*1 of the ordinance is exercise present legitimate gen- of Clifton. police power City eral I would affirm. authorized me Mountain has Justice to state that he joins this opinion. Hughes
For dismissal —Chief Justice Jacobs, and Justices Hall, and Clifford —5. Sullivan
For Pashman and Mountain —3. afirmance —Justices SMALL, CLARA AS ADMINISTRATRIX AD PROSEQUENDUM PLAINTIFF-APPELLANT, ROCKFELD, OF THE ESTATE OF M. LINDA ROCKFELD, . ROBERT D. DEFENDANT- v RESPONDENT. Argued October 1974 Decided December 1974. *2 for the appellant A. the cause Wayne
Mr. Robert argued Mr. Ed- Robinson, & Greenberg, attorneys; Wayne (Messrs. O’Donnell, brief). T. on the ward *3 respon- for the W. Geiser the cause
Mr. Theodore argued Geiser, Connell, & attorneys; Foley McElroy, dent (Messrs Graham, brief). H. William Mr. was delivered of the Court
The opinion Small, as administratris J. The Clara plaintiff Jacobs, Rockfeld, Linda daughter of her ad deceased prosequendum Law Division against in the death action brought wrongful Robert defendant surviving spouse, her deceased daughter’s that count in its first D. Rockfeld. Her complaint charged that count Linda, and in its second murdered the defendant negligent grossly conduct which was he her death caused her life. safety wanton, reckless disregard and was in the Wrong- allowable under the tеrms damages It sought defend- et The seq.). A. 2A:31-1 ful Death Act S. (N. moved for judg- advance of trial ant an answer and in filed was plaintiff’s that the asserting ment on the pleadings, and intrafamilial interspousal “barred by operation Division, Law Harrison Judge In the doctrines.” “in- viewed result as he Though the motion. granted law common precedents he considered that congruous” law in “should necessary changes dictated it and that our trial rather Courts” than from our Appellate emanate Division to the Appellate judges. plaintiff duly appealed J. 579 (1974). certification. and thereafter we granted proceed at this parties stage Both that agree alleged by are they must as true facts as accept we ing complaint her Law Division plaintiff (Rappaport Nichols, N. J. and we notice judicially 193 (1959)); Division Chancery such current pertinent facts as appear Rockfeld, plaintiff D. M.D. proceeding captioned Robert Linda M. Rockfeld als. Linda and Robert etc. et David married in 1970 and their child Scott January Rockfeld was born in 1972. In December 1972 January Linda, live then months accompanied Robert pregnant, to Florida. he a small trip While took her out in out there board motorboat. The defendant states that outboard off, motor fell partially they that drifted and were buffeted waves, that large then abandoned motorboat and they shore, swam towards made it she did but not. The complaint count alleges in one the defendant did “wilfully, maliciously and deliberately and plan scheme wife,” kill his that conduct on his part detailed the com was all plaint pursuant such scheme, that Linda’s death “awas direct consequence proximate result”. The also complaint in a alleges, separate count when the de fendant took in the out wife he knew or should motorboat have known that weather conditions had so deteriorated as to cаuse the issuance of craft small he failed warnings, that check the motorboat or equipment its and failed to secure life preservers, that he disregarded not to warnings proceed *4 beyond a designated point, that caused his wife to he leave the motorboat in shark infested waters he though knew she was a swimmer poor and was physically handicapped by her that pregnancy, he and “deserted abandoned wife his in the waters of the Gulf of Mexico and returned safety alone” his that conduct was “grossly negligent,” was “wanton, reckless disregard” of her safety and life, and caused her death. Clara Small was May plaintiff duly appointed of her
as administratrix ad deceased prosequendum daughter Linda; earlier Eobert D. Eockfeld had been the defendant as administrator of Linda’s estate which appointed general her $750,000, In the approximates parents. her gift Chancery Division her husband proceеdings plaintiff visitation with to their granted respect grandson rights A. Scott David Eockfeld. S. 9:2-7.1. The See situa- tion with to Scott’s residence was summarized respect Kimmelman in Division as follows: “It Judge Chancery appears that since mid-December Scott David Eockfeld has been uncle, with his Mr. residing aunt & Mrs. Gerald Dorf, who Eoad, reside Kettle Creek Freehold Township, New Jersey. father, Mrs. Dorf is the who sister child’s father, Eockfeld, is D. Eockfeld. The Eobert child’s Dr. with also resides his sister and brother-in-law as as frequently it is for him possible to do so. currently attached to He the medical staff of in The Bronx hospital resident and he home, able to so to the house speak, to get of his sister brother-in-law or four a week. nights three The remainder of the time the he evidence shows spends either at the or at an he hospital main- apartment tains in the New Rochelle area.”
Mr. Dorf testified has, that in effect, “Scott become son ours”; and the defendant that he had discussed testified andMr. Mrs. Dorf the possibility of their adopting Scott as their own son. In this connection Kimmel- Judge man, in the course of his visitation, determination on had to say: “Now, in addition I am somewhat motivated in the I will ruling make by Dr. Eockfeld’s statement there is a possibility some day his sister and brother- in-law David might Scott Eockfeld. The adopt fact expresses in court the that he possibility surrender might to his sister brother-in-law for adoption child is a circumstance which I can take into account in considering extent of the visitation which I rights will allow to ma- grandparents.” ternal *5 that for the
In Ms brief the defendant recognizes of his motion the purposes allegations plaintiff’s true” and that “treated as complaint necessarily law.” His con now to us one of “solely issue presented is that, shocking wrongs tention committed the he assuming immune in nonetheless entirely alleged complaint, A. J. 8. any action under the Death Act Wrongful (N. et 2A:31-1 the innocent seq.) damage resulting member of the He his contention family. grounds surviving on common law not men familial immuMties which are in have tioned death acts and which some courts wrongful Estate Pick held to have no In re thereon. See bearing ens, Jones v. 255 Ind. 263 N. E. 151 (1970); 2d F. v. Car Pledger, 363 C. Cir. Mosier (D. 1966); 2d ; ney, 376 Mich. 138 N. W. see (1965) 2d also Gordon, Heyman v. conflicting J. 52 where (1963), on the subject majority eases are referred to a new minority Our Death Act creates opimons. Wrongful cause action maintainable ad pros, the administrator decedent, provided the if he had survived the defendant’s act or would have been entitled to main wrongful neglect, tain an action for Hey- The cases cited damages. man v. Gordon whether proviso divide as to opinions itself, e. g., elements in the tort pertains negli etc., or whether it gence, contributory negligence, extends However, immunities well. need not personal pursue we that, event, this issue for we are satisfied none law the common immunities may fairly justly applied in the cirmumstances hand to the maintenance preclude death action instituted the defend wrongful against ant Linda’s administratrix ad pros.
The common law certain immunities wMeh recognized have, however, come under disfavor. increasingly National governmental state from suit was originally carried over from law English Dean though Prosser notes it is a bit hard to understand how this “feudal and monarchistie doctrine ever itself got translated into the law *6 in Amer republic new and democratic belligerently of the Prosser, ed. 131 at 971 (4ffc 1971). Law Torts ica”. § of whit persistent judicial there has been In our own State levels of lower governmental at immunities first tling, Cloyes State itself. See finally immunity at v. 23 N. J. 327-330 Jackson Tp., (1957); Delaware New N. J. Shrewsbury, Hankinson and Bd. Ed. 51 of P, & L T v. Comm’r 230, 234-235 Const. Co. (1968); Trans., 55 341 and Willis Dept. (1970); Dept. J. Dev., & Cons. 55 N. Court, Ec. J. 534 where this (1970), after out has been pointing (at 538) steady “[t]here from away immunity”, movement held that State was not immune from a grounded State’s damage conduct in tоrtious bar negligently failing erect suitable riers in Point Park High around a bear which mauled child’s arm Comment, requiring its See “Ju amputation. dicial Abrogation New Sovereign Immunity in Jersey: A Beform?”, Prelude to 2 Legislative Seton Hall L. Rev. 149 L. 1972, 45; c. N. J. (1970); et S. A. 59:1-1 seq.; Dreher, Perillo v. Super. 264, 267 Div. (App. 1974). v. Newark Collopy and Ear Eye Infirmary, 27 N. J. this (1958), Court abrogated common law immunity
in favor of charitable organizations. We noted that judicial exceptions been have declared from time, that the im time munity runs counter “to which widespread fairly principles impose on those liability who wrongfully in negligently jure others”, and that it “operates harshly and disregards modern of justice concepts fair 27 N. J. dealing”. at 47-48. Prosser Dean has collected the cases elsewhere which have similarly abrogated the charitable immunity doctrine and has confidently predicted that “the next two decades will see its virtual disappearance from American law.” Prosser, supra, 996; N. J. A. S. 2A:53A-7 § cf. et seq.; Winters v. Jersey City, 63 N. J. 7 Tra (1973); Bortone, mutola v. 63 N. J. (1973). was largely
The common law’s interspousal have no admittedly place grounded concepts common law viewed the legal current Thus the thinking. wife been sus during marriage having existence or at or consolidated into that least pended “incorporated BlacTcstone, Commentaries 442. the husband.” Under maintaining medieval wife was concept precluded conduct an action her husband for his wrongful against her whether it was intentional or affected negligent, person or By or occurred before property, during marriage. own century, the 18th had its doctrine equity developed under which enter the married woman’s estate it separate husbands, tained wives various actions against century 19th which was comprehensive legislation designed *7 to advance the of married women was general emancipation and England throughout enacted the United States. See P. N. Koplik C. 27 J. 13 Truсking Corp., (1958) (dis senting opinion). (cid:127) and 20th Despite foregoing century social changes still some states refuse to a wife permit tort actions by her husband. In the course of against comprehensive discussion of such refusal Dean Prosser said: upon courts, however, The chief reason relied all these is that personal disrupt tort actions between husband and wife would and destroy peace home, against harmony and of the which is policy theory of the law. This is the bald a that after husband wife, peace harmony has beaten his there is state of and left to be disturbed; injured sufficiently angry and that if she is or him to sue it, reprisals by for denying she will be soothed and deterred her legal remedy though this even she has him left or divorced —and very ground, although him for that the same courts refuse to any disruption tranquility find of domestic if him she sues for a tort property, brings prosecution against to her or a criminal him. If this reasoning appeals readеr, adopt let him all means it.
Prosser, supra, 122 § at 863. In our own State has there been a recent line of cases which for the most part terminated the im interspousal While in .munity. Koplik v. C. P. Trucking Corp., supra, N. J. majority still adhered to the immunity, its termination pointing of this Court urged members three it had attacked vigorously world that the academic out had come number of courts elsewhere increasing an ever the fol- they made dissenting opinion it. In their to reject comments: lowing pertinent longer majority general seek to no who favor the view In those spouses support notion that since the fanciful common law it on the they urge other”; person, now instead one cannot sue the are “one tranquillity preserve immunity domestic serves to the husband’s In the rare in- actions. fraudulent collusive and tends to avoid objection despite his her husband will sue stance where the wife tranquillity preserve probably in- other much there is insurance, mаy protected by husband, (as here) welcome stances injury personal any event, how difficult to see In it is her action. property disrupt tranquillity or than a contract more action would admittedly of fraudulent ac- The fear maintainable. action which is insured, tions, furnishes husband is and collusive actions where opportunity majority equally view. There basis for the tenuous system many legal proceedings, our but for fraud and collusion in designed juries very and its out to seek them well courts and precluding just presence clearly moral basis furnishes no at 14—15. 27 N. J. and meritorious actions. honest wife sustained Landy, (1961),
In Long a car involving operated result of collision as the injuries Her hus aby stranger. a car operated her husband with the along stranger. sued his estate died and she band estate asserted husband’s representative The legal judgment motion for but his interspousal denial, this sustaining was denied. thereon grounded *8 infliction negligent without dissent that noted Court “[t]he is a act” wrongful his wife upon a husband by of injury because the merely not lose this quality does and that “[i]t law from en doctrine the common by wife is prohibited J. In view 35 N. at 50. for her damage.” liability forcing inter- Court concluded that the death the husband’s of the marital not violate any policy against would spousal entail any significant danger would not and disharmony J. 53. at collusion. was Risko, Immer 56 N. J. 482 the (1970), plaintiff whom she in the defendant while the car of
injured riding that on the ground sued the defendant later married. She held her but the lower courts injuries caused negligence inter- her was her suit husband barred against that Justice opinion by We spousal immunity. reversed 1), N. J. Eoplilc effect (27 Proctor which in overruled in favor the arguments accepted unequivocally orig that the of the He abrogation immunity. pointed out inal was no immunity longer basis metaphysical advanced reasons now seriously advanced are (1) who primarily those still support family disruptive upon harmony effect real of collusion (2) possibility against frequent interest, insurance carrier. namely, the party 488. at With the first Justice Proctor doubted respect to reason relation, allow-
that the marital would more disturbed by it; it: “Where the action than as ing denying put him, elects if one’s conduct is such that his to sue spouse insurance, no has been damage probably already there is done.” N. J. at 488. there is insurance the dan- Where collusion; if but on that any, family disharmony ger, noted Proctor that the of collusion possibility Justice aspect all not “be deemed sufficient to bar tort interspousal should all, since, N. J. after it (56 493) claims” at is the business courts to with such problems deal “we not as- ought the task is too without some in experi- sume onerous basis 56 N. J. at 494. ence for assumption.” ultimate, Immer In its was limited holding to the terminar- tion of the interspousal immunity in proceedings involving “claims out of motor arising vehicle 56 N. J. accidents.” 495. This was done becаuse strictly all was was before the Court the Court was aware that there still be some special areas the marital relationship between and wife husband “that courts should not become in- volved in.” 56 N. J. at 495. Those special may, areas
241 article in his McCurdy Professor by out early pointed was Harv. Relation,” 43 in Domestic Persons “Torts Between actions 1030, L. 1055 risei to give privileged Rev. (1930), limitations on and to substantive relationship in the marital simple negligence. causes of domestic action grounded limitations have and those obviously privileges But those here misconduct no the defendant’s alleged relationship forth in causes action thereon as set grounded or to the The of Justice reasoning tenor plaintiff’s complaint. in Immer room whatever for doubt Proctor’s leave no opinion him, he, considered colleagues joined with the who along terminated effectively to have been interspousal immunity hand, situations, in our such as one at that are State marital relationship privilege unconcerned N. J. 56 at 484-495. domestic simple negligence. law common did not in recognize any English
trafamilial or on behalf immunity precluding Prosser, minor his See against parent. supra, wrongdoing § 865; L. 1059; 122 43 Harv. Rev. McCurdy, supra, at 247, v. 33 N. J. Hastings Hastings, (1960) (dissenting However, in the an United States opinion). early Mississippi case did refuse to allow sue unemaneipated daughter to her mother for from resulting malicious damages alleged in an Hewlett imprisoning daughter asylum. insane 703, v. 68 Miss. R. George, So. 13 L. A. 682 (1891). The court cited no for its authority holding but took the the interests of the position peace tranquillity family, minor should be prohibited suing child parent personal injuries. Hewlett rvas followed the Court of Errors and v. Appeals Reingold Reingold, & L. 532 A. which in (E. 1935), turn was followed Hastings this Court in Hastings, 33 N. J. supra, 247. However, Hastings which, Gordon, was a Heyman case like N. J. supra, the other New Jersey cases sustaining parental immunity, involved ordinary motor vehicle negligence. Hastings there three mem dissenting bers who pointed out the parental had been *10 writings and student professorial condemned
universally
been
had
254),
justly
departed
N. J. at
subject
(33
had
260),
N. J.
from in
at
(33
situations
varying
fre
which had
actions
the contract and
precluded
property
minors
unemancipated
been instituted between
quently
which oftentimes
they
their
with whom
lived and
parents
misconduct.
had been
charges
parental
serious
grounded
Flasch,
J.
259;
1,
N.
In re
51 N. J.
29
Super.
(App.
33
at
v. Hen
denied,
Keeney
28 N. J. 35
Div.), certif.
(1958);
52
ning,
Alling,
v.
Eq.
1899); Alling
J.
74 (Ch.
Prosser,
865;
J.N.
92
122
Eq.
1893);
at
(Ch.
supra, §
43 Harv. L. Rev.
McCurdy,
at 1057.
supra,
in Hastings stressed
no
majority
that at that
time
case had been found
an action
allowing
between parent
child
only
“where
simple
in a
rela
negligence
purely family
tionship was involved”. 33 N. J. at 249.
since
However,
written,
that was
there
been
have
have
many decisions which
sweepingly abrogated the parental
and have al
immunity
lowed intrafamilial actions generally,
suits such as
including
the one dealt with in Hastings, namеly, suit
grounded on
negligent
an
operation of
automobile by
parent
resulting
in injury to his unemancipated minor
N.
child. 33
248.
at
Prosser,
See
supra,
White,
122
867-868;
at
Goller v.
20
§
Wis. 2d 402,
N.
122 W. 2d 193
Gibson,
(1963); Gibson v.
Cal. 3d 914,
3
92 Cal.
288, 479
Rptr.
P. 2d 648
see
(1971);
Briere,
also Briere v.
107 N. H. 432,
In France v. A.P.A. 56 Transport N. J. Corp., 500 Court, (1970), again speaking through Justice Proc tor, overruled Hastings (33 N. J. 247) accepted the ar in favor of guments abrogation of parental immunity. He noted that originally the immunity had been based on the preservation “family harmony” whеreas the recent em had been phasis danger “collusion and fraud.” In these bases he rejecting reiterated what he had said in Immer N. J. (56 482) and embraced the dissenting views N. J. Hastings (33 261). See also Heyman v. 253—
Gordon, N. 55-60 (dissenting opinion); J. at supra, Davis, (1968) (dissenting v. 242-243 Franco with the opinion following: concluded his He opinion). parent-child against arguments for and After a review abrogated opinion doctrine, be that it should are of the we Hastings, Hastings supra, Reingold Reingold, v. v. in this State. supra, Our decision are overruled. eases which follow them unemancipated allowing goes today suits between further than no injuries parents as result suffered and their children opinion dissenting negligent operation Jus motor See of a vehicle. Hastings Hastings, supra. there v. We realize Jacobs in tice authority parental involving may care be areas the exercise justiciable court law. See a child should not be over which Kelman, supra. White, supra, Silesky nоt v. But we are Goller speculate such in this ease and we will confronted a situation with limits, any, N. J. should have. 56 if the rule enunciated here what at 506-507. Guterman, N. J. 69 (1974). Guterman See was in France N. J. (56 500) holding ultimate negli to suits for from the injuries resulting thus limited in Immer N. J. 482) of automobiles. As (56 gent operation all was before strictly this was done because was may was aware that still Court and the Court there as such relationship, areas special parent-child some well be dealt customary care and discipline, White, 20 Wis. 2d they supra, in Goller v. specially Kelman, *12 192, v. Silesky supra, 122 N. W. 281 2d W. Harv. McCurdy, Minn. 161 N. 2d 631. 43 supra, See are obviously special Rev. at 1077-1081. But those areas L. concern since have no relation present they admittedly not our to set forth in parental plaintiff’s misconduct alleged or the of The causes action thereon. complaint grounded France, of in opinion tenor Justice Proctor’s reasoning Immer, no room for he as in leave doubt that and those who him considered joined parental to have been situations, hand, such as the at ex terminated in one where are authority adequacy ercise of child care parental admittedly in issue. 56 N. J. at not matters 504-507.
245 in complaint the case before us plaintiff’s confined action under the Death Act J. Wrongful (N. S. A. 2A :31-1 et it does not seq.); present issue bear any on the ing directly defendant’s to retain right property received wife’s because his intestacy. This Court of course adheres to the highly equitable principle imposes constructive trust property unjustly obtained hus band the murder of his Neiman through wife. v. Hurff, See 11 N. J. 55 In re Estate (1952); Kalfus, Super. Lott, 435 Div. N. J. 586 (Ch. 1963); Whitney Eq. 134 Jackson Prudential Co. Amer (Ch. 1944); Ins. cf. ica, Pru 106 N. J. 61 Div. Turner v. Super. (App. 1969); America, dential Insur. Co. 60 J.N. Super. (Ch. Div. 1960). Although each of the cited cases murder was committed in New an Jersey ensuing there was New criminal Jersey all conviction, we do not suggest that satisfactory proof other than criminal сonviction would [1946] (1974); suffice. P. 183 In the Estate Cf. (C. Costanza v. A.); G., Deed., L. Q. Costanza, Rev. 218 M. v. L. and (1946). Others, J. 63 event the Death Wrongful Act specifically contemplates that action thereunder maintained in the may be absence criminal proceedings; it that when the death provides act, caused aby default, action for wrongful neglect damages be maintained even “the death was though caused under circumstances in law a crime.” amounting N. J. S. A. 2A:31-1. Henderson, In Henderson v. 14 Fla. Supp. (Escambia
Cty. t. Rec. minor, 1958), plaintiff, four-year-old C grandfather his brought through friend, next father that his had alleging “willfully, wantonly and inten tionally shot and killed his mother” and seeking damages under Florida’s Death Wrongful Act. The defendant moved dismiss, that under Florida law an uneman contending minor could not cipated court, sue tort. The parent motion, no mention of denying made criminal pro but out ceedings con- pointed plaintiff’s complaint *13 willful defendant’s factual averments the iained “enоugh In it.” Which, are sufficient to sustain if proven, misconduct recent before the rendered well opinion, the course its immunity, parental of decisions the avalanche abrogating it said: parent grant generally rule the a wholesome to It personal negligent occur within torts which or
from unintentional peace tranquility security, scope of domestic relations. the society rests, upon being home, very which our foundation the of the willfully deliberately parent protected. and’ But where one must be thereby complaint parent alleged in this kills the other shoots depriving family up only breaking child but also the unit not the companionship guidance, support, care, of the comfort and the immunity. parent, words the claim the he forfeits all to other Supreme Henderson, prius Court decision in Henderson nisi — page Kings County, York, 2d N. Y. S. New properly upon deemed the infant cannot “A suit disrupting behalf by parent family’s disunity' of the when thе causé 'family tranquility already to be unit has caused the misdeeds not a distinct disturbed shattered. It would be disservice ap family, place stamp state, but to the court’s maliciously by proval upon betrayed individual who his trust causing injury Supp. 14 Fla. at 185. to his child ward.” entirely it is evident foregoing of all of the In the light the pres modern legal concepts under pertinent that damages his grandmother, through ent suit the child mother, not should of his death wrongful from the resulting evident it is And equally at the threshold. been barred have con the same dictate considerations the relevant policy that events described in mind that be borne It must clusion. far from our State borders occurred complaint with or juris no concern New has Jersey that consequently has, however, vital It criminal proceedings.* diction over argument for Dr. Roekfeld counsel we told *At oral Jury investigation “returned Florida Grand at the close of its judge suggesting presiding matter remain ac- letter testify prosecutor’s did Dr. Roekfeld before office.” tive in the that; Jury; tendered “An invitation was his counsel stated the Grand attorney, if Roekfeld State’s as counsel for Doctor me respectfully certainly testify, welcome I would be he chose to invitation.” declined the *14 parties with the and civil concern their and its proceeding favor than clearly interests disclosure rather of suppression truth. of light allegations complaint, the the the the which for present true, must be as purposes accepted circumstances, the immunities acknowledged any the suggested can have no underlying policies pertinency.
There is course no fraud or collusion and danger there is no real likelihood of family disharmony. furthering The wife is dead and has the been family already disrupted. child is The now too and is for all young understand practical purposes custody the may relatives who per- haps him. ultimately adopt If the rе- current proceeding sults in a determination in favor then the the defendant’s air have may been cleared and the have been way paved for wholesome father-son in a If it results relationship. determination in favor the then in- the child’s plaintiff terests be in may critical need of additional protection further be proceedings may justly undertaken.
Any that feeling suppression the plaintiff’s charges be the child’s may seem to entirely interests-would groundless. The charges, include that the allegations wife was murdered cold-bloodedly husband, are now There can public. be little doubt that suppression pro- cedural motion the husband will not result in having the matter into When ‘flapse obscurity.” the child reaches he will know understanding age undoubtedly about and will want to know charges the truth. re- Although sults flowing from evidence introduced at trial in accord- with our traditional manner of ascertaining truth ance him, well may satisfy suppression under claimed immunity surely will not. The harmful effects the understanding child when first had learning that there been suppression father’s behest readily be envisioned. suggestion the trial judge should conduct a full hearing make preliminary determination as to interests finds child’s no precedential support anywhere any nor does it have in reason. Indeed support how could made intelligently such determination preliminary mur- father whether the first evidence taking without all it is evident All in alleged. child’s mother as dered the to enable sensible course just to us en- thereby merits her on the to pursue charges plaintiff in regular merits defend on the defendant abling dismissal summary judge’s course. To end trial hereby: plaintiff’s complaint Reversed.
Clifford, precedential compul- Neither (dissenting). *15 nor sion of this Court’s decisions the effect prior persuasive con- of relevant considerations me the policy leads clusion that this suit should be allowed. Because I think it not, I summary should would affirm the entered judgment for defendant.
I this with the view that the of come to case doctrine immunity survives in New intrafamily Jersey, except still Risko, Immer N. J. in automobile cases. v. 56 negligence v. A. A. Trucking Corp., 482 and France P. 56 (1970), N. J. 500 the the ex immunity (1970), abrogate of between husband wife and between tent permitting, child, suits personal injuries for parent consequent of a motor vehicle. upon operation opinions negligent themselves, so their in those cases limit painstakingly value likewise circumscribed. precedential being I willing I concede that well be readily might very While the further in a vari- immunity of abrogation to extend am situations, by of I reminded Justice Hall’s ety opinion J. 247, in 250 Hastings Hastings, Court (1960), determined, [m]atters must be in absence or, specific legislation, policy perhaps accurately, more on the basis * * * weighing policies. competing
on other than situations precise light us, policies in one before consideration specific results, facts it will lead to different but be time enough on thеm the occasion to announce conclusion when is specifically presented to us. facts of this case myself specific And so I confine Gordon, N. J. 53 which, (1963),- in Heyman as A ac is the son. cause of in interest real and only party act, under death behalf the wrongful is asserted tion money from his father 3A:31-1, et seq., seeking N. J. 8. A. mother death of the boy’s for allegedly causing damages wantonly negligent murder grossly either survive, would the claim doubtless conduct. While reckless it Eeyman, France on impact virtue of automobile, entirely of an operation grounded negligent when the are implicated considerations1 policy different Here the focus wrong. on an intentional case is based and domes family harmony to be acknowledged generally Between Persons See “Torts McCurdy, tranquility. tic 1030, L. Rev. 1074-76 Relation,” (1930); 43 Harv. Domestic — Its The Doctrine and Comment, Immunity “Intra-family L. Rev. Status,” Baylor (1967); Chopin, Present A in Need of Change,” Rule Immunity: “Parent-Child Tort Miami L. Rеv. 194-95 (1973). 37 U. first, I as
Thus, questions the essential whether policy see relationship to threaten the will tend allowance of the suit — relationship father and this son between this Conford, presump- so well point, put by Judge and one association loving normal tively “incalr *16 prevalence liability plainly of the 1The automobile insurance is at abrogation intrafamily cases. root of the of automobile in Risko, supra, J. Immer at intention 489. With no of See equine attempting long flailed of an beast burden since resurrection of death, express I constrained to wonderment at the to am nevertheless curiously justification reasoning uses as the circular insurance imposition analysis something liability. for the of I take it runs the liability indemnify this: the insurance is a to one for like money damages flowing contract legal liability; typical from in one’s the situa unemancipated (wife parent ac tion sues husband child sues injuries personal negligent opеra resulting of count vehicular liability tion) permit imposition legal the courts will of because the presence put simplistically: of insurance. Or somewhat more insurance, legal liability, insurance; if if is there is there is there Francis, legal liability. dissenting opinion J., is also there See the Risko, supra, in Immer v. 56 N. J. at 496-499. child;” second, and whether the enlabie benefit in circumstanecs this should vindicate the the Court right infant to sue. n Because I believe the of the child’s interests best question the domestic in the form the tranquillity issue are, case, father-son inter- relationship inextricably this so twined as to be I would the substantially identical, adopt would as perceptive analysis not, Conford but Judge would, be- defer resolution of The record question. first fore us firm is sufficiently me to lead to enlightening conclusion would be relationship preserving worth subjected to a to serious risk of were this damage litigation forward. I so forth go for reasons set precisely сonclude greater I length What little Judge dissent. Conford’s would add follows. Rockfeld, The Scott suspicion boy, strong
. somehow in an used as the innocent acrimonious pawn being Small, That dispute plaintiff, between Clara defendant. abundantly intention is defendant is made punish to clear, if not by what surfaced in defendant’s action separate for declaration of his wife’s death2 and proceedings to establish the visitation cer grandparents’ privileges, then claim, tainly by complaint in the for punitive damages.3 I I recognize that cannot as a indulge stated suspicion for decision herein hasten to assure con ground that my clusion would he the same were some more neutral party as administrator acting ad prosequendum. grandmother would, in event, remain the force behind this driving fully 2In completely Dr. Rockfeld testified under oath, any privilege against self-incrimination, without resort pages transcript indelicately vigorously hundreds of аnd was giving cross-examined as circumstances of the occurrence rise this suit. damages clearly wrongful 3Punitive are under allowable action, Kogan, Super. (Law 1967), death Kern Div. majority’s under even view the case. *17 incapable child is the age at his tender Obviously, litigation. to sue his he wants whether a decision as to making and as- his capabilities, within father. If that decision circum- view that thereof, I might reliability the suming be would determinative, persuasive but it as entirely stance facts because of the a suit under otherwise similar allowing being preserved. absence of any harmony susceptible clear second answer to the the our problem to my approach — this circumstances in the whether policy question essential — follows infant to sue the right.of Court should uphold as litigation posing of the my perception automatically rela- father-son of the disruption an unwarranted risk of family, of the reconstruction I view the hoped-for tionship. every whose very judicial process threatened here direction of that .rela- preservation effort be in the should value to the vindication social superior as tionship, being an- no his father. (It of the son vis-a-vis of any remedy conduct wrongful intentionally to father’s point swer to unit; Florida criminal family destroyed as having in see- vindicate interest society’s be relied on to process may with away murder-.”) does not “get Dr. ing it that Roekfeld justification “truth” insufficient need expose of the in- expense for dollars at the promoting quest ease that is so harmony. of familial least terests At counsel, attorney where, plaintiff’s we are informed all information available to has of the substantially want Florida authorities. Should the infant prosecuting what curiosity some future time as to satisfy death, should evidence to his mother’s respect shows attorneys atmosphere available from the free nоted, his would As acrimony engender. trial in a trans- already father’s version is memorialized lengthy cript. various considerations identifying
Extracting in this just determination policy which contribute to á undertaking. Evaluating area is most difficult delicate hazardous. have been thus isolated is they equally them after *18 The is increased the complexity by triangular of the problem — nature of this case not the relationships “straight- line” a of husband-wife or relationships parent-child, but what three-way the son of interplay involving impact the father did to the mother.
That further the knowl- complexity heightened even edge action cannot purported of this beneficiary or speak reason for himself. a spe- The ease at bar is one of cial wherein category there intrusion of potential interests those of the That element beneficiary. other than a court’s concern for bespeaks the of necessity intensifying familial jaundicеd where the harmony. Particularly is this so an of on the of perspective interloper periphery one what father-mother-son relationship adversely affect might not unit. This class cases special of the family remains majority’s future of blanket only rasies doubts as to it also immunity, strengthens but intrafamily abrogation hoc, ad case-by-case approach inclination my adopt whether, may area law. One thus family question to this and of in- position from the by moving pre-Immer France in all extreme of opposite instances to the trafamily doctrine, almost has majority total abrogation mark. has at least turned its back on the It missed when an established doctrine is at- notion that salutary outmoded, as at the hands of court is tacked erosion 33 N. J. Hastings Hastings, supra, customarily gradual. Jacobs, We are in a maze- opinion J.). (dissenting law, like and field of the made enormously sensitive the more heretofore perceived only dimly so fact patterns considerations not in policy explored depth. That circum- mandates, minimum, at a a more stance cautious step-by- process than the one step change sweeping abrupt by the Court. pursued
Because this dimension of adds complexity simply inherent formidability of the task of articulating any gen- rule, eral I would no further that, than for the go deciding reasons expressed in Conford’s Judge supplemented dissent case relationship the father-son herein, the threat the action. dictates disallowance bear and conclusions not discussion my while
Finally, final analysis I certainty, suppose stamp inspired my notions of experience, instincts I own only my have nuances, which to rely, their human relations func- judicial reliable. they may very admittedly I am acutely a certain skill. predictive tion here calls for does not judicial approach of the fact conscious *19 “[a] and assurance future more readily make the foreseeable decision, be, unfortunately of our whatever it is circumscribed & human Lavigne Family the frailties of judgment.” Elizabeth, N. J. Soc’y 473, Children’s 11 483 (1953) of J., dissenting). (Wachenfeld, I affirm. would (dissenting). D., Temporarily Assigned P. J. A.
Conford, question the highly portentous resolution view is that My in of action tort right extension regarding argued the limitations set beyond parents children against infant Trans- France v. A.P.A. five in years ago court this a J. should await considered 56 N. 500 (1970), port Corp., whether the and best case as to welfare in this determination Scott, call for the of the child, prosecution interests is necessary than that here us A fuller record action. before decision on that delicate informed question, for adequately in the case is for a remand this point and vote at my aby trial on the hearing finding judge directions jurisdiction this in the retaining stated court question, If were determined ultimately it child’s best interim. be served by would not prosecution interests welfare action, legal the substantive decided question by the date, at a could be resolved majority hopefully on a future record, complicated by less satisfactory more ad conflicting than present hoc familial considerations one. be no
There can question duty to the right court, in the exercise of its parens ancient Chancery patriae
254 case, look into super in an jurisdiction appropriate an in the welfarei of action affecting vise tiie taking Jur. 2d 42 Am. child, custody. its property fant person, 525, 27; Fanlony Fanlony, 22, p. Infants, § Henderson, N. J. 395 (1952); Henderson v. (1956); Hollo, Div. N. J. Super. (App. Moreland v. exercise such I have no court should doubt that 1951). motion, since the on its own jurisdiction, proper in case> prob not discern the welfare litigation may parties Moreover, is well lem catches the of the court. it eye *“* * patriae] said that the court’s action [parens limited narrow bounds but by any empowered [it] arm whatever direction aid stretch forth its its pro 2d, Am. Jur. ubi cit. supra. tection be needed”. 42 case alert particularly should present court to the matter of the child’s interests as the administratrix ad well be in a prosequendum may position conflict interest with the child in that regard. Understandably, administratrix is interested punitive against defendant, who she for her responsible believes is daughter’s death. was not in a emotionally She position, deciding action, institute this essentially child, on behalf of the one *20 Gordon, 40 N. J. Heyman see fairly (1963), to and to consideration whether the judge child’s give best an by interests would be served such action.
The harm child a in prospective personal and sense the psychological of this action lies in the bringing threat of favorable therein to judgment a the future father- son of the defendant relationship the child. See infra. known, On basis of what is now however, the the viability is in some relаtionship that question, clari- requires fication. The Division pending Chancery action mentioned in majority the was instituted Dr. opinion by Rockfe-ld,present defendant, a to secure statutory adjudication of death of the course, wife. his its the maternal grandparents the order, child Dr. sought by Rockfeld, opposed permitting have them to periodic overnight. visitations with the child was the court granted by at their own home. This request 1973, which, after a as related the ma- May hearing examination he jority, Dr. Rockfeld testified on that direct brother-in-law, had with his sister and who were discussed then child, for the of their eventual earing the possibility adoption testimony it. It be this suspected might have been to minimize of a future close geared prospect the relationship between maternal and the grandparents the event, child. In on an Dr. Rockfeld some application months later for modification of the order eliminate the visitations, overnight he granted, was testified that intended retain his over in a parenthood boy, recon- structed his family, earlier consideration of explaining adoption by his sister was the of a product con- distraught dition death of wife. following the
It would be inappropriate and unfair to all concerned for us to come to a present determination as to the probabilities of a good relation between parenthood defendant child, for patriae parens purposes, testimony afore was mentioned, as it taken in a different involv proceeding ing different issues. Moreover, the parties yet have been heard on It this issue. was not by raised the defendant but writer of opinion. Roxbury State Bank. v. Clar endon, 129 J. Super. 358, Div. certif. (App. 1974), den. 66 N. J. 316 A (1974). remand purpose express where lie the child determining best interests of would all likely to produce available evidence to that relevant — most the matter the futurе question significantly vis status of the child vis defendant. stands,
But as the matter now unless different picture developed remand, must be presumption relationship future the defendant and the child will son, continue to be that father and' probably ultimately in a different household from that which now they share with the Doris. must assumption also be that the.normal filial affection respect and which attend the relationship be- *21 and a here, a father will young tween son exist although may attempt impair others hazards that subject a for his father boy young need relationship. that a and the mother, the loss of by accentuated undoubtedly of that tie impairment or substantial future destruction in the child this faces well be the threat may gravest ahead. years court’s
I from the intimation dissent strongly necessarily be served child’s interests will opinion that when he reaches in the action in that by a verdict present know the truth”. he will “want to age understanding not constitute the first verdict will of course jury place, matter, whether or not it revelation of “the truth” a collective plaintiff, merely guess is in favor but likely expanded beyond circumstances not to be apparently known, which are which create those facts now objective still a per- substantial but will leave suspicion seemingly mark. at oral argument manent We told question Florida no ac- by a full authorities despite investigation taken the local grand jury. tion has been But from the will apart adjudication fact not child of apprise the “truth” I am clear that the pro- the. normal, spective association father loving between and son wdiich be fuller record (and until substantiated — a then a natural inference) relationship of incalculable — benefit to the child would best safeguarded be by permit- into ting episode obscurity. (I am lapse course to any the law alluding appropriate enforce- authorities.) ment To сonfront when the child he reaches age even with understanding (or 'possibly before) the fact that a his father adjudicated court culpably responsible — the' mother whereof death witness there is trust of money damages fund exacted the court from the — father to child’s loss his mother repair would visit my view calculated to immediate and continuing harm on the child psychological and to threaten vitia- tion of the father-son nexus then existing, consequent injury. further irreparable
I am further in disagreement in the suggestion court’s that a opinion jury verdict favor of plaintiff could “further for justify proceedings” “additional protec- child, tion” of the if meant what is is termination of the father’s On custody. objective now known or in facts reasonable I am prospect discovery, not in accord. On those facts this child’s and future for his present need father should a civil clearly adverse outweigh jury’s ap- of his conduct praisal in relatiоn the tragic episode. a ordinarily While money favor prospective judgment infant of course to plaintiff his this is advantage, not the case. The ordinary potential psychological familial has been discussed. damage As counter to the benefits such a pecuniary judgment, the child can pre- it, sumabty, without look forward to financial support, sus- tenance and beneficence from father to whom he will always the natural represent object the father’s bounty. The need for satisfy defendant such a out of judgment no assets personal (there apparently may con- insurance) yet stitute another irritant in the family relationship.
view the child’s half-million dollar inheritance alone, mother his future financial welfare seems assured necessity without the for him a recovery securing case.
The matter of the best interests of the should child fully remand, to be such explored followed later are mentioned above. proceedings Jacobs, Hall, For reversal —Justices Sullivan P ashman —4.
For Clifford —-1. affirmance—Justice For Judge Conford —1. remandment —