*1 COMPANY, Guаrdian of the TRUST BANK AND ILLINOIS NATIONAL L. Plaintiff-Appellant, Turner, Minor, HAROLD Benjamin Estate of TURNER, Defendant-Appellee. 79-415 No.
Second District April Opinion filed
LINDBERG, J., part. dissenting in Rockford, Erickson, appellant. Natale, of Mateer and
Bernard J. Reno, Zahm, OHnader, Slcolrood, Ward, all of D. K. H. Robert Jan Jack Rockford, Skolrood, Powell, appellee. Lindberg & Folgate, court: opinion of Mr. UNVERZAGT delivered the JUSTICE Company Trust filed National Bank and The Illinois to the minor, personal injury Turner, alleging Benjamin guardian of a motor operation in the of Ms father’s minor as the rеsult alleging father, to dismiss Turner, a motion L. Harold vehicle. any to show forth facts to set complaint failed that the bank’s father arose conduct of the barred, because immunity the action of the rule of
virtue wanton not willful ordinary negligence and complaint alleged stating affidavit an supported motion misconduct. The father’s 20,May his birth child, since all times and at is the father that he has lived himfor and care support financial provided he dismissing him. the same household with The court entered order suing оn the basis that the child was barred from the father immunity. the rule of tort virtue appeal: (1) The bank issues on Whether court properly raises two complaint by rule and dismissed virtue of the (2) abrogated. Whether the rule of should be hill in complaint alleges parked car was on a father’s *2 Street, Rockford, at 909 The front the residence Paris Illinois. emergency engaged the front turned as brake was not nor were wheels by (Ill. 11—1401 of Motor Rev. required section the Illinois Vehicle Code 1977, 95Ja,par. 1401). opened ch. let his Stat. The father the door to 11— son, Matt, young car. across and enter the Matt slid the front seat disengaged gear shift. The car and other rolled backward the father’s son, young Benjamin, cause, in this was struck injured. and making The first case to common refеrence law doctrine parental tort immunity the 1891 68 George (1891), case of Hewlett v. 703, Illinois, 9 Miss. So. In referring the first case to this doctrine 577, in appeared Foley Foley (1895), v. early Ill. from Grundy County which was part then a of the second district. The reference, in part contained of the court’s to jury, instructions cited authority and page reads as follows at 579:
“ child can not damages maintain a civil action for its against ‘[T]he parents law, conceives, for such injury. This rule of as the court is upon founded publiс policy, family consideration of affecting government; is, that parent the child shall not contest with the ” parent’s right govern to the child.’ on, of, The first comment modification the doctrine Supreme Illinois Court in 7 Ill. 2d appeared (1956), Nudd v. Matsoukas 608, 619:
“Any justification immunity for the found parental rule of can be only in a reluctance to between litigation create and strife members of the unit. such policy might While be justification prevent scope to suits mere for parental policy relationship, рublic do conceive that we not of should
prevent obtaining from redress for wilful added.) (Emphasis wanton part parent.” misconduct of a Additionally, said: the court
“We do not of this should feel the announcement doctrine parental be left to аs far legislature. immunity, The doctrine goes, as it especially It is them created the courts. interpret modify correspond prevalent doctrine public policy considerations of and social needs.” Later, 34 Ill. supreme 2d Mroczynski (1966), court v. McGrath 454-55, principle of the commented on its earlier review Nudd, policy “recognized immunity stating that had there by early parental immunity] as declared decisions” [relating of Illinois denied policy, held that a minor should be notwithstanding but later, in years misconduct. Ten parents from his in a case of willful redress 63 Ill. (1976), 2d three Kobylanski Chicago Board Education majority opinion justices, including justice, dissented from the the chief majority contrary apparent to the belief commented that parties question pаrent of whether a liable his appeal, to the misconduct has never been injuries child for absent willful and wanton not, therefore, court and should be considered supreme decided However, 165,178-79.) subsequent supreme (63 “settled law.” rule for mere cases have restated the 47; Chicago Beatty (1978), 71 Ill. 2d Thomas v. Board (Gerrity v. then, 165.) appear, 77 Ill. It that the doctrine Education would fact, is, Consequently, absent rule Illinois. announced Nudd may part parents, children willful misconduct on the and wanton within against parents suits their maintain parental relationship. scope of the relationship” is phrase scope “within the court cases upon appellate several
noteworthy since it has been relied In interpretation as the basis strict *3 199, found App. 100 Ill. 2d thе court (1968), of v. Schenk the case Schenk him as daughter injuries to by against a father his a of action driving in stated a cause negligence a car a result her mere while either negligence occurred since there was parent-daughter arising out of the in conduct party engaged was family objectives. The relationship or in of the usual the furtherance by the car when he was struck simply pedestrian father was a on the street had “no unemancipated daughter. negligence Since the driven his 199,206), (100 App. DI. 2d family relationship” direct connection with the immunity bar to tort to be a the court did not find the doctrine of qualms the reversal any court about the action. Neither did the have parent generally is the litigants the the traditional status of the whеrein did defendant, complaint in Schenk plaintiff. point out that the not the We However, it did family relationship. allege arising not conduct family the affirmatively allege conduct arose outside the court, therefore, trial court’s reversed the relationship either. The Schenk of action complaint for to state a cause dismissal of the failure remanded the cause. 128 Ill. (1970), Heap v. Cosmopolitan in National Bank
The court relationship family App. apply did not the Schenk inside/outside
237 Heap, injuries per se. In sued his father for sustained rationale the child permitting in the allegedly negligence as the of the father’s result stairway Although in the rug family existence of a loose home. plaintiff’s alleged duty complaint specificаlly amended that the to (i.e., duty maintain rug persons a safe was a defendant owed to all outside family relationship), the court found the failed to a state alleged only it cause action because therefore and was immunity Although barred tort did the court specifically find negligent rug that the stairway maintenance a duty was family may home to “within relationship,” considered be it felt, be inferred that that was it explicitly indeed what since subscribed to the Schenk court’s that: view “ 99 impelling emasculating therе are no or eroding reasons 9 * family immunity arising rule conduct out of the family directly family connected with the ” 9 9
purposes objectives *.’ App. 128 Ill. The Schenk rationale was Cummings used Jackson case, 3d 68. In that defendant’s child sued her for negligence in to failing trim parkway trees located the grass between edge of the street and her property nearest line. to trim The failure city violated a ordinance and alleged proximate have been the plaintiff’s injuries, cause since the driver’s view was obstructed the untrimmed trees. duty felt the mother’s to trim trees owed to generally. Since the was not have arisen family either inside or relationship, the court determined that was not a bar to the mle action and that the action had improperly been dismissed. Schenk, Nudd,
If light case at bar were be resolved Heap and Cummings, to be dismissal would have bar, reversed since the complaints the case at like the Cummings, Schenk allege did not arose “within relationship.” If it alleged, parental had so require would allege, so immediate dismissal. Since it did not application of Heap Cummings require would reinstatement complaint, permit a determination of or not the whether negligence did in or fact arise inside outside
It our judged belief that a should sufficient be or *4 insufficient allege at law based on it it what does and not what does not allege as Cummings. case Schenk duty was the We it is the believe plaintiff of the allegation include the an affirmative supported by specific negligence facts that result of the arose as the aсtivity family relationship. connection with an Failure to at such will insufficient law allegation make render the subject motion on the to a to dismiss basis inside negligence rule. Plaintiff in the us has not either case before Plaintiff’s family relationship, simply or outside the properly the therefore insufficient at law and was dismissed finding, Our being as below barred the rule, dicta, in the support, which consider the has albeit we to be better Myers App. of Ill. The case concerned case Johnson ordinary of a negligence for the bringing the of a tort action a child would not serve to bar parent, now The court felt the doctrine deceased. upon family relationship had the considering such an action dissolved the however, plaintiff’s the parent. briefly, оf The death court considered argument operation alternate that the vehicle motor function since passengers peculiarly children is not a vehicle, as well as operator of care others parent, as owed operation that agree that it did not to her children. The court stated But family relationship. necessarily motor be outside vehicle must sufficiently alleged acts although the court noted particular which would show that negligence, alleges “it no facts We conduct of outside of decedent arose 844, 846.) (2 on this issue.” therefore do decide require affirmative passage fairly We think we have construed if arose outside is to withstand a motion dismiss. rule, abrogation issue respect concеrning With to the second foreign which are plaintiff cases to Illinois cited numerous the doctrine representative of that have either abolished jurisdictions except entirely liability upheld parental or have control; instances, parental discipline, care and e.g., certain activities enactment, liability insurance. statutory of automobile the existence spawned the remain public policy which doctrine We feel that reasons than in today family harmony fertile is no less need ones. There indeed, it doctrine is amendable more. Nudd perhaps made clear Heap, courts, interpretation by to modification and that make of a host cases Cummings only several are Johnson living law. they play in the role shy аbout the clear that the courts are reasons cogent has offered It is our conclusion toto, do so. decline to and we rejecting the doctrine County is affirmed. Winnebago circuit court of judgment Judgment affirmed.
WOODWARD, J., concurs. *5 LINDBERG, dissenting part:
Mr. JUSTICE majority holding I portions opiniоn concur those recognized Illinois courts and doctrine of has been concluding it is not our this case to the doctrine. role abolish However, placing I respectfully portion opinion dissent from that plaintiff including the burden of in his an affirmative specific in connection supported by facts that the arose activity an Heap, Cummings,
My reading cases Johnson a as whole were considered allegations if determine complained behavior of was within or outside the burden, relationship. Beyond general pleading any specific been obligation. heretofore saddled with pleading that, it is my looking Further view instant at the as whole, complained-of not necessarily scope behavior was inside the relationship. allеges the of two breach general large: duties owed to the proper parking at an automobile negligent supervision of a child inside automobile. The breach of such a primarily owed general public has been recognized to place a case outside doctrine. (Cummings Cummings 57 Ill. App. 68, 70.) Jackson As in just could have easily neighbor been a injured by who was defendant’s A different presented by case would be alleging negligent supervision of the child who injured party. was the Such presumably an аction being would be barred as relationship. reasons, foregoing
For the I judgment would reverse the of the trial complaint. and reinstate the TOLLWAY NORTH OFFICE CENTER CENTRAL NATIONAL BANK IN CHICAGO, Trustee, Plaintiff-Appellant, al., v. ROBERT STREICHER et Defendants-Appellees. (DEERFIELD COMPLEX, INC., RESTAURANT — Plaintiff-Appellee, LIQUOR v. LAKE COUNTY CONTROL COMMISSION al., Defendants-Appellants.)
et 79-152, Second District Nos. 79-299 cons.
Opinion April