Herzfeld v. Herzfeld

• Decision Date: 15 March 2001
• Docket Number: No. SC95054.,SC95054.
• Parties: Gary HERZFELD, Petitioner, v. Frank HERZFELD, Respondent.
• Court: Florida Supreme Court

781 So.2d 1070

Gary HERZFELD, Petitioner, v. Frank HERZFELD, Respondent.

No. SC95054.

Supreme Court of Florida.

March 15, 2001.

Sharon L. Kegerreis and Mayda Prego of Hughes, Hubbard & Reed LLP, Miami, FL, for Petitioner.

David C. Rash, North Miami Beach, FL, for Respondent.

ANSTEAD, J.

We have for review the opinion in Herzfeld v. Herzfeld, 732 So.2d 1102 (Fla. 3d DCA 1999), which certified conflict with the opinion in Richards v. Richards, 599 So.2d 135 (Fla. 5th DCA 1992). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. At issue in this case is whether the public policies served by the parental immunity doctrine continue to support its valid application to claims of sexual abuse by a parent against a child. Because we find that in such cases family harmony is already substantially diminished, and the remaining relevant policy considerations are insufficient to support application of the doctrine to these circumstances, we approve the decision in Herzfeld.

PRIOR PROCEEDINGS

The intentional torts alleged here are: (1) assault and battery; (2) false imprisonment; and (3) intentional infliction of emotional distress, all based on allegations of sexual abuse. The facts underlying the alleged abuse by the parent against the child are summarized in the Third District's opinion as follows:

The plaintiff [minor child] was placed in the defendant's care as a foster child in 1988. The defendant adopted the plaintiff three years later when the plaintiff was sixteen years old. On June 5, 1997, the plaintiff filed a four count civil complaint against the defendant, alleging repeated sexual abuse. The plaintiff alleged intentional torts in counts I through III, and negligence in count IV.

The trial court granted the defendant's motion to dismiss counts I through III on the ground that intentional tort claims are barred by the parental immunity doctrine. After finding that the defendant's insurance policy [did] not cover the plaintiffs negligence claim, the trial court also found the parental immunity doctrine applicable to count IV and granted the defendant's motion for summary judgment on that count.

Herzfeld, 732 So.2d at 1103. The minor child appealed the trial court's orders granting his adoptive father's motions to dismiss and for summary judgment. In an opinion containing a comprehensive and thorough analysis authored by Judge Gersten, the Third District reversed and held that because family harmony is already destroyed in sexual abuse cases, "the parental immunity doctrine does not bar the action by the minor child against his parent for damages arising from sexual abuse." Id. Notwithstanding, the court acknowledged that its ruling was in direct conflict with Richards v. Richards, 599 So.2d 135 (Fla. 5th DCA 1992), which held that parental immunity barred a similar intentional tort suit by a child against his father predicated upon the father's alleged sexual assaults. We approve Judge Gersten's opinion and the decision of the Third District.

FAMILY MEMBERS' IMMUNITY

As noted, Judge Gersten's opinion contains a thorough analysis, and we borrow from much of that analysis here. Legal commentators note that the rule granting parents legal immunity from tort actions brought by their children does not have its origins or any long roots in the English common law, but appears, rather, to have been created by American state courts. Commentators trace the rule's origin to an opinion of the Mississippi Supreme Court decided in 1891. The case involved a young married woman, separated from her husband at the time, who sued her mother for wrongfully confining her to an insane asylum when she was a minor.¹ See Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891). In reviewing the young woman's claim, the court noted that "so long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained." Id. at 887. The court explained its rationale:

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.² The doctrine was accepted and further developed in opinions by the Supreme Courts of Tennessee and Washington, and later by other state courts. See Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), overruled in part by Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), overruled by Broadwell v. Holmes, 871 S.W.2d 471 (Tenn.1994).

In McKelvey, the Tennessee Supreme Court reasoned that allowing a minor's suit would interfere with public policy supporting discretionary parental control and discipline. See McKelvey, 77 S.W. at 664-65. In Roller, the Supreme Court of Washington emphasized its concerns that no practical line could be developed to separate meritorious claims from those based on actions properly and routinely taken by a parent against a child as part of the exercise of a broad parental discretion.³See Roller, 79 P. at 789. Other courts have added a concern of the possibility of fraud and collusion between family members and the depletion of family resources as additional rationales for the immunity doctrine.⁴ However, the concern with family integrity has remained at the core of the doctrine.

RECENT TRENDS

Although the majority of states in this country initially adopted the parental immunity doctrine in varying degrees,⁵ many have now either abrogated the doctrine completely⁶ or have established significant exceptions to its application.⁷ Those courts have reexamined and, in many instances, rejected outright the public policy rationales originally asserted in support of the doctrine. For example, in Guess v. Gulf Ins. Co., 96 N.M. 27, 627 P.2d 869, 871 (1981), the New Mexico Supreme Court concluded that family relationships are affected to a far greater extent by the misconduct of the party against whom the suit is filed than by the legal action based on that misconduct. And, in Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971), the California Supreme Court held that the policy reasons originally cited in support of the doctrine had been demonstrated to be insufficient to sustain a continued total bar to parent-child suits based upon wrongful conduct:

We think that the reasoning of those decisions [abrogating the doctrine] has totally destroyed two of the three grounds traditionally advanced in support of parental immunity: (1) disruption of family harmony and (2) fraud or collusion between family "adversaries." The third ground, the threat to parental authority and discipline, although of legitimate concern, cannot sustain a total bar to parent-child negligence suits.

Id., 92 Cal.Rptr. 288, 479 P.2d at 651; see also Shearer v. Shearer, 18 Ohio St.3d 94, 480 N.E.2d 388, 391 (1985) (stating that "[i]f the elimination of parental immunity were a bad legal position, one would reasonably expect to find that those states [that have now rejected the doctrine after initially adopting it] were experiencing problems with the abrogation ... [and] there is no evidence or persuasive material that any of these states [that never adopted the doctrine] ever suffered adverse consequences for the lack of such a rule"). Other courts have partially retreated from use of the doctrine and have held it should not apply in circumstances which include negligence claims involving accidents covered by liability insurance,⁸ or some intentional tort claims.⁹

Abrogation of the parental immunity doctrine in accident cases has been largely based on the prevalence of liability insurance. Importantly, the courts have emphasized that the domestic harmony policy concern is diminished under these circumstances because the injured child's dispute is actually with the financially responsible insurance carrier rather than with the parents. See Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282, 284 (1970) ("Where such insurance exists, the domestic tranquility argument is hollow, for in reality the sought after litigation is not between child and parent but between child and parent's insurance carrier."), overruled on other grounds by Broadbent v. Broadbent, 184 Ariz. 74, 907 P.2d 43 (1995). The courts have also noted that allowing recovery against an insurance fund would not impact family assets. See Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907, 914 (1975) (stating that "when insurance is involved,... both parties seek recovery from the insurance carrier to create a fund for the child's medical care and support without depleting the family's other assets").¹⁰ Similarly, claims that fraud would increase in such cases have been rejected either outright as no greater than concerns about fraud in any litigation, or as insufficiently demonstrated. See, e.g., Glaskox v. Glaskox, 614 So.2d 906, 912 (Miss.1992); Kirchner v. Crystal, 15 Ohio St.3d 326, 474 N.E.2d 275, 278 (1984).

CHILD SEXUAL ABUSE EXCEPTION

Notably, some courts have created specific exceptions to the parental immunity doctrine for sexual abuse cases.¹¹ See, e.g., Henderson v. Woolley, 230 Conn. 472, 644 A.2d 1303 (1994); Hurst v. Capitell, 539 So.2d 264, 266 (Ala.1989); Doe v. Holt, 332 N.C. 90, 418 S.E.2d 511 (1992); Wilson v. Wilson, 742 F.2d 1004, 1005 (6th Cir.1984). However, courts have sometimes reached different conclusions depending on whether such claims are raised in a negligence or intentional tort context.¹²

For instance, in Robinson v. Robinson, 323 Ark. 224, 914 S.W.2d 292 (1996), a child brought an intentional tort suit against...