Mauk v. Mauk, 83-1337

• Citation: 12 Ohio St.3d 156,466 N.E.2d 166
• Decision Date: 25 July 1984
• Docket Number: No. 83-1337,83-1337
• Parties: , 12 O.B.R. 226 MAUK et al., Appellants, v. MAUK, Appellee.
• Court: United States State Supreme Court of Ohio

Page 156

12 Ohio St.3d 156

466 N.E.2d 166, 12 O.B.R. 226

MAUK et al., Appellants, v. MAUK, Appellee.

No. 83-1337.

Supreme Court of Ohio.

July 25, 1984.

Piacentino & Piacentino Co., L.P.A., and C. Michael Piacentino, Marion, for appellants.

Baran & Baran Co., L.P.A., and Gregory G. Baran, Mansfield, for appellee.

PER CURIAM.

The issue presented in this case is whether an unemancipated minor child may be held liable to his parent in tort.

Although we have not previously addressed this precise question, the doctrine of parental immunity was expressly approved by this court in Teramano v. Teramano (1966), 6 Ohio St.2d 117, 216 N.E.2d 375 , paragraph one of the syllabus. Generally speaking, the rule operates to preclude an unemancipated minor child from maintaining an action in tort against his parent. Id.

Teramano was followed, and a detailed analysis of the development of parental immunity undertaken, in Karam v. Allstate Ins. Co., supra, 70 Ohio St.2d at 227-234, 436 N.E.2d 1014. Karam was subsequently overruled in Dorsey v. State Farm Mut. Auto. Ins. Co. (1984), 9 Ohio St.3d 27, 457 N.E.2d 1169, in order to establish an exception where the tort action is brought by an unemancipated minor child against the estate of a deceased parent and her liability insurance company. However, the underlying doctrine of parental immunity was otherwise retained.

A recognized corollary rule to parental immunity is that a parent may not prosecute a tort action against his unemancipated minor child. See, generally, Annotation (1958), 60 A.L.R.2d 1284, 1286-1288, Section 2. If this variation of the rule were to be applied herein, appellants' claim would be barred.

Appellants do not dispute this point but argue that the time has come to abrogate parent-child immunity in all of its applications. In support of their position, appellants maintain that this is the direction in which most jurisdictions are moving, especially in the narrower area of parental immunity.

It is true that the subject of parental immunity has been fertile ground for debate in recent years. Of those states which have considered the issue, however, few have eliminated the doctrine entirely. ¹ Many more have curtailed it by limiting its application to certain circumstances. ² Two others have replaced it with a reasonable parent standard. ³ Of the remaining states, most, including Ohio, have basically continued to adhere to the traditional rule for simple negligence torts. ⁴ Fewer cases have expressly considered the issue of a child's liability to his parent in tort. Of these, a number have concluded that the action may lie only where the child is emancipated, and have then set forth the factors constituting emancipation. See, e.g., Carricato v. Carricato (Ky.1964), 384 S.W.2d 85, 87-88; Taylor v. Taylor (1950), 360 Mo. 994, 999-1000, 232 S.W.2d 382; Fitzgerald v. Valdez (1967), 77 N.M. 769, 779, 427 P.2d 655; Gillikin v. Burbage (1965), 263 N.C. 317, 323, 139 S.E.2d 753; Detwiler v. Detwiler (1948), 162 Pa.Super. 383, 385, 57 A.2d 426; Logan v. Reaves (1962), 209 Tenn. 631, 354 S.W.2d 789.

In keeping with the movement toward abrogating or modifying parental immunity, some states have permitted such suits even against an unemancipated minor. See Tamashiro v. De Gama (1969), 51 Haw. 74, 79, 450 P.2d 998; Jagers v. Royal Indemn. Co. (La.1973), 276 So.2d 309, 313 (permitting suit against major child for tort committed during his majority); Gaudreau v. Gaudreau (1965), 106 N.H. 551, 552-553, 215 A.2d 695; Gelbman v. Gelbman (1969), 23 N.Y.2d 434, 437, 297 N.Y.S.2d 529, 245 N.E.2d 192; Ertl v. Ertl (1966), 30 Wis.2d 372, 373, 141 N.W.2d 208; Silva v. Silva (R.I.1982), 446 A.2d 1013, 1016. See, also, New Hampshire Ins. Co. v. Fahey (1982), 385 Mass. 137, 138, 430 N.E.2d 1193 (permitting insurance company, as subrogee, to collect against son for loss paid to father).

However, over time, the greater number of cases dealing with the issue of an unemancipated minor's liability to his parent in tort have come down in favor of immunity. See, e.g., Silverman v. Silverman (1958), 145 Conn. 663, 666, 145 A.2d 826; Shaker v. Shaker (1942), 129 Conn. 518, 524, 29 A.2d 765; Wright v. Farmers' Reliance Ins. Co. (Fla.App.1975), 314 So.2d 641; Meehan v. Meehan (Fla.App.1961), 133 So.2d 776, 777; Harlan Natl. Bank v. Gross (Ky.1961), 346 S.W.2d 482; Thompson v. Thompson (Ky.1954), 264 S.W.2d 667, 668; Latz v. Latz (1971), 10 Md.App. 720, 723-724, 272 A.2d 435; Schneider v. Schneider (1930), 160 Md. 18, 22, 152 A. 498; Nahas v Noble (1966), 77 N.M. 139, 142, 420 P.2d 127; Hill v. Graham (Okla.1967), 424 P.2d 35, 38; Hampton v. Clendinning (Okla.1966), 416 P.2d 617, 621; Bush v. Bush (1967), 95 N.J.Super. 368, 378-379, 231 A.2d 245; Chosney v. Konkus (1960), 64 N.J.Super. 328, 331, 165 A.2d 870; Stitzinger v. Stitzinger Lumber Co. (1958), 187 Pa.Super. 453, 455, 144 A.2d 486. We are inclined to agree with the weight of this authority, particularly under the facts of this case.

Several reasons have historically been offered in support of parental immunity. See Dorsey v. State Farm Mut. Auto. Ins. Co., supra, 9 Ohio St.3d at 28, 457 N.E.2d 1169. ⁵ Two of these have special application to the adoption of the reciprocal immunity of the unemancipated minor child. They are: (1) the preservation of the peace and harmony of the family, and (2) the prevention of fraud and collusion made possible by the widespread existence of liability insurance. ⁶ One further consideration is the notion that it is inconsistent for an individual to occupy the role of parent and guardian to a child, thereby being entrusted with the child's care, and to simultaneously pursue an action for damages against that child. Schneider v. Schneider, supra; Nahas v. Noble, supra, 77 N.M. at 140, 420 P.2d 127.

Applying these principles to the case at bar, we note that appellants not only are parents to appellee but Harry Mauk was also the driver of one of the vehicles involved in the accident, owner of the other and, presumably, the insurer of both. Under such circumstances, it is indeed doubtful as to whether the interests of the parties are truly adverse in nature. In the event they are not, the potential for fraud and collusion is unusually great. If, on the other hand, the relationship of the parties is in fact adverse as a consequence of this lawsuit, violence is done to the peace and harmony of the family unit. Either result is unacceptable.

Accordingly, for the reasons herein cited, the court of appeals did not err in finding that appellants' claim is barred by the immunity of appellee. The judgment is, therefore, affirmed.

Judgment affirmed.

FRANK D. CELEBREZZE, C.J., and LOCHER, HOLMES and JAMES P. CELEBREZZE, JJ., concur.

WILLIAM B. BROWN, SWEENEY and CLIFFORD F. BROWN, JJ., dissent.

LOCHER, Justice, concurring.

I wholeheartedly concur in the majority opinion and decision herein. As I stated in my concurrence in Bonkowsky v. Bonkowsky (1982), 69 Ohio St.2d 152, 155, 431 N.E.2d 998 : "The family is the basic social unit." We should zealously protect our greatest national treasure, the family institution. The court is correct today in not rushing to join the so-called trend towards abrogation of family immunity. The reasons supporting the doctrine are as viable today, especially under the present circumstances, as they were when Teramano v. Teramano (1966), 6 Ohio St.2d 117, 216 N.E.2d 375 , was decided. To hold otherwise would deal another blow to those fighting the glorious battle to support the family.

HOLMES, Justice, concurring.

I am able to concur in this majority opinion based upon the philosophy of my dissent in Dorsey v. State Farm Mut. Auto. Ins. Co. (1984), 9 Ohio St.3d 27, 31, 457 N.E.2d 1169, wherein I stated that the reasons for the continuance of the parental immunity doctrine pronounced recently in Karam v. Allstate Ins. Co. (1982), 70 Ohio St.2d 227, 436 N.E.2d 1014 , were equally controlling at the time of writing Dorsey, and they are equally supportive now.

WILLIAM B. BROWN, Justice, dissenting.

I dissent in the present case for the reasons which I have already articulated in my concurrence in Dorsey v. State Farm Mut. Auto. Ins. Co. (1984), 9 Ohio St.3d 27, 30, 457 N.E.2d 1169.

CLIFFORD F. BROWN, J., concurs in the foregoing dissenting opinion.

CLIFFORD F. BROWN, Justice, dissenting.

For the reasons stated in my dissent in Karam v. Allstate Ins. Co. (1982), 70 Ohio St.2d 227, at 235-239, 436 N.E.2d 1014 , the doctrine of parental immunity which precludes an unemancipated child from maintaining a negligence action against his parent should be overruled. Overruling such an unjust parental-immunity rule would nullify any need for this court to create today, in Mauk, a child-immunity rule whereby a parent is precluded from maintaining a negligence action against his unemancipated child.

Both the parental-immunity and child-immunity rules in negligence actions rest upon the same unrealistic, fictitious, mythical, absurd and nonsensical reasons that such immunity promotes family harmony by discouraging fanciful claims to the detriment of the family unit and that such "immunity prevents fraud and collusion at the expense of tactically disadvantaged insurance companies." See Varholla v. Varholla (1978), 56 Ohio St.2d 269, 270, 383 N.E.2d 888 , and Lyons v. Lyons (1965), 2 Ohio St.2d 243, 208 N.E.2d 533 , upholding the doctrine of interspousal immunity.

No amount of glorification of the family unit and bemoaning that elimination of parental immunity would "deal another blow to those fighting the glorious battle to support the family," and the false foundation upon which it rests, can justify this court's continued acceptance of this useless doctrine. See Karam, supra, 70 Ohio St.2d at 235-236, 436 N.E.2d 1014 (Clifford F. Brown, J., dissenting).

This unfounded fraud and collusion rationale was discussed with approval in Bonkowsky v. Bonkowsky (1982), 69 Ohio St.2d...