Hartman by Hartman v. Hartman, Nos. 73514

Decision Date17 December 1991
Docket NumberNos. 73514,73568
Citation821 S.W.2d 852
PartiesChristine HARTMAN, a minor, By her mother and next friend, Sheila HARTMAN, and Todd Hartman, a minor, By his mother and next friend, Sheila Hartman, Plaintiffs-Appellants, v. William R. HARTMAN and William E. Hartman, Defendants-Respondents. Tracy ARMSTRONG, a minor, By her father and next friend, Michael ARMSTRONG, and Michael Armstrong, Plaintiffs-Appellants, v. Mary ARMSTRONG, Defendant-Respondent.
CourtMissouri Supreme Court

COVINGTON, Judge.

The Court has consolidated for opinion two cases in which the appellants request re-examination of the parental immunity doctrine articulated in Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29 (1953). In both cases the trial courts dismissed the actions brought by minor children against their parents. Finding insufficient basis to retain the doctrine, this Court reverses the judgments of the trial court and remands the cases for further proceedings.

I.

In the Hartman case, Christine and Todd Hartman, by their mother and next friend, Sheila Hartman, filed an action in the Circuit Court of Jefferson County against their father, William E. Hartman, and their grandfather, William R. Hartman, for personal injuries suffered while on vacation near Climax Springs, Missouri. The minor children allege in their petition that their father and grandfather negligently maintained and operated a propane gas stove and propane tank causing them to explode, thereby injuring the children.

The father filed a motion for summary judgment on the children's petition, asserting that the parental immunity doctrine prevented a minor unemancipated child from bringing a negligence action against a custodial parent. The grandfather filed a motion to dismiss and a motion to quash service for lack of venue, asserting that since venue was proper in Jefferson County solely because it was the residence of the father, venue would no longer exist to sustain the action against the grandfather in Jefferson County, under § 508.010(1)(2), RSMo 1986, if the father's action were dismissed.

The trial court sustained the father's motion for summary judgment and the grandfather's motion to dismiss and motion to quash service. Following the holding of Baker, the Missouri Court of Appeals, Eastern District, affirmed the trial court. This Court granted transfer.

In the Armstrong case, plaintiffs' second amended petition alleges that Mary Armstrong's vehicle stalled while she was crossing the Missouri River on the I-435 bridge in Kansas City. Mary Armstrong's unemancipated minor children, Tracy and Michael, Jr., attempted to push the car off the bridge. According to the averments, the children were struck by a van operated by Jeffrey Tiller. As a result of the collision, Tracy sustained severe injuries and Michael, Jr., died.

Tracy, by her next friend and father Michael Armstrong, filed suit in the Circuit Court of Clay County against Mary Armstrong, Jeffrey Tiller, and American Family Insurance. Michael Armstrong on his own behalf filed suit against the same defendants for the wrongful death of Michael, Jr. Appellants claim that the negligence of Mary Armstrong and Tiller combined to cause the death of Michael, Jr., and injuries to Tracy. They further claim that Tiller's van was an uninsured motor vehicle within the coverage afforded by American Family to the Armstrongs on their vehicle.

Mary Armstrong filed a motion to dismiss for failure to state a cause of action. She asserted that the parental immunity doctrine bars Tracy's negligence action and Michael's action for the wrongful death of his son. The trial court sustained the motion, citing Baker. Pursuant to Rule 74.01(b), the trial court decreed that the order granting dismissal was a final judgment and appealable and that there was no just reason for delay. The appellants appealed to the Missouri Court of Appeals, Western District. This Court granted transfer prior to opinion by the court of appeals.

II.

The first issue for decision in each case is the efficacy of the parental immunity doctrine in Missouri. Prior to 1891 no reported cases in the United States applied the doctrine. See Brennecke v. Kilpatrick, 336 S.W.2d 68, 70 (Mo. banc 1960). The first recorded application of the doctrine, a product of judicial policy making without common law basis, was in Mississippi in Hewellette v. George, 68 Miss. 703, 9 So. 885 (Miss.1891). The Hewellette court grounded its decision in the need to preserve family harmony. Hewellette, 9 So. at 887.

A Missouri court first recognized and applied the doctrine of parental immunity in Cook v. Cook, 232 Mo.App. 994, 124 S.W.2d 675 (1939), in which the Springfield Court of Appeals held that a fifteen-year-old unemancipated child could not sue her adoptive mother for assault for the reason that the child was unemancipated. Cook, 232 Mo.App. at 997, 124 S.W.2d at 677. Cook stood in conflict with Wells v. Wells, 48 S.W.2d 109 (Mo.App.1932), in which the Kansas City Court of Appeals recognized causes of action between parents and unemancipated children. Wells, 48 S.W.2d at 111. This Court resolved the conflict between Wells and Cook in 1954 in Baker v Baker, 364 Mo. 453, 263 S.W.2d 29 (1953), holding that a fifteen-month-old infant could not sue her father for negligent operation of an automobile. Baker, 364 Mo. at 458, 263 S.W.2d at 31-32. The decision was grounded in the interest in preserving family harmony.

The history of parent-child immunity in Missouri is, therefore, brief, and Baker represents the outer perimeter. In Wurth v. Wurth, 322 S.W.2d 745 (Mo. banc 1959), the Court declined to extend the rule of parental immunity to emancipated minors. Wurth, 322 S.W.2d at 747. Since Wurth, Missouri courts have continued to limit application of the doctrine. In Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo. banc 1960), this Court refused to grant immunity to the estate of a deceased parent, acknowledging that the rationale for the immunity, preservation of family harmony, expired with the parent's death. Under the same reasoning, apparently not recognizing the possibility of a harmonious family relationship in a post-dissolution setting, this Court in Fugate v. Fugate, 582 S.W.2d 663 (Mo. banc 1979), held exempt from immunity a noncustodial parent. Id. at 669. Finally, in Kendall v. Sears, Roebuck, and Co., 634 S.W.2d 176 (Mo. banc 1982), the Court held that the application of the parental immunity doctrine should be made on a case by case basis. Kendall instructs trial courts to conduct an evidentiary hearing to determine the availability of one of the recognized exceptions to the immunity doctrine as enunciated in Wurth, Brennecke, or Fugate. Kendall, 634 S.W.2d at 180. Otherwise, "parental immunity bars any action by a defendant seeking to apportion liability with one clothed in such immunity." Id. In evaluating the decisions since Baker, it becomes clear that this Court has engaged in a piecemeal abrogation of the immunity.

In further evaluation of the law of Missouri since Baker, it is important to note that the legislature has acted in at least two areas that relate to the questions presented here: (1) mandatory insurance, § 303.025, RSMo 1986, and (2) a standard by which parental conduct may be judged. § 211.185, RSMo Supp.1990. The first relates to the inappropriateness of retaining the immunity or some form of it. The second is relevant to the proper approach to adopt in the event of abrogation of the immunity. Each will be addressed, infra, in the context to which it is most closely related.

Determining whether to abrogate, retain, further modify, or carve yet additional exceptions to the doctrine requires reconsideration of the policy underpinning the immunity, which is an exception to the general rule of tort liability. In Missouri the adoption of the immunity rested primarily upon the need to "preserve and maintain the security, peace and tranquility of the home...." Baker, 364 Mo. at 456, 263 S.W.2d at 30 (quoting Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 451-52 (1950)). Once adopted, it was feared that abrogation of the doctrine would "either disrupt the tranquility of the domestic establishment or subvert parental control or discipline." Brennecke, 336 S.W.2d at 70. In Fugate this Court noted that the public policy interest in the preservation of family harmony justified maintaining the doctrine of parental immunity "in appropriate circumstances." Fugate, 582 S.W.2d at 668. 1

Re-examination of the significant interest in avoiding disruption of family harmony reveals that the interest exists in tension with the consequences of the sometimes brutal application of the doctrine, which bars an injured party's right to recover for injuries. In certain circumstances family harmony may be jeopardized by disallowing compensation for a child injured by the negligent act of a parent. As the Supreme Court of Hawaii noted in Petersen v. City and County of Honolulu, 51 Haw. 484, 462 P.2d 1007 (1969), "[w]e think that when a wrong has been committed, the harm to the family relationship has already occurred; and to prohibit reparation can hardly aid in restoring harmony." Petersen, 462 P.2d at 1009. Taken to its logical conclusion, the doctrine has the effect of causing the parent to owe a greater duty to the general public than to his or her own child.

The premise supporting application of the doctrine is also called into question when weighed against the fact that the immunity applies only to actions for negligence in which unemancipated children are involved. Missouri courts have recognized causes of action between parent and child in property matters, Fugate, 582 S.W.2d at 666, n....

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