Broadwell by Broadwell v. Holmes

• Decision Date: 07 February 1994
• Citation: 871 S.W.2d 471
• Parties: Mindy Elaine BROADWELL, by Next of Kin, Mark BROADWELL, and Justin L. Broadwell, by Next Friend, Mark Broadwell, Plaintiffs-Appellants, v. Susan M. HOLMES, Defendant-Appellee.
• Court: Tennessee Supreme Court

Page 471

871 S.W.2d 471

Mindy Elaine BROADWELL, by Next of Kin, Mark BROADWELL, and

Justin L. Broadwell, by Next Friend, Mark

Broadwell, Plaintiffs-Appellants, v. Susan M. HOLMES, Defendant-Appellee.

Supreme Court of Tennessee,

at Knoxville.

Feb. 7, 1994.

Don W. Poole, Poole, Lawrence, Thornbury, Stanley & Morgan, Chattanooga, for plaintiffs-appellants.

Gary A. Cooper, Cynthia D. Hall, Fleissner, Cooper & Marcus, Chattanooga, for defendant-appellee.

OPINION

REID, Chief Justice.

This case presents for review the judgment of the Court of Appeals dismissing a suit on behalf of two unemancipated minor children against their mother for personal injuries to one child and for the wrongful death of the other child. The children were injured while riding as passengers in an automobile operated by the mother. The trial court found that the complaint did not state a cause of action, and the Court of Appeals affirmed.

This Court granted permission to appeal in order to re-examine the parental immunity doctrine, first adopted in this state in McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), and most recently reaffirmed in Barranco v. Jackson, 690 S.W.2d 221 (Tenn.1985), a case in which the dissent advocated that parental immunity be abolished in "automobile tort" cases.

In the case before the Court, Mindy Elaine Broadwell, age 8, and Justin L. Broadwell, age 6, were passengers in a pickup truck driven by their mother, the defendant, when the vehicle was involved in an accident. The complaint alleges that the defendant negligently lost control of the vehicle and that her negligence proximately caused the death of Mindy and serious bodily injuries to Justin. The suit was brought on behalf of the children by their father as next friend. At the time of the accident, the parents were divorced, and the mother had custody of the children.

The majority in Barranco declined to discuss the substantive issue of whether the parental immunity doctrine should be modified, observing only that the doctrine "has continuing vitality and should be adhered to unless modified or changed by action of the General Assembly." Id. at 222. Therefore, the first matter for consideration is whether the court will persist in the view expressed by the majority in Barranco, that it has no role in the development of the law in this area.

The existence and importance of the judge-made common law as an integral part of this state's jurisprudence can hardly be denied or deprecated. It is as old as Anglo-Saxon law. Before tracing the origin of the laws of England, Blackstone identified the two components of that law.

The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.

1 William Blackstone, Commentaries, p. 53 (Lewis Ed.1900) (footnotes omitted). Blackstone then stated the means whereby the common law maintains its currency.

But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land.

Id. at 58 (footnotes omitted). Chancellor Kent in his Commentaries stated:

In its improved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty....

1 James Kent Commentaries on American Law, pp. 398-99 (12th ed. 1884).

The vitality and relevance of the common law was emphasized by this Court almost a century ago:

It is universally conceded that the fundamental principles of the common law are unchangeable, yet the courts recognize the necessity of flexibility in the application of old rules to new cases, so as to enable them to adopt these rules "to the ever-varying conditions and emergencies of human society." Thus, in Woodman v. Pitman, 79 Me., 456, 10 Atl., 321, 1 Am.St.Rep., 342, it is said: "The inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for as they arise, and the law has expansive and adaptive force enough to respond to the demands thus made of it, not by subverting, but by framing new combinations, and making new applications out of its already established principles; the result produced being 'only the new corn that cometh out of old fields.' "

This court, in Jacob v. State, 3 Hum. 493, announces the same general doctrine in these words: "The common law of the country will never be entirely stationary, but will be modified and extended by analogy, construction, and custom so as to embrace new relations springing up from time to time from an amelioration or change of society. The present common law of England is as dissimilar from that of Edward III as is the present state of society. And we apprehend that no one could be found to contend that hundreds of principles which have in modern times been examined, argued, and determined by the judges are not principles of the common law because not found in the books of that period. They are held to be great and immutable principles, which have slumbered in their depositories because the occasion which called for their exposition had not arisen. The common law, then, is not like a statute, fixed and immutable, but by positive enactment, except where a principle has been adjudged as the rule of action."

Box v. Lanier, 112 Tenn. 393, 407-409, 79 S.W. 1042, 1045 (1903).

This Court has a continuing duty to consider whether the common-law, as created and developed through case law, is obsolete. " '[W]e abdicate our own function, in a field peculiarly non-statutory, when we refuse to consider an old and court made rule.' " Hanover v. Ruch, 809 S.W.2d 893, 896 (Tenn.), cert. denied, --- U.S. ----, 112 S.Ct. 381, 116 L.Ed.2d 332 (1991) (quoting Kilbourne v. Hanzelik, 648 S.W.2d 932, 934 (Tenn.1983). While recognizing the precedential value of prior case law is required to maintain uniformity and consistency in the law, a "mindless obedience to this precept can confound the search for truth and foster an attitude of contempt." Davis v. Davis, 657 S.W.2d 753, 758 (Tenn.1983); see also Hanover v. Ruch, 809 S.W.2d 893, 898 (Tenn.1991).

As a live and breathing thing, the law changes when necessary to serve the needs of the people. When this basic purpose of the law is slighted or overlooked, then it loses a high degree of its majesty.

Dupuis v. Hand, 814 S.W.2d 340, 346 (Tenn.1991).

Accordingly, the reconsideration of Barranco is entirely appropriate.

The dissent in Barranco reviewed the development of parental immunity beginning with the doctrine's initial adoption by the Mississippi Supreme Court in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), and noted that the doctrine had been subjected to criticism and modification in recent decisions. The dissent concluded:

[T]he sole policy consideration which justifies its application [is] a parent's right to discipline and use discretion in the care and rearing of children.

Barranco v. Jackson, 690 S.W.2d at 230.

Since the decision in Barranco, the trend to modify the parental immunity doctrine has continued. See, e.g., Cates v. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 619 N.E.2d 715 (1993) (parental immunity limited to conduct inherent to parent-child relationship); Glaskox By and Through Denton v. Glaskox, 614 So.2d 906 (Miss.1992); (abrogated doctrine as it applies to negligent operation of motor vehicle); Hartman By and Through Hartman v. Hartman, 821 S.W.2d 852 (Mo.1991) (abrogated doctrine in favor of reasonable parent standard); Kirchner v. Crystal, 15 Ohio St.3d 326, 474 N.E.2d 275 (1984) (parental immunity abolished entirely); Jilani By and Through Jilani v. Jilani, 767 S.W.2d 671 (Tex.1988) (parental immunity limited to instances of reasonable exercise of parental authority or exercise of parental discretion). Although state courts have continued to modify parental immunity, the decisions have established no uniform standard for imposing parental liability. However, the cases uniformly ¹ exempt from liability, expressly or implicitly, conduct, whether acts or omissions, incident to the exercise of parental authority and supervision.

In the first case in which the parent-child immunity doctrine was modified, the Supreme Court of Wisconsin expressed the concern that total abrogation of the doctrine would unduly interfere with parental authority and discipline. Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963). In an effort to prevent such interference, the court abrogated immunity in all cases except those involving the exercise of parental authority over the child and/or the exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services and other care. Id. 122 N.W.2d at 198. This approach reflects a recognition that the parent-child relationship is unique and that traditional negligence concepts cannot be applied in situations where the relationship is involved.

Several courts have adopted the Goller approach with minor variations of the standard. In Sandoval v. Sandoval, 128 Ariz. 11, 14, 623 P.2d 800, 803 (1981), the court stated that the immunity applies only if "the parent breached a duty owed to...