Barnes v. Barnes

Decision Date23 November 1992
Docket NumberNo. 66S03-9211-CV-927,66S03-9211-CV-927
Citation603 N.E.2d 1337
PartiesJohn E. BARNES, III, Appellant (Defendant Below), v. Polly Anna BARNES, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Peter J. Rusthoven, Stanley C. Fickle, Michael A. Klein, Barnes & Thornburg, Indianapolis, Thomas C. Sopko, John C. Firth, Thomas C. Sopko Associates, South Bend, for appellant.

Charles R. Vaughan, Kelly Vaughan Busch, Cynthia L. Garwood, Vaughan and Vaughan, Lafayette, Courtney B. Justice, Elizabeth A. Justice, Logansport, for appellee.

Theodore Lockyear, Lockyear & Kornblum, Evansville, Sally F. Goldfarb, Lynn Hecht Schafran, Alison Wetherfield, NOW Legal Defense and Education Fund, New York City, for amici curiae, NOW Legal Defense and Education Fund, Indiana Nat. Organization for Women, Ass'n of Sexual Abuse Prevention Professionals, Equal Rights Advocates, the Men's Anti-Rape Resource Center, the Nat. Ass'n of Social Workers, the Nat. Coalition Against Domestic Violence, the Nat. Network for Victims of Sexual Assault, the Nat. Victim Center, the Northwest Women's Law Center, Trial Lawyers for Public Justice, and the Women's Law Center, Inc.

P. Gregory Cross, Cross, Marshall, Schuck, DeWeese, Cross & Feick, P.C., Muncie, for amicus curiae, Indiana Trial Lawyers Ass'n.

DICKSON, Justice.

Plaintiff-appellee seeks transfer following the decision of the Court of Appeals applying an absolute rule of parental tort immunity to reverse a judgment and order the dismissal of her damage action against her father alleging assault and rape. We grant transfer.

Plaintiff-appellee Polly Anna Barnes, the natural daughter of Margaret Barnes and defendant-appellant John E. Barnes, III, alleges that during 1985, when she was fifteen years of age, the defendant committed multiple acts of rape and other sexual brutality upon her during a four-day period, resulting in injuries including post-traumatic stress disorder. Less than two months later, Margaret filed for dissolution of her marriage to John. Polly commenced the present action two weeks before her eighteenth birthday and approximately three months after her parents' marriage dissolution was final. The resulting jury verdict and judgment awarded her compensatory damages of $250,000 and punitive damages of $3,000,000.

The defendant appealed, presenting the following issues: 1) application of the parental tort immunity rule, 2) use of the Indiana Rape Shield Statute to bar discovery and exclude evidence of plaintiff's prior sexual history, 3) allowing compensatory damages to include certain psychiatric care expenses already paid by the defendant, and 4) whether punitive damages were excessive and violative of due process. Applying the Indiana common law parental tort immunity rule, the Court of Appeals reversed the judgment and remanded with instructions to enter a judgment of dismissal. Barnes v. Barnes (1991), Ind.App., 566 N.E.2d 1042.

1. Parental Tort Immunity

The defendant contends that the trial court erroneously failed to grant his motion to dismiss asserting the doctrine of parental tort immunity. He correctly asserts that Indiana courts have recognized the immunity of parents from personal injury damage actions brought by their minor children alleging injuries sustained during the marriage. Buffalo v. Buffalo (1982), Ind.App., 441 N.E.2d 711; Vaughan v. Vaughan (1974), 161 Ind.App. 497, 316 N.E.2d 455; Smith v. Smith (1924), 81 Ind.App. 566, 142 N.E. 128.

The plaintiff responds that the doctrine of parental tort immunity should be abrogated because it no longer serves society and has been eroded by exceptions. She urges our rejection of parental tort immunity for reasons analogous to those that led us to abrogate interspousal tort immunity in Brooks v. Robinson (1972), 259 Ind. 16, 284 N.E.2d 794. As examples of exceptions to parental immunity, she cites provisions in the Indiana Guest Act 1 and cases allowing actions by a minor child against a non-custodial parent for post-dissolution injuries. Gollnick v. Gollnick, (1987), Ind.App., 514 N.E.2d 645, modified in part on other grounds (1988), Ind.App., 517 N.E.2d 1257, aff'd (1989), Ind., 539 N.E.2d 3; Buffalo, 441 N.E.2d 711.

The plaintiff also claims that the immunity contravenes the Indiana Constitution's "open courts" provision in Art. 1, Sec. 12, the "equal privileges" clause in Art. 1, Sec. 23, and the federal Fourteenth Amendment's equal protection clause. These constitutional arguments were rejected in Vaughan, and we decline to further consider them.

The briefs of all amici assert that the policy reasons utilized by Indiana and other jurisdictions favoring parental tort immunity have been discredited and that the general doctrine should be abrogated. Alternatively, amici NOW Legal Defense and Education Fund, et al., urge that parental immunity be restrictively applied to protect only conduct meeting a "reasonable and prudent parent" standard. They stress the need to prevent and punish incestuous sexual abuse and to allow redress for incest survivors. As its alternative to complete abrogation of parental immunity, amicus Indiana Trial Lawyers Association urges recognition of an exception to parental tort immunity in instances of "intentional torts willfully or maliciously inflicted upon children."

These issues are still in flux in American jurisprudence. Observing that the cases have "not yet drawn a clear picture of parental liability," W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 112, at 908 (5th ed. 1984), states:

Though it is not possible to state an exact rule as to the scope of "parental discretion," there are patterns in the cases that may be significant. Courts apparently feel that the jury should not be permitted to second-guess the parent as to the exact amount of supervision, training or freedom a child should have....

Id. at 908. Noting that an increasing number of courts seem to be questioning the need for the immunity altogether, Fowler v. Harper et al., The Law of Torts Sec. 8.11, at 579-81 (1986), states:

Most of the authorities supporting this development do, however, express certain reservations about the extent to which parents may be subject to liability in negligence for actions that appear to be closely associated with the parental relationship with children.... [I]t seems likely that the trend toward abrogation of the parent-child immunity will continue, and that such abrogation will become the dominant doctrine in the United States.

The Restatement (Second) of Torts (1977) rejects the immunity in Sec. 895(G) but recognizes a privilege of parental application of reasonable force or confinement for control, training, and education in Sec. 147(1). 2

A recent overview discussing the approaches taken in cases reexamining parent-child tort immunity is provided in Brunner v. Hutchinson Div. Lear-Siegler, Inc. (D.S.D.1991), 770 F.Supp. 517, 521:

To date, a substantial majority of jurisdictions have abrogated the doctrine either partially or completely. Of the states which have reconsidered parental immunity, few have eliminated the doctrine entirely. Three states have declined to adopt parental immunity or have replaced it with a reasonable parent standard. Most jurisdictions have retained the doctrine, but have limited its application to certain circumstances. The principal variations relating to tort actions include: parental immunity or privilege only where the exercise of parental authority or discretion is somehow involved; parental immunity except where the injury was caused by negligence in a motor vehicle accident; parental immunity except to the extent of liability insurance; some cases deny immunity when the child's injury occurred in the course of the parent's vocational or business activities; most other states continue to adhere to the traditional rule of immunity for simple negligence torts. In no case is the immunity held to apply to intentional, willful, or malicious torts. [Footnotes omitted.]

In recent years decisions from other jurisdictions have generally refused to apply parental immunity in cases alleging rape. Connolly v. Holt (1991), 103 N.C.App. 516, 405 S.E.2d 807; Hurst v. Capitell (1989), Ala., 539 So.2d 264; contra, Roller v. Roller (1905), 37 Wash. 242, 79 P. 788.

Our nearby sister states have substantially limited or rejected parental tort immunity. Kentucky, Michigan, and Wisconsin abrogate the immunity with two exceptions: 1) the exercise of reasonable parental authority and 2) the exercise of ordinary parental discretion as to provision of care and necessities. Horn v. Horn (1982), Ky., 630 S.W.2d 70; Plumley v. Klein (1972), 388 Mich. 1, 199 N.W.2d 169; Goller v. White (1963), 20 Wis.2d 402, 122 N.W.2d 193. Ohio has abrogated parental tort immunity without reservation. Shearer v. Shearer (1985), 18 Ohio St.3d 94, 18 OBR 129, 480 N.E.2d 388; Kirchner v. Crystal (1984), 15 Ohio St.3d 326, 15 OBR 452, 474 N.E.2d 275. In Illinois the immunity does not apply to allegations of willful and wanton misconduct, nor does it preclude claims for injuries caused by a parent's negligent operation of an automobile. Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525; Cates v. Cates (1992), 225 Ill.App.3d 509, 167 Ill.Dec. 689, 588 N.E.2d 330.

Determination of the present appeal, however, does not require us to decide whether to generally abrogate the immunity in parental negligence cases. Principles of judicial restraint counsel to the contrary. In the case before us, the plaintiff's action is not predicated upon a claim of parental negligence, but rather alleges intentional felonious conduct. 3 Existing Indiana case law provides sufficient guidance for resolution of this issue.

In Treschman v. Treschman (1901), 28 Ind.App. 206, 61 N.E. 961, the plaintiff sought damages for loss of eyesight and brain damage resulting when her stepmother grasped her ears and repeatedly jammed her head against a brick wall. Affirming a judgment for the...

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