Arnold v. Arnold

• Decision Date: 12 September 1988
• Docket Number: No. 76836,76836
• Citation: 189 Ga.App. 101,375 S.E.2d 225
• Parties: ARNOLD v. ARNOLD.
• Court: Georgia Court of Appeals

Page 225

375 S.E.2d 225

189 Ga.App. 101

ARNOLD v. ARNOLD.

No. 76836.

Court of Appeals of Georgia.

Sept. 12, 1988.

Rehearing Denied Oct. 12, 1988.

Certiorari Granted Dec. 6, 1988.

Rosenzweig, Kam, Jones & MacNabb, Joseph P. MacNabb, Newnan, for appellant.

Jenkins, Bergman & Darroch, Frank E. Jenkins III, Atlanta, for appellee.

BIRDSONG, Chief Judge.

This is an appeal from the order of the superior court granting summary judgment to the defendant.

The appellee, Marcia Lynn Arnold, then age 16 and now age 18, was driving her mother's automobile in which her sister, appellant Glenetta Arnold and her friend, Coretta Harper, were riding. The appellee had dropped off two other passengers, had retrieved her makeup from a friend's house, had gone to the grocery store for her mother, and had left the store, in that order, when she was involved in an automobile collision. There is no adequate evidence in the record before us as to how the collision occurred. See generally Behar v. Aero Med Intl., 185 Ga.App. 845(1), 366 S.E.2d 223. At the time of the accident, Glenetta Arnold was age 10 and was living with her mother. The appellee Marcia Lynn Arnold was living with her mother most of the time, but during the month of the accident, she was residing three or four days of the week at the home of her father. The parents of the appellant and the appellee are divorced, and neither child was emancipated on the date of the accident. Held:

The appellant has raised a question of first impression for our courts: specifically, has the doctrine of "parental immunity" precluded an unemancipated minor child from suing a sibling who also was unemancipated at the time the asserted cause of action arose but who attains majority before trial on the merits of the case commences?

Early cases decided by this court focused on the limited issue of whether a child could sue its parents, and it was concluded that parental immunity existed when an unemancipated minor child attempted to sue his parent. See e.g., Bulloch v. Bulloch, 45 Ga.App. 1, 11, 163 S.E. 708. Certain later cases, however, when faced with the same basic issue or variations thereof, adopted broader language thereby giving birth in this state to a so-called family immunity doctrine. See e.g., Clabough v. Rachwal, 176 Ga.App. 212, 213-215, 335 S.E.2d 648; Hollingsworth v. Hollingsworth, 165 Ga.App. 319, 320, 301 S.E.2d 56; Eschen v. Roney, 127 Ga.App. 719, 720, 194 S.E.2d 589. The exact parameters of this doctrine have not been determined by our court, although at least one attempt has been made to do so by use of legal model. See e.g., Clabough, supra 176 Ga.App. at 215, 335 S.E.2d 648 (concurring opinion). It is generally accepted that "infant[s] may sue and be sued," 42 AmJur2d, Infants, § 150, and that siblings "are not immune from tort liability to one another by reason of that relationship." Restatement of Torts, 2d ed., § 895H. "The reason generally given for denying members of the same family the right to sue each other, namely, that to permit such actions would disrupt family harmony and encourage fraud or collusion, has not been applied to cases where plaintiff and defendant are siblings, and members of the same household, living together under the same parental authority." 74 AmJur2d, Torts, § 54. Nevertheless, "[t]he preservation of the family unit is of such utmost importance in this state that it has recently been given stature in our state constitution: 'To ... promote the interest and happiness of the citizen and of the family, ... we the people of Georgia ... do ordain and establish this Constitution.' (Emphasis supplied.) 1983 Ga. Const., Preamble." Clabough, supra at 213-214, 335 S.E.2d 648. In the resolution of the case at bar, however, we need not ascertain the exact parameters of our family immunity doctrine.

The evidence shows that appellee was an unemancipated minor both at the time of the accident and at the time when the complaint of Christine H. Allen was filed on behalf of her daughter, Coretta Harper. However, at the present time appellee is 18 years of age. The doctrine of family immunity provides a legal foundation for the promotion of the "paramount public policy" of "preservation of family tranquility," and thus prevents an unemancipated child, for example, from suing a parent or person standing in loco parentis. Morris v. Brooks, 186 Ga.App. 177, 366 S.E.2d 777, a two-judge decision cited favorably in Trust Co. Bank v. Thornton, 186 Ga.App. 706, 709, 368 S.E.2d 158, see Eschen v. Roney, supra. However, this type of immunity doctrine is not without restricting boundaries. See e.g., Nelson v. Spalding County, 249 Ga. 334, 339, 290 S.E.2d 915. Thus, it has long been recognized that "[a] child who has reached majority, or a minor who has been emancipated, may sue its parent." (Emphasis supplied.) Wright v. Wright, 85 Ga.App. 721, 725, 70 S.E.2d 152. Otherwise stated, "the public policy doctrine of family immunity [will] not preclude [a 'sui juris' plaintiff's] suit against his [parent]." Hollingsworth v. Hollingsworth, 165 Ga.App. supra at 320, 301 S.E.2d 56. Conversely, "a parent may also sue an adult child." Davis v. Cox, 131 Ga.App. 611, 614, 206 S.E.2d 655. Moreover, a "child who continues to live in the home after arriving at majority occupies the same status as any other guest, and there is nothing in the policy of the law which forms a legal obstacle to a suit by the child against a parent for a tort." Reese v. Reese, 142 Ga.App. 243, 247, 236 S.E.2d 20; Farrar v. Farrar, 41 Ga.App. 120(3), 152 S.E. 278; 67A...