Badigian v. Badigian

• Decision Date: 27 April 1961
• Citation: 215 N.Y.S.2d 35,9 N.Y.2d 472,174 N.E.2d 718
• Parties: , 174 N.E.2d 718 Rose BADIGIAN, Individually and as Guardian ad Litem of Gregory R. Badigian, Appellant, v. George BADIGIAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 35

215 N.Y.S.2d 35

9 N.Y.2d 472, 174 N.E.2d 718

Rose BADIGIAN, Individually and as Guardian ad Litem of Gregory R. Badigian, Appellant, v. George BADIGIAN, Respondent.

Court of Appeals of New York.

April 27, 1961.

William McKelvey, New York City, for appellant.

James J. McLoughlin and Anthony J. De Cicco, New York City, for respondent.

DESMOND, Chief Judge.

This is a negligence action brought by a mother on behalf of her three-year-old child against the father for negligently causing personal injuries to the child. The father, it is alleged, left the family car unlocked in a parking lot and the child released the brakes and was hurt when he tried to jump from the vehicle. There is no charge of misconduct which could be considered wanton or willful (see Siembab v. Siembab, 284 App.Div. 652, 134 N.Y.S.2d 437). The complaint has been dismissed for insufficiency. We must affirm the dismissal unless we are to change the settled New York rule that an unemancipated minor child has no right of action against his parent for nonwillful injuries (Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551; Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236).

There is no decision in any American or English appellate court sustaining such a cause of action as is here alleged. The writers who attack the no-liability rule misunderstand its basis and purpose. It is a direct application of a concept that cannot be rejected without changing the whole fabric of our society, a fundamental idea that is at the bottom of all community life. The basic principle is that children and parents form a unique kind of social unit different from all other groups.

The courts have already provided different treatment for situations where the injury occurs outside the normal familial relationship such as where the injury is wanton and intentional or where the tort is committed in the course of the parent's business. Perhaps some other special provision should be made for cases where disability extends beyond infancy, but it would be a great oversimplification to attempt to deal with those instances by a simple reversal of the settled rule. Inquiry and planning for any such protection is beyond the competence of a court and belongs with the Legislature.

The statutory compulsion on all New York automobile owners to carry insurance against liability is hardly a sufficient ground for destroying our concept of the family unit. When New York State in 1937 changed the old rule of nonliability of a husband to a wife (or a wife to a husband) for personal injuries, it was done in the form of statutes (Domestic Relations Law, Consol.Laws, c. 14, § 57; Insurance Law, Consol.Laws, c. 28, § 167, subd. 3) which created a cause of action for the injured spouse but at the same time provided that automobile liability insurance policies would not cover such a liability unless express provision therefor was written into the policy. We are informed that no insurance company writes such 'spouse coverage'.

Automobile liability insurance premiums, like all other insurance premiums, are based on recent experience and, since there is no loss experience as to injuries to a child caused by its parent's negligence, the current rates do not contemplate such indemnity. Thus it is incorrect to say that the existence of automobile liability insurance provides a fund available for the payment of such a claim as is sought to be enforced in this suit.

The judgment should be affirmed, without costs.

FULD, Judge (dissenting).

If the present decision were necessary to preserve the integrity of the family, I would subscribe to it. But I do not believe that it is. In my opinion, the doctrine of family immunity, which underlies the holding, is based on dubious prophecy and, at least when applied to deny redress in automobile negligence cases, is wrong in principle and at odds with justice and modern-day realities. ¹

The family immunity doctrine, without precedent in English common law (see Prosser, Law of Torts (2d ed., 1955), p. 675; McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030, 1059), was first announced in 1891 in Mississippi. See Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682. There the tort was willful. A minor daughter sued her mother for maliciously confining her in an insane asylum. Public policy, it was held, forbade the suit; to permit such an action would undermine parental authority and disrupt domestic harmony. The decision was followed in Tennessee and in Washington. In Tennessee, a minor sued father and stepmother for cruel and inhuman treatment. See McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991. In Washington, a 15-year-old daughter sued her father who had ravished her. See Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893. The court denied a right of action to the child. To allow a remedy in such a case would, it was said, open the door to one for injuries which were negligent, since in principle no distinction could be made between them. The peace of the family would be marred if the conduct of the parent could thus be challenged in a civil court.

The immunity doctrine soon spread to cases involving negligently caused injuries without any change in the underlying reasoning. See Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763; Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135; Matarese v. Matarese, 47 R.I. 131, 131 A. 198, 42 A.L.R. 1360; Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113. And in 1928, this court adopted the rule exempting parents from liability to an unemancipated minor for personal injuries caused by their negligence in operating an automobile (see Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551); no opinion was written and the vote, 4 to 3 for affirmance of a no-opinion Appellate Division decision, found Cardozo, Ch. J., and Crane and Andrews, JJ., dissenting. Fourteen years later, relying upon the Sorrentino case, the court reaffirmed the doctrine. See Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236.

A rule which so incongruously shields conceded wrongdoing bears a heavy burden of justification. For me, the burden is not met either by the early rationale or by other arguments more recently advanced. A parent who by negligence injures his minor child surely commits a civil 'wrong' in the sense that there is neither lawful right nor privilege to inflict the injury. And, conversely, the law does not, as I understand it, deliberately carve an exception in favor of parents out of the right of a minor child to be secure from negligent harm to his person.

There is a wrong, it may be said, but the remedy is withheld for reasons of fundamental public policy, namely, to prevent undermining parental authority and disrupting the peace of the family. That principle might be compelling in this case if consistently and evenhandedly applied whenever a child sues his parent. But, since innumerable exceptions and qualifications to its application have evolved, it can no longer serve as a forceful or valid basis for denying liability.

First, the doctrine does not apply if the child is of legal age. If filial duty or family peace is the test, it is impossible to understand why a distinction should be made between minor children and those who are adult. The Biblical command, 'Honor thy father and thy mother', does not end at 21. Yet there is no doubt that the grown son or daughter, the emancipated minor, may sue the parent for negligent wrongs. See Wood v. Wood, 135 Conn. 280, 63 A.2d 586; Taubert v. Taubert, 103 Minn. 247, 144 N.W. 763, supra; Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302; Groh v. W. O. Krahn, Inc., 223 Wis. 662, 271 N.W. 374.

Nor is it solely to a child of adult years that the immunity yields. Even an unemancipated minor child may sue his parent for an injury to his property. Domestic Relations Law, §§ 80, 83; see Lamb v. Lamb, 146 N.Y. 317, 41 N.E. 26; 1 Harper & James, Law of Torts (1956), § 8.11, p. 647; Prosser, Law of Torts (2d ed., 1955), p. 675; Eversley, Domestic Relations (4th ed., 1926), p. 571; McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030, 1057. Indeed, the books are filled with cases in which children have litigated with their parents over contracts, wills, inheritances and settlements. If a child may sue its father because of a broken contract, why, it has been asked, may he not sue him because of a broken leg? As the high court of Ohio put it (Signs v. Signs, 156 Ohio St. 566, 576, 103 N.E.2d 743, 748), 'It seems absurd to say that it is legal and proper for an unemancipated child to bring an action against his parent concerning the child's property rights yet to be utterly without redress with reference to injury to his person.' And, the court continued, 'It is difficult to understand by what legerdemain or reason, logic or law such a situation can exist or how it can be said that demestic harmony would be undisturbed in one case and be upset in the other.' It is likewise difficult to understand the other qualifications to the rule of parental immunity. Thus, there is no doubt today that an unemancipated minor may maintain an action for personal injuries willfully or intentionally inflicted. See Cannon v. Cannon, 287 N.Y. 427, 429, 40 N.E.2d 237, 238, supra; Siembab v. Siembab, 202 Misc. 1053, 112 N.Y.S.2d 82; Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525; Mahnke v. Moore, 197 Md. 61, 77 A.2d 923; see, also, Prosser, Law of Torts (2d ed., 1955), p. 677.

In addition, a child may actually, albeit indirectly, obtain redress from his parent for personal injuries resulting from an automobile accident if the child can find and sue a third person who in turn transfers his liability to the parent. A common case of this sort is one in which the father inflicts the injury while driving a vehicle in the course of his employment. The child recovers from his father's employer and thereupon the latter...