Newman v. Cole

• Citation: 872 So.2d 138
• Parties: Anna Belle NEWMAN, as personal representative of the estate of Clinton Patterson Cole, a minor, deceased v. John COLE and Tara Cole.
• Decision Date: 18 July 2003
• Court: Supreme Court of Alabama

872 So.2d 138

Anna Belle NEWMAN, as personal representative of the estate of Clinton Patterson Cole, a minor, deceased v. John COLE and Tara Cole.

1012110.

Supreme Court of Alabama.

July 18, 2003.

Dennis R. Weaver and Page Stanley Ellis of Cory, Watson, Crowder & DeGaris, Birmingham, for appellant.

Craig W. Goolsby and Jeremy P. Taylor of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Daphne, for appellees.

Rhonda Pitts Chambers of Taylor & Taylor, Birmingham, for amicus curiae National Crime Victim Bar Association, in support of the appellant.

Leigh King Forstman of Pittman, Hooks, Dutton, Kirby & Hellums, P.C., Birmingham; and David G. Wirtes and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for amicus curiae Alabama Trial Lawyers Association, in support of the appellant.

PER CURIAM.

In this wrongful-death action, Anna Belle Newman, the personal representative of the estate of the decedent, Clinton Patterson Cole ("Clinton"), sued Clinton's father, John Cole, and his stepmother, Tara Cole (sometimes referred to hereinafter collectively as "the Coles"), for allegedly causing Clinton's death. Newman's complaint asserted claims of negligence, wantonness, and willful and intentional conduct.

The Coles moved to dismiss the complaint based on the doctrine of parental immunity. That doctrine was judicially created in the case of Hewellette v. George, 68 Miss. 703, 9 So. 885 (Miss.1891), abrogated by Glaskox v. Glaskox, 614 So.2d 906 (Miss.1992), and was adopted by the this Court in Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133 (Ala. 1937). The present form of the doctrine in this State was most recently discussed by the Court of Civil Appeals:

"Under Alabama law, `[t]he parental immunity doctrine prohibits all civil suits brought by unemancipated minor children against their parents for the torts of their parents.' Mitchell v. Davis, 598 So.2d 801, 803 (Ala.1992). Only one exception to this rule has emerged—when a child alleges sexual abuse by a parent, the parental immunity doctrine will not bar an action against the parent, although proof of the alleged conduct must be tested under a `clear and convincing' standard. Hurst v. Capitell, 539 So.2d 264, 266 (Ala.1989)."

Hinson v. Holt, 776 So.2d 804, 811 (Ala. Civ.App.1998). On July 3, 2002, the trial court granted the Coles' motion to dismiss the complaint. Newman appealed, arguing that this Court should abolish the doctrine, or, in the alternative, craft an exception to the doctrine that encompasses the facts alleged in this case.

I. Facts

Clinton was 16 years old at the time of his death, which occurred during an altercation with his father over Clinton's failure to perform household chores; Newman asserts that the altercation ended with the father's striking Clinton repeatedly in the chest and then holding him on the ground in a "choke hold" while Tara Cole sprayed him in the face with water from a garden hose. The father held Clinton on the ground for approximately 20 minutes; he let go of Clinton when a police officer arrived. Clinton was unconscious, and he was taken to a local hospital; he died the next day.

II. The Legal Issue

Although the facts in this case are tragic and compelling, the legal issue is clear-cut: Whether this Court should abolish the doctrine of parental immunity, or to what extent, if any, it should modify the application of the doctrine in light of the circumstances of this case. We hold that a further exception to the doctrine should be recognized where it is shown by clear and convincing evidence that a parent's willful and intentional injury caused the death of his or her child.

Newman asserts that Alabama is the last state not to have entirely abrogated or significantly modified the doctrine. Newman's argument, supported by the briefs of amici curiae National Crime Victims Bar Association and Alabama Trial Lawyers Association, asserts that to apply the parental-immunity doctrine in the circumstances of this case is fundamentally unjust and contrary to long-settled principles of tort law. Newman and the amici support their argument by noting the large number of other states that have abrogated, or significantly modified, the doctrine.¹ Newman argues that this Court should abrogate the doctrine entirely, or, alternatively, either craft an exception to the doctrine in the case of a parent who intentionally or willfully and wantonly injures his or her child, or craft an exception for a wrongful-death action in which a parent is accused of causing a child's death. Newman and the amici assert, without significant rebuttal from the Coles, that Alabama's application of the doctrine is the strictest imposition of parental immunity against minors in the United States.

The Coles, on the other hand, argue that the Legislature is the entity that should make any changes to the settled doctrine of parental immunity, and that abrogation of the doctrine would adversely impact families and give rise to unwarranted lawsuits by unemancipated minors against their parents.

Thus, the parties' arguments offer the Court three options: (1) we might simply decline to interfere with the doctrine, (2) we might abrogate the doctrine entirely, or (3) we might craft an exception to the doctrine, as we did in Hurst v. Capitell, 539 So.2d 264 (Ala.1989), to fit the circumstances of this case.

We discussed the history of the doctrine in this State, and the rationale for crafting an exception, in Hurst:

"The parental immunity doctrine had its genesis in the United States in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), abrogated by Glaskox v. Glaskox, 614 So.2d 906 (Miss.1992), in which a minor daughter was precluded from suing her deceased mother's estate for damages resulting from mental suffering and injury to her character incurred during her confinement in an asylum for 11 days caused by her mother. The court gave this reason for its holding:

"`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 wrongdoing, and this is all the child can be heard to demand.'

"68 Miss. at 711, 9 So. at 887.

"The parental immunity doctrine was not based upon English common law, statutes, or previous cases; rather, it was judicially created by the Mississippi Supreme Court. In fact, even the Hewellette opinion recognized the limitation on the application of parental immunity to those cases involving unemancipated children:

"`If ... the relation of parent and child had been finally dissolved, insofar as that relationship imposed the duty upon the parent to protect and care for and control, and the child to aid and comfort and obey, then it may be the child could successfully maintain an action against the parent for personal injuries. But 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., 68 Miss. at 711, 9 So. at 887. (Emphasis added [in Hurst].)

"The first Alabama case addressing the issue of parental immunity, Owens v. Auto Mut. Indemnity Co., 235 Ala. 9, 177 So. 133 (1937), quoted from a New Hampshire case that states a similar reason for the rule:

"`It is declared in Lloyd Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 [1930] that the "`disability of a child to sue the parent for an injury negligently inflicted by the latter upon the former while a minor is not absolute, but is imposed for the protection of family control and harmony, and exists only where the suit, or the prospect of a suit, might disturb the family relations.'"' "235 Ala. at 10, 177 So. at 134. (Emphasis added [in Hurst].)

"We reaffirmed the doctrine in Hill v. Giordano, 447 So.2d 164 (Ala.1984) (Jones, J., dissenting), based on the authority of Owens, supra, and held that `any modification or abolition of the parental immunity doctrine should be left to the prerogative of the legislature.' 447 So.2d at 164. However, we also stated three months later in Lloyd v. Service Corporation of Alabama, Inc., 453 So.2d 735 (Ala.1984):

"`While the preferred method for modification of a rule of law is by legislative action, it is clearly within the power of the judiciary, and, at times, appropriate for the judiciary, to change an established rule of law....

"`... [W]here a judicial creation has become outmoded or unjust in application, it is more often appropriate for the judicial body to act to modify the law.'

"(Emphasis added [in Hurst].)

"Because the doctrine was judicially created, it is not exclusively a legislative issue and it may be judicially qualified. Since our decision in Hill to defer to the Legislature on this issue, the Legislature has declined to act in regard to the doctrine, while the incidents of sexual abuse involving children have continued to occur. To leave children who are victims of such wrongful, intentional, heinous acts without a right to redress those wrongs in a civil action is unconscionable, especially where the harm to the family fabric has already occurred through that abuse. Because we see no reason to adhere to the doctrine of parental immunity when the purpose for that immunity is no longer served, as in Melissa's case, we are today creating an exception to the doctrine, limited to sexual abuse cases only.

"In creating this exception for sexual abuse cases, we believe it is unnecessary to spell out a separate body of procedural and substantive rules to govern such cases. Traditional rules of tort law relating to intentional infliction of personal injury are generally sufficient

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