Ascuitto v. Farricielli

• Decision Date: 12 May 1998
• Docket Number: No. 15729,15729
• Citation: 711 A.2d 708,244 Conn. 692
• Court: Connecticut Supreme Court
• Parties: Lisa Ann ASCUITTO v. Charles FARRICIELLI et al.

Page 708

711 A.2d 708

244 Conn. 692

Lisa Ann ASCUITTO v. Charles FARRICIELLI et al.

No. 15729.

Supreme Court of Connecticut.

Argued Dec. 2, 1997.

Decided May 12, 1998.

Mary-Margaret Dalton, Cheshire, for appellant (plaintiff).

Ruth Beardsley, Seattle, WA, for appellee (named defendant).

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT, KATZ, PALMER and PETERS, JJ.

KATZ, Associate Justice.

The issue in this appeal is whether the doctrine of parental immunity, which generally bars unemancipated minors from suing their parents for personal injuries, prevents a child of divorced parents from bringing a negligence action against a noncustodial parent for injuries the child sustained while in that parent's home during a scheduled visitation period. Specifically, we must decide whether the trial court properly granted the defendant father's motion for summary judgment based on the doctrine of parental immunity. We conclude that the doctrine of parental immunity applies and, accordingly, we affirm the judgment.

The record reveals the following facts. The plaintiff, Lisa Ann Ascuitto, and the named defendant, ¹ Charles Farricielli, were divorced on September 18, 1990, after less than two years of marriage. The dissolution judgment awarded the plaintiff and defendant joint legal custody of their daughter, Ariana Gina Farricielli, who was born on December 28, 1988, but gave sole physical custody to the plaintiff. The defendant was ordered to pay child support in the amount of $150 per week and to pay for medical and dental insurance, unreimbursed medical expenses, day care costs, private schooling costs and college expenses. The defendant was awarded visitation rights, which increased as the child got older. At the time of the incident giving rise to the present action, Ariana normally stayed with the defendant three days a week during the school year and ten days each summer. The defendant has stated that his relationship with his daughter is close and the plaintiff has not disputed that characterization.

On August 22, 1994, a fire broke out in the defendant's home while Ariana was visiting him. In order to escape the fire, the defendant jumped from a second story window carrying Ariana in his arms. Ariana suffered various injuries in this fall including burns, permanent scarring and disfigurement, a fractured skull, pain and suffering and psychological trauma. The defendant carried insurance on his home and made a claim for property damage resulting from the fire. The record is silent, however, as to whether he carried liability insurance. ²

The plaintiff filed an action on behalf of her daughter alleging, inter alia, that the fire was caused by the defendant's negligence in that: (1) the electrical system in his home had been installed and maintained improperly; 2) he had overloaded the electrical system and improperly used extension cords; (3) he improperly installed and maintained smoke detectors; and (4) he carelessly had discarded a burning cigarette. The plaintiff has not alleged that the act of jumping from the burning building while carrying Ariana was negligent.

The defendant filed a motion for summary judgment claiming that the action against him was barred by the doctrine of parental immunity. The trial court granted the motion, and in its memorandum of decision stated that "the parental immunity doctrine protects a divorced parent who has joint custody of a minor child even when physical custody is primarily with another parent." ³ The plaintiff appealed from the trial court's judgment rendered in favor of the defendant to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199(c).

The plaintiff claims that the trial court improperly granted the defendant's motion for summary judgment because the doctrine of parental immunity does not apply in this case. The plaintiff argues: (1) the purpose behind the doctrine, which is to preserve family harmony, is not served where the parents are divorced and the child is suing the noncustodial parent; (2) the defendant's negligent acts did not concern parental supervision and discretion but, instead, posed a risk to the general public; and (3) the trial court failed to consider whether the defendant was covered by insurance. ⁴ We are not persuaded.

"The standards governing ... review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... Id., at 745, 660 A.2d 810. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381.... Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).... Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996)." (Internal quotation marks omitted.) Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 374-75, 696 A.2d 326 (1997). The question of whether the doctrine of parental immunity applies to negligent acts by a noncustodial parent occurring in that parent's home is one of law and, therefore, appropriate for summary judgment. Accordingly, we review the issue de novo. Squeglia v. Squeglia, 234 Conn. 259, 262, 661 A.2d 1007 (1995).

Parental immunity from personal injury actions by unemancipated minor children was unknown at common law; W. Prosser, Torts (4th Ed.1971) § 3; and was first applied in the United States as a common-law principle in 1891 in Hewlett v. Ragsdale, 68 Miss. 703, [244 Conn. 697] 711, 9 So. 885 (1891), overruled in part by Glaskox v. Glaskox, 614 So.2d 906 (Miss.1992). We first adopted the doctrine in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929), and it remains the general rule in this state that unemancipated minor children and their parents may not sue one another for personal injuries. Squeglia v. Squeglia, supra, 234 Conn. at 264-65, 661 A.2d 1007 (despite modification, doctrine of parental immunity remains rule); Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 450 and n. 1, 254 A.2d 907 (1969) (declining to infer abolishment of parental immunity defense from legislative abrogation of doctrine in motor vehicle accidents); Shaker v. Shaker, 129 Conn. 518, 521, 29 A.2d 765 (1942) (parent cannot bring action against unemancipated minor child).

Courts have relied on a number of theories to justify barring personal injury actions by unemancipated minors against their parents. Among these are "[t]he danger of 'fraud' ... the possibility that the defendant might inherit the amount recovered in case of the plaintiff's death, [and] that the family exchequer might be depleted at the expense of other children...." W. Prosser & W. Keeton, Torts (5th Ed.1984) § 122, p. 905. The primary rationale, however, and the one that this court has relied upon, is the preservation of family harmony and the protection of the parent-child relationship. "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 and society are vitally interested in the integrity and unity of the family and in the preservation of the family relation. The obligation of the father, or it may be the mother, to care for, guide, control and educate their child, and the reciprocal obligation of the child to serve and obey the parent, are essentials of the family relationship. Authority in the parent to require obedience in the child is indispensable to the maintenance of unity in the family. Anything which undermines this authority, brings discord into the family, weakens its government and disturbs its peace, is an injury to society and to the State. Few things could bring about this unhappy condition more quickly or widen the breach between parent and child further than the bringing of an action at law for personal injuries by a minor child against the parent. Such unseemly family discord is injurious to the public welfare...." (Internal quotation marks omitted.) Mesite v. Kirchenstein, supra, 109 Conn. at 84, 145 A. 753. We have continued to adhere to the doctrine in light of the fact that "there are few things more disruptive of familial harmony than a legal action by an unemancipated minor child against a parent." Squeglia v. Squeglia, supra, 234 Conn. at 265-66, 661 A.2d 1007.

Because it is a common-law rule, the doctrine of parental immunity is subject to both legislative and judicial modification. Id., at 264-65, 661 A.2d 1007. In 1967, the legislature expressly abrogated the doctrine with respect to negligence in the operation of motor vehicles. Public Acts 1967, No. 596, § 1, subsequently codified as General Statutes (Rev. to 1968) § 52-572c. This exception was broadened in 1979, by Public Acts 1979, No. 79-5, to include aircraft and vessels. ⁵ We have not construed these legislative limitations as preempting our power to modify further this judicially created doctrine. Dzenutis v. Dzenutis, ...