Nocktonick v. Nocktonick, 50495

• Decision Date: 10 May 1980
• Docket Number: No. 50495,50495
• Citation: 227 Kan. 758,611 P.2d 135
• Parties: Rosanna NOCKTONICK, a minor by her guardian Wayne Matson, Plaintiff-Appellant, v. Regina NOCKTONICK, and Farmers Alliance Mutual Insurance Company, Defendant-Appellee.
• Court: Kansas Supreme Court

Page 135

611 P.2d 135

227 Kan. 758

Rosanna NOCKTONICK, a minor by her guardian Wayne Matson Plaintiff-Appellant, v. Regina NOCKTONICK, and Farmers Alliance Mutual Insurance Company, Defendant-Appellee.

No. 50495.

Supreme Court of Kansas.

May 10, 1980.

Syllabus by the Court

An unemancipated minor child may recover damages in an action brought against a parent for personal injuries caused by the negligence of the parent in the operation of a motor vehicle.

Wilburn Dillon, Jr., Topeka, argued the cause and was on the brief for appellant.

George F. Farrell, Jr., of Benfer & Farrell, Topeka, argued the cause and was on the brief for appellee.

Edward M. Boyle, Olathe, was on the brief amicus curiae for Kansas Trial Lawyers Association.

Donald Patterson and J. Steven Pigg, of Fisher, Patterson, Sayler, & Smith, Topeka, were on the brief amicus curiae for Kansas Ass'n of Defense Counsel.

PRAGER, Justice:

This is an action brought by an unemancipated minor child against her mother to recover damages for personal injuries suffered by the child as the result of an automobile collision. The plaintiff-appellant, Rosanna Nocktonick, was a minor three years of age on October 15, 1976, the date of the collision. She was a passenger in an automobile operated by her natural mother, the defendant-appellee, Regina Nocktonick. The Nocktonick vehicle collided with an automobile driven by Eleanor Milner at the intersection of two county roads in Jackson County, Kansas. The plaintiff's injuries included multiple fractures of her leg, requiring extensive hospitalization.

On August 17, 1977, Regina Nocktonick was appointed conservator of Rosanna for assertion of Rosanna's claim against Eleanor Milner. This claim was satisfied by a settlement which was approved by the court and paid by Milner's insurance company. The settlement was based upon a covenant not to sue, and reserved Rosanna's right to proceed against her mother, Regina. Regina's insurance carrier, Farmers Alliance Mutual Insurance Company, asserted a lien for the PIP benefits paid, and that sum was refunded from the settlement proceeds pursuant to court order. On October 3, 1977, Wayne Matson, Rosanna's maternal grandfather, was appointed her conservator to pursue her claim against her mother. Rosanna's petition was filed October 5, 1977, against both her mother, Regina, and Farmers Alliance Mutual Insurance Company. In her petition, Rosanna alleged her personal injuries were the result of her mother's negligence in the operation of her motor vehicle. She claimed damages in the amount of $50,000, the limit of her mother's liability insurance coverage. Farmers Alliance was later dismissed as a named party defendant. The defendant, Regina Nocktonick, then moved for summary judgment on the basis that the doctrine of parental immunity barred an action by an unemancipated minor against her parent to recover damages for negligent operation of a motor vehicle. The trial court granted summary judgment, holding that the doctrine of parental immunity should be applied in Kansas to bar such a claim. Plaintiff brought a timely appeal to this court.

This appeal requires us to consider whether an unemancipated minor may recover damages in an action against a parent for injuries allegedly caused by the negligence of the parent in the operation of an insured motor vehicle. This issue has never before been presented to an appellate court in Kansas. In Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), the doctrine of "intrafamily immunity" was referred to in the opinion at page 286 but the issue was not decided.

This court recognized the existence of interspousal tort immunity and applied it in Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952), where it was held that in this state neither spouse may maintain an action in tort for damages against the other. Here, the court is free either to adopt the doctrine of parental immunity or to reject it, without overruling any prior Kansas case law, rejecting any rule of the common law, or invalidating any Kansas statute. Stated simply, our task is to decide which rule best serves the needs of justice in Kansas in the closing years of the twentieth century.

It would be helpful at the outset to discuss generally the history of parental immunity, the justifications usually advanced for its adoption or rejection, and the exceptions to the doctrine adopted in various cases. There is a comprehensive annotation on the subject of "Liability of Parent for Injury to Unemancipated Child Caused by Parent's Negligence" in 41 A.L.R.3d 904. There the views presently followed in the various states are discussed in depth and the cases supporting each position are cited. All of the cases agree that parental immunity in tort is a creature of relatively recent American jurisprudence. The early English law is discussed at length in McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030, 1031-1050 (1930). It is clear that both the English and American cases have long permitted actions between parent and minor child in disputes involving property rights. Professor Prosser has suggested that there is no good reason to think that the English law would not permit actions for personal torts as well, subject always to the parent's privilege to enforce reasonable discipline against the child. Prosser, Law of Torts § 122 (4th ed. 1971). Prosser points out that there are decisions in Canada and Scotland holding that such an action will lie. Other legal scholars have concluded that there is nothing in the English law which precludes an action in tort by a minor who has been wronged by his parent. Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); 1 Harper & James, Law of Torts, § 8.11 (1956). Thus, the general consensus seems to be that the doctrine of parental immunity has no foundation in the English law, but originated in the United States.

The doctrine of parental immunity was judicially created in a Mississippi case, Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). In Hewlett, an unemancipated minor brought an action against her mother for the child's illegal imprisonment in an insane asylum motivated by the mother's desire to obtain the child's property. The Mississippi Supreme Court refused to entertain the daughter's claim, giving the following explanation:

"(S)o 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. 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 interest 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." P. 711, 9 So. p. 887.

The Mississippi court cited no authority in support of its holding.

The Hewlett decision was followed by McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), in which a minor was precluded from asserting a claim for damages resulting from cruel and unusual treatment at the hands of her father and stepmother. The court concluded that sound public policy supported the decision. Two years later in 1905, in Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), the Supreme Court of Washington reversed a decision in favor of an unemancipated female child who had been raped by her father. The court held that such an action between the father and daughter did not lie because of the interest that society had in preserving harmony in domestic relations. Roller was an aggravated case, and plaintiff's counsel suggested to the court that the child having been raped by her father, it would seem that the harmonious relationship had already been disrupted. The court rejected this argument stating that "if it be once established that a child has a right to sue a parent for a tort, there is no practical line of demarkation which can be drawn." P. 244, 79 P. p. 789. Hence the child was denied a remedy. Following these cases, most of the jurisdictions in the United States adopted the doctrine of parental immunity, holding that an unemancipated minor child may not maintain an action in tort against a parent to recover damages for personal injuries.

The doctrine of parental immunity has been justified on the basis of public policy. There are five policy reasons primarily relied on to support it:

(1) Disturbance of domestic harmony and tranquility;

(2) Interference with parental care, discipline, and control;

(3) Depletion of family assets in favor of the claimant at the expense of other children in the family;

(4) Possibility of inheritance by the parent of the amount recovered in damages by the child; and

(5) The danger of fraud and collusion between parent and child.

Domestic tranquility and interference with parental discipline, care and control are the policy reasons most frequently offered by courts which have approved the rule. Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968). In support of parental immunity, many courts have relied heavily upon the interspousal immunity between husband and wife, pointing out that the same public policy is applicable to parent-child relationships as to husband-wife relationships.

After the parental immunity doctrine had become well accepted, many legal scholars and judges began to criticize the doctrine on the basis that its practical effect was to produce manifest injustice in many factual situations. See for example, Prosser, § 122 at 864; 1 Harper & James, Law of Torts, § 8.11 at 650. Some of the writers point out the fact that litigation between parent and child over property rights is quite common,...