Petersen Ex Rel. Petersen v. City & County of Honolulu ( 1970 )

OPINION OF THE COURT BY

RICHARDSON, C.J.

Plaintiff, a two-year-old child, by her parent, Louise Petersen, as next friend, sued the City and County of Honolulu, alleging that as a proximate result of the City’s negligence in maintaining, operating and controlling its facilities at Hanauma Bay Beach Park, plaintiff was burned by hot ashes adjacent to a barbecue pit. Louise Petersen and Wayne Petersen, the child’s parents, joined as co-plaintiffs to recover medical expenses incurred as a result of the necessary treatment of the child’s injuries. The City answered and counterclaimed against the parents for contribution pursuant to the Uniform Contribution Among Joint Tortfeasors Act as adopted in Hawaii, HRS §§ 663-11 to 663-17, alleging that the parents’ negligence in supervision of their child was the sole or a contributing cause of the child’s injuries. As a preliminary matter, we note that the Act provides for apportionment of the common liability of joint tortfeasors as among themselves, but it does not affect the joint and several liability of each defendant toward the plaintiff.¹ The court below struck the answer and dismissed the counterclaim, but granted leave to defendant to appeal that ruling to this court, to determine whether the parents may be regarded as “joint tortfeasors” within the meaning of HRS § 663-11.²

As we pointed out in Tamashiro v. De Gama, 51 Haw. 74, 75, 450 P.2d 998 (1969), whether contribution may be had from a person depends upon whether the original plaintiff could have enforced liability against him, had he chosen to do so. The question thus becomes, can a minor child enforce liability against his parents in an action for negligence in Hawaii? This case is the converse of that presented in Tamashiro, supra, in which this Court held that a minor child may be joined as a joint tortfeasor in a suit brought against a third party by his parents. We limited our holding in Tamashiro to suits by parents against their children; but we see no reason to reach a different result where the child sues the parent. We therefore hold that the child can enforce liability against his parents, and that the counterclaim against the parents should have been allowed.

In oral argument, counsel for appellees urged that our holding in Tamashiro was based upon the existence of insurance coverage in that case. While some emphasis was placed upon that circumstance, as a factor to be considered in the analysis of the policy issue involved — . family harmony — we did not expressly base our holding in Tamashiro upon the existence of insurance; and in light of our analysis of the same policy issue in this case, we now hold that parent-child negligence suits will be allowed in Hawaii regardless-of. the presence or absence of insurance coverage. This holding is not, therefore, inconsistent with our holding in Tamashiro; it is, rather, the final step in the process that we started in that case, of deciding that the parent-child immunity doctrine, extant in some other jurisdictions, will not be adopted by this Court.

We note at the outset that at common law there was no rule of immunity between parents and children for their torts; Dunlap v. Dunlap, 84 N.H. 352, 354, 150 A. 905, 906 (1930), Prosser, Law of Torts 886 (3d ed. 1964), and that suits involving their property rights have uniformly been allowed. Lamb v. Lamb, 146 N.Y. 317, 41 N.E. 26 (1895), King v. Sells, 193 Wash. 294, 75 P.2d 130 (1938), Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923), Signs v. Signs, 156 Ohio St. 566, 103 N.E. 2d 743 (1952), Goller v. White, 20 Wis. 2d 402, 410, 122-N.W. 2d 193, 196 (1963).

The immunity doctrine originated" in the United States in the case of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). That case was based entirely upon the court’s view of public policy. 68 Miss, at 703, 9 So. at 887. The court reasoned that suits between parents and their children would be disruptive of the harmony and tranquillity of the family relationship. We will not attempt an exhaustive review of that case and the ones following it, which are numerous. For a full and well-reasoned analysis of those authorities, see Dunlap v. Dunlap, supra, and Comment, Child v. Parent: Erosion of the Immunity Rule, 19 Hastings L.J. 201 (1967). It is sufficient here to note that the Hewlett line of authorities is based upon premises which we feel are too insubstantial to support denial' of redress of wrongs where such redress existed at common law.

We start from the proposition that, in general, minor children are entitled to the same redress for wrongs done them as are any other, persons. Dunlap v. Dunlap, 84 N.H. 352, 354, 150 A. 905, 906 (1930), Wick v. Wick, 192 Wis. 260, 263-64, 212 N.W. 787, 788 (1927) (dissent), Prosser, Law of Torts 885 (3d ed. 1964). In order to justify prohibition of enforcement of this right, a very substantial showing must be made that such prohibition will help to achieve an important adverse policy. We feel that no such showing can be made here. As we noted in Támashiro, 51 Haw. 74, 78, 450 P.2d 998, 1001 (1969), we think that when a wrong has been committed, the harm to the family relationship has already occurred; and to prohibit reparations can hardly aid in restoring harmony.

Wilfred K. Iwai, Deputy Corporation Counsel (Paul Devens, Corporation Counsel, with him on the briefs), for defendant-appellant. Myer O. Symonds' (Bouslog & Symonds of counsel) for plaintiffs-appelleés.

That serious injustice can result from that prohibition is seen not only from cases that deny recovery for intentional and even malicious torts, as in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891), (wrongful and malicious imprisonment in asylum), Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905) (rape of daughter), and McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) (cruel and inhuman punishment), but also from the recent case of Barlow v. Iblings, - Iowa -, 156 N.W. 2d 105 (1968). There, a six-year-old child who lost his hand in an electric meat cutter in the kitchen of his father’s cafe, allegedly as a result of his father’s negligence, was prohibited from suing his father because, the court said, to allow the suit would disrupt the harmony and tranquillity of the family relationship. In our view, such results are unconscionable.

Reversed and remanded for further proceedings consistent with this opinion.

1 The Commissioner’s Note to See. 2(4) of the Uniform Act (HRS § 663-12) states:

. . . [the section] would permit apportionment of pro rata shares of liability of the joint tortfeasors as among themselves. It would not affect their joint and several liability toward the injured person. . . . The draftsmen of the Act feel that there is a very strong case to be made for apportioning the common liability as among the tortfeasors when the evidence clearly indicates that one or more of the tortfeasors was much more at fault than one or more of the others. At the same time they wish to point out that each tortfeasor is still completely and fully liable toward the injured person. Uniform Contribution Among Joint Tortfeasors Act, 9 U.L.A. 233, 236. See also Tino v. Stout, 49 N.J. 289, 298, 229 A.2d 793, 798 (1967).

2 HRS § 663-11 states:

For the purpose of this part the term “joint tortfeasors” means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.