Darrow v. Hanover TownshipDarrow v. Hanover Township
In Immer v. Risko, 56 N.J. 482, decided July 10, 1970, we abrogated the doctrine of interspousal immunity in automobile negligence cases. Prior to Immer the immunity rule barred negligence actions between spouses. Orr v. Orr, 36 N.J. 236 (1961); Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958); Kennedy v. Camp, 14 N.J. 390 (1954). Although we applied the new rule permitting such suits to the parties in Immer, we purposely left open the question of whether it should be fully retrospective. The issue was neither briefed nor argued, and it was our belief that the question should not be resolved until it could be considered in a full, adversary hearing. See Note, “Prospective Overruling and Retroactive Application in the Federal Courts,” 71 Yale L.J. 907, 951 (1962). Accordingly, after we certified the present case we gave notice to the bar that interested parties might apply to us for certification or to submit briefs and appear as amici curiae. 94 N.J.L.J. 169 (March 11, 1971); 94 N.J.L.J. 204 (March 18, 1971). Although no other cases were certified, numerous parties submitted briefs and appeared at the argument before us as amici curiae.
Plaintiff Gerald Darrow contends that the trial court erred in applying Immer retrospectively and urges us to reverse and give that decision prospective effect only. It can no longer be doubted that this Court has the power to give a decision solely prospective application; the State and Federal Constitutions are neutral on the question of retrospective and prospective application. Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932); Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N.J. 47 (1954); cf. In re Thompson, 53 N.J. 276, 298-299 (1969); Dalton v. St. Luke‘s Catholic Church, 27 N.J. 22 (1958). Although we have the power to make our decisions solely prospective, our courts have generally followed the traditional view that the overruling of a judicial decision is retrospective in nature. Dalton v. St. Luke‘s Catholic Church, supra; Fox v. Snow, 6 N.J. 12, 14 (1950); Ross v. Board of Chosen Freeholders of Hudson County, 90 N.J.L. 522, 527 (E. & A. 1917). But see Willis et al. v. Dept. of Cons. & Ec. Dev., 55 N.J. 534 (1970). We have not done so on the basis of the old common law notion that overruling decisions do not “pretend to make a new law, but to vindicate the old one from misrepresentation * * *.” Blackstone‘s Commentaries § 63 (Jones Ed.),2 but rather because we believed that a weighing of
Plaintiff urges several reasons for doing so. First, he contends that retrospective application of Immer will result in an undue burden on the court system. While we recognize fully that court congestion may work a substantial prejudice to litigants, we would never exclude from our courts persons having just causes of action on this basis. The court system was designed to serve the needs of the people and it would hardly be fulfilling its purpose if it excluded litigants because of inconvenience to lawyers and judges. As we said in Falzone v. Busch, 45 N.J. 559, 567 (1965) in response to an argument that abrogation of the impact rule in negligence actions would open a “flood of litigations“: “* * * the fear of an expansion of litigation should not deter courts from granting relief in meritorious cases; the proper remedy is an expansion of the judicial machinery, not a decrease in the availability of justice.”
Next plaintiff contends that Immer should not be given retrospective effect because our decision there was predicated
Although we cannot agree with the above arguments in favor of prospectivity, we find persuasive appellants’ main point — that there has been justifiable reliance on our earlier decisions upholding interspousal immunity. It is, of course, true that reliance has very little place in the field of torts so far as it affects the negligence itself; persons do not generally regulate their conduct because they believe they will or will not be liable in negligence. See Smith v. Brennan, 31 N.J. 353, 361 (1960); Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959), cert. denied 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900 (1960). This is particularly true in automobile accidents where negligence may be equally harmful to the wrongdoer. However, it is entirely conceivable that persons would rely on the state of the law in determining
Reliance has been the primary factor which has led courts in other jurisdictions to limit decisions abrogating immunities to prospective effect. E.g., Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965), cert. den., 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209; Molitor v. Kaneland Community Unit District No. 302, supra; Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960); Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962); Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416 (1969); Vickers v. Vickers, 109 N.H. 69, 242 A.2d 57 (1968); Kojis v. Doctors Hospital, 12 Wis.2d 367, 107 N.W.2d 292 (1961); Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962); Dupuis v. General Cas Co., 36 Wis.2d 42, 152 N.W.2d 884 (1967). See generally Annotation, “Prospective or Retroactive Operation of Overruling Decision,” 10 A.L.R.2d 1371, 1379-81, 1386-90; Schaefer, “The Control of `Sunbursts‘: Techniques of Prospective Overruling,” 42 N.Y.U.L. Rev., 631, 642-43
Defendant points out, however, that many of the above decisions which held abrogation of an immunity to be prospective dealt with charitable immunity and that this Court took the opposite position in its decision overruling that doctrine. Dalton v. St. Luke‘s Catholic Church, supra. In Dalton, we held that Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958), which abrogated charitable immunity, should be retrospective. But we think that the situation in Dalton is entirely different from that in the present case. In Dalton, we expressly found that there had been no reasonable basis for reliance on the continuance of the charitable immunity doctrine. 27 N.J. at 26-27. Charitable institutions had been repeatedly warned over a considerable period of time that their status of immunity was imperiled. Id. at 26; see, e g., Lindroth v. Christ Hospital, 21 N.J. 588, 590-591 (1956). Prior to Dalton the most recent decision of this Court discussing the issue showed that three of the six participating justices affirmatively voiced their opposition to the doctrine. Lokar v. Church of the Sacred Heart, 24 N.J. 549 (1957). Even before Lokar it was apparent to commentators that the doctrine “was clearly in full retreat,” Prosser, Law of Torts 787, 789 (2d ed. 1955), and that its demise in New Jersey was imminent. Cowan, “Torts,” 10 Rutgers L. Rev. 115, 119 (1955).
In contradistinction to the charitable immunity doctrine, we think that there was a reasonable basis for reliance on the continued viability of the doctrine of interspousal immunity. Although it is true that this Court was sharply divided on the issue for a number of years, there was no indication that the balance would change. It was only because the writer of this opinion changed his views on the subject that the majority shifted, and I had given no indication of my rethinking prior to Immer. See my remarks at Immer v. Risko, supra at 495. In fact, recent decisions
Accordingly, we think there was a reasonable basis for reliance on the existing state of the law. But defendant Township urges that even if there was a basis for reliance, there was no actual reliance because torts are not ordinarily committed in reliance on a substantive doctrine of law. We agree with that premise. As we stated earlier, we do not mean to suggest that drivers are less cautious because they may be immune from suit by their spouses. However, we do believe that their insurance carriers had a reasonable basis to rely on the immunity. As we pointed out in Immer, it is they who are most frequently the real parties in interest. Immer v. Risko, supra at 489-495.
The primary area of reliance by carriers is the investigation of accidents.5 While this Court was firmly split, insurers had no reason to promptly investigate accidents involving the possibility of interspousal claims. It is crucial to an adequate determination of liability that an insurer
We note that the majority of other courts faced with the problem of whether to apply their decisions abrogating intra-family immunities have done so prospectively primarily because they have found justified reliance by defendants or their insurers. Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. Ct. App. 1971) (child-parent immunity); Beaudette v. Frana, supra (interspousal immunity); Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968) (child-parent immunity); Balts v. Balts, supra (parent-child immunity); Vickers v. Vickers, supra (child-parent immunity); Goller v. White, supra (parent-child immunity); but see Gelbman v. Gelbman, 23 N.Y. 2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (Ct. App. 1969).
Aside from protecting those who justifiably relied on interspousal immunity, prospective application of Immer will serve yet another purpose. It will foster stability since it will avoid the necessity of opening claims which might have gone stale because of a failure to promptly investigate. Prospectivity permits the Court to introduce an important change in the law with minimal disruption; it will not affect past conduct or relationships. The fear of disrupting what had been regarded as settled has sometimes restrained
For the above reasons we hold that Immer is prospective only and that defendant Township‘s counterclaim is barred. The Immer rule will be available only to persons suffering injuries in automobile accidents occurring after July 10, 1970, the date Immer was decided. We applied Immer retrospectively to the parties in that case because we believed that the plaintiff and cross-claimant should have been rewarded for their efforts in challenging the immunity doctrine; purely prospective rulings do not provide any inducement for litigants to challenge common law doctrines.
The judgment of the trial court is reversed and the cause is remanded to that court for disposition consistent with this opinion.
For reversal and remandment — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and MOUNTAIN — 7.
For affirmance — None.
Notes
“Perhaps, years ago, there was a philosophical compulsion to apply a new ruling retrospectively. The so-called Blackstonian conception of the nature of law and judicial decision-making was that law was perpetual and immutable. Judges were thought to be the discoverers rather than the creators of the law. Thus, a given decision was merely an evidence of the law; the most recent decision being the most authoritative evidence. An overruled holding was not bad law, it was simply never the law. See Levy, “Realist Jurisprudence and Prospective Overruling,” 109 U. Pa. L. Rev. 1, 2 (1960); Note, supra, 71 Yale L.J., at p. 908.
Whatever the past status of the above philosophy, it has been recently characterized as a “splendid myth.” United States ex rel. Durocher v. LaVallee, 330 F.2d 303, 312 (2 Cir.1964); see also Gaitan v. United States, 317 F.2d 494, 497 (10 Cir.1963); United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (2 Cir.), cert. granted 379 U.S. 815, 85 S.Ct. 126, 13 L.Ed.2d 28 (1964); Levy, supra, 109 U. Pa. L. Rev. 1. See also Justice Frankfurter‘s concurring opinion in Griffin v. Illinois [351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891] supra.
“It is now recognized that judicial decision making is often creative and requires that judges, although in a strictly limited sense, “legislate.” See Cardozo, The Nature of the Judicial Process, 124-132 (1921); Clark and Trubek, “The Creative Role of the Judge; Restraint and Freedom in the Common Law Tradition,” 71 Yale L.J. 255, 275-76 (1961); Weintraub, “Judicial Legislation,” 81 N.J.L.J. 545 (1958); Levy, supra, 109 U. Pa. L. Rev., at p. 28. Thus, contemporary judicial decisions announcing a new rule of law are the product, not only of a re-evaluation of abstract principles of justice but also of practical considerations of current economic, social, and political realities, and the effect of the rules announced in those decisions upon current institutions.
During my entire claims career, in which I have had substantial contact with many other claims people at Liberty Mutual and with claims men of other insurance companies, I know of no situation where any insurance carrier has investigated or prepared to defend itself in regard to claims that might be asserted by a wife against her husband as a result of the commission of a tort in New Jersey. This is so because we had understood that the Supreme Court of New Jersey had consistently reaffirmed its position that interspousal and interfamilial immunity was the law of the State of New Jersey.