Larson v. Buschkamp

• Decision Date: 26 April 1982
• Docket Number: No. 81-610,81-610
• Court: United States Appellate Court of Illinois
• Parties: , 61 Ill.Dec. 732 Robert B. LARSON, Jr., a minor, Ronald Larson, a minor, and Russell Larson, a minor, by their mother and next friend, Plaintiffs, v. Helen A. BUSCHKAMP, Keystone Printing Service, Inc., d/b/a The Waukegan News- Sun and Robert B. Larson, Defendants, Helen A. BUSCHKAMP and Keystone Printing Service, Inc., d/b/a The Waukegan News-Sun, Counter-Plaintiffs-Appellants, v. Robert B. LARSON, Counter-Defendant-Appellee.

Page 221

435 N.E.2d 221

105 Ill.App.3d 965, 61 Ill.Dec. 732

Robert B. LARSON, Jr., a minor, Ronald Larson, a minor, and

Russell Larson, a minor, by their mother and next

friend, Plaintiffs, v. Helen A. BUSCHKAMP, Keystone Printing Service, Inc., d/b/a

The Waukegan News- Sun and Robert B. Larson, Defendants, Helen A. BUSCHKAMP and Keystone Printing Service, Inc., d/b/a The Waukegan News-Sun, Counter-Plaintiffs-Appellants, v. Robert B. LARSON, Counter-Defendant-Appellee.

No. 81-610.

Appellate Court of Illinois, Second District.

April 26, 1982.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Stanley J. Davidson and Michael F. Henrick, Chicago, for plaintiffs.

Sullivan, Smith, Hauser & Noonan, Ltd., Leo J. Sullivan, III, Waukegan, for defendants.

REINHARD, Justice:

This appeal arises from an order of the trial court dismissing a counterclaim for contribution brought by defendants Helen A. Buschkamp and Keystone Printing Service, Inc. (Keystone) against Robert B. Larson, father of the minor plaintiffs herein. Suit was brought on behalf of the minor plaintiffs by their mother against defendants Buschkamp, Keystone and Larson. Buschkamp and Keystone filed a counterclaim for contribution against Larson. Larson filed motions to dismiss both the original complaint against him and the counterclaim on the basis of the parent-child tort immunity doctrine. The trial court initially granted the motion to dismiss the complaint brought against Larson by his minor children, and after reviewing briefs and considering arguments of counsel, the trial court also dismissed the counterclaim for contribution. This interlocutory appeal pursuant to Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)) only seeks review of the dismissal of the counterclaim for contribution against Larson.

The allegations in the pleadings and the court proceedings below are briefly summarized. On August 15, 1978, Robert Larson was driving his car in a northerly direction along Milwaukee Avenue, near the intersection with Grand Avenue in Lake Villa, Lake County, Illinois. In the car, as his passengers, were his children, Robert Jr., Ronald and Russell Larson, all unemancipated minors. The Larson car collided with a car owned by Keystone and operated by its employee, Helen Buschkamp, which was traveling in a southerly direction. As a result of the collision the three Larson children were injured.

On August 15, 1980, Marie Larson, as mother and next friend of the Larson children, filed a complaint alleging a cause of action for negligence against Helen Buschkamp, Keystone and Robert Larson. The complaint alleged that both defendant drivers were guilty of the negligent operation of their respective motor vehicles.

On November 13, 1980, Buschkamp and Keystone filed a counterclaim seeking contribution from Robert Larson, plaintiffs' father. The counterclaim alleged that Larson was guilty of negligence in the operation of his motor vehicle by driving at an excessive rate of speed, failing to keep a proper lookout, failing to control his vehicle, failing to apply his brakes, failing to yield the right-of-way, failing to decrease the speed of his vehicle to avoid a collision, and otherwise being negligent and careless in his conduct. It further alleged that if judgment is entered against them and in favor of the plaintiffs, that pursuant to Ill.Rev.Stat.1979, ch. 70, par. 302(a) allowing for contribution among joint tortfeasors, they were entitled to contribution from Larson commensurate with his degree of fault found to have contributed to the occurrence.

Larson moved to dismiss the original complaint against him based on parent-child tort immunity. Larson also moved to dismiss the third-party complaint against him based on this same immunity. Larson alleged that since he is not "subject to liability in tort" (see Ill.Rev.Stat.1979, ch. 70, par. 302(a)) for a direct suit by his children, he is not "subject to liability in tort" for purposes of contribution under the statute (Ill.Rev.Stat.1979, ch. 70, par. 302(a)).

On January 21, 1981, the trial court granted the motion to dismiss Larson as a defendant in the original suit. On July 8, 1981, after reviewing briefs and hearing the arguments of counsel, the trial court granted the motion to dismiss the counterclaim for contribution. The trial court in a memorandum reasoned that since Larson was immune from suit by his children, he was not "subject to liability in tort" for purposes of the contribution among joint tortfeasors statute. (Ill.Rev.Stat.1979, ch. 70, par. 302(a).) On August 3, 1981, the July 8, 1981 order was made final and appealable, pursuant to Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)).

The sole issue to be determined on appeal is whether contribution may be sought under the pleadings here from a parent of an injured minor plaintiff where said parent's alleged negligence contributed to the injuries. This question is similar to the issue determined recently by this court in Wirth v. City of Highland Park (1981), 102 Ill.App.3d 1074, 58 Ill.Dec. 294, 430 N.E.2d 236, leave to appeal denied. In Wirth, this court held that even though Illinois provided for a statutory interspousal tort immunity (Ill.Rev.Stat.1979, ch. 40, par. 1001), contribution may be had by a third party tortfeasor against a negligent spouse. This court found that pursuant to the holdings in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, modified (1978), 70 Ill.2d 16 and Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, equity required that contribution be allowed against a joint tortfeasor spouse. (102 Ill.App.3d 1074, 1082, 58 Ill.Dec. 294, 300, 430 N.E.2d 236, 242). Many of the same equitable considerations come into play in the case at bar as in Wirth. Furthermore, we note that Wirth dealt with a statutorily created tort immunity, whereas the parent-child tort immunity doctrine was created by the courts (Foley v. Foley (1895), 61 Ill.App. 577), and the court is free to modify and amend any doctrine which it creates. (See Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill.App.3d 234, 238, 38 Ill.Dec. 652, 403 N.E.2d 1256).

The parent-child tort immunity first appeared in American case law in the Mississippi case, Hewellette v. George (1891), 68 Miss. 703, 9 So. 885. The court there held, without citation of any authority, that a parent is immune from tort actions brought by his unemancipated minor children. The court determined that to hold otherwise would be against public policy favoring peace and harmony within the family unit. (68 Miss. 703, 710, 9 So. 885, 887.) The parent-child tort immunity doctrine was eventually adopted in a majority of the States. (Ingram and Barder, The Decline of The Doctrine of Parent-Child Tort Immunity, 68 Ill. B.J. 596 (1980).) The main reasons given for adopting the parent-child tort immunity are the following: (1) preservation of parental authority and family harmony; (2) prevention of depletion of family funds; and (3) the danger of fraud and collusion. In the last fifty years, however, some courts have narrowed or abrogated the doctrine indicating an apparent trend in the direction of permitting tort actions by minor children against their parents. See Annot., 41 A.L.R.3d 904 (1972), for a comprehensive analysis of the cases dealing with the question of parental liability for injury to an unemancipated child caused by a parent's negligence, the origins of the doctrine, and its more recent development and modification.

In Illinois the parent-child tort immunity doctrine was first acknowledged by a court in Foley v. Foley (1895), 61 Ill.App. 577. The continued existence of this court created doctrine was recently recognized by the Illinois Supreme Court in Thomas v. Chicago Board of Education (1979), 77 Ill.2d 165, 32 Ill.Dec. 308, 395 N.E.2d 538 and Gerrity v. Beatty (1978), 71 Ill.2d 47, 15 Ill.Dec. 639, 373 N.E.2d 1323. However, the Illinois courts have interpreted and modified the doctrine several times. In Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525, our supreme court held that the parent-child tort immunity doctrine was justified for suits based upon mere negligence, but should not be a bar to a suit for wilful and wanton misconduct. (7 Ill.2d 608, 619, 131 N.E.2d 525, 531.) The parent-child tort immunity doctrine was also modified in Johnson v. Myers (1972), 2 Ill.App.3d 844, 277 N.E.2d 778, where this court stated that when the family relationship has been dissolved by death, there is no reason to apply the parent-child immunity. (2 Ill.App.3d 844, 846, 277 N.E.2d 778, 779.) The doctrine was also modified in Schenk v. Schenk (1968), 100 Ill.App.2d 199, 241 N.E.2d 12, where the court stated that where the facts "charged occurred during the exercise by both the father and the child of his individual rights on the public streets and with no direct connection with the family relationship * * * reason and justice require that the immunity rule should not stand as an insuperable bar to redress for injuries occasioned by the exercise of those rights." (100 Ill.App.2d 199, 206, 241 N.E.2d 12, 15.) Also found to be outside the family relationship is the duty to keep trees and shrubs trimmed so a driver has a clear view of the street and sidewalk. (Cummings v. Jackson (1978), 57 Ill.App.3d 68, 14 Ill.Dec. 848, 372 N.E.2d 1127.) Found to be within the family relationship, thus barring suit, is the parent's maintenance of carpeting on a stairway (Cosmopolitan National Bank of Chicago v. Heap (1970), 128 Ill.App.2d 165, 262 N.E.2d 826) and a family trip to determine what college one of the children wants to attend. (Eisele v. Tenuta (1980), 83 Ill.App.3d 799, 802, 38 Ill.Dec. 925, 404 N.E.2d 349.) Most recently, this court held that when a child is suing a parent for mere negligence, the complaint must specify that the injury occurred in a situation outside the scope of the...