Squeglia v. Squeglia

Katz, J.

The dispositive issue in this appeal is whether the doctrine of parental immunity bars an action by an unemancipated minor against his parent alleging strict liability pursuant to General Statutes § 22-357.¹ We conclude that it does.

The relevant facts are few and undisputed. The defendant, Robert Y. Squeglia, Sr., owned a dog that attacked and injured the plaintiff, Robert V. Squeglia, Jr., in 1991. The plaintiff, who is the son of the defendant, was four years old at the time of the injury.

In October, 1991, the plaintiff brought this action² against the defendant pursuant to § 22-357, seeking damages for personal injuries. The defendant moved for summary judgment, claiming that the action was barred by the doctrine of parental immunity. The plaintiff argued, however, that although the doctrine of parental immunity generally bars actions in negligence, it does not bar an action in strict liability brought under § 22-357.

In its memorandum of decision on the defendant’s motion for summary judgment, the trial court first noted that, with limited exceptions that have been strictly construed, the doctrine of parental immunity bars an unemancipated minor from bringing an action in tort against his or her parent. The court determined that the doctrine is not limited to actions alleging negligence and that the reasoning underlying the doctrine of parental immunity applies equally to actions alleging strict liability pursuant to § 22-357. Because there was no genuine issue of material fact regarding the parentage of the plaintiff or the ownership of the dog, the trial court concluded that the doctrine of parental immunity barred the plaintiff’s action and granted the defendant’s motion for summary judgment.³

The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court had improperly determined that the defendant was entitled to judgment as a matter of law on the basis of the doctrine of parental immunity. The Appellate Court affirmed the judgment of the trial court. Squeglia v. Squeglia, 34 Conn. App. 866, 644 A.2d 378 (1994). We granted certification to appeal from the judgment of the Appellate Court on the issue of whether the Appellate Court properly held that the doctrine of parental immunity shields a parent from an action for damages in strict liability pursuant to § 22-357 brought by that parent’s unemancipated minor child. Squeglia v. Squeglia, 231 Conn. 920, 648 A.2d 162 (1994).

Although this court, and the Connecticut General Assembly, have articulated the parameters of the doctrine of parental immunity in Connecticut in the context of claims of negligence and, to a limited extent, intentional tort, we have not heretofore determined whether the doctrine bars an action in strict liability pursuant to § 22-357. Therefore, the case presents an issue of first impression for this court.

“Initially, we note that, upon the granting of certification . . . the focus of our review is not the judgment of the trial court but the judgment of the Appellate Court.” (Internal quotation marks omitted.) Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 128, 523 A.2d 1266 (1987). In the present case, therefore, we must determine only whether the Appellate Court properly concluded that the doctrine of parental immunity barred the plaintiffs action and affirmed the trial court’s decision granting summary judgment to the defendant. Because the issue of whether the Appellate Court properly interpreted the common law doctrine of parental immunity is a question of law our review is de novo. See Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995) (statutory interpretation is question of law requiring de novo review).

The plaintiff first argues, on the basis of the cases that have concluded that the doctrine of parental immunity bars a claim of parental negligence by an unemancipated child; see Dubay v. Irish, 207 Conn. 518, 542 A.2d 711 (1988); Ooms v. Ooms, 164 Conn. 48, 316 A.2d 783 (1972); Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907 (1969); that, because the doctrine has never been extended to any other action in tort, it applies only to actions alleging negligence. We disagree.

The doctrine of parental immunity, first recognized in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891), overruled in part by Glaskox v. Glaskox, 614 So. 2d 906 (Miss. 1992), “forbid[s] to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.” Hewlett v. George, supra, 711. The doctrine was not limited to negligence in Hewlett, and was subsequently interpreted to apply to any personal injury claim by a minor child against his or her parent. See McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) (doctrine of parental immunity bars child’s tort action against parent for cruel and unusual treatment), overruled in part by Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983), and overruled in part by Broadwell v. Holmes, 871 S.W.2d 471 (Tenn. 1994); Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905) (doctrine of parental immunity bars child’s tort action against father for sexual assault), overruled in part by Borst v. Borst, 41 Wash. 2d 642, 251 P.2d 149 (1952).

In Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929), this court first recognized the doctrine and, citing to Hewlett v. George, supra, 68 Miss. 711, stated that ‘‘[ajuthority in the parent to require obedience in the child is indispensable to the maintenance of unity in the family. Anything which undermines this authority, brings discord into the family, weakens its government and disturbs its peace, is an injury to society and to the State. New things could bring about this unhappy condition more quickly or widen the breach between parent and child further than the bringing of an action at law for personal injuries by a minor child against the parent. Such unseemly family discord is injurious to the public welfare . . . .” (Emphasis added.) Mesite v. Kirchenstein, supra, 84. The doctrine was not, therefore, initially limited in Connecticut to actions in negligence.

Because the doctrine of parental immunity is a judicially created doctrine, we may modify it. Dzenutis v. Dzenutis, 200 Conn. 290, 301, 512 A.2d 130 (1986).⁴ We will create a new exception, however, only if, in light of the purpose of the doctrine, we determine that one is appropriate under the circumstances and accords with public policy considerations. Id.

We have modified the doctrine of parental immunity in several respects since Mesite. The modern doctrine in Connecticut only bars actions by minors who were unemancipated at the time of the alleged tortious conduct. See Wood v. Wood, 135 Conn. 280, 281, 63 A.2d 586 (1948). Furthermore, the doctrine does not bar an action by an unemancipated child against a parent for injuries received because of: (1) the negligent conduct of the parent at a business enterprise located outside of the home; Dzenutis v. Dzenutis, supra, 200 Conn. 300; (2) the negligent operation of a motor vehicle, aircraft or waterborne vessel; General Statutes § 52-572c;⁵ or (3) sexual abuse, sexual assault or sexual exploitation. Henderson v. Woolley, 230 Conn. 472, 486, 644 A.2d 1303 (1994). Otherwise, the doctrine, as adopted in Mesite, remains unchanged, and it has never been limited to actions in negligence. See Dubay v. Irish, supra, 207 Conn. 523 (parent is not liable civilly to his child for personal injury inflicted during child’s minority); Begley v. Kohl & Madden Printing Ink Co., supra, 157 Conn. 449-50.

The purpose of the doctrine is to preserve the integrity and unity of the family and to avoid unnecessarily injecting “the machinery of the state” into the day-today exercise of parental discretion. Dubay v. Irish, supra, 207 Conn. 527-28. As we noted in Mesite v. Kirchenstein, supra, 109 Conn. 84, there are few things more disruptive of familial harmony than a legal action by an unemancipated minor child against a parent. There is no reason to believe that an action in strict liability would be less disruptive to these interests than any other civil action for personal injuries brought by an unemancipated child against a parent. Therefore, as the Appellate Court noted, the purpose of the doctrine is equally applicable to an action alleging strict liability pursuant to § 22-357.

We have previously considered several factors when deciding whether to abrogate the doctrine. We have abrogated the doctrine in circumstances in which the parent had acted in a nonparental capacity; Dzenutis v. Dzenutis, supra, 200 Conn. 300; and in which the heinous nature of the parent’s misconduct had already destroyed familial harmony. Henderson v. Woolley, supra, 230 Conn. 482. In both Dzenutis and Henderson we evaluated whether the parent had breached a duty owed to the public at large; Henderson v. Woolley, supra, 482-83; Dzenutis v. Dzenutis, supra, 300;⁶ and examined public policy considerations. Henderson v. Woolley, supra, 483.⁷ We also considered the likely availability of insurance coverage; Dzenutis v. Dzenutis, supra, 300; and whether the alleged act had occurred at the parent’s place of business outside the home. Compare id., 299-300 (permitting action arising out of business activity away from home), with Dubay v. Irish, supra, 207 Conn. 525 (action barred where alleged acts occurred within family home). None of the factors we have considered support abrogating the doctrine in this case.

The plaintiff also argues that the doctrine of parental immunity should not bar this action because insurance coverage is available and because § 22-357 imposes a duty owed to the public at large. At oral argument, the plaintiff contended that, as a practical matter, actions against a parent by an unemancipated child under § 22-357 will be commenced only if there is insurance coverage. Even if we assume, arguendo, that the plaintiffs factual contention is correct, his reliance on the existence of insurance as a basis for discarding the doctrine is misplaced as a matter of both law and public policy.

In Dzenutis v. Dzenutis, supra, 200 Conn. 290, after having considered both the availability of insurance and the public nature of the duty involved, we declined to apply the parental immunity doctrine in situations involving tortious conduct by a parent arising out of business activities conducted away from home. In that case, the plaintiff had been severely burned when he tripped over a bucket of hot tar that his father, the defendant, had left unguarded on the sidewalk adjacent to the building upon which he was working. We based our decision on three factors. First, we determined that liability insurance was prevalent in the defendant’s line of business, which involved repairing buildings. We qualified this, however, by stating that the presence of insurance should not be “the touchstone of viability of an action by a child against a parent . . . .” Id., 299. Second, we determined that “in most instances family harmony will not be jeopardized by allowing suits between parents and children arising out of business activities conducted away from the home . . . .” Id., 299-300. Finally, we stated that the duty breached was owed to the public generally because “[t]he mishap might well have occurred to any other member of the public who passed that way.” Id., 300. Therefore, the potential availability of homeowner’s insurance is not dispositive of his case. Id., 299; see Dubay v. Irish, supra, 207 Conn. 524.

Furthermore, determining rights based upon the availability of insurance is unsound. The plaintiff has pointed only to the general availability of insurance and has provided no hard evidence that homeowner’s insurance is prevalent. Notably, there is no statutory requirement that such insurance must be maintained. Indeed, it is reasonable to assume, and the plaintiff does not argue otherwise, that many households in Connecticut are not protected by homeowner’s insurance and that insured households tend to be more affluent than households that are uninsured. The defendant cautions that, because the uninsured would be personally liable for any judgment and, in the case of the uninsured poor, the injured child would be less likely to bring an action in the first instance because any judgment would be uncollectible, abrogation of the doctrine in this type of case would likely benefit only insured persons and their unemancipated minor children. We agree with the defendant that eliminating the doctrine under circumstances present in this case could improperly result in disproportionate benefits and burdens on those who are insured and those who are not. See Dubay v. Irish, supra, 207 Conn. 524 (different rules of law should not be fashioned for insured and uninsured). We conclude, therefore, that the availability of insurance lends little weight to the claim that the doctrine of parental immunity should be jettisoned in this case.

Finally, it is undisputed that the plaintiff was injured at the family home. This is significant for two reasons. First, the dog was in the home and posed no menace to the general public, as did the can of hot tar on the sidewalk in Dzenutis and the alleged criminal conduct of the defendant in Henderson. Second, we have recognized that the doctrine of parental immunity is particularly applicable in the area of parental supervision and discretion with respect to the care and control of a minor child. Henderson v. Woolley, supra, 230 Conn. 480; Dubay v. Irish, supra, 207 Conn. 527; see also W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 122, p. 908. “Even in those jurisdictions that have, in part, abrogated parental immunity . . . the overwhelming majority of them have specifically retained the doctrine in the area of parental supervision, or have at least recognized that the doctrine may have continued validity where the negligent act involves the exercise of ordinary parental discretion with respect to the care and control of a minor child. . . . The supervision, care and instruction of one’s child involves issues of parental control, authority and discretion that are uniquely matters of a very personal type. Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand. Also, different cultural, educational and financial conditions affect the manner in which different parents supervise their children.” (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, supra, 526-27.

The decision to maintain a dog in the home is an example of parental discretion, and permitting a minor child to be exposed to the dog is within the parental supervisory function. This maintenance of the home environment typifies the day-to-day exercise of parental discretion that the state would rather not disrupt. Consequently, this action by an unemancipated minor child, who had been injured as a result of his parent’s decision to keep a dog in the home and expose the child to it, falls directly within the scope of claims the doctrine is intended to bar.⁸

In sum, we conclude that the plaintiff is barred by the doctrine of parental immunity from bringing an action in strict liability pursuant to § 22-357. Thus, because there was no genuine issue of material fact, the Appellate Court properly affirmed the trial court’s decision to grant the defendant’s motion for summary judgment.⁹

The judgment of the Appellate Court is affirmed.

In this opinion Callahan, Norcott and Palmer, Js., concurred.

1 General Statutes § 22-357 provides: “damage to person or property. If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalf an action under this section is brought, was under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action.”

2 The action was commenced by Claudia Squeglia, the plaintiffs mother and next friend.

3 “Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-106, 639 A.2d 507 (1994).

4 The legislature has clearly recognized the doctrine and has chosen to abrogate it, in derogation of the common law, only in the case of the negligent operation of a motor vehicle, aircraft or vessel. General Statutes § 52-572c; see footnote 5. It is well established that statutes that are in derogation of the common law must be strictly construed. Scrapchansky v. Plainfield, 226 Conn. 446, 468 n.6, 627 A.2d 1329 (1993); Copeland v. Warden, 225 Conn. 46, 53, 621 A.2d 1311 (1993); State v. Nugent, 199 Conn. 537, 548, 508 A.2d 728 (1986). “ ‘The rule that statutes in derogation of the common law are strictly construed can be seen to serve the same policy of continuity and stability in the legal system as the doctrine of stare decisis in relation to case law.’ ” Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993), quoting 3 J. Sutherland, Statutory Construction (5th Ed. Singer 1992 Rev.) § 61.01, pp. 172-73. The legislature has not abrogated the doctrine as to § 22-357 because there is no statutory exception to the general bar against actions by an unemancipated minor child against a parent for claims alleging strict liability under § 22-357.

5 General Statutes § 52-572e provides: “parent-child immunity abrogated in certain negligence actions. In all actions for negligence in the operation of a motor vehicle, and in all actions accruing on or after October 1, 1979, for negligence in the operation of an aircraft or vessel, as defined in section 15-127, resulting in personal injury, wrongful death or injury to property, the immunity between parent and child in such negligence action brought by a parent against his child or by or on behalf of a child against his parent is abrogated.”

6 In Dzenutis, the defendant parent had negligently left a bucket of hot tar, which injured the plaintiff, in a public area. We determined that the defendant had breached a duty to the public at large by creating the hazard in an area with public access. Dzenutis v. Dzenutis, supra, 200 Conn. 300. In Henderson v. Woolley, supra, 230 Conn. 482-83, we found that the perpetration of a crime by a parent upon a child is a matter of public concern.

7 In Henderson v. Woolley, supra, 230 Conn. 483, we found that extending immunity from civil action to a parent who allegedly had sexually assaulted his child would be contrary to public policy.

8 Our research reveals only three instances in which a state appellate court considered the doctrine of parental immunity in connection with a statute imposing strict liability. The plaintiff cites Schleier v. Alter, 159 Ariz. 397, 767 P.2d 1187 (1989), for the proposition that the parental immunity doctrine does not extend to a strict liability dog bite statute because the statute imposed a duty to a large protected class. We disagree with the plaintiffs interpretation of this case. The Arizona dog bite statutes provide a cause of action in strict liability to a person “lawfully in or on . . . the property of the owner of the dog.” Id., 401. The statutes further define such a person as an invitee or guest or person performing a federal, state or municipal governmental duty. Id., 402. This definition did not include family members and the court found the omission to be intentional. Therefore, because the plaintiff child had no cause of action under the statute, the court upheld the lower court’s decision to grant summary judgment on that basis. Id., 401-402. Other appellate cases in which the doctrine of parental immunity has been raised as a defense to a strict liability tort claim are distinguishable from the case before us. In Thelen v. Thelen, 174 Mich. App. 380, 435 N.W.2d 495 (1989), the plaintiff was the unemancipated minor child of the defendant father and the stepchild of the defendant stepmother. The plaintiff had been bitten by the defendants’ dog and he sued the defendants under the Michigan dog bite statute, which provides for strict liability. The court determined that the doctrine of parental immunity does not bar such an action. Id., 386. Thelen is distinguishable from the case before us because the doctrine of parental immunity had been abrogated in Michigan except “(1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” (Emphasis added.) Plumley v. Klein, 388 Mich. 1, 8, 199 N.W.2d 169 (1972). In Thelen, although the court determined that keeping a dog in the home falls squarely within “the parental maintenance of the home environment,” the court narrowly construed the Plumley exceptions and held that the doctrine was strictly limited to negligent acts. Thelen v. Thelen, supra, 385-86. In contrast, as we previously discussed, the doctrine has not been limited to negligence in Connecticut. See also Ankiewicz v. Kinder, 408 Mass. 792, 793, 563 N.E.2d 684 (1990) (after complete abrogation of doctrine, permitting landlord's third party complaint for contribution against parent in strict liability action for lead paint poisoning of child).

9 Our holding in this case is intentionally narrow. In reaching our decision, we have evaluated the circumstances of this particular case according to the established criteria for evaluating whether the doctrine of parental immunity should apply. We believe that to abrogate the doctrine merely because § 22-357 imposes strict liability would, in effect, swallow the doctrine.

We recognize that if we were to apply the criteria for determining whether the doctrine of parental immunity bars an action at law to another dog bite case, we potentially could reach a different result. For example, if an unemancipated minor were bitten by a guard dog in a public area at the parent’s place of business, our reasoning in Dzenutis could lead to a different outcome. We leave that, and other hypothetical scenarios, for another day.