Faul v. DENNISFaul v. DENNIS
This motion presents the dual questions of whether the doctrine of parental immunity is applicable
The motor vehicle accident out of which this negligence action arises occurred on June 6, 1970 in Carlstadt, New Jersey. Infant plaintiff Charles Hanson was a passenger in an automobile owned and operated by his mother, defendant Charleen Hanson, which vehicle was struck in the rear by a vehicle owned by defendant Theodore Zubatkin and operated by defendant Willie Dennis.
Suit was commenced on behalf of infant plaintiff on August 26, 1970, and an answer was filed on behalf of defendant mother on October 9, 1970. Crossclaims for contribution have been demanded by defendant Hanson against defendants Dennis and Zubatkin, and by defendants Dennis and Zubatkin against defendant Hanson.
A suit brought by other passengers in defendant Hanson‘s vehicle was consolidated with infant plaintiff‘s suit for trial, but is unrelated to this motion. At no time did defendant Hanson raise the issue of parental immunity until the time of the trial of liability, when a motion was made by counsel for a dismissal of the suit of infant plaintiff against his parent. Decision on the motion was reserved and the case was tried and submitted to a jury, which rendered a special verdict finding both defendants negligent in the operation of their respective vehicles.
Whether the abrogation of the doctrine of parental immunity is to be of prospective application only and not applicable to automobile accidents occurring prior to July 10, 1970, the date France, supra, was decided, has not been decided by an appellate court. However, in a case involving this issue, Judge Meanor thoroughly considered the problems emanating from a retrospective application and held that the new rights created by France are prospective only. Schwartz v. U.S. Rubber Corp., 112 N.J. Super. 595 (Cty. Ct. 1971). Subsequent to Schwartz the Supreme Court gave prospective effect to Immer v. Risko, 56 N.J. 482 (1970), which abrogated the doctrine of interspousal immunity. Darrow v. Hanover Tp., 58 N.J. 410 (1971).
Although not specifically holding that France be applied prospectively, the court, obiter dicta, generally commented upon the reasons underlying the prospective application of major changes in immunity doctrines, pointing out that the potential for stale claims and the justifiable reliance upon immunity doctrines by defendants and their insurers requires prospectivity. Obviously, these considerations are just as applicable to the effect of the abrogation of parental immunity as to interspousal immunity. Indicative of the thrust of Darrow is that, in support of prospectivity, the court cited decisions of courts in other jurisdictions involving the abrogation of both parental and interspousal immunity. Darrow, at 419.
In view of the hazards of a retrospective application of France, discussed in these cases, and the clear approach to the issue by the court in Darrow, this court concludes that the doctrine of parental immunity applies to the case at bar.
Having decided that parental immunity is applicable to the operative facts of the case at bar, it must be determined if defendant Hanson may now avail herself of the rule. Plaintiff argues that under the rules of pleading the failure to introduce the issue until the time of trial constitutes a waiver of the defense, stressing that nowhere in the answer is the issue raised, even though crossclaims for contribution were served upon the defendant.
Plaintiff‘s counsel accurately asserts that
Although the comment to
Clearly, surprise is fundamental to the requirement to plead certain defenses affirmatively, and it is difficult to
Next, plaintiff argues that parental immunity cannot be raised at trial since it was not presented properly. Admittedly,
Substantial support exists for the view that the parental immunity doctrine constitutes a bar to bringing to fruition an otherwise viable cause of action, rather than being an absence of a cause of action. 19 A.L.R.2d 423, 426 (1951). However, there is no need for an extensive analysis of the question since the language of the former Court of Errors and Appeals in the decision which adopted and sustained the parental immunity doctrine until its downfall in France, supra, favors the approach that there is a lack of a cause of action. In Reingold v. Reingold, 115 N.J.L. 532, 534 (E. & A. 1935), while considering whether a child should have a cause of action against her parents for injuries sustained during her minority after reaching 21, the court held that the common law “gives no such right of action” and stated further that
The right of action, if any, is determined as of the day of the accident. It either did or did not exist as of that day. And if not, the majority and emancipation of the child could not, and did not, create a non-existent cause of action. [at 537]
Obviously, the court found that parental immunity involved a lack of a cause of action rather than a mere bar to asserting a claim. The doctrine was binding on this court until France, which as discussed above, is prospective in effect. There is no logical basis to find that the nature of the immunity is something other than that established in Reingold merely because the doctrine has been abrogated.
It is the opinion of this court that the infant plaintiff lacked “a claim upon which relief can be granted,”
In regard to the crossclaims for contribution by defendants Dennis and Zubatkin, cases which have construed the Joint Tortfeasors Contribution Act,
Motion granted. The verdict against defendant parent in favor of infant plaintiff is set aside. Judgment notwithstanding the verdict is hereby entered in favor of defendant, Hanson. The crossclaim for contribution filed by co-defendants Dennis and Zubatkin against defendant Charleen Hanson is hereby dismissed.