Rousey v. Rousey

• Decision Date: 23 June 1987
• Docket Number: No. 84-669.,84-669.
• Citation: 528 A.2d 416
• Parties: Smith W. ROUSEY, Next Friend of Cheryl T. Rousey, a Minor, Appellant, v. Doris S. ROUSEY, Appellee.
• Court: D.C. Court of Appeals

Page 416

528 A.2d 416

Smith W. ROUSEY, Next Friend of Cheryl T. Rousey, a Minor, Appellant, v. Doris S. ROUSEY, Appellee.

No. 84-669.

District of Columbia Court of Appeals.

Reargued en banc June 23, 1986.

Decided June 23, 1987.

Aaron M. Levine, with whom Richard S. Schrager, Washington, D.C., was on brief, for appellant.

Frank J. Martell, Washington, D.C., for appellee.

Before PRYOR, Chief Judge, and NEBEKER, MACK, NEWMAN, FERREN, BELSON, TERRY, ROGERS, and STEADMAN, Associate Judges.

TERRY, Associate Judge:

Appellee, Doris Rousey, and her eleven-year-old daughter, Cheryl Rousey, were involved in an automobile accident in the District of Columbia. Cheryl sustained injuries, and through her father, Smith Rousey, she brought suit against her mother, alleging that the accident and her injuries were a direct and proximate result of her mother's negligence. Mrs. Rousey, who was insured by Government Employees Insurance Company and represented by its counsel, filed a motion for summary judgment on the ground that parental immunity barred appellant from suing his wife on behalf of their unemancipated daughter. The court granted the motion, and Mr. Rousey appealed to this court.

A division of the court, recognizing that the doctrine of parental immunity had never been established as the law of the District of Columbia, refused to adopt it and held that appellant was not barred from maintaining this suit against appellee, his wife, on behalf of their unemancipated minor child. Rousey v. Rousey, 499 A.2d 1199 (D.C. 1985). That decision was vacated when the court decided to rehear this case en banc. Rousey v. Rousey, 507 A.2d 1046 (D.C. 1986). A majority of the court en banc now concludes, as did the division, that the parental immunity doctrine is out of date. We decline to adopt it, choosing instead to follow section 895G of the RESTATEMENT (SECOND) OF TORTS (1979), which in our view sets forth a more appropriate legal standard. We therefore reverse the trial court's order granting summary judgment to appellee.

Unlike interspousal immunity, parental immunity was unknown at common law. See Petersen v. City and County of Honolulu, 51 Hawaii 484, ___, 462 P.2d 1007, 1009 (1969). Interspousal immunity was based on the notion that husband and wife were legally one person,¹ whereas parent and child were never so regarded. Children, unlike wives, were entitled to own property and to enforce their own choses in action, including those in tort; likewise, they were liable as individuals for their own torts. See, e.g., Lamb v. Lamb, 146 N.Y. 317, 41 N.E. 26 (1895); King v. Sells, 193 Wash. 294, 75 P.2d 130 (1938); see also W. PROSSER & W. KEETON, THE LAW OF TORTS § 122, at 904 (5th ed. 1984) (hereinafter cited as PROSSER); RESTATEMENT, supra, § 895G, comment b.

The notion that a parent might be immune from liability for tortious conduct toward his or her child was not recognized in the United States until 1891, when the Supreme Court of Mississippi refused to permit a suit brought by a child against her mother, alleging that the mother had falsely imprisoned the child in an insane asylum. In ordering the suit dismissed, the court said:

[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 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.

Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891). Although the court cited no authority for this proposition, courts in all but eight other states followed Mississippi's lead and adopted some form of parental immunity. See Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 FORDHAM L. REV. 489, 494 (1981-1982).

Various reasons have been advanced in support of parental immunity, but the reason most frequently cited by the courts has been the need to preserve domestic tranquility and family unity. See, e.g., Downs v. Poulin, 216 A.2d 29, 30 (Me. 1966), overruled, Black v. Solmitz, 409 A.2d 634, 639 (Me. 1979); Luster v. Luster, 299 Mass. 480, 481, 13 N.E.2d 438, 439 (1938), overruled, Sorensen v. Sorensen, 369 Mass. 350, 352, 339 N.E.2d 907, 909 (1975). Many courts have relied heavily upon the analogy between husband and wife, despite the obvious differences between the husband-wife relationship and the parent-child relationship. Because at common law husband and wife were treated as one person, a wife generally could not sue her husband. See PROSSER, supra at 901-902. Children, however, were never treated as mere extensions of their parents; they could even sue their parents in tort to protect their property rights. See Petersen v. City and County of Honolulu, supra, 51 Hawaii at ___, 462 P.2d at 1009 (citing cases). The situation with respect to personal torts is somewhat less clear, since there are very few reported cases, but there is little reason to doubt that the common law would permit actions for personal torts as well, subject only to the parent's right to enforce reasonable discipline against the child. See PROSSER, supra at 904. Thus we find the analogy to interspousal immunity to be a faulty one, providing no real justification for immunity between parent and child. Moreover, the courts that have adopted parental immunity have never adequately explained why the immunity applies only to suits in tort and not to suits involving property or contract rights. An action to enforce property or contract rights is surely no less adversarial than an action in tort, and in theory, at least, it would present the same threat to family harmony.

Of course, the analogy to interspousal immunity and the concern with domestic tranquility have not been the sole justifications for parental immunity. The courts have also expressed concern that parental discipline and control might be compromised if children were permitted to sue their parents. See Hollister, supra, 50 FORDRAM L. REV. at 504. Others believed that an uncompensated tort contributed to peace in the family and respect for the parent. See PROSSER, supra at 905. The absurdity of this reasoning, however, becomes plain when the case involves rape, Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), or a brutal beating, Cook v. Cook, 232 Mo.App. 994, 124 S.W.2d 675 (1939); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), or when the parent-child relationship has been terminated by death before the suit was filed. Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33 (1940).

Persistent criticism of the doctrine of parental immunity eventually led to its erosion through the creation of various exceptions to it.² One court asserted that parent-child immunity "should not be tolerated at all except for very strong reasons; and it should never be extended beyond the bounds compelled by those reasons." Dunlap v. Dunlap, supra note 2, 84 N.H. at 361, 150 A. at 909. Other critics of the doctrine went even further, arguing for its complete abandonment. See, e.g., McCurdy, Torts between Parent and Child, 5 VILL.L.REV. 521, 529 (1960); McCurdy, Torts between Persons in Domestic Relation, 43 HARV.L.REV. 1030, 1079-1080 (1930); Comment, Tort Actions between Members of the Family, 26 Mo.L.REV. 152, 187-193 (1961); Comment, Parent-Child Immunity: The Case for Abolition, 6 SAN DIEGO L.REV. 286, 295-296 (1969).

The courts of the District of Columbia were not faced with the issue until 1948, in a case in which a thirteen-year-old boy brought suit against his mother for injuries he suffered in an automobile accident. The accident occurred in Maryland, however, and hence the only question before the court was whether the son had a right to bring suit under Maryland law. After stating that the issue had not been decided in the District of Columbia and that it was "neither necessary nor proper . . . to analyze the authorities, weigh the problem and announce a rule," the court concluded that decisions of the Maryland Court of Appeals "on kindred questions clearly indicate its accord with the overwhelmingly prevalent rule that public policy forbids such suits." Villaret v. Villaret, 83 U.S.App.D.C. 311, 312, 169 F.2d 677, 678 (1948).

Twenty years later a case came before Judge Holtzoff of the United States District Court for the District of Columbia in which a minor child had brought suit against her parents for injuries sustained in an automobile accident. Like the court in Villaret, Judge Holtzoff noted that the issue of parental immunity "has never been authoritatively determined in this jurisdiction." Dennis v. Walker, 284 F.Supp. 413 415 (D.D.C. 1968). The judge then examined at length the case law from many jurisdictions and decided to adopt the parental immunity doctrine, concluding that the "overwhelming weight of authority" favored such immunity because it served "to protect parental discipline, domestic felicity, and family tranquility and concord." Id. at 417. Judge Holtzoff acknowledged that personal injury actions, particularly those stemming from automobile accidents, were often defended by insurance companies, but held that this fact supported the principle of parental immunity:

The presence of liability insurance . . . may lead to fraud, or at least collusive, or at best friendly suits. A parent may encourage his minor child to bring such an action against him. This is not a far-fetched possibility. Not only is it contrary to good faith, but it also has the tendency of promoting cynicism and lack of integrity on the part of the child. The law should not encourage such activities. The parent in such a situation may be at times tempted to bring such a suit, because the judgment, if any, would have...