Attwood v. Attwood's Estate, 81-177

• Decision Date: 24 May 1982
• Docket Number: No. 81-177,81-177
• Citation: 276 Ark. 230,633 S.W.2d 366
• Parties: Janice ATTWOOD, Individually and As Mother and Next Friend of Richard Breck Attwood, Appellant, v. The ESTATE OF Richard Breckenridge ATTWOOD, Appellee.
• Court: Arkansas Supreme Court

Page 366

633 S.W.2d 366

276 Ark. 230

Janice ATTWOOD, Individually and As Mother and Next Friend of Richard Breck Attwood, Appellant, v. The ESTATE OF Richard Breckenridge ATTWOOD, Appellee.

No. 81-177.

Supreme Court of Arkansas.

May 24, 1982.

Bridges, Young, Matthews, Holmes & Drake, Pine Bluff, for appellant.

Coleman, Gantt, Ramsay & Cox by Martin G. Gilbert, Pine Bluff, for appellee.

JOHN W. BARRON, Jr., Special Justice.

Janice Attwood, individually and as mother and next friend of Richard Breck Attwood, brings this appeal contending that the court below erred in dismissing her complaint against the estate of Richard Breckenridge Attwood. The suit was dismissed pursuant to Arkansas Rules of Civil Procedure, Rule 12(b)(6) for failure to state facts upon which relief can be granted. The lower court found that the family immunity doctrine was a bar to the claim asserted in the complaint.

In her complaint, appellant pled that she and Richard Breckenridge Attwood were divorced some time prior to July 3, 1979 and that he had visitation rights with respect to their child, Richard Breck Attwood. Appellant further pled that on July 3, 1979, Richard Breckenridge Attwood became willfully and intentionally intoxicated and drove a vehicle while so intoxicated with the child as a passenger and also drove at a speed greatly in excess of the posted speed limit, thereby causing the vehicle to leave the roadway and overturn, killing himself and injuring the child, Richard Breck Attwood.

On appeal, appellant urges reversal on two grounds:

(1) The family immunity doctrine violates the constitutional rights of unemancipated minors to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution in that it precludes minor children from suing their parents for injuries caused by the negligence of the parents;

(2) The automobile accident in which Richard Breck Attwood was injured resulted not from the voluntary negligence of the father but from the father's willful, reckless and intentional actions and as such the family immunity doctrine is inapplicable.

As we have held many times that we do not rule on constitutional questions if the litigation can otherwise be resolved, we first consider the second of appellant's two points for reversal. County of Searcy v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968).

Appellee's motion to dismiss, filed pursuant to Arkansas Rules of Civil Procedure, Rule 12(b)(6), is essentially the same as filing a demurrer before enactment of the new rules. A demurrer admits any well pled fact. Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980); L. A. Green Seed Company of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969). We, therefore, assume for purposes of resolving the issues presented herein that the facts recited in the complaint are true.

This appeal again brings into focus the family immunity or parental immunity doctrine. This Court in Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), held that an unemancipated minor child could not sue a parent for an involuntary tort. The court reasoned that to permit such a suit would interfere with the parent's authority over the child and would, therefore, encourage disobedience. This in turn would interfere with the family harmony. When next called upon to rule on this doctrine, this Court refused to extend the doctrine to include an intentional tort committed by an adoptive father on his adopted son. Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245 (1939). Recently, this Court was presented with the question of whether the family immunity doctrine should bar recovery by an unemancipated minor from one standing in loco parentis for injuries resulting from an unintentional tort. Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980). In reaffirming the doctrine, this Court stated:

"We are not persuaded by appellant's contention that the family immunity doctrine has become a legal anachronism. Nor do we believe that the policy considerations of family harmony and prevention of collusion and fraud are no longer valid although more than 40 years have elapsed since Rambo we still believe in the sanctity of the family unit...."

This Court has stated its belief that it approves of the so-called family immunity doctrine because it promotes family harmony, preserves discipline and prevents fraud and collusion. It should be pointed out, however, that since Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957) spouses have been permitted to sue each other for unintentional torts. In that case, this Court expressly rejected the argument that preservation of family harmony required the prohibition of suits between spouses. It is interesting to note that the Arkansas Legislature has never seen fit to change the law permitting such suits. It is also noteworthy that brothers can sue sisters and adult or emancipated children can sue their parents. So perhaps more appropriately this should be called the parental immunity doctrine.

A review of cases in various jurisdictions around the country pertaining to the parental immunity doctrine reveals that there has been a change in the philosophy of this country and that the right of the individual to be free from injury is perhaps paramount in many instances to the reasons behind the parental immunity doctrine. Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1970). This was stated in Black v. Solmitz, 409 A.2d 634 (Me.1979) in the following manner:

"The strong trend against across the board application of a rule of parental immunity in tort cases reflects a growing recognition that such a sweeping application results in excessive protection of the interests favored by the rule in derogation of the general principal that there should be no wrong without a remedy."

That such a trend has mushroomed is evidenced by the fact that thirteen states have now abrogated the doctrine at least insofar as motor vehicle accidents are concerned. ¹ Other jurisdictions that have been confronted with the doctrine for the first time have refused to apply the doctrine to automobile negligence cases. Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1977); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Hebel v. Hebel, 435 P.2d 8 (Alaska 1967). Some states have repudiated the doctrine in non automobile related cases. Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971); Peterson v. Honolulu, 51 Haw. 484, 462 P.2d 1007 (1969). State legislatures in Connecticut, North Carolina and South Carolina have enacted statutes abrogating the doctrine in automobile negligence cases. ² Recently the Restatement (Second) of Torts § 895 G (1979) adopted the following language:

"(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."

Over the years many exceptions have been made to the rule thereby eroding it further. For example, it does not apply to children of legal age or those who are already emancipated at the time of the tort. Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302 (1952). ³ The doctrine is not applied to the unemancipated child who sues his parent for injury to his property or for adjudication of his property rights under a deed or will. Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743 (1952). Another well recognized exception involves negligent and injurious acts by a father while acting in the course of his business or vocation. Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971); Stevens v. Murphy, 69 Wash.2d 939, 421 P.2d 668 (1966); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930). Many states have recognized that a child may be permitted to sue the estate of the negligent parent if the parent died as a result of the same accident that injured the child on the basis that the reasons which may have justified barring the child's remedy against a living parent lose much of their force when the parent child relationship is terminated by death. ⁴ In Rodebaugh v. Grand Trunk W.R.R. Co., 4 Mich.App. 559, 145 N.W.2d 401, (1966), the Court elected to follow what it called the "Wisconsin" rule which permits children to recover damages for injuries resulting from acts outside the parental relationship, but yet not subject parents to legal action for ordinary and common failures in performance of parental duties. We feel that we should be aware of the present state of the law while deciding this case.

In addressing the issue presented herein, we assume the following allegations to be true. Appellant and the child's father were divorced and the father was exercising his visitation privilege. While so doing, he willfully and intentionally became intoxicated and drove his vehicle while so intoxicated with his child as a passenger and did drive at a speed greatly in excess of the speed limit and of what was prudent and thereby caused the vehicle to leave the roadway and overturn, causing his death and injury to the child. Certainly these allegations if true are tantamount to willful and wanton conduct. This brings us to the issue at hand. That is, should the parental immunity doctrine preclude a child from suing a parent for willful and wanton conduct? This Court in Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964) described such conduct as follows:

"It is not necessary to prove the defendant deliberately intended to injure the person. It is enough if it is shown that indifferent to consequences the defendant intentionally acted in such a way that the natural and probable consequence of his act was injury to the plaintiff. There is a constructive intention as to the consequences which entering into the willful, intentional act the law imputes to the offender and in this way a charge which otherwise would be mere negligence becomes by reason of a...