Turner v. Turner
304 N.W.2d 786
Iowa
1981
Check Treatment

*1 Hines, J. C. Salvo Richard Schenck Deren, Sawin, Lewis, Harlan, Salvo & for Turner, Minor and Rob Rick TURNER appellants. Flynn, Children, by Turner Bonnie Their Friend, and Bonnie Next Mother and Smith, Peterson, Robert Laubenthal of J. Flynn, Appellants, Turner Willson, Bluffs, ap- Beckman & Council pellee. TURNER, Appellee. Robert Gordon

No. 64320. McCORMICK,Justice. Iowa Iblings, 261 In Barlow v. Supreme of Iowa. Court (1968), this court mаde an ex- April right of un- ception the common law sue their emancipated minor children to such minors parents. The court held that negligence not sue their could case, plaintiffs Rick torts. In the father, their defend- and Rob Turner sued Turner, damages ant Robert sustained in an automobile аc- alleged they negligence. by cident caused their father’s interlocutory We review a trial granted precluded is holding court the action that pa- of the Upon Barlow. reexamination doctrine, abrogate we now rental negligence the absolute ban on suits im- that pоsed in Barlow. we hold Because maintained, we may be re- present action the trial and remand the case verse proceedings. for further Flynn Turner Plaintiff Bonnie plaintiffs. the minor She di- mother of custody of vorced from defendant and has petition alleges that the children. vehiclе passengers were in motor children 11,1977. September driven defendant on drove the Plaintiffs aver that defendant recklessly and while in- negligently, vehicle it The chil- causing toxicated to overturn. inju- resulting for their damages dren seek ries, damages in her and the mother seeks R.Civ.P. 8. The right own under Iowa aр- in this mother’s claim is not involved claim, the children’s peal. answering doctrine of defendant asserted the defense. When as an affirmative adjudication for an plaintiffs petitioned defense, points law on the merits of immunity barred the the trial court held the question in the children’s action. Thе ruling appeal is whether children’s turn, of the correct. the correctness *2 viability of ate a new liability. merely Instead it ruling depends present on the Barlow rule. judicially imposed procedural the moves a barri See, to recovery. g., er e. Gelbman v. origin, it judicial is of When a rule Gelbman, 434, 439, 23 N.Y.2d Co., change. Kersten subject judicial is to 192, 194, N.Y.S.2d Services, 207 Inc. v. of Department Social (Iowa 1973). We have rejected interspousal When we the immu prerogative abrogate exercised our to doctrine, nity rejected arguments the court-created immunities. concerning danger the of fraud and the (Iowa 1979) which are tranquility threat to domestic (abolishing interspousal immunity); Ker asserted in of immuni support sten, (abolishing govern 207 N.W.2d at 122 Shook, ty. 281 N.W.2d at 619-20. We re cases); immunity mental in contract ject arguments those on the same basis in Haynes Hospital Associa Presbyterian the context. Contentiоns concern tion, 1269, 1274, 241 Iowa ing parental of succession to possibility (1950) immunity of charita (abolishing assumption recovery the minor’s and institutions). ble The common thread run will “family exchequer” be so de ning through responsi these decisions our pleted by recovery the minor’s that other bility to reconsider court-made rules when children will suffer are also without suffi validity questionable. their continued support cient merit to retention of the doc Shook, abolishing Our recent decision in trine. These considerations have not been raised a serious interspousal immunity, has adequate rights to dеfeat children’s to sue question concerning the absolute parents property in contract and cases. parents negligence by of to suits their un- justifications have no force as They greater emancipated minor children. See, recovery. g., for denial of e. Gol tоrt The Barlow court recited seven rea White, 402, 410, 122 ler v. Wis.2d sons which had articulated courts been jurisdictions parent- in other support Furthermore, of the doctrine proponents child immunity: to inter- longer rely analogy can no (1) fraud, danger (2) possibility of suc- spousal interspousal Becаuse immunity. cession, (4) (3) exchequer, analogy abolished, analogy immunity has been to denial of cause of action between hus- abroga- interspousal rights supports to now wife, (5) band and domestic tranquility, parent-child immunity. tion of (6) (7) parental domestic and government, discipline and control. been advanced arguments Forceful have based on the “do retaining for the doctrine 261 Iowa at 156 N.W.2d at After disci government” “parental mestic and reasons, reviewing these the court conclud- 'have concepts. They pline and control” ed: tranquility, proper “Domestic arguments that even a control, been countered discipline ‍​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​​‌​‌​‌​​‌‌‌‌​‌​​‌‌​​​‌​​​​​​​‍family unity, and so- injure to children parent should not be able grounds cial to sus- responsibility ample are impunity and that negligently tain the doctrine.” Id. at with policy and the mechanism (emphasis provides 156 N.W.2d at 107-08 a reliable system original). claims. screening unmeritorious out prerogatives of supervisory Concern for rejected Courts which have the doctrine of bizarre claims possibility part in whole or in have found that jurisdictions has not been sufficient in most retaining reasons advanced for it are out In retaining immunity. absolute justify weighed by сountervailing giv reasons for have deline with such concern stead courts ing children right legal the same redress and discretion ex parental supervision ated See, injuries g., as others e. Lee enjoy. imposed Comer, its abolition or have (W.Va.1976). ceptions S.E.2d abrogation. Com on its recognize These courts to the extent other limitations Goller, N.W.2d at it does not cre abrogated pare Wis.2d strive to justice We should make even- negligent supervision (exceptions discretion), goal Mer This would legitimate handed. be ordinary parental even without constitutional sanction. Sutterlin, 93 Wash.2d rick v. deny a to our litigant will be When we access (1980) exceptions de (any status, courts because of his or his rela- basis). One case-by-case termined aon tionship adversary, his or because of the Goller ex recognized court which once *3 status, to some аdversary’s special the them. ceptions recently has abandoned if the spirit, not (Minn. degree we violate the Stream, 295 595 Anderson v. letter, of that ideal. sup Law Institute 1980). American the abrogation of doctrine ports general people class of Whenever we set a other some limitation: are unlike apart, tell them process to them the people deny is not immune from (1) A or child strongly felt need the law we violate a solely by the reason liability tort immediately We equal treatment. relationship. of that legal fictions exceptions, search fоr create immunity tort (2) Repudiation of general way or do try in one another for an act or liability does not establish just result justice. tryWe to achieve a that, of the omission because summarily be de- which would otherwise or is relationship, privileged is otherwise end, not, we As often as in the nied. tortious. not proba- will rule. special abolish the Such G (Second) of Torts 895 Restatement § pronounce- bly strong be the fate of the today. majority ment the made decided, When the court Barlow was (Beck N.W.2d at 114. 261 at Iowa Hamp New jurisdiction, one only found J., er, dissenting). shire, abrogatеd the completely which had immuni- abrogating parental absolute jurisdic Two doctrine. family immunity which ty denigrate do not values we Wisconsin, tions, had Minnesota and abol Rather, to foster. purports that doctrine excep the Goller part, retaining ished it in high too a the doctrine exacts believe 721, at 261 tions. See Iowa at addition, an effective it is neither price. however, Now, twenty-seven 112. we find protecting those val- or suitable means for which, grounds, jurisdictions various n suggest we do not ues. At the same time ject in circumstances doctrine least abrogation panacea. of the doctrine is We are present like those case.1 justice simply We conclude that on balance the cases and persuaded by reasoning to be achieved without likely is more experience jurisdictions in these doctrine with it. than parental absolutе doctrine should abrogated. be We endorse the statement We whether the doc- today do not decide abrogated absolutely. dissent We prediction and- vindicate the trine should be there are ar- ing justices question reserve the whether Barlow: 432, (1966); Hebel, (Alaska 1967); N.H. 224 A.2d France v. P.2d 8 588 v. Seе Hebel 435 500, Streenz, 86, Corp., Transport Streenz Ariz. 471 P.2d 282 N.J. 267 A.2d v. 106 A.P.A. 56 914, Gelbman, Gibson, (1970); (1970); 3 479 N.Y.2d Gibson v. Cal.3d 490 434, Gelbman v. 23 648, 192, (1971); (1969); Cal.Rptr. P.2d v. 92 288 Williams 297 N.Y.S.2d 529 Williams, (Del. 1976); Rupert Stienne, 397, v. 369 A.2d 669 Peterson v. 90 Nev. 528 P.2d 1013 484, Wells, County, (1974); (N.D. City & v. 51 Hawaii P.2d 1007 Nuelle 154 N.W.2d 364 Pados, (1969); Nocktonick, 1967); Nocktonick 227 Kan. v. 444 Pa. 282 A.2d v. Falco (1980); Elam, (S.C.1980); Ridgon Rigdon, (1971); v. Elam v. 268 S.E.2d 109 Felderhoff, (Ky.1971); S.W.2d 921 Bondurant v. Bon 473 S.W.2d 928 465 durant, v. Felderhoff 1971); Kauffman, (Tex. (La.Ct.App.1980); 212 Va. 386 So.2d 705 Black Smith v. Sutterlin, Solmitz, ‍​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​​‌​‌​‌​​‌‌‌‌​‌​​‌‌​​​‌​​​​​​​‍1979); (1971); (Me. v. v. v. 409 A.2d 634 Sorensen 183 S.E.2d 190 Merrick Sorensen, (1980); v. Com 369 Mass. 339 N.E.2d 907 Wash.2d 610 P.2d 891 Lee Klein, er, (W.Va.1976); (1975); Plumley v. v. 388 Mich. 224 S.E.2d 721 Goller Stream, White, (1972); N.W.2d 193 N.W.2d 169 v. 20 Wis.2d Anderson (Minn.1980); Fugate Fugate, (Supp.1979); § 52-572с N.C. Conn.Gen.Stat. Briere, (Mo. 1979); (Supp.1977). S.W.2d § Briere Gen.Stat. 1-539.21 distressing Just as as the and discretion result are the parental authority eas of ques- exist. That should given justify where reasons it. rushing Courts in a case in tion can best be answered virtually to rescind this rule —which all Merrick, Wash.2d at it arises. See recognized had fоr almost 100 courts that, at For now we hold 610 P.2d at 893. have done so on several un- years usually— authority outside the area of least not af- grounds. They say tenable it does discretion, chil- unemancipated minor they dis- unity harmony; fect or immunity doc- dren are not barred danger count of fraud and collusion. negli- suing trine from their extent have abolished it to the Some immunity defense gence torts. Because the what coverage, though of insurance as case, we unavailable in the thus Wil inherently wrong right. is thus made of law adjudication the .trial court’s reverse Williams, (Del. liams v. 369 A.2d pro- the case fоr further and remand points Sorensen, 1976); 369 Mass. Sorensen ceedings. *4 907, 339 N.E.2d 908-09 Others AND REMANDED. REVERSED involving tain the rule in situations control,” raising and parental “supervision LeGRAND, except All Justices concur as to where interesting question JJ., McGIVERIN, who dis- ALLBEE and and parents of starts supervisory duty LARSON, J., part. no sent and who takes stops. LeGRAND, (dissenting). Justice “supervi majority today The reserves opinion for all I. I dissent from the court’s future, limit for the sion and control” case in v. my the reasons stated in dissent case at to the automobile ing ruling its 616, (Iowa 1979). 281 N.W.2d 620 decisions have foot-in-the-door hand. Such However, reasons II. there are additional expansion just and development a of history minor should not be why unemancipated an involving “excep as cases quickly as neg- permitted ordinary to sue a v. along. Nocktonick tions” come ligence. 135, 143 758, P.2d Nocktonick, 611 227 Kan. case involve Both Shook and J., dissenting). predict I (Schrоeder, C. ties; similarity ends. family but there court, even too. We cannot fate for this close, relationship is more The then there, course, must for we stop of any and emotional than personal, lasting, against minor allow, too, by parents suits love, affec other. It involves elements оf Schenk, Ill. 100 v. children. See Schenk tion, trust, confidence, dependence, disci 199, N.E.2d 12 App.2d 241 which must pline, supervision, and control score of to a box majority points be exercised from birth to daily by the rule. We rescinding states in favor of sustaining, and edu maturity nurturing, in to such responsive always have not been so demanding are cating the child. The duties Brown, v. a count. See Handeland head burdensome; rewarding. and are also (“We 1974). 574, (Iowa 216 N.W.2d 577 Iblings, v. 261 Iowa overruling Barlow just rule adopt a obligation no to 713, have (1968) today, 156 105 the court N.W.2d else adopted generally been virtually this cherished cornerstone because it has destroys influenced where”.) of our not be society. We should in other states from the unfortunate results abrogation of the recognizes The court instead, should, stay this instance. We but dismiss- “panacea” rule is no im which have retained the states har- by saying price es this v. Mut. Auto Owens munity. They include: contrary, I high.” “is too On the mony 9, 133 Co., 177 So. 235 Ala. Indemnity discarding the doctrine price believe the Inmon, 853 594 S.W.2d v. (1937); Thomas not, cannot, is one and should society Hansen, 608 P.2d 365 (Ark.1980); Hansen v. Streenz, 86, 106 Ariz. bear. v. See Streenz Ins. Unigard v. Horton J., (Colo.App.1980); (1970) (McFarland, 471 P.2d 282 dissent- Wisen- Co., (Fla.App.1978); ing). 355 154 So.2d 790 Fundermann, jeсts concept this same in Ga.App. 140 ‍​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​​‌​‌​‌​​‌‌‌‌​‌​​‌‌​​​‌​​​​​​​‍230 S.E.2d Zeigler, baker v. “impos Rowley, today, 101 where we rail about the v. Idaho filed (1976); Pedigo

97 juries sorting out contested facts” sibility Nat’l Bank & (1980); 560 Illinois 610 P.2d can Turner, Ill.App.3d juries 38 it to say “illogical pretend Trust v.Co. (1980); Gerrity disputes” resolve factual dispassionately Ill.Dec. makes 15 Ill.Dec. What Ill.2d affection suits. Beatty, v. alienation of State, strange v. Hunter (1978); metamorphosis even more N.E.2d this verity Co. v. (Ind.App.1977); Shell Oil N.E.2d 588 is that we attribute inexplicable 1, 403 A.2d 379 Md.App. contests and Ryckman, 43 jury in non-adversarial McNeal, 254 v. Estate of (1979); McNeal See dis trials. truly it adversarial deny Novak, v. (Miss.1971); Pullen Shook, So.2d at 621-22. sent (1959); Nahas v. 211, Neb. represent still should Iblings v. Barlow (1966); Noble, 139, 420 P.2d 127 77 N.M. We have this state. public policy Teramano, St.2d v. Ohio Teramano to bar policy public back on recently fallen Chaffin, (1966); v. Chaffin 216 N.E.2d 375 her doctor. Cole against a patient suit (1964); Castellucci 239 Or. P.2d 771 1981) (Iowa v. Taylor, Castellucci, 188 A.2d 467 v. 96 R.I. of affec- for alienation an action dismiss Gruttemeyer, 222 Tenn. ‍​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​​‌​‌​‌​​‌‌‌‌​‌​​‌‌​​​‌​​​​​​​‍(1963); Campbell Mickelson, filed to- tions. Fundermann (1968); Oldman 432 S.W.2d 894 par- day. strange It is in the area Bartshe, (Wyo.1971). important relationship ent-child —more Iblings, 261 Iowa at of these —we than either commonweal *5 107-08, justified the immuni upholding public policy long-established abandon a considerations “domestic ty concept by family traditionally protected which has control, discipline and tranquility, parental family litigation. of intra specter from responsibility.” unity, and social family stronger, remain not Those considerations McGIVERIN, JJ., join divi- ALLBEE weaker, At a today’s society. in troubled II of dissent. sion this crumbling solidarity time when family control a matter and when lack of alarm, courts should be alert

of concern and enfeeble, what preserve, not further strength.

left unit of societal of this basic to the referring briefly

I cannot resist this and Fun

inconsistency opinion between Mickelson, Iowa, 304 N.W.2d dermann v. FUNDERMANN, Appellee, con P. the same Theodore It is today. both filed Reynoldson’s flict Justice discussed Chief case. dissent the Fundermann MICKELSON, Appellant. Gordon the claim that attempting to refute 65064. No. opens litigation and child between collusion, majori door fraud and of Iowa. Supreme Court ty relies on April (Iowa 1979), us we can which assures 6, 1981. May out Amended confidently juries to search As rely separate legitimate claims from fraudulent 7, 1981. May Rehearing Denied concerning the ones. statements Similar juries always arrive ability Davis,

truth are found Barnhill (Iowa 1981), ‍​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​​‌​‌​‌​​‌‌‌‌​‌​​‌‌​​​‌​​​​​​​‍and Bearbow (Iowa v. Merry,

er

1978). However, summarily re-