Dzenutis v. Dzenutis

• Citation: 200 Conn. 290,512 A.2d 130
• Decision Date: 01 July 1986
• Docket Number: No. 12817,12817
• Court: Supreme Court of Connecticut
• Parties: , 55 USLW 2064 Thomas DZENUTIS et al. v. Peter DZENUTIS.

Page 130

512 A.2d 130

200 Conn. 290, 55 USLW 2064

Thomas DZENUTIS et al. v. Peter DZENUTIS.

No. 12817.

Supreme Court of Connecticut.

Argued April 9, 1986.

Decided July 1, 1986.

Louis B. Blumenfeld, with whom were Karen Jansen Casey and, on the brief, John F. Scully, for appellant (defendant).

John W. Pickard, with whom were David M. Cusick and, on the brief, Bridget G. Jenkins, for appellees (plaintiffs).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

SHEA, Associate Justice.

The principal issue in this appeal is whether this court should continue to adhere to the doctrine of parental immunity from liability for negligence to an unemancipated minor child who was injured in the course of a business activity conducted by the parent away from the home. We conclude that in the limited context of the circumstances presented by this appeal the doctrine no longer serves the purposes for which it was designed and that we must, accordingly, modify the breadth of our decisions in previous cases that have unconditionally endorsed parental immunity as a defense to a negligence suit by a child.

In this action in behalf of a minor child, Thomas Dzenutis, for personal injuries arising from negligence, a jury returned a verdict of $70,000 against the defendant, Peter Dzenutis, his father. An additional sum of $6972.04 was awarded to the coplaintiff, Luigina Dzenutis, the mother of Thomas and wife of Peter, for medical expenses incurred in treating Thomas for his injuries. The trial court, after denying motions to set aside the verdict and for judgment notwithstanding the verdict, rendered judgment in accordance with the verdict. In his appeal the defendant claims the court erred: (1) in declining to grant judgment in his favor on the ground of parental immunity, as sought in his motion for summary judgment and his postverdict motions; (2) in similarly failing to award him judgment because of the insufficiency of the evidence to establish the notice required for a finding of negligence; (3) in denying his request to charge upon the effect of Thomas' testimony as a judicial admission; (4) in rendering judgment for the coplaintiff Luigina, as the mother of Thomas, to recover the expenses for his medical treatment; and (5) in refusing to set aside or reduce the $70,000 award of damages as excessive. We find no error.

I

In rejecting parent-child immunity as a defense to this action the trial court relied upon an exception to the doctrine that has been recognized in some jurisdictions for injuries received by a child that result from a negligent act of his parent occurring in the course of a business or vocational activity. Prosser & Keeton, Torts (5th Ed.) § 122, p. 906; annot., 6 A.L.R.4th 1066, 1102-1107 (1981). The court also relied upon the fact that the defendant father carried a $300,000 liability insurance ¹ policy affording coverage for claims arising in the conduct of his business as a general contractor. On appeal the defendant challenges these conclusions as wholly at variance with established precedent in this state.

In Mesite v. Kirchenstein, 109 Conn. 77, 84, 145 A. 753 (1929), this court first adopted the rule barring an unemancipated minor child from suing his parent for injuries caused by the negligence of his parent. "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, to such a degree that all the courts of this country, which have had occasion to express their opinion upon the right of the minor to maintain such an action, have declared that the exercise of this right is against sound public policy." Id., 84, 145 A. 753. The same considerations have been deemed to bar an action in the converse circumstance of a parent seeking to recover damages for personal injuries caused by the negligence of his unemancipated minor child. Shaker v. Shaker, 129 Conn. 518, 521-23, 29 A.2d 765 (1942).

This court, however, has refused to extend the doctrine of parent-child immunity to bar a suit by a child against the employer of the parent whose negligence in the course of his employment caused the child to be injured; Chase v. New Haven Waste Material Corporation, 111 Conn. 377, 380, 150 A. 107 (1930); ² by a mother against her husband based upon the negligence of their minor son in operating an automobile owned by the husband, whose liability was predicated upon the family car doctrine; Silverman v. Silverman, 145 Conn. 663, 666-68, 145 A.2d 826 (1958); or by a child for injuries caused by the negligence of her sister, also an unemancipated minor. Overlock v. Ruedemann, 147 Conn. 649, 655, 165 A.2d 335 (1960). Prior to the adoption of parent-child immunity in Mesite, we had held in the analogous husband-wife context that the enactment of the Married Women's Act of 1877 gave a wife separate and independent legal status and thus abrogated the common law rule of spousal immunity both for intentional torts; Brown v. Brown, 88 Conn. 42, 47, 89 A. 889 (1914); and for negligent ones. Bushnell v. Bushnell, 103 Conn. 583, 587, 131 A. 432 (1925).

Though not oblivious to the "conglomerate of paradoxical and irreconcilable judicial decisions" in the intra-family setting that parent-child immunity has spawned; Overlock v. Ruedemann, supra, 147 Conn. 654-55, 165 A.2d 335; this court has continued to adhere to the doctrine. Ooms v. Ooms, 164 Conn. 48, 51, 316 A.2d 783 (1972); Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907 (1969). In 1967, however, the legislature abrogated the immunity for actions between parent and child "[i]n all actions for negligence in the operation of a motor vehicle," creating an exception that has since been extended to aircraft and boats. General Statutes § 52-572c; Public Acts 1967, No. 596; Public Acts 1979, No. 79-5. In Begley v. Kohl & Madden Printing Ink Co., supra, 450 n. 1, 254 A.2d 907, the court, rather than seize upon this enactment as an occasion to abolish the immunity wholly, commented that "[i]t is noteworthy that the General Assembly declined to modify the doctrine of parental immunity in any other respect" than "in all actions for negligence in the operation of a motor vehicle ... accruing after July 1, 1967." ³

The history of the rise and decline of parent-child immunity nationwide has generally paralleled its course in this state. After the rule originated in Mississippi in 1891 in the case of Hewlett v. George, 68 Miss. 703, 711, 9 So. 885 (1891), it gained widespread acceptance. By 1929, when nonliability of a parent for personal injury to a child became the law in this state, the doctrine had been accepted in every one of eleven states where the issue had arisen. Mesite v. Kirchenstein, supra, 109 Conn. 83, 145 A. 753. The rule, which has long been criticized by commentators, began to lose its judicial following after a Wisconsin decision in 1963 abrogated it entirely except as to the exercise of parental authority or parental discretion in the care of children. Goller v. White, 20 Wis.2d 402, 413, 122 N.W.2d 193 (1963); Prosser & Keeton, Torts (5th Ed.) § 122, p. 907. The American Law Institute in 1977 rejected general tort immunity between parent and child, though recognizing the need for different treatment of some intra-family negligent torts involving parental duties or activities within the home. 4 Restatement (Second) Torts § 895G, comment k (1979). A growing number of states have now abrogated the doctrine in whole or in part either by statute or judicial decision. Frye v. Frye, 305 Md. 542, 505 A.2d 826 (1986); see annot. 6 A.L.R.4th 1066, 1113-1125 (1981). For intentional torts involving malicious or even criminal conduct, where the rule originated, it has now been generally repudiated. Trevarton v. Trevarton, 151 Colo. 418, 421, 378 P.2d 640 (1963); Prosser & Keeton, Torts (5th Ed.) § 122, p. 906.

This striking turnabout in views concerning the threat to family harmony entailed by the litigation of tort claims between parents and children has stemmed largely from the increased availability of insurance to protect the family exchequer against the depletion that might otherwise result from substantial judgments against parents in such cases. It is not an obsolete notion that the satisfaction of a judgment for a minor child from assets of his parents needed for the support of the entire family would likely foment the "unseemly family discord" envisioned at the time this court first adopted parent-child immunity. Mesite v. Kirchenstein, supra, 109 Conn. 84, 145 A. 753. The prospect of greeting an adolescent judgment creditor at the dinner table each day would likely strain the familial relationship even for the most saintly of parents. The presence of liability insurance, however, reduces the concern that the tranquility of the home will be disturbed or that parental authority will be undermined by prosecution of a child's suit for damages. 2 Harper, James & Gray, Torts, (2d Ed.) § 8.11, p. 574-76. Indeed, the defendant parent, whose delict is the basis for the suit, ordinarily has a substantial interest in the child's recovery, because the funds paid by the insurance carrier are commonly used to provide benefits to the child that his parent would otherwise have furnished from his own resources. The conception of liability insurance as simply a device to protect an insured against claims by those who would otherwise seek satisfaction from his personal assets is unduly narrow. One purpose a parent may have...