Doe By and Through Connolly v. Holt

• Decision Date: 17 July 1992
• Docket Number: No. 379PA91,379PA91
• Citation: 332 N.C. 90,418 S.E.2d 511
• Parties: Jane DOE and Sally Doe, By and Through their Guardian ad Litem, Anne CONNOLLY v. Frank HOLT.
• Court: North Carolina Supreme Court

Page 511

418 S.E.2d 511

332 N.C. 90

Jane DOE and Sally Doe, By and Through their Guardian ad Litem, Anne CONNOLLY v. Frank HOLT.

No. 379PA91.

Supreme Court of North Carolina.

July 17, 1992.

David F. Tamer, Winston-Salem, for defendant appellant.

Theodore M. Molitoris and Robert S. Blair, Jr., Winston-Salem, for plaintiffs-appellees.

Law Office of Elizabeth Kuniholm, by Elizabeth J. Armstrong, for North Carolina Ass'n of Women Attys., Marjorie Putnam, Gen. Counsel, Raleigh, and the North Carolina

Academy of Trial Lawyers, amici curiae.

MITCHELL, Justice.

The issue before this Court is whether this suit by two minor plaintiffs against their father for damages allegedly resulting from his having repeatedly raped and sexually molested them is barred by the parent-child immunity doctrine. We conclude that the complaint states a claim upon which relief can be granted and that the parent-child immunity doctrine does not bar this suit.

In their complaint, the plaintiffs allege that they are both unemancipated minors. They resided with the defendant, their natural father, from 5 August 1978 until June 1989. Beginning in 1980, when the plaintiffs were five and six years old respectively, the defendant raped and sexually molested both plaintiffs repeatedly; these acts continued until 1989. The defendant pled guilty, in a separate criminal action, to charges of second-degree rape and second-degree sexual offense; those charges and convictions involved some of the same acts against the plaintiffs forming the basis of the tort claims presented in this case. At the time the complaint was filed, the defendant was serving an active prison sentence for those acts.

The plaintiffs brought this tort action by and through their guardian ad litem to recover damages for permanent physical, mental and emotional injuries they suffered as a result of being raped and sexually molested by the defendant, their father. The defendant moved to dismiss the plaintiffs' complaint for failure to state a claim upon which relief could be granted, contending that the parent-child immunity doctrine barred the action. The trial court granted the defendant's motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. N.C.G.S. § 1A-1, Rule 12(b)(6) (1990). The plaintiffs appealed to the Court of Appeals.

The Court of Appeals concluded that the plaintiffs' action was not barred by the parent-child immunity doctrine and reversed the order of the trial court. Doe v. Holt, 103 N.C.App. 516, 405 S.E.2d 807 (1991). For the reasons which follow, we affirm the holding of the Court of Appeals.

The doctrine of parent-child immunity was first recognized in the case of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). In North Carolina, the doctrine was first applied in Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923). In denying a minor child's action to recover damages against her father for his negligence resulting in an automobile collision, this Court stated:

[T]he government of a well ordered home is one of the surest bulwarks against the forces that make for social disorder and civic decay. It is the very cradle of civilization, with the future welfare of the commonwealth dependent, in a large measure, upon the efficacy and success of its administration. Under these conditions, the State will not and should not permit the management of the home to be destroyed by the individual members thereof, unless and until the interests of society are threatened.

Id. at 584, 118 S.E. at 15.

We are well aware of the fact that some appellate courts and legislatures have abolished or significantly eroded the parent-child immunity doctrine in other jurisdictions. See generally Dean, It's Time to Abolish North Carolina's Parent-Child Immunity, But Who's Going to Do It? 68 N.C.L.Rev. 1317, 1328 n. 123 (1990) (listing states where the doctrine has been abolished or modified); 59 Am.Jur.2d Parent and Child § 139 (1987) (same). But since our decision in Small, this Court has consistently applied the rule enunciated in that case; "an unemancipated minor child may not maintain an action based on ordinary negligence against his parents." Lee v. Mowett Sales Co., 316 N.C. 489, 491, 342 S.E.2d 882, 884 (1986). See Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676 (1952). The parent-child immunity doctrine was abrogated in part, however, when the General Assembly enacted a statute making it inapplicable to actions "arising out of the operation of a motor vehicle owned or operated by the parent or child." N.C.G.S. § 1-539.21 (1991 Cum.Supp.). After the enactment of this statute, we were asked to judicially abolish what remained of the parent-child immunity doctrine. We declined to do so because "[t]o judicially abolish the parent-child immunity after the legislature has considered and retained the doctrine would be to engage in impermissible judicial legislation." Lee, 316 N.C. at 494, 342 S.E.2d at 885. We stated that "[t]he doctrine will continue to be applied as it now exists in North Carolina until it is abolished or amended by the legislature." Id. at 495, 342 S.E.2d at 886. We adhere to that statement in this case.

We do not deviate from the position we took in Lee, to the effect that the parent-child immunity doctrine as first enunciated in Small continues to apply in North Carolina, except to the extent it has been specifically abolished or amended by the legislature. Id. However, the case before us is not one in which we are asked to modify or abolish the parent-child immunity doctrine. The question before us here is whether the parent-child immunity doctrine, as it has existed in North Carolina since Small, bars tort claims for injuries unemancipated minors have suffered as a result of a parent's willful and malicious conduct. We conclude that the doctrine does not bar such claims.

A number of jurisdictions have had an opportunity to address the question presented by this case. See 59 Am.Jur.2d Parent and Child § 148 (1987). The modern trend is to allow an unemancipated minor to recover damages against his or her parent for injuries resulting from the parent's willful misconduct. Id.; see, e.g., Hurst v. Capitell, 539 So.2d 264 (Ala.1989); Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525 (1956); Elkington v. Foust, 618 P.2d 37 (Utah 1980). A review of two such cases is beneficial when considering whether the parent-child immunity doctrine applies to bar claims for injuries resulting from willful and malicious acts of parents against their unemancipated children in North Carolina.

In Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), Janice Attwood brought a complaint on behalf of her injured minor son against his father for causing the son injuries. The complaint alleged that the father willfully and intentionally became intoxicated, entered an automobile with his child as a passenger, and drove at a speed greatly in excess of the posted speed limit. As a result, the father's vehicle left the roadway and overturned, killing him and injuring the minor son. Id. at 232, 633 S.W.2d at 367. The Supreme Court of Arkansas reversed the trial court's order of summary judgment for the defendant father stating that the complaint alleged conduct which was tantamount to willful and wanton misconduct which was not protected by the parent-child immunity doctrine. Id. at 238, 633 S.W.2d at 370. The Court said that "[t]he fact that willfulness has to be proven should preclude fraud or collusion from being a problem. We think it is clear that a willful tort is beyond the scope of the parental immunity doctrine in Arkansas." Id.

In Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983), an unemancipated minor wandered onto a neighbor's driveway where she was bitten on the face by the neighbor's dog. The minor brought suit against the owners of the dog, who in turn sought indemnification from the minor plaintiff's parents for failure to supervise their child. The parents pled the parent-child immunity doctrine contending that it barred the action against them, and the trial court agreed. Id. at 536, 461 A.2d at 1147. The Supreme Court of New Jersey affirmed the trial court, concluding--just as this Court concluded in Lee--that the parent-child immunity doctrine was still viable in New Jersey to the extent that it barred actions against a parent for simple negligence in supervision of his or her child. Id. at 545, 461 A.2d at 1152. The Supreme Court of New Jersey reasoned that: "There are certain areas of activities within the family sphere involving parental discipline, care, and control that should and must remain free from judicial intrusion. Parents should be free to determine how the physical, moral, emotional, and intellectual growth of their children can best be promoted." Id. However, the Court further explained that such policy considerations would not justify extending immunity under the doctrine to include a parent's willful misconduct. Id. at 547, 461 A.2d at 1152.

The defendant argues in the present case that the parent-child immunity doctrine, as it has been recognized and applied in North Carolina since our decision in Small, operates as a complete bar to all tort suits by unemancipated children against their parents unless specifically authorized by statute. We disagree.

The history of the parent-child immunity doctrine in North Carolina reveals that maintenance of family harmony was foremost among the public policies the doctrine was intended to serve. Lee, 316 N.C. at 492, 342 S.E.2d at 884; Skinner v. Whitley, 281 N.C. 476, 480, 189 S.E.2d 230, 232 (1972). It was feared that suits by children against their parents for negligent injury would "tend to destroy parental authority and to undermine the security of the home." Small, 185 N.C. at 584, 118 S.E. at 15. For such reasons, the doctrine has been applied in North Carolina to bar actions between unemancipated children and their parents based on...