Winn v. Gilroy

656 P.2d 386, 61 Or. App. 243

Opinions

RICHARDSON, P. J.

Plaintiff appeals from a trial court judgment order dismissing consolidated wrongful death actions on the ground that defendant Winn, decedents’ father, was immune from liability under the parental immunity doctrine. The issue is whether the allegations of plaintiffs complaints state a cause of action. We affirm.

Plaintiff, decedents’ mother, and defendant Winn were husband and wife. At the time of the accident they had separated and were living apart. Decedents, ages 4 and 5, lived with their mother. On December 15, 1979, decedents were visiting their father. Plaintiffs complaints allege that defendant Winn had been drinking when he decided to take his daughters by car from Salem to Stayton and that he drove at an excessive speed, failed to keep a proper lookout and eventually lost control of his vehicle, colliding head-on with an automobile driven by defendant-decedent Gilroy. The complaints also allege that Winn was intoxicated at the time and that the two children were killed as a result of the accident.¹

Plaintiffs amended complaints fail to state a cause of action against defendant Winn under Chaffin v. Chaffin, 239 Or 374, 397 P2d 771 (1964); Williamson v. McKenna, 223 Or 366, 354 P2d 56 (1960); and Cowgill, Adm’r v. Boock, Adm’r, 189 Or 282, 218 P2d 445 (1950).

Plaintiff urges that we abrogate the parental immunity doctrine. Plaintiffs brief presents a cogent argument for abrogation, at least to the extent of the claims presented here. Principled obedience to the Cowgill-Chaffin rule need not prevent awareness that it may be ripe for reconsideration. The concurring opinion sets forth a comprehensive analysis of the bases of the parental immunity doctrine and makes a cogent argument for its abolition. However, we are not free to disregard controlling precedents.

Affirmed.

1 After the trial court dismissed her original complaints, plaintiff amended her allegations to state that defendant and plaintiff, his wife, were separated at the time of the accident.