Henderson v. Woolley, 14818

• Decision Date: 02 August 1994
• Docket Number: No. 14818,14818
• Court: Connecticut Supreme Court
• Parties: Lenae HENDERSON v. James Morely WOOLLEY.

Page 1303

644 A.2d 1303

230 Conn. 472

Lenae HENDERSON v. James Morely WOOLLEY.

No. 14818.

Supreme Court of Connecticut.

Argued May 12, 1994.

Decided Aug. 2, 1994.

Richard J. Tuneski, pro hac vice, with whom was C. George Kanabis, New London, for appellant (plaintiff).

Susan V. Tirrell, with whom was A. Paul Spinella, Hartford, for appellee (defendant).

Before CALLAHAN, BORDEN, BERDON, NORCOTT and KATZ, JJ.

BERDON, Associate Justice.

The question ¹ certified for our advice is whether the doctrine of parental immunity bars an action by a minor child against his or her parent for personal injuries arising out of sexual abuse, sexual assault or sexual exploitation. ² The question comes to this court upon our grant of certification from the United States District Court for the District of Connecticut (District Court) pursuant to General Statutes § 51-199a ³ and Practice Book § 4168. ⁴ We conclude that the parental immunity doctrine does not bar the plaintiff from asserting a cause of action for such parental misconduct.

The record certified by the District Court provides the following facts. The plaintiff, Lenae Henderson, was born on December 21 1961, and is the daughter of the defendant, James Morely Woolley. Both the plaintiff and the defendant resided in Connecticut from 1965 until 1976. The plaintiff alleges that when she was four years old, the defendant began having sexual relations with her. She further alleges that the defendant forced her to engage in sexual acts, and that he dominated her through mental and physical coercion and duress so that she would engage in those sexual acts. It is alleged by the plaintiff that the acts included digital intercourse, oral sex and, from the age of twelve, sexual intercourse. This abuse allegedly persisted until the plaintiff reached the age of fourteen. The plaintiff, who is now approximately thirty-three years old, claims that all her memories of the abuse were repressed until they were recalled during psychological therapy.

The plaintiff claims that she has sustained permanent, severe and continuing mental trauma and emotional distress as a result of the defendant's conduct. She brought an action against the defendant, who presently resides in Georgia, in the District Court seeking to recover damages from the defendant for her alleged injuries and for past and future medical expenses. The defendant claims that the doctrine of parental immunity bars any such action in tort, and that because Connecticut's long arm statute ⁵ does not extend in personam jurisdiction without prima facie evidence that a tort has been committed, the plaintiff's complaint must be dismissed. The District Court sought certification to this court because the question whether the parental immunity doctrine extends to parental sexual abuse is unresolved in Connecticut. We agree with the plaintiff that it does not.

The parental immunity doctrine was first recognized by the Mississippi Supreme Court in Hewlett v. Ragsdale, 68 Miss. 703, 9 So. 885 (1891), in which a daughter sought to sue her mother for wrongfully having confined her to an insane asylum when she was a minor. The court held that the daughter's action was barred, reasoning: "The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand." Id. at 711, 9 So. 885. In two subsequent cases, the courts extended the doctrine to bar a tort action for cruel and unusual treatment of a child by a parent; McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), overruled, Broadwell v. Holmes, 871 S.W.2d 471 (Tenn.1994); and the rape of a minor daughter by her father. Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905); see generally Dzenutis v. Dzenutis, 200 Conn. 290, 295, 512 A.2d 130 (1986). Although the Roller case involved intentional conduct, this decision, more recently, has been criticized severely by several courts; see Foldi v. Jeffries, 93 N.J. 533, 537, 461 A.2d 1145 (1983) (labeling the result absurd); Felderhoff v. Felderhoff, 473 S.W.2d 928, 930 (Tex.1971) (finding Roller and McKelvey to be primitive and now abandoned applications of the doctrine); including the Supreme Court of Washington. See Borst v. Borst, 41 Wash.2d 642, 647, 251 P.2d 149 (1952) (referring to the Roller analysis of the state of the common law as clearly erroneous). ⁶

The parental immunity doctrine was eventually adopted in varying degrees by most states. Although some states initially adopted the doctrine as an absolute bar to any action in tort by an unemancipated minor child against a parent, many states either limited parental immunity to suits alleging parental negligence or were unwilling to extend it to acts of willful, intentional or wanton parental misconduct. ⁷ In 1963, Wisconsin became the first state generally to abrogate the doctrine, ⁸ and several other states have subsequently done the same. ⁹ The American Law Institute rejected parental immunity entirely in 1977. See 4 Restatement (Second), Torts § 895G. ¹⁰ Even states that extend the doctrine to simple negligence have created exceptions for certain negligent acts. ¹¹ We have found only four states that continue to extend parental immunity to all torts. ¹²

Parental immunity was first recognized by Connecticut in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929). The plaintiff, an unemancipated minor who was injured in an automobile driven by her father, sought to sue her father for negligence. In holding that parental immunity shielded her father from liability, this court found particularly persuasive the fact that the doctrine of parental immunity had been adopted in all eleven states in which the question had arisen. The rationale for the doctrine was described by the court as follows: "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." ¹³ Id. at 84, 145 A. 753. The court reasoned that a child is generally protected from the infliction of injury by the "strong and almost universal bond of parental affection," and that in the rare instance where such is not the case, the child's recourse is to the criminal justice system and the power of the state to remove the child from the parent's home. Id. at 85, 145 A. 753.

At the outset, we note that the defendant has not cited, and our research has not revealed, any case in which this court has extended the parental immunity doctrine to bar an action alleging intentional or willful parental misconduct. In Dzenutis v. Dzenutis, supra, 200 Conn. at 295-96, 512 A.2d 130, however, we recognized by way of dicta that "[f]or intentional torts involving malicious or even criminal conduct ... [parental immunity] has now been generally repudiated." More specifically, we have never considered whether the parental immunity doctrine should be extended to bar an action by a child against his or her parent for personal injuries arising out of sexual abuse, sexual assault or sexual exploitation of the child when he or she was a minor. See Roberts v. Caton, 224 Conn. 483, 491, 619 A.2d 844 (1993) (declining to decide this issue). We are confronted, therefore, with an issue of first impression.

This court has indicated its reluctance to abandon parental immunity in regard to the performance of acts involving parental care, supervision and discretion. Dubay v. Irish, 207 Conn. 518, 527, 542 A.2d 711 (1988). In Dubay, a seventeen year old unemancipated child overdosed on prescription medications that belonged to her mother. The conservator of the child's estate brought an action charging the mother with negligence. The facts revealed that the mother had attempted to hide the medications from her daughter and had reacted in a reasonable manner once the child became ill. Id. at 520-21, 542 A.2d 711. In holding that the parental immunity doctrine barred the plaintiff's claim, we reasoned that "[c]ourts should not unnecessarily involve themselves in the day-to-day exercise of parental discretion regarding the upbringing and care of children ." ¹⁴ Id. at 527, 542 A.2d 711. Although the Restatement (Second) of Torts recommends the abrogation of parental immunity; see footnote 10; it cautions against imposing liability when the parental conduct involves acts of supervision or discretion that are necessitated by the nature of the familial relationship between the parent and the unemancipated minor child. ¹⁵

Nonetheless, Connecticut is among the states that have refused to extend the doctrine to cases of parental negligence at the parent's place of business. In Dzenutis v. Dzenutis, supra, 200 Conn. 290, 512 A.2d 130, we held that the doctrine did not bar an action for injuries sustained by an unemancipated minor that resulted from a negligent act of his parent occurring in the course of a business activity conducted by the parent away from the home. Id. at 299-300, 512 A.2d 130. We reasoned...