Streenz v. Streenz ( 1970 )

HAYS, Justice.

This case is before us on a petition for review of a decision of the Court of Appeals, Division Two, 11 Ariz.App. 10, 461 P.2d 186 (1969). The single issue raised is whether, in Arizona, an unemancipated child may bring suit against one of his parents for injuries received due to tortious acts of the parent. Relying on Purcell v. Frazer, 7 Ariz.App. 5, 435 P.2d 736 (1967), the Court of Appeals resolved this question in the negative. We vacate the opinion of the Court of Appeals, and overrule the holding of Purcell v. Frazer.

Sharon Streenz, an unemancipated minor, brought a personal injury action through her guardian ad litem against her parents, James and Ramona Streenz, for damages resulting from an automobile accident. Sharon was a passenger in a car driven by her mother. When Mrs. Streenz became temporarily blinded by the sun, her car went out of control, left the road, and crashed into a tree. Due to the collision, Sharon suffered injuries to her knees.

Defendants, Mr. and Mrs. Streenz, moved for summary judgment, which was granted. Defendants contended that the doctrine of “parental immunity,” as set forth in Purcell v. Frazer, supra, prohibited Sharon from entertaining this suit. Sharon, on the other hand, contended that the “parental immunity” doctrine was limited to situations involving the exercise of parental control and discipline, and that since her suit was not concerned with these limited parental functions the granting of summary judgment was error. The Court of Appeals, relying on Purcell v. Frazer as authority, affirmed the judgment of the trial court, with Judge Lawrence Ploward dissenting.

Purcell v. Frazer involved injuries to three minor children in circumstances similar to the present case. Judge Molloy, writing for a unanimous Court of Appeals, held that the family immunity doctrine applied in Arizona and that therefore the passenger children could not sue their father, the driver of the car, for negligence. The holding rested primarily on a “domes"tic tranquility” rationale, of which Judge Molloy wrote:

“We are here concerned with a common activity in the typical American family. Children are often ‘ferried’ about by their parents. It is our belief that such a function is conducive to the well-being •of both the children and the parent and is intimately connected with the welfare of a family. The family unit has been weakened by various economic and social changes in our modern world. This court is reluctant to take any step which might bring additional centrifugal force to bear upon the family structure.” 7 Ariz.App. at 8, 435 P.2d at 739.

The court concluded that to permit child to sue parent in tort would disrupt family unity.

The parental immunity doctrine is a creature of American jurisprudence, having its foundation in the Mississippi Supreme Court decision of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). That case held that because it was public policy to foster harmony and tranquility in the family unit, children should not be permitted to sue parents in tort. Since the Hewlett v. George decision was rendered, a majority of the state courts have adopted the parental immunity doctrine. See particularly McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) ; Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905); Teramano v. Teramano, 6 Ohio St.2d 117, 216 N.E.2d 375 (1966); Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964); Downs v. Poulin, 216 A.2d 29 (Me.1966); Capps v. Smith, 263 N.C. 120, 139 S.E.2d 19 (1964); Tucker v. Tucker, 395 P.2d 67 (Okla.1964); Castellucci v. Castellucci, 96 R.I. 34, 188 A.2d 467 (1963); Hastings v. Hastings, 33 N.J. 247, 163 A.2d 147 (1960); and cases collected at 19 A.L.R.2d 423, 439-42 (1951).

An examination of these cases applying the parental immunity doctrine reveals several principal policy reasons in support of the doctrine.¹ The domestic tranquility policy, however, is the rationale most frequently offered. 1 Harper and James, Law of Torts § 8.11 (1956) at 649.

Although most state courts have adopted the parental immunity doctrine, there have been notable exceptions. See Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66 (1966). In addition, the great majority of law review and treatise writers who have discussed the subject have been highly critical of the doctrine. Prosser, Law of Torts § 116 (3d Ed. 1964) ; 1 Harper and James, Law of Torts § 8.11 (1956) ; McCurdy, “Torts Between Parent and Child,” 5 Vill.L.Rev. 521 (1960) ; Akers and Drummond, “Tort Actions Between Members of the Family— Husband and Wife — Parent and Child,” 26 Mo.L.Rev. 152 (1961). We find that the rationale of these cases and legal authorities, arguing in favor of partial abrogation of the parental immunity doctrine, are more consistent with contemporary conditions and concepts of fairness.

Even in jurisdictions where parental immunity has been openly embraced, courts have evinced hostility for the doctrine by creating numerous exceptions to its application. Thus, in most states, an unemancipated child may sue his parents under contract or property theory. See Goller v. White, supra, 122 N.W.2d at 197. In the negligence field, Missouri permits the dependent child to bring an action against the personal representative of a deceased parent. Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo. 1960). In California, as in many other states, parental immunity does not apply where the parent’s tort is malicious or constitutes wilful misconduct. Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955). In Ohio and Washington, if the parent is acting in the scope of his employment or occupation at the time of the alleged negligent act, parental immunity will not prevent a suit against him by his unemancipated child. Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743 (1952); Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952). These exceptions reflect distaste for the injustices which often result from a strict, pervasive application of the parental immunity rule.

Judge Howard’s dissenting opinion in the Court of Appeals’ treatment of the instant case points out an additional inequity created by the parental immunity rule:

“The manifest injustice of the blanket immunity is brought home by the following example. Two siblings reside under the same parental roof. One is an unemancipated minor aged 17 years and the other an emancipated minor aged 16. The latter is a married daughter living at home while her husband is serving an Army hitch overseas. While both are riding as passengers in a car driven by the father, an accident occasioned by the father’s negligence occurs, resulting in injuries to both children. The parental immunity doctrine bars an action by the unemancipated 17 year old, but not by the married daughter.” 11 Ariz.App. 10 at 12, 461 P.2d 186 at 188.

Certainly the likelihood of domestic strife is not diminished by prohibiting the 17 year old child from bringing suit.

We feel that two principal factors undermine Judge Molloy’s “domestic tranquility” rationale expressed in Purcell v. Frazer, supra, and compel ah overruling of that case. One factor, as expressed above, is that the common law has long permitted child to sue parent in property or contract. It is not unsafe to say that some of the most bitter family disputes arise over property, and yet parental immunity does not limit causes of action in this area. Is it reasonable to say that our law should protect the property and contract rights of a minor more zealously than the rights of his person? Secondly, we cannot ignore the almost universal existence of liability insurance, particularly in the automobile accident realm. Where such insurance exists, the domestic tranquility argument is hollow, for in reality the sought after litigation is not between child and parent but between child and parent’s insurance carrier. In this respect, we quote with approval the following from Hebei v. Hebei, supra:

“We are of the further view that although the existence of liability insurance does not create liability its presence is of considerable significance here. To persist in adherence to family-harmony and parental-discipline-and-control arguments when there is automobile liability insurance involved is in our view unrealistic. If there is insurance there is small possibility that parental discipline will be undermined, or that the peace of the family will be shattered by allowance of the action.” 435 P.2d at 15.

The Purcell v. Frazer decision makes much of the fact that the decisions which have abrogated parental immunity have not limited their scope to situations where liability insurance exists. Although we agree with Hebei, supra, that “the existence of liability insurance does not create liability” where none existed before, we think the widespread prevalence of such insurance is a proper element to consider. Where insurance is available to compensate the child for his injuries, the possibility of disruption of family unity and peace is negligible. On the other hand, where insurance is nonexistent, we doubt that suits by unemancipated minor children against their parents will be frequently entertained. Overwhelmingly weighted against the possibility of such disruptive suits is the vital interest of the public in protecting its members from loss caused byp another’s negligence. To tell children that their “pains must be endured for the peace and welfare of the family is something of a mockery.” Dissenting opinion of Justice Fuld, in Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718, 724 (1961).

The argument is also advanced that by permitting an unemancipated child to sue his parent in tort would be to encourage fraud and collusion, particularly where liability insurance exists. Such possibility does exist, of course, but the same danger is present, to some degree, in all liability insurance cases. In a recent New York case, in which it was held that intra-family suits for nonwilful torts are permissible, the New York Court of Appeals stated:

“The argument fails to explain how the possibility of fraud would be magically removed merely by the child’s attainment of legal majority. Nor does the argument pretend to present the first instance in which there is the possibility of a collusive and fraudulent suit. There are analogous situations in which we rely upon the ability of the jury to distinguish between valid and fraudulent claims. The effectiveness of the jury system will pertain in the present situation. The definite and vital interest of society in protecting people from losses resulting from accidents should remain paramount.” Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E. 2d 192, 194 (1969).

Our holding today is not a total abrogation of the parental immunity doctrine. Rather, we agree with Judge Howard that ■“the role of paterfamilias should not be usurped by the judiciary as to intrafamilial activities involving parental discipline, care and control.” 11 Ariz.App. at 13, 461 P. 2d at 189. The Wisconsin Supreme Court, in Goller v. White, supra, recognized this important aspect of parental discretion, and held that the parental immunity doctrine “ought to be abrogated except in these 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, and other care.” 122 N.W.2d at 198.

These exceptions were more fully explained in a subsequent Wisconsin decision, Lemmen v. Serváis, 39 Wis.2d 75, 158 N. W.2d 341 (1968):

“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 non-liability is not granted as a reward, but as a means of enabling the parents to discharge the duties which society exacts.” 158 N.W.2d at 344.

While we are persuaded that parental immunity from tort action by an unemancipated child should be retained for limited purposes such as those set down by the Wisconsin court, we find it unnecessary at this time to delineate the scope in which the parental immunity rule will be applied. Our holding, permitting Sharon Streenz to sue her parents in tort, is limited to the factual situation before us. We specifically hold that an unemancipated minor child has a right of action against her parents for injuries incurred in an accident allegedly caused by her mother’s negligent driving.

The Court of Appeals’ opinion is vacated. The trial court’s granting of defendant’s motion for summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

LOCKWOOD, C. J., and STRUCKMEYER, V. C. J., concur.

1 . See McCurdy, “Torts Between Parent and Child,” 5 Vill.Law Rev. 521, 528-29 (1960). The principal reasons stated are (1) disturbance of domestic tranquility, (2) danger of fraud and collusion, (3) depletion of the family exchequer, (4) the possibility of inheritance, by the parent, of the amount recovered in damages by the child, and (5) interference with parental care, discipline and control.