Jilani by and Through Jilani v. Jilani ( 1988 )

SPEARS, Justice.

This personal injury suit was filed by Khawar Jilani as next friend of her minor children, Wagas Jilani, Ammad Jilani and Saher Jilani, against the children’s father, Ahmad Jilani, for damages arising out of an automobile collision. The issue presented is whether unemancipated minor children may recover damages against their parent caused by the negligence of that parent in operating a motor vehicle.

In June of 1985, Ahmad Jilani was driving his wife and three children to visit friends in Arkansas when his automobile swerved off the highway and collided with a utility pole. Mrs. Jilani and her three children were injured. Mrs. Jilani brought the present action on behalf of her three unemancipated minor children for personal injuries sustained by the children. Mrs. Jilani alleged that the children’s injuries were proximately caused by the negligence of their father in failing to keep a proper lookout and in driving at an excessive rate of speed.

The trial court granted summary judgment for the defendant, father of the three children, based on the parental immunity doctrine. The court of appeals affirmed that judgment. 747 S.W.2d 504. We reverse the judgment of the court of appeals and remand the cause to the trial court for a trial on the merits.

The doctrine of parental immunity in its most basic and primitive form acts as a barrier to children who attempt to recover damages for injuries sustained as a result of their parent’s tortious actions. The doctrine was judicially created in 1891 in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). In Hewlett, the Supreme Court of Mississippi held that a minor child could not maintain an action against his parent for false imprisonment. Without citation of authority, the court reasoned that sound public policy designed to promote harmony and peace within the family unit forbids a minor child from asserting a claim for personal injuries against a parent. That court reasoned “so long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained.” 68 Miss, at 711, 9 So. at 887.

Although the majority of American courts adopted the Hewlett doctrine, numerous exceptions and limitations have been created since its inception. A number of courts have held that the parental immunity doctrine does not prevent an action by a child against a representative of a deceased parent. See, e.g., Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo.1960); Palcsey v. Tepper, 71 N.J.Super. 294, 176 A.2d 818 (1962); Davis v. Smith, 126 F.Supp. 497 (E.D.Pa.1954). In Davis the court reasoned that the risk of disturbing the parent-child harmony is extinguished upon the parent’s death. 126 F.Supp. at 507. Another exception to the doctrine recognized by some courts arises when the parent’s actions constitute an intentional tort. Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955); Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525 (1956); Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951); Cowgill v. Boock, 189 Or. 282, 218 P.2d 445 (1950). Moreover, we are unable to find where any court has ever applied the doctrine of parental immunity to suits between a child and parent concerning property and contractual rights.

In Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971), this court carved out its own exception to the doctrine and set the overall parameters in Texas determining when a parent would remain immune from liability to his child for alleged acts of ordinary negligence. In Felderhoff, a 14-year-old unemancipated minor was injured while working for a farming partnership in which his father was a partner. The injury was alleged to have been caused by the negligent acts of his father in the course and furtherance of the partnership business. In a well-reasoned opinion, this court observed there was a legal relationship of employer and employee created between the defendant partnership and the plaintiff under which the same legal duties were owed to plaintiff as to any other employee. The court held that because the negligent acts were alleged to have been committed in the course of partnership business rather than in the discharge of parental authority or duties, the plaintiff should not be prevented from pursuing his action against the farming partnership. Id. at 932-33.

Although this court in Felderhoff declined to abolish the doctrine of parental immunity entirely, it did adopt a test which set the boundaries for parent-child litigation. The court retained the immunity rule with respect to “alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child.” 473 S.W.2d at 933. The court reasoned that these parental duties which include the provision of a home, food, schooling, family chores, medical care and recreation, could be “seriously impaired” if parents could be held liable for their ordinary negligence occurring while in the discharge of parental duties.

This court further stated,

[T]he most we can do is to prevent the judicial system from being used to disrupt the wide sphere of reasonable discretion which is necessary in order for parents to properly exercise their responsibility to provide nurture, care, and discipline for their children, (emphasis added).

Id. at 933.

We continue to adhere to the principles and policy expounded in Felderhoff. The question we now decide is whether the facts of this case fall within the scope of “reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child.”

Although this court has never had the opportunity to interpret the scope of the Felderhoff exceptions, other courts have defined them in a way that is helpful. An exercise of parental authority involves acts such as disciplining and supervising a child. Wright v. Wright, 134 Mich.App. 800, 351 N.W.2d 868 (1984). The exercise of discretion in providing for the care and necessities of a child, on the other hand, is limited to that which a parent is obligated to furnish. See Horn v. Horn, 630 S.W.2d 70 (Ky.1982).

Under these definitions, we do not hesitate in holding that the facts here do not fall within the sphere of “reasonable exercise of parental authority or the exercise of ordinary parental discretion” described in Felderhoff. The familial obligations and duties imposed by law and nature are quite different from the general obligation the law imposes upon every driver of an automobile. It is the “reasonable discretion” with respect to parental obligations that this court was trying to protect in Felderhoff The immunity is limited to transactions that are essentially parental. In the present action, the essence of the alleged negligence was the improper operation of a motor vehicle — an activity not essentially parental. In Schneider v. Coe, 405 A.2d 682 (Del.1979), the Supreme Court of Delaware reasoned:

Unlike driving an automobile, supervision of one’s children involves issues of parental control, authority, and discretion that are uniquely matters of a very personal type of judgment. The freedom to exercise such judgment has constitutional underpinning and contrasts sharply with the state’s supervision and regulation of the judgment one must exercise while driving an automobile, (citations omitted).

405 A.2d at 684.

We are aware that the accident here occurred while the Jilani family was on vacation and that the language in Felder-hoff suggests that recreation was one of the several parental duties which should ordinarily be beyond the judicial sphere. However, this factor does not change our result. Regardless of the purpose of the automobile excursion, this case does not involve the “reasonable exercise of parental authority or the exercise of parental discretion” as envisioned in Felderhoff.

Our holding today is limited to the facts before us: an automobile tort action brought by an unemancipated minor child against a parent.¹ We believe that allowing such an action will not threaten “parental authority or discipline” nor will it risk substituting judicial discretion for parental discretion in the care and rearing of minor children. We therefore reverse the judgment of the court of appeals upholding the trial court’s summary judgment and remand this cause to the trial court for trial.

MAUZY, J., files a concurring opinion in which ROBERTSON, J., joins. GONZALEZ and COOK, JJ., file dissenting opinions.

1 . We note that at least thirty other states would allow a suit by an unemancipated child against a parent for automobile negligence. See Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Sandoval v. Sandoval, 128 Ariz. 11, 623 P.2d 800 (1981); Gibson v. Gibson, 3 Cal.3d 914, 479 P.2d 648, 92 Cal.Rptr. 288 (1971); Schneider v. Coe, 405 A.2d 682 (Del.1979); Ard v. Ard, 414 So.2d 1066 (Fla.1982); Farmers Ins. Group v. Reed, 109 Idaho 849, 712 P.2d 550 (1985); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1971); Black v. Solmitz, 409 A.2d 634 (Me.1979); Stamboulis v. Stamboulis, 401 Mass. 762, 519 N.E.2d 1299 (1988); Sweeney v. Sweeney, 402 Mich. 234, 262 N.W.2d 625 (1978); Anderson v. Stream, 295 N.W.2d 595 (Minn.1980); Transamerica Ins. Co. v. Royle, 202 Mont. 173, 656 P.2d 820 (1983); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983); Guess v. Gulf Ins. Co., 96 N.M. 27, 627 P.2d 869 (1981); Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364 N.Y.S.2d 859 (1974); Huelle v. Wells, 154 N.W.2d 364 (N.D.1967); Kirchner v. Crystal, 15 Ohio St.3d 326, 474 N.E.2d 275 (1984); Unah By and Through Uriah v. Martin, 676 P.2d 1366 (Okla.1984); Winn v. Gilroy, 296 Or. 718, 681 P.2d 776 (1984); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Silva v. Silva, 446 A.2d 1013 (R.I.1982); Elam v. Elam, 275 S.C. 132, 268 S.E.2d 109 (1980); Wright v. Wright, 213 Va. 177, 191 S.E.2d 223 (1972); Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891 (1980); Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721, 723 (1976); Conn.Gen.Stat. § 52-572C (1985); N.C.Gen.Stat. § 1-539.21 (1983 Repl.Vol., 1985 Cum.Supp.).