Turner v. Turner

304 N.W.2d 786, 1981 Iowa Sup. LEXIS 914

• Court: Supreme Court of Iowa
• Decided: April 15, 1981
• Docket: 64320
• Status: Published

Opinions

McCORMICK, Justice.

In Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968), this court made an exception to the common law right of un-emancipated minor children to sue their parents. The court held that such minors could not sue their parents for negligence torts. In the present case, plaintiffs Rick and Rob Turner sued their father, defendant Robert Turner, for damages which they alleged they sustained in an automobile accident caused by their father’s negligence. We granted interlocutory review of a trial court holding that the action is precluded by Barlow. Upon reexamination of the parental immunity doctrine, we now abrogate the absolute ban on negligence suits imposed in Barlow. Because we hold that the present action may be maintained, we reverse the trial court and remand the case for further proceedings.

Plaintiff Bonnie Turner Flynn is the mother of the minor plaintiffs. She is divorced from defendant and has custody of the children. The petition alleges that the children were passengers in a motor vehicle driven by defendant on September 11,1977. Plaintiffs aver that defendant drove the vehicle negligently, recklessly and while intoxicated causing it to overturn. The children seek damages for their resulting injuries, and the mother seeks damages in her own right under Iowa R.Civ.P. 8. The mother’s claim is not involved in this appeal. In answering the children’s claim, defendant asserted the doctrine of parental immunity as an affirmative defense. When plaintiffs petitioned for an adjudication of law points on the merits of that defense, the trial court held the immunity barred the children’s action. The only question in the children’s appeal is whether that ruling is correct. In turn, the correctness of the ruling depends on the present viability of the Barlow rule.

When a rule is of judicial origin, it is subject to judicial change. Kersten Co., Inc. v. Department of Social Services, 207 N.W.2d 117, 118 (Iowa 1973). We have exercised our prerogative to abrogate other court-created immunities. See Shook v. Crabb, 281 N.W.2d 616, 620 (Iowa 1979) (abolishing interspousal immunity); Kersten, 207 N.W.2d at 122 (abolishing governmental immunity in contract cases); Haynes v. Presbyterian Hospital Association, 241 Iowa 1269, 1274, 45 N.W.2d 151, 154 (1950) (abolishing immunity of charitable institutions). The common thread running through these decisions is our responsibility to reconsider court-made rules when their continued validity is questionable. Our recent decision in Shook, abolishing interspousal immunity, has raised a serious question concerning the absolute immunity of parents to negligence suits by their un-emancipated minor children.

The Barlow court recited seven reasons which had been articulated by courts in other jurisdictions in support of parent-child immunity:

(1) danger of fraud, (2) possibility of succession, (3) family exchequer, (4) analogy to denial of cause of action between husband and wife, (5) domestic tranquility, (6) domestic government, and (7) parental discipline and control.

261 Iowa at 716, 156 N.W.2d at 107. After reviewing these reasons, the court concluded: “Domestic tranquility, proper parental discipline and control, family unity, and social responsibility are ample grounds to sustain the policy and the doctrine.” Id. at 718, 156 N.W.2d at 107-08 (emphasis in original).

Courts which have rejected the doctrine in whole or in part have found that the reasons advanced for retaining it are outweighed by countervailing reasons for giving children the same right of legal redress for injuries as others enjoy. See, e. g., Lee v. Comer, 224 S.E.2d 721, 722 (W.Va.1976). These courts recognize that to the extent the immunity is abrogated it does not create a new liability. Instead it merely removes a judicially imposed procedural barrier to recovery. See, e. g., Gelbman v. Gelbman, 23 N.Y.2d 434, 439, 245 N.E.2d 192, 194, 297 N.Y.S.2d 529, 532 (1969).

When we rejected the interspousal immunity doctrine, we rejected the arguments concerning the danger of fraud and the threat to domestic tranquility which are asserted in support of parent-child immunity. Shook, 281 N.W.2d at 619-20. We reject those arguments on the same basis in the present context. Contentions concerning the possibility of parental succession to the minor’s recovery and the assumption that the “family exchequer” will be so depleted by the minor’s recovery that other children will suffer are also without sufficient merit to support retention of the doctrine. These considerations have not been adequate to defeat children’s rights to sue parents in contract and property cases. They have no greater force as justifications for denial of tort recovery. See, e. g., Goller v. White, 20 Wis.2d 402, 410, 122 N.W.2d 193, 197 (1963).

Furthermore, proponents of the doctrine can no longer rely on the analogy to inter-spousal immunity. Because interspousal immunity has been abolished, the analogy to interspousal rights now supports abrogation of parent-child immunity.

Forceful arguments have been advanced for retaining the doctrine based on the “domestic government” and “parental discipline and control” concepts. They 'have been countered by arguments that even a parent should not be able to injure children negligently with impunity and that the court system provides a reliable mechanism for screening out unmeritorious claims. Concern for supervisory prerogatives of parents and the possibility of bizarre claims has not been sufficient in most jurisdictions to justify retaining absolute immunity. Instead courts with such concern have delineated parental supervision and discretion exceptions to its abolition or have imposed other limitations on its abrogation. Compare Goller, 20 Wis.2d at 413, 122 N.W.2d at (exceptions for negligent supervision and ordinary parental discretion), with Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891, 893 (1980) (any exceptions will be determined on a case-by-case basis). One court which once recognized the Goller exceptions has recently abandoned them. See Anderson v. Stream, 295 N.W.2d 595 (Minn.1980). The American Law Institute supports general abrogation of the doctrine with some limitation:

(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.

(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.

Restatement (Second) of Torts § 895 G (1979).

When Barlow was decided, the court found only one jurisdiction, New Hampshire, which had completely abrogated the family immunity doctrine. Two jurisdictions, Minnesota and Wisconsin, had abolished it in part, retaining the Goller exceptions. See 261 Iowa at 721, 156 N.W.2d at 112. Now, however, we find twenty-seven jurisdictions which, on various grounds, reject the doctrine at least in circumstances like those in the present case.¹ We are persuaded by the reasoning in the cases and experience in these jurisdictions that the absolute parental immunity doctrine should be abrogated. We endorse the statement and- vindicate the prediction of the dissenting justices in Barlow:

We should strive to make justice evenhanded. This goal would be legitimate even without constitutional sanction. When we deny a litigant access to our courts because of his status, or his relationship to his adversary, or because of the adversary’s special status, to some degree we violate the spirit, if not the letter, of that ideal.

Whenever we set a class of people apart, tell them they are unlike other people and deny to them the process of the law we violate a strongly felt need for equal treatment. We immediately search for exceptions, create legal fictions and try in one way or another to do justice. We try to achieve a just result which would otherwise be summarily denied. As often as not, in the end, we abolish the special rule. Such will probably be the fate of the strong pronouncement made by the majority today.

261 Iowa at 729, 156 N.W.2d at 114. (Becker, J., dissenting).

In abrogating absolute parental immunity we do not denigrate the values which that doctrine purports to foster. Rather, we believe the doctrine exacts too high a price. In addition, it is neither an effective or suitable means for protecting those values. ■ At the same time we do not suggest abrogation of the doctrine is a panacea. We simply conclude that on balance justice is more likely to be achieved without the doctrine than with it.

We do not decide today whether the doctrine should be abrogated absolutely. We reserve the question whether there are areas of parental authority and discretion where immunity should exist. That question can best be answered in a case in which it arises. See Merrick, 93 Wash.2d at 415, 610 P.2d at 893. For now we hold that, at least outside the area of parental authority and discretion, unemancipated minor children are not barred by the immunity doctrine from suing their parents for negligence torts. Because the immunity defense is thus unavailable in the present case, we reverse the .trial court’s adjudication of law points and remand the case for further proceedings.

REVERSED AND REMANDED.

All Justices concur except LeGRAND, ALLBEE and McGIVERIN, JJ., who dissent and LARSON, J., who takes no part.

1 . See Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970); Gibson v. Gibson, 3 Cal.3d 914, 479 P.2d 648, 92 Cal.Rptr. 288 (1971); Williams v. Williams, 369 A.2d 669 (Del.1976); Peterson v. City & County, 51 Hawaii 484, 462 P.2d 1007 (1969); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Ridgon v. Rigdon, 465 S.W.2d 921 (Ky.1971); Bondurant v. Bondurant, 386 So.2d 705 (La.Ct.App.1980); Black v. Solmitz, 409 A.2d 634 (Me.1979); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972); Anderson v. Stream, 295 N.W.2d 595 (Minn.1980); Fugate v. Fugate, 582 S.W.2d 663 (Mo.1979); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970); Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529 (1969); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Nuelle v. Wells, 154 N.W.2d 364 (N.D.1967); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Elam v. Elam, 268 S.E.2d 109 (S.C.1980); Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971); Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971); Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891 (1980); Lee v. Comer, 224 S.E.2d 721 (W.Va.1976); Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963). Conn.Gen.Stat. § 52-572c (Supp.1979); N.C. Gen.Stat. § 1-539.21 (Supp.1977).