Schlessinger v. Schlessinger By and Through Schlessinger

• Citation: 796 P.2d 1385
• Decision Date: 10 September 1990
• Docket Number: No. 89SC401,89SC401
• Parties: Kenneth SCHLESSINGER, Petitioner, v. Nicholas SCHLESSINGER, By and Through his Next Friend and Mother, Cynthia SCHLESSINGER, Respondent.
• Court: Supreme Court of Colorado

Page 1385

796 P.2d 1385

Kenneth SCHLESSINGER, Petitioner, v. Nicholas SCHLESSINGER, By and Through his Next Friend and Mother, Cynthia SCHLESSINGER, Respondent.

No. 89SC401.

Supreme Court of Colorado En Banc.

Sept. 10, 1990.

Hall & Evans, Alan Epstein, Eugene O. Daniels, Denver, for petitioner.

The Law Firm of Chris Melonakis, Chris Melonakis, Northglenn, for respondent.

Justice QUINN delivered the Opinion of the Court.

The question in this case is whether an unemancipated minor can maintain an action against a parent for personal injuries sustained by the child in an automobile accident allegedly caused by the parent's negligent operation of the automobile. In Schlessinger v. Schlessinger, 781 P.2d 117 (Colo.App.1989), the court of appeals held that the Colorado Auto Accident Reparations Act (Auto Accident Reparations Act), §§ 10-4-701 to -723, 4A C.R.S. (1987 & 1989 Supp.), effectively abolished the parental immunity doctrine in cases in which the child is injured due to the parent's negligent operation of an automobile and that, consequently, the district court erred in dismissing the child's claim against the parent. We reverse the judgment of the court of appeals and remand the case to that court with directions to reinstate the judgment of dismissal entered by the district court.

I.

On or about October 20, 1984, a vehicle owned and operated by Kenneth Schlessinger (father or parent) collided with a vehicle owned and operated by Kimberly Beth Georgen on Colorado Highway 36. At the time of the collision Nicholas Schlessinger (child) was six years old and was riding as a passenger in his father's automobile. The child, by and through his next friend and mother, filed a complaint in the district court against the father and the other driver, Kimberly Georgen. The complaint alleged that the combined negligence of the father and Georgen caused serious bodily injury and permanent brain damage to the child. The child's claim against the father was limited to simple negligence and did not allege that the parent engaged in willful and wanton or intentional misconduct or that the accident occurred while the parent was engaged in a business or employment activity. The child, through his mother and next friend, settled the claim against Georgen, and Georgen was dismissed from the lawsuit.

The father filed a motion to dismiss the complaint on the basis of the doctrine of parental immunity. The district court dismissed the case with prejudice, ruling that under the doctrine of parental immunity " 'liability of a parent can be predicated only upon willful and wanton misconduct' " (quoting Horton v. Reaves, 186 Colo. 149, 156, 526 P.2d 304, 308 (1974)), or " 'where the injuries are inflicted by the parent in the performance of duties relating to business as distinguished from parental duties' " (quoting Trevarton v. Trevarton, 151 Colo. 418, 423, 378 P.2d 640, 643 (1963)).

The child appealed and the court of appeals reversed the judgment of dismissal. Relying on the Auto Accident Reparations Act's legislative declaration of purpose to avoid inadequate compensation to victims of automobile accidents by requiring motor vehicle owners to purchase insurance policies providing for both liability and personal injury protection benefits, and further relying on this court's decision in Meyer v. State Farm Mutual Automobile Insurance Co., 689 P.2d 585 (Colo.1984), which held that household exclusion clauses in automobile liability policies were void as contrary to the purpose of the Auto Accident Reparations Act, the court of appeals concluded that the dismissal of the child's claim on the basis of the parental immunity doctrine would be contrary to the legislative purpose underlying the statutory scheme. We granted the parent's petition for certiorari to consider whether the court of appeals correctly determined that the Auto Accident Reparations Act abrogates the parental immunity doctrine where, as here, the child's claim sounds in simple negligence and requests money damages for personal injuries allegedly caused by the parent's operation of a motor vehicle during an activity unrelated to the parent's business or employment.

II.

The parental immunity doctrine was first articulated in 1891 by the Mississippi Supreme Court in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), which involved a child's claim for false imprisonment against her mother for maliciously committing the child to an insane asylum. In refusing to recognize the child's claim, the court stated that "[t]he 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 ... for personal injuries suffered at the hands of the parent." 68 Miss. at 711, 9 So. at 887. Since that decision, courts have addressed the cognizability of a child's claim against a parent in various ways. Some courts adhere to an unqualified rule of parental immunity, e.g., Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133 (1937); Horton v. Unigard Ins. Co., 355 So.2d 154 (Fla.Dist.Ct.App.1978), cert. dismissed, 373 So.2d 459 (Fla.1979); McNeal v. Administrator of Estate of McNeal, 254 So.2d 521 (Miss.1971), while others have abolished the doctrine entirely, e.g., Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Elam v. Elam, 275 S.C. 132, 268 S.E.2d 109 (1980); Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1977). Still others have adopted exceptions to the immunity doctrine or have limited its applicability to specific situations. E.g., Cummings v. Jackson, 57 Ill.App.3d 68, 14 Ill.Dec. 848, 372 N.E.2d 1127 (1978) (parental immunity retained with respect to conduct arising out of family relationship and connected with family purpose); Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983) (parental immunity doctrine bars suit by child for parent's negligent supervision, but does not protect parent from claim of willful or wanton misconduct); Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971) (no parental immunity in conduct arising out of business activities of parent).

Courts adopting some form of parental immunity have advanced several reasons in support of the doctrine. These reasons usually include the following: the maintenance of family harmony and tranquility, see, e.g., Begley v. Kohl and Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907 (1969); the preservation of legitimate parental authority and control of the children, see, e.g., Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968); the prevention of fraudulent or collusive suits between family members, especially when the parent is covered by liability insurance, see, e.g., Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972); and the safeguarding of family assets lest they be depleted in favor of one child at the expense of other children, see, e.g., Orefice v. Albert, 237 So.2d 142 (Fla.1970).

In 1963 we adopted a rule of qualified parental immunity in our decision in Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640 (1963). At issue in that case was whether a minor child could recover damages from his father for personal injuries resulting from the father's alleged negligence in permitting a fallen tree to be dragged across his son while the father was engaged in cutting, felling, and loading trees in the course of his business or employment. Acknowledging the various reasons offered in support of the parental immunity doctrine, we rejected a rule of absolute immunity and held that when a parent causes injury to a child in the performance of business or employment duties, there is no valid reason to deny the child a remedy in tort for the parent's negligence. The rationale for the "business or employment" exception to parental immunity is that a person's business or employment activities usually are sufficiently separate and distinct from the person's role as parent and, as such, deserve no special protection under the mantle of parental immunity. See generally Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952). Moreover, in light of the fact that a child generally may assert a cognizable claim against a parent in matters pertaining to contract or property rights, H. Clark, Law of Domestic Relations, § 11.2, at 640 (2nd ed.1987); W. Prosser & R. Keeton, The Law of Torts § 122, at 904 (5th ed.1984), there seems to be little reason to preclude a child's claim against a parent for injuries arising out of occupational pursuits which are unrelated to and exist independently of the parental relationship.

We again had occasion to apply the parental immunity doctrine in Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974). In that case a young child, through a legal guardian, sued the mother in negligence for injuries suffered by the child in a fall from a bed where the child had been placed and left unattended for two and one-half hours. In upholding the trial court's dismissal of the child's claim in simple negligence against the mother, we concluded that the liability of a parent can be predicated on "willful and wanton" misconduct but not simple negligence. The reason for upholding the parental immunity doctrine in cases of simple negligence was cogently articulated by the New Jersey Supreme Court in Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145. The court there observed that although it is both the duty and the privilege of parents to determine "how the physical, moral, emotional, and intellectual growth of their children can best be promoted," the fact remains that there is no "recognized correct theory on how much freedom a parent should allow his or her children," nor is there any "one ideal 'formula' for how much supervision the child should receive at a given age." 93 N.J. at 546,...