This is аn appeal from the granting of defendant’s motion for summary judgment. We have jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S.
We must answer the following question on apрeal: Does the parental immunity doctrine, as it presently exists in Arizona, bar a suit by a minor child against his parents for negligence in leaving a gate open through which the minor child drove his tricycle and was injured by a passing automobile?
Since summary judgment was granted to the defendants, we will review the facts and the record in a light most favorable to the party opposing thе motion for summary judgment, in this case the plaintiff.
Hegel v. O’Malley Ins. Co. Inc.,
On 22 January 1977, four year old Ramero Sandoval rode his tricycle from his front yard into the street in front of his home and was run over by an automobile driven by Mr. Nоe Perez Lopez. Ordinarily, the gate to the fenced front yard is closed and the child rides his tricycle inside the yard, but in this case the child’s father, Antonio Sandoval, negligently forgot to closе the gate when he left the house prior to the accident.
Mr. Perez was an uninsured motorist. The parents of Ramero did not have uninsured motorist insurance, but did have a homeowner’s insuranсe policy which they believed would pay a judgment that might be obtained by the minor child against the parents.
The child, through his guardian ad litem, filed a complaint against his parents alleging that thе cause of his injuries was their negligence. The superior Court of Maricopa County granted the parents’ motion for summary judgment based upon the doctrine of parental immunity. The plаintiff’s motion for a new trial was denied and appeal followed.
*12 PARENTAL IMMUNITY
The principles of parental immunity were formulated in the landmark case of
Hewlett v. George (Ragsdale),
“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 in court in the assertion of a claim to civil redress for personal injuries suffered at the hands оf the parent. * * * ”68 Miss. at 711 ,9 So. at 887 .
This case has been followed by a majority of state courts because of the need to preserve family unity and prevent collusion between family members against their insurance companies. See Annotation, Liability of Parent for Injury to Unemancipated Child Caused by Parent’s Negligence,
“Our holding today is not a total abrogation of the parental immunity doctrine. Rather we agree * * * that ‘the role of paterfamilias should not be usurped by the judiciary as to intrafamilial activities involving parental discipline, care and control’.”106 Ariz. at 89 ,471 P.2d at 285 , quoting from Judge Howard’s dissent in Streenz v. Streenz,11 Ariz.App. 10 , 13,461 P.2d 186 , 189 (1969), vacated106 Ariz. 86 ,471 P.2d 282 (1970).
In Streenz we cited with approval Goller v. White, supra, which held that parents would not be immune from suit in personal injury actions brought by their children against them except in two situations:
“* * * (1) Where the alleged negligent act involves an exercise of parental authority over the child; and (2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, аnd other care.” Goller v. White, supra,20 Wis.2d at 413 ,122 N.W.2d at 198 .
In
Streenz
we also cited with approval a later case of the same Wisconsin court.
Lemmen v. Servais,
“The two exceptions set forth in Goller are directed toward preserving, fostering and maintaining a proper and wholesome parent-child relationship in a family. The immunity granted by these two exceptions is accorded the parent, not because he is a parent, but because as a parent he pursues a course within the family constellation which society exacts of him and which is beneficial to the state. The parental nonliability is not granted as a rеward, but as a means of enabling the parents to discharge the duties which society exacts, (citation omitted)” Lemmen v. Servais, supra,39 Wis.2d at 79 ,158 N.W.2d at 343-344 .
In Streenz, supra, we did not delineate precisely the areas in which parental immunity would continue to be a bar to suit by a minor for the negligence of his parents, though it is apparent that automobile cases are ones in which the doctrine of parentаl immunity is abolished. This, however, is not an automobile case in the usual sense in that the parent’s obligation did not arise out of his driving of an automobile. The direct cause of Ramero’s injuries was the impact of the Perez automobile, not the act of leaving the gate open. We distinguish this act from the act of the parents in Streenz, supra, in which the parent, as a driver, had a duty to the world at large to drive carefully. If an accident resulted because of the parent’s negligent driving, any passenger in the vehicle could have been injured, and the driver should be liаble to that passenger regardless of the fact that the passenger is the child of the driver.
A case with similar facts is the Illinois case of
Cummings v. Jackson,
“ * * * a suit charging a breach of a duty owed the general public is not as disruptive to a family unity as one charging breach of duty owed primarily to family members and thus bringing into contention the inner workings of the family. * *
“In the instant case the duty alleged to have been breached by the mother concerned the maintenance of trees on the area immediately adjacent to the home. The duty was owed primarily to the general public, however, and only incidentally to the members of the family living in the house. Although the question is a close one, we * * * conclude that the injury to plaintiff was not alleged to arise out of the family relationship. * * * ”57 Ill.App.3d at 70 ,14 Ill.Dec. at 849 ,372 N.E.2d at 1128 .
We believe that Cummings, supra, is distinguishable from the instant case in that the mother had a duty to the public (imposed by city ordinance) to keep the trees trimmed, аnd insofar as her failure was the proximate cause of the minor child’s injuries, she could be liable. In the instant case, the closing of the gate was a duty owed to the child alone and a part of the parental “care and control” or “other care” to be provided by the parents. Streenz, supra; Goller, supra.
“The familial obligations imposed by nature because of the parental relationship, imperfect though they may sometimes be because of the ever present common denominator of human behavior, are quite distinct from the general obligation which the law imposes upon every one in all his relations to his fellow men, and for the breach of which it gives a remedy. * * *
“A new and heavy burden would be added to the responsibility and privilege of parenthood, if within the wide scope of daily experiences common to the upbringing of children a parent could be subjected to a suit for damages for each failure to exercise care and judgment commensurate with the risk.” Lemmen v. Servais, supra,39 Wis.2d at 79-80 ,158 N.W.2d at 344 .
*14 Regrettably, the injured child may be foreclosed from recovery. Assuming the driver was negligent, the lack of recovery results more from the fact that the driver of the automobile which injured the child was uninsured than from the fact of parental immunity. We hold that the act of leaving a gate open should not subjeсt the plaintiff’s parents to suit and that the trial court properly granted summary judgment to the defendants.
We do not, by this case, limit the abrogation of the parental immunity doctrine to automоbile negligence cases. We will continue to consider, on a case by case basis, the actual cause of the injury and whether the act of the parent breached a duty owed to the world at large, as opposed to a duty owed to a child within the family sphere.
Judgment affirmed.
I concur in the result.