Lead Opinion
Appellee, Doris Rousey, and her eleven-year-old daughter, Cheryl Rousey, were involved in an automobile accident in the District of Columbia. Cheryl sustained injuries, and through her father, Smith Rous-ey, she brought suit against her mother, alleging that the accident and her injuries were a direct and proximate result of her mother’s negligence. Mrs. Rousey, who was insured by Government Employees Insurance Company and represented by its counsel, filed a motion for summary judgment on the ground that parental immunity barred appellant from suing his wife on behalf of their unemancipated daughter. The court granted the motion, and Mr. Rousey appealed to this court.
A division of the court, recognizing that the doctrine of parental immunity had never been established as the law of the District of Columbia, refused to adopt it and held that appellant was not barred from maintaining this suit against appellee, his wife, on behalf of their unemancipated minor child. Rousey v. Rousey,
Unlike interspousal immunity, parental immunity was unknown at common law.
The notion that a parent might be immune from liability for tortious conduct toward his or her child was not recognized in the United States until 1891, when the Supreme Court of Mississippi refused to permit a suit brought by a child against her mother, alleging that the mother had falsely imprisoned the child in an insane asylum. In ordering the suit dismissed, the court said:
[S]o long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear m court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.
Hewellette v. George,
Various reasons have been advanced in support of parental immunity, but the reason most frequently cited by the courts has been the need to preserve domestic tranquility and family unity. See, e.g., Downs v. Poulin,
Of course, the analogy to interspousal immunity and the concern with domestic tranquility have not been the sole justifications for parental immunity. The courts have also expressed concern that parental discipline and control might be compromised if children were permitted to sue their parents. See Hollister, supra,
Persistent criticism of the doctrine of parental immunity eventually led to its erosion through the creation of various exceptions to it.
The courts of the District of Columbia were not faced with the issue until 1948, in a case in which a thirteen-year-old boy brought suit against his mother for injuries he suffered in an automobile accident. The accident occurred in Maryland, however, and hence the only question before the court was whether the son had a right to bring suit under Maryland law. After stating that the issue had not been decided in the District of Columbia and that it was “neither necessary nor proper ... to analyze the authorities, weigh the problem and announce a rule,” the court concluded that decisions of the Maryland Court of Appeals “on kindred questions clearly indicate its accord with the overwhelmingly prevalent rule that public policy forbids such suits.” Villaret v. Villaret,
Twenty years later a case came before Judge Holtzoff of the United States District Court for the District of Columbia in which a minor child had brought suit against her parents for injuries sustained in an automobile accident. Like the court in Villaret, Judge Holtzoff noted that the issue of parental immunity “has never been authoritatively determined in this jurisdiction.” Dennis v. Walker,
The presence of liability insurance ... may lead to fraud, or at least collusive, or at best friendly suits. A parent may encourage his minor child to bring such an action against him. This is not a far-fetched possibility. Not only is it contrary to good faith, but it also has the tendency of promoting cynicism and lack of integrity on the part of the child. The law should not encourage such activities. The parent in such a situation may be at times tempted to bring such a suit, because the judgment, if any, would have to be paid by the insurance company. He is likely to put himself into a position of conflict of interest, for he probably would not lend that cooperation to the insurance company which his policy requires.
Id.; accord, Villaret v. Villaret, supra,
Although the “overwhelming weight of authority” did at one time favor parental immunity, the doctrine began to lose judicial support after a 1963 Wisconsin decision which abolished it entirely except when the allegedly tortious act involved “an exercise of parental authority ... [or] ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” Goller v. White,
(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.
Many states have since followed the lead of Goller v. White and the Restatement, so that a substantial majority of states have now abandoned the doctrine in whole or in part. To date eleven states have abrogated it entirely or declined to adopt it;
This trend toward abrogation is attributable, in large part, to the prevalence of liability insurance. See, e.g., Williams v. Williams,
When insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child’s medical care and support without depleting the family’s other assets. Far from being a potential source of disharmony, the action is more likely to preserve the family unit in pursuit of a common goal — the easing of family financial difficulties stemming from the child’s injuries.
Id. at 362,
Although there is a possibility that parent and child may conspire to defraud the insurance carrier or that the parent may fail to cooperate with the carrier as required under the insurance contract, see, e.g., Dennis v. Walker, supra,
We constantly depend on efficient investigations and on juries and trial judges to sift evidence in order to determine the facts and arrive at proper verdicts. As part of the fact-finding process, these triers of fact must “distinguish the frivolous from the substantial and the fraudulent from the meritorious.” ... Experience has shown that the courts are quite adequate for the task.
Sorensen v. Sorensen, supra, 369 Mass, at 365,
Because there is no controlling precedent on the subject of parental immunity,
Thus we reject appellee’s argument that an unemancipated minor child should be barred, in the interest of family unity, from suing his or her parent for negligence. When a wrong has been committed between parent and child, “the harm to the family relationship has already occurred; and to prohibit reparations can hardly aid in restoring harmony.” Petersen, supra, 51 Hawaii at-,
The order granting appellee’s motion for summary judgment is reversed. This case is remanded to the Superior Court for further proceedings consistent with this opinion.
Reversed and remanded.
Notes
. This rationale began to be questioned after the widespread enactment of statutes known as Married Women’s Acts, beginning in the mid-nineteenth century, which gave wives many of the rights that their husbands had always enjoyed. Some courts thus found it necessary to develop new theories to support the concept of interspousal immunity. The idea that most often found favor was that "personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home_" Restatement, supra, § 895F, comment d. Other courts, including this one, simply held that "[t]he common law rule forbid[ding] a wife to sue her husband for any tort committed against her ... [was] unaffected by the Married Women’s Act.” Mountjoy v. Mountjoy,
The common law doctrine of interspousal immunity was abolished in the District of Columbia by statute in 1976. D.C.Code § 30-201 (1981) now provides in pertinent part:
The fact that a person is or was married shall not, after October 1, 1976, impair the rights and responsibilities of such person, which are hereby granted or confirmed, to ... engage ... in any civil litigation of any sort (whether in contract, tort, or otherwise) with or against anyone, including such person’s spouse, to the same extent as an unmarried person_ [Emphasis added.]
Given this enactment, it would be anomalous indeed for this court to adopt parent-child immunity as the law of the District of Columbia when the most frequently cited rationale for that doctrine — the need to preserve domestic tranquility and family unity — has been rejected by our own legislature in abolishing interspousal immunity.
. See, e.g., Dzenutis v. Dzenutis,
. Gibson v. Gibson,
. Hebel v. Hebel,
.Williams v. Williams,
. Turner v. Turner,
. We think it significant that such a possibility of conspiracy between husband and wife did not dissuade the Council of the District of Columbia from abolishing interspousal immunity more than ten years ago. See note 1, supra.
.Appellee erroneously asserts that the doctrine of parental immunity is "the established law of this jurisdiction.” The decision in Villaret v. Villaret, supra, was based on Maryland law. Perchell v. District of Columbia,
. We emphasize that we are accepting section 89SG in its entirety. We are aware that subsection (2) recognizes, or at least assumes, that certain acts or omissions may be privileged or non-tortious by reason of the parent-child relationship. We need not attempt in this case to identify the types of conduct that may be privileged or non-tortious under subsection (2); that will have to be done in the future on a case-by-case basis. As the Restatement tells us, "[t]hese problems are comparatively new to the courts as a result of the recent abrogation of immunity, and the courts have not yet worked out a full analysis of the proper legal treatment." Restatement, supra, § 895G, comment k. We defer that "full analysis" until we are faced with a case that requires it.
. See cases cited in note 5, supra.
Dissenting Opinion
dissenting:
The majority gives all the appearances of being quite unsure about its new holding. In the face of a division opinion limiting suits by issue to automobile accidents covered by insurance, Rousey v. Rousey,
In declining to adopt parental immunity, the majority disparages the wisdom of the past which championed the family unit, as if a contrary modem view is obviously superior. The majority finds solace in the fact that at common law there was no parental immunity and that children could enforce their own contract and property rights and bring their own action in tort. Ante at 416-417. This selective recourse to history ignores a body of law from the ecclesiastical courts where, in their domain, such suits were unthinkable. See McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030, 1060 n. 141 (1930). The majority criticizes an analogy to spousal immunity and asserts that the rationales which support it are not applicable to parental immunity. Ante at 416-417. I agree with this point. Because the common law view of the husband-wife relationship differed from that of the parent-child, any justification by way of analogy is tenuous. Accepting this, however, I find somewhat perplexing the majority’s process of rejecting parental im
But enough of their fallacious reasoning! The main concern is misguided policy. I view the fact that parental immunity did not exist at common law to be irrelevant because “no American child tortiously injured by his parents had ever sought to recover damages until late in the nineteenth century.” Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L.Rev. 489, 498 (1981-1982). It seems that prior to 1891, our social and legal evolution had not “progressed” to the point that a child, or more accurately one in concert with him, could or would consider suing a parent in tort. The reason may have been that our society tolerated “almost unbridled parental authority,” id. at 493, or that prior to our saturation with liability insurance, there was less incentive to sue. Of course, collusive actions were not permitted.
In 1891, when a tort claim was eventually brought by a daughter against her mother, the Supreme Court of Mississippi promulgated the doctrine of parental immunity. Hewellette v. George,
The likelihood of harm to the family structure if parrental immunity is rejected has summarily been dismissed by the majority — in a manner similar to the decisions from other jurisdictions which have undertaken to reject this immunity, see Petersen v. City and County of Honolulu,
I note that the majority seems to hope that family discord from offspring suits will be avoided because insurance will eliminate true adversity. It will not; and it will foster collusion. But liability insurance should not serve as the basis for rejecting the doctrine of parental immunity in any event. The majority notes the prevalence of liability insurance as its primary justification for creating new legal rights and duties within the family. I believe it imprudent public policy to sanction a new area of tort liability on the grounds that “[t]he availability of insurance relieves the parents of direct financial responsibility for injuries sustained by their children....” Ante at 420.
The theory of insurance is that it is supposed to give financial protection against the occurrence of a known risk. Once a type of insurance exists, it is not supposed to encourage the creation of new actions at law. The rationale in this case says, in essence, that because liability insurance exists, this jurisdiction will now create a new
The whole principle of insurance becomes distorted when the presence of insurance encourages new kinds of liability. As additional types of liability are permitted by the court, the insurance companies must either raise policy premiums or exclude coverage as to that particular risk. This latter approach, which is both logical and lawful, if chosen, would eliminate the very reason for the court’s holding in the first place. In the meantime, we encourage collusive suits where no adversity exists,
Permit me to ask some unanswered questions where insurance is not a part of the scheme. Does our new rule permit actions for negligent failure to seek medical treatment or diagnosis, or to provide special education? Moreover, with abortions being lawful, may a child now sue a parent for wrongful birth if he is born with a foreseeable defect? Through a “case-by-case” process, we will find out sooner or later.
The rearing of a child is a unique and delicate responsibility. The teaching, nurturing and disciplining functions performed by every parent vary. They are a function of the social, economic and religious circumstances in every household. To subject a parent to liability based upon near indefinable standards will, I fear, have a detrimental impact on the family unit. The threat of a tort suit could shackle a parent and prevent the flexibility needed to exercise parental control. As a child progresses through the more intractable stages of adolescence, a parent’s fear of being sued must clearly undermine the exercise of parental authority, and thus the family structure. These concerns loom larger as our society grows more litigious.
I fear the majority has thought precious little of the consequences. They would no doubt justify their holding on the ground that they simply compensate injury by making the one at fault pay. But how will this really work? In a family structure it is usual to have both parents share in the rearing function. If one parent causes an injury and is at fault, does the other parent owe a duty to the injured child to seek recovery? I suppose so, though we do not say so. If that parent, out of concern for other children or simple devotion to the other parent, or negligence, fails to pursue recovery until a case cannot be proved, what of that parent’s liability? Can an older child, upon reaching majority, sue within the limitations period and deprive younger siblings of the family income or assets? I am sure the response is — “we will decide those cases later ‘on a case-by-case basis.’ ” Such tinkering with the already fragile family structure by judges with no formal training or experience in such matters is ill-advised. It tears at family unity. With or without liability insurance, it unavoidably pits one child against any others for limited family resources and one parent against the other. At a time when families find it hard or impossible to exist without both parents working, we now create a competition for income within the family. And insurance is not the palliative. When a claim is made, the policy can be canceled or the premium increased. In automobile accidents this can be devastating to the family.
Moreover, I anticipate that pressure to sue one or both parents will strain the moral fiber which holds families together. Well-structured families will probably ignore our permissive holding. Those not so stable will find little solace in their lucre when they discover the inevitable decay in
I opt for immunity and family unity; so I dissent.
. “The cooperation clause [a requirement in the standard liability policy which requires the cooperation of the insured] will be deemed to be violated if the insured, by fraud or collusive conduct, assists the claimant in the maintenance of his suit, rather than the insurer.” 8 J. Apple-man & J. Appleman, Insurance Law and Practice § 4779 (1981). See also Elliot v. Metropolitan Casualty Ins. Co. of New York,
. “Because a child has only limited knowledge and ability in legal matters, the decision to sue is usually made by his parents.” Hollister, supra, 50 Fordham L.Rev. at 500. See Streenz v. Streenz,
Dissenting Opinion
with whom Chief Judge PRYOR joins, dissenting:
I write separately because I prefer to state narrowly the reason I think this court should not abrogate the doctrine of parental immunity.
Although the majority opinion states that the doctrine of parental immunity has never been established in this jurisdiction, see supra at 420 n. 8, District of Columbia law, as reflected by decision and by practice, attests to the contrary. Cf. Dennis v. Walker,
In Villaret, a federal diversity case, the court applied the “overwhelmingly prevalent rule that public policy forbids” suits by minor children against their parents.
Next, in Dennis v. Walker, the District Court followed “the overwhelming weight of authority in this country” to hold that the doctrine of parental immunity should apply in the District of Columbia.
Several years later, the United States Court of Appeals, by unmistakable implication, accepted the District Court’s conclusion that minor children may not sue their parents in tort. Perchell, supra, 144 U.S. App.D.C. at 123-24,
Given this jurisdiction’s consistent adherence, until now, to the doctrine of parental immunity, the majority decision’s departure from the doctrine reflects a determination of public policy better suited to consideration by the District of Columbia Council. As an elected legislative body, the Council is in a better position to weigh competing policy considerations such as the potential for collusive lawsuits, divisiveness in fami
For the reasons stated, I respectfully dissent.