting the doctrine lose their persuasive strength.” 156Ill. 2d at 98-99.

Making declarations of public policy primarily leg islative (see function v. Felella People 525, 539), and I would leave to that branch govern ment the consideration of to the changes rule of parent- child tort I do immunity. our doubt power modify the immunity doctrine, I but must question the wisdom

of our so. doing Because I believe that further develop ment in this area of the law should come from the legis lature rather than courts, from the I dissent respectfully from today’s decision.

Case Details

Case Name: Cates v. Cates

Court Name: Illinois Supreme Court

Date Published: Aug 26, 1993

Citation: 619 N.E.2d 715

Docket Number: 73630

Court Abbreviation: Ill.