Pedigo v. Rowley

• Decision Date: 06 May 1980
• Docket Number: No. 12937,12937
• Citation: 101 Idaho 201,610 P.2d 560
• Parties: Debra Lynn PEDIGO, an infant, by Carol L. Pedigo, her Guardian ad Litem, and Richard W. Mays and Lucille Mays, husband and wife, Plaintiffs, v. George D. ROWLEY, Cindy Lee Rowley, Debbie Good, State of Idaho, and County of Kootenai, State of Idaho, Defendants. Cindy Lee ROWLEY and George D. Rowley, Third Party Plaintiffs and Appellants, v. Earl L. GARREN and Penney Garren, Third Party Defendants and Respondents.
• Court: Idaho Supreme Court

Page 560

610 P.2d 560

101 Idaho 201

Debra Lynn PEDIGO, an infant, by Carol L. Pedigo, her Guardian ad Litem, and Richard W. Mays and Lucille Mays, husband and wife, Plaintiffs, v. George D. ROWLEY, Cindy Lee Rowley, Debbie Good, State of Idaho, and County of Kootenai, State of Idaho, Defendants.

Cindy Lee ROWLEY and George D. Rowley, Third Party Plaintiffs and Appellants, v. Earl L. GARREN and Penney Garren, Third Party Defendants and Respondents.

No. 12937.

Supreme Court of Idaho.

May 6, 1980.

Samuel Eismann, Coeur d'Alene, for third party plaintiffs and appellants.

Phillip S. Oberrecht of Moffatt, Thomas, Barrett & Blanton, Boise, for third party defendants and respondents.

SHEPARD, Justice.

This is an appeal from a summary judgment in favor of third party defendants and respondents here, Garren. Debra Pedigo brought action against the Rowleys for personal injury and the Rowleys, in turn, sought to join Earl Garren, Debra's father, for contribution since he was allegedly negligent in failing to supervise properly Debra Pedigo. Garren moved for summary judgment on the theory that the doctrine of parental immunity barred any liability and the district court granted the motion for summary judgment. We affirm.

In late 1974, eleven year old Debra Pedigo was floating on an air mattress a short distance off the north shore of Lake Coeur d'Alene. She was struck by a speed boat operated by Cindy Rowley and owned by George Rowley. Pedigo sustained injuries which resulted in the amputation of one leg. Debra Pedigo had come to the lake with her father, who was sitting on the lake shore at the time of the accident. For purposes of summary judgment we assume that Earl Garren did not warn Debra Pedigo of the alleged dangers of floating on an air mattress in the lake.

The Rowleys asserted that Garren was negligent in his supervision of the activities of Debra Pedigo; Garren, therefore, was a joint tortfeasor and is, or could be, liable to the Rowleys for contribution in the event that Pedigo recovered a judgment against the Rowleys. The Garrens respond that any action by Pedigo against the Garrens was barred by the doctrine of parental immunity; hence, they could not be joint tortfeasors and no contribution could be sought from them by the Rowleys.

The doctrine of parental immunity is dispositive in this case and is a matter of first impression in Idaho. The doctrine was first articulated in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), wherein the court, citing no authority but relying exclusively on policy, declined to interject itself into the family relationship between a mother and minor daughter, stating:

"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." 9 So. at 887.

That doctrine was adopted in a majority of jurisdictions. See Annot. 19 A.L.R.2d 423 (1951) and cases cited therein; Note, The Demise of the Parent-Child Tort Immunity, 12 Willamette L.J. 605 (1976).

Thereafter, courts began carving out exceptions to the doctrine. For example, courts have refused to apply the doctrine when the child is suing the parent's estate, e. g., Dean v. Smith, 106 N.H. 314, 211 A.2d 410 (1965); Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo.1960); a parent is acting in his business capacity, e. g., Trevarton v Trevarton, 151 Colo. 418, 378 P.2d 640 (1963); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930); a wilful or malicious tort is involved, e. g., Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955); Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525 (1956); the child is an emancipated minor, e. g., Martinez v. Southern Pacific Co., 45 Cal.2d 244, 288 P.2d 868 (1955); or the dispute is contractual, e. g., Robertson v. Robertson, 229 So.2d 642 (Fla.App.1969).

Reasons that have traditionally been given as basis for the parental immunity doctrine have included: (1) the disruption of family tranquility and subsequent impairment of the foundations of American society, see, e. g., Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907 (1969); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968); Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972); (2) the threat to parental discipline and control, see, e. g., Begley v. Kohl & Madden Printing Ink Co., supra ; Barlow v. Iblings, supra ; Skinner v. Whitley, supra ; (3) the proliferation of fraudulent and collusive suits between family adversaries, see, e. g., Skinner v. Whitley, supra ; and (4) the depletion of the family exchequer, see, e. g., Orefice v. Albert, 237 So.2d 142 (Fla.1970); Skinner v. Whitley, supra. See also J. Dooley, Modern Tort Law § 13.01 (1977); McCurdy, Torts Between Parent and Child, 5 Vill.L.Rev. 521 (1960); Note, Parental Immunity : California's Answer, 8 Idaho L.Rev. 179 (1971); Note, The Demise of Parent-Child Tort Immunity, 12 Willamette L.J. 605 (1976).

These policy arguments, however, have been rebutted by other courts. For example, some courts believe that the public interest in protecting society's members from losses caused by another's negligence outweighs the possibility of family discord. See, e. g., Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (Ariz.1970). Additionally, the prevalence of insurance shifts the controversy to a third party, thereby avoiding family conflict. E. g., Streenz v. Streenz, supra ; Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (N.Y.1969). Regarding the fraud or collusion argument, its mere possibility is too tenuous to serve as a basis to bar all parent-child tort suits. E. g., Williams v. Williams, 369 A.2d 669 (Del.1976). As in any other tort action, judges and juries can be relied upon to ferret out fraudulent and collusive claims. Streenz v. Streenz, supra ; Williams v. Williams, supra ; Gelbman v. Gelbman, supra. It is also argued that the impact of the lawsuit on the family exchequer is diminished, if not completely eliminated, by the presence of insurance. Hebel v. Hebel, 435 P.2d 8 (Alaska 1967). Even if the family exchequer argument is valid, it nevertheless ignores the question of compensation for the injuries of the child. See, e. g., Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966). Finally, some courts have noted that their previous elimination of interspousal immunity destroys the validity of arguments against parent-child immunity. Hebel v. Hebel, supra ; Gibson v. Gibson, 3 Cal.3d 914, 479 P.2d 648 (1971); France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970); see Rogers v. Yellowstone Park Co., 97 Idaho 14, 23, 539 P.2d 566, 575 (1975) (Shepard, J., dissenting).

Courts that have recently addressed this issue have dealt with parental immunity in one of four different ways. First, Wisconsin eliminated the doctrine except in two situations. Second, California replaced parental immunity with a reasonable parent standard. Other courts have eliminated the doctrine completely. Finally, some jurisdictions still retain parental immunity.

Wisconsin was the first jurisdiction to abrogate the parental immunity doctrine. Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963). Wisconsin, however, retained parental immunity in the narrowly defined situations when the alleged negligence involved parental authority or parental discretion regarding "food, clothing, housing, medical and dental services, and other care." Id. at 198. A later Wisconsin case has made it clear that other "care" does not encompass ordinary discretion in day-to-day affairs. Thoreson v. Milwaukee & Suburban Transp. Co., 56 Wis.2d 231, 201 N.W.2d 745 (1972). According to this view, in order to be immune from suit a parent must show that the alleged negligence falls within one of the two exempt categories. That requirement may lead to arbitrary distinctions. See Gibson v. Gibson, supra ; compare Lemmen v. Servais, 39 Wis.2d 75, 158 N.W.2d 341 (1968) (failure to warn a child to watch for traffic was within parental discretion and immune under Goller ) with Cole v. Sears, Roebuck & Co., 47 Wis.2d 629, 177 N.W.2d 866 (Wis.1970) (allowing a two year old child to play on a swing set was not within the Goller immunity).

Other jurisdictions have followed the Wisconsin rationale. See, e. g., Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1971); Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972); Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968); Gross v. Sears, Roebuck & Co., 158 N.J.Super. 442, 386 A.2d 442 (1978). Illinois has also limited the application of the doctrine of parental immunity, but rather than enumerating the exceptions as Wisconsin did in Goller v. White, supra, Illinois looks to whether the conduct arises out of the family relationship and is directly connected with family purposes. If so, the parent continues to be immune. Cummings v. Jackson, 57 Ill.App.3d 68, 14 Ill.Dec. 848, 372 N.E.2d 1127 (1978); Schenk v. Schenk, 100 Ill.App.2d 199, 241 N.E.2d 12 (1968).

The California Supreme Court, however, rejected the Wisconsin approach, because it would theoretically allow a parent an unequivocal right to act negligently toward a child in certain specified instances. Instead, California requires a parent to act as a reasonable parent regardless of the type of conduct involved. Gibson v. Gibson, supra. The California approach assumes that a common set of standards independent of already existing criminal sanctions applies to all parent-child relationships. The reasonable parent standard, however, has been criticized because of the impossibility of applying a uniform standard across economic, educational, cultural, religious and...