Pedigo v. Rowley

610 P.2d 560, 101 Idaho 201, 1980 Ida. LEXIS 447
CourtIdaho Supreme Court
DecidedMay 6, 1980
Docket12937
StatusPublished
Cited by63 cases

This text of 610 P.2d 560 (Pedigo v. Rowley) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pedigo v. Rowley, 610 P.2d 560, 101 Idaho 201, 1980 Ida. LEXIS 447 (Idaho 1980).

Opinions

SHEPARD, Justice.

This is an appeal from a summary judgment in favor of third party defendants and respondents here, Garren. Debra Pedigo brought action against the Rowleys for personal injury and the Rowleys, in turn, sought to join Earl Garren, Debra’s father, for contribution since he was allegedly negligent in failing to supervise properly Debra Pedigo. Garren moved for summary judgment on the theory that the doctrine of parental immunity barred any liability and the district court granted the motion for summary judgment. We affirm.

In late 1974, eleven year old Debra Pedigo was floating on an air mattress a short distance off the north shore of Lake Coeur d’Alene. She was struck by a speed boat operated by Cindy Rowley and owned by George Rowley. Pedigo sustained injuries which resulted in the amputation of one leg. Debra Pedigo had come to the lake with her father, who was sitting on the lake shore at the time of the accident. For purposes of summary judgment we assume that Earl Garren did not warn Debra Pedigo of the alleged dangers of floating on an air mattress in the lake.

The Rowleys asserted that Garren was negligent in his supervision of the activities of Debra Pedigo; Garren, therefore, was a joint tortfeasor and is, or could be, liable to the Rowleys for contribution in the event that Pedigo recovered a judgment against the Rowleys. The Garrens respond that any action by Pedigo against the Garrens was barred by the doctrine of parental immunity; hence, they could not be joint tortfeasors and no contribution could be sought from them by the Rowleys.

The doctrine of parental immunity is dis-positive in this case and is a matter of first impression in Idaho. The doctrine was first articulated in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), wherein the court, citing no authority but relying exclusively on policy, declined to interject itself into the family relationship between a mother and minor daughter, stating:

“The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid 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. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand.” 9 So. at 887.

That doctrine was adopted in a majority of jurisdictions. See Annot. 19 A.L.R.2d 423 (1951) and cases cited therein; Note, The Demise of the Parent-Child Tort Immunity, 12 Willamette L.J. 605 (1976).

Thereafter, courts began carving out exceptions to the doctrine. For example, courts have refused to apply the doctrine when the child is suing the parent’s estate, e. g., Dean v. Smith, 106 N.H. 314, 211 A.2d 410 (1965); Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo.1960); a parent is acting in his business capacity, e. g., Trevarton v. [203]*203Trevarton, 151 Colo. 418, 378 P.2d 640 (1963); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930); a wilful or malicious tort is involved, e. g., 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); the child is an emancipated minor, e. g., Martinez v. Southern Pacific Co., 45 Cal.2d 244, 288 P.2d 868 (1955); or the dispute is contractual, e. g., Robertson v. Robertson, 229 So.2d 642 (Fla.App.1969).

Reasons that have traditionally been given as basis for the parental immunity doctrine have included: (1) the disruption of family tranquility and subsequent impairment of the foundations of American society, see, e. g., Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907 (1969); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968); Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972); (2) the threat to parental discipline and control, see, e. g., Begley v. Kohl & Madden Printing Ink Co., supra; Barlow v. Iblings, supra ; Skinner v. Whitley, supra; (3) the proliferation of fraudulent and collusive suits between family adversaries, see, e. g., Skinner v. Whitley, supra; and (4) the depletion of the family exchequer, see, e. g., Orefice v. Albert, 237 So.2d 142 (Fla.1970); Skinner v. Whitley, supra. See also J. Dooley, Modern Tort Law § 13.01 (1977); McCurdy, Torts Between Parent and Child, 5 Vill.L.Rev. 521 (1960); Note, Parental Immunity: California’s Answer, 8 Idaho L.Rev. 179 (1971); Note, The Demise of Parent-Child Tort Immunity, 12 Willamette L.J. 605 (1976).

These policy arguments, however, have been rebutted by other courts. For example, some courts believe that the public interest in protecting society’s members from losses caused by another’s negligence outweighs the possibility of family discord. See, e. g., Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (Ariz.1970). Additionally, the prevalence of insurance shifts the controversy to a third party, thereby avoiding family conflict. E. g., Streenz v. Streenz, supra; Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (N.Y.1969). Regarding the fraud or collusion argument, its mere possibility is too tenuous to serve as a basis to bar all parent-child tort suits. E. g., Williams v. Williams, 369 A.2d 669 (Del.1976). As in any other tort action, judges and juries can be relied upon to ferret out fraudulent and collusive claims. Streenz v. Streenz, supra; Williams v. Williams, supra; Gelbman v. Gelbman, supra. It is also argued that the impact of the lawsuit on the family exchequer is diminished, if not completely eliminated, by the presence of insurance. Hebel v. Hebel, 435 P.2d 8 (Alaska 1967). Even if the family exchequer argument is valid, it nevertheless ignores the question of compensation for the injuries of the child. See, e. g., Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966). Finally, some courts have noted that their previous elimination of interspousal immunity destroys the validity of arguments against parent-child immunity. Hebel v. Hebel, supra; Gibson v. Gibson, 3 Cal.3d 914, 479 P.2d 648 (1971); France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970); see Rogers v. Yellowstone Park Co., 97 Idaho 14, 23, 539 P.2d 566, 575 (1975) (Shepard, J., dissenting).

Courts that have recently addressed this issue have dealt with parental immunity in one of four different ways. First, Wisconsin eliminated the doctrine except in two situations. Second, California replaced parental immunity with a reasonable parent standard. Other courts have eliminated the doctrine completely. Finally, some jurisdictions still retain parental immunity.

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Bluebook (online)
610 P.2d 560, 101 Idaho 201, 1980 Ida. LEXIS 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pedigo-v-rowley-idaho-1980.