103 N.C. App. 516 | N.C. Ct. App. | 1991
Defendant is the father of the minor plaintiffs, whose action against him for willfully assaulting, abusing, molesting and raping them was dismissed under the provisions of Rule 12(b)(6), N.C. Rules of Civil Procedure, on the ground that the action is barred by the parental immunity doctrine. According to the complaint: The alleged abuses, molestations and rapings occurred beginning in 1980, when the appellants were five and six years old, and continued until 1989, when they were fourteen and fifteen; defendant’s acts constituted incest in violation of G.S. 14-178, second degree rape in violation of G.S. 14-27.3, and second degree sexual offense in violation of G.S. 14-27.5, and caused plaintiffs to suffer permanent physical, emotional and mental injuries. Accepting the facts alleged as admitted for the purpose of ruling on the motion, Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979), we hold that the action is not barred by the parental immunity doctrine.
Our Supreme Court adopted the parental immunity doctrine in Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923), where a child sued her father for negligently causing a motor vehicle accident in which she was injured. The doctrine was adopted, so the majority opinion states, because the home is the foundation of our society and suits by children against their parents would impede the management of the home and disrupt the family relationship. Though some jurisdictions have applied the immunity to criminal as well as negligent acts, neither of our Courts has as yet done so and the indications have been that they would not. In another action based upon a parent’s negligent operation of a motor vehicle the Court upheld the doctrine, but noted that some courts have held that the immunity does not apply to “[o]utrageous conduct on the part of the parent which invades the child’s rights and brings discord into the family,” and that “[w]illful and intentional injury of the child has been held to terminate the parent-child relation and thus avoid application of the parental immunity rule.” Skinner v. Whitley, 281 N.C. 476, 481, 189 S.E.2d 230, 233 (1972) (citations omitted). In Lee v. Mowett Sales Co., Inc., 316 N.C. 489, 492, 342 S.E.2d 882, 884 (1986), another case based on negligence, the Court in dicta, citing 3 R. Lee, N.C. Family Law Sec. 248 (4th ed. 1981), stated that the parental immunity doctrine “does not apply to . . . actions by an unemancipated minor involving willful and malicious acts.”
Reversed.
