Shearer v. Shearer, 84-248

• Decision Date: 03 July 1985
• Docket Number: No. 84-248,84-248
• Citation: 480 N.E.2d 388,18 Ohio St.3d 94,18 OBR 129
• Parties: , 18 O.B.R. 129 SHEARER et al., Appellants, v. SHEARER, Appellee.
• Court: Ohio Supreme Court

Page 94

18 Ohio St.3d 94

480 N.E.2d 388, 18 O.B.R. 129

SHEARER et al., Appellants, v. SHEARER, Appellee.

No. 84-248.

Supreme Court of Ohio.

July 3, 1985.

Syllabus by the Court

1. A

child has a right of action against a parent for injuries resulting from parental negligence. (Kirchner v. Crystal [1984], 15 Ohio St.3d 326, 474 N.E.2d 275, followed.)

2. Interspousal tort immunity is abolished. (Lyons v. Lyons [1965], 2 Ohio St.2d 243, 208 N.E.2d 533 ; Varholla v. Varholla [1978], 56 Ohio St.2d 269, 383 N.E.2d 888 ; and Bonkowsky v. Bonkowsky [1982], 69 Ohio St.2d 152, 431 N.E.2d 998 , overruled.)

Appellee, Al Shearer, was involved in a motor vehicle accident in April 1980. Appellant Mary Shearer, who was pregnant at the time, was a passenger in his car. In July 1980 appellant Cynthia Shearer was born. In August 1980, Al Shearer, the father of Cynthia, married Mary Shearer.

In April 1982, Mary and Cynthia Shearer brought an action against Al Shearer alleging that as a result of his negligent operation of his car they were both injured. The suit by Cynthia was dismissed on summary judgment on the grounds of parental immunity; the suit by Mary, on the grounds of interspousal immunity. The court of appeals affirmed both dismissals.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Stewart & DeChant Co., L.P.A., and Scott E. Stewart, Cleveland, for appellants.

Meyers, Hentemann, Schneider & Rea Co., L.P.A., and Henry A. Hentemann, Cleveland, for appellee.

GREY, Justice.

This case requires us to evaluate the entire concept of intrafamilial immunity since it involves both a husband and wife suit and a parent and child suit.

Oversimply, the reasons advanced in favor of intrafamilial immunity are based on two considerations. The first is a public policy argument that the courts should not interfere with the basic social unit, the family, nor promote any rule which interferes with the harmonious conduct of the family's affairs. The second is economic, i.e., that intrafamilial suits will lead to a drain on the family finances, or fraud and collusion, or perhaps make liability insurance prohibitively expensive.

Our opinion therefore will treat the two issues of intrafamilial immunity in terms of these considerations. We will examine the public policy ramifications of parental immunity, proceed to a separate public policy examination

of interspousal immunity, and then consider both in terms of liability insurance coverage which is inextricably involved with both questions.

PARENTAL IMMUNITY

This court rejected in toto the doctrine of parental immunity in Kirchner v. Crystal (1984), 15 Ohio St.3d 326, 474 N.E.2d 275. We follow the holding in Kirchner v. Crystal, supra.

While the principal of stare decisis is necessary to an orderly and predictable system of law, the principle is not to be substituted for analyzing each case as it is presented. To follow a precedent is not to reach the same result; rather, it is to adopt the reasoning of the precedential case. To reject a precedent is not merely to reach a different result, but to find that the reasoning and principles advanced in favor of that precedent are no longer persuasive.

Thus to follow Kirchner, although only a recent case, requires us to consider the doctrine of parental immunity as thoroughly as was done in Kirchner. The Kirchner case used an historical analysis, i.e., a consideration of the history of the doctrine and the traditional arguments offered to support it.

Our analysis will be more empirical than historical, although we must consider the history of the parental immunity doctrine. Parental immunity did not exist at common law, but was created in what one writer ¹ calls "the great trilogy." In these cases, the doctrine was stated as a maxim, and the reasons advanced were an a priori analysis. A priori reasoning is deducing consequences from a principle regarded as self-evident. For example, in Roller v. Roller (1905), 37 Wash. 242, 79 P. 788, it was said that suits between parent and child will lead to family disharmony. ²

But a priori reasoning has not always been useful in legal analysis. As Justice Oliver Wendell Holmes said, "[t]he life of the law has not been logic: it has been experience." Holmes, The Common Law (1881) 1. If the doctrine of parental immunity as posited were a good and useful rule of law, we could reasonably presume that the experience of the law would empirically establish the wisdom of that doctrine.

That has not happened. On the contrary, many states that did adopt it have now rejected it. Wisconsin abrogated parental immunity in 1963 in Goller v. White (1963), 20 Wis.2d 402, 122 N.W.2d 193, the first of many states to do so over the ensuing twenty years. New York abrogated the doctrine in 1969. Gelbman v. Gelbman (1969), 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192. Pennsylvania has had no parental immunity since 1971. Falco v. Pados (1971), 444 Pa. 372, 282 A.2d 351.

If the elimination of parental immunity were a bad legal position, one would reasonably expect to find that those states were experiencing problems According to Associate Professor Gail Hollister in Parent-Child Immunity: A Doctrine in Search of Justification (1982), Fordham L.Rev. 489, at 494, footnote 39, seven states have never adopted parental immunity--Alaska, Hawaii, Kansas, North Dakota, South Dakota, Utah and Vermont. If the public policy reasons given for parental immunity are so compelling, one would presume these seven states would have suffered for failure to adopt the rule. Again there is no evidence or persuasive material that any of these states ever suffered adverse consequences for the lack of such a rule.

                with the abrogation.  A review of the literature finds no law review articles entitled "Disintegration of the Family in Wisconsin" or "Family Problems in New York Resulting from Abrogation of Parental Immunity."   Whatever might have been predicated as the result of abrogating parental immunity, experience has not borne out those predictions
                

There is no question that courts should avoid rules which can interrupt family harmony or usurp parental authority. When the parental immunity doctrine was created, it asked the question: Might not these kinds of suits cause problems for families? A priori, they might. But empirically, they have not.

It might have appeared judicious to prohibit child-parent lawsuits on public policy grounds. To continue to deny access to the courts on the grounds of "what may be," in the face of overwhelming experience to the contrary in the many other states, is nothing more than a denial of due process.

In Ohio, our Constitution requires in Section 16, Article I that:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

This kind of analysis was used in Hawkins v. United States (1958), 358 U.S. 74, at 81-82, 79 S.Ct. 136, at 140-141, 3 L.Ed.2d 125, wherein it was stated in rejecting the hoary legal concept of husband-wife testimonial privilege:

" * * * When such a rule is the product of a conceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny. Surely 'reason and experience' requires that we do more than indulge in mere assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity."

We thus reaffirm our holding in Kirchner v. Crystal, supra.

INTERSPOUSAL IMMUNITY

The doctrine of interspousal immunity has its roots in the common law, growing out of the concept that upon marriage the husband and wife ceased having independent identities and became one.

In 1874, the Ohio Legislature provided married women with the right to sue and be sued to the same extent as if unmarried. 71 Ohio Laws 47, Section 28. This statutory provision, however, was not interpreted to allow interspousal negligence suits, although similar statutes in other states were interpreted to grant this right. See, e.g., Hosko v. Hosko (1971), 385 Mich. 39, 187 N.W.2d 236; Schneider v. Schneider (1969), 110 N.H. 70, 260 A.2d 97; Stewart v. Harris (Okla.1967), 434 P.2d 902; Coffindaffer v. Coffindaffer (1978), 161 W.Va. 557, 244 S.E.2d 338.

In Leonardi v. Leonardi (1925), 21 Ohio App. 110, 153 N.E. 93, the court held that the legislature had not intended the "right to sue" statute to grant the wife the right to sue her husband without granting him the corollary right to sue her. The court sustained the dismissal of her suit on grounds that:

"To give either the husband or wife the right to sue the other for injury sustained by reason of a negligent act would strike at the very heart of the peaceable domestic relation of the husband and wife, and, further, at the happiness of the family." Id. at 116-117, 153 N.E. 93.

In 1952, this court decided Damm v. Elyria Lodge No. 465 (1952), 158 Ohio St. 107, 107 N.E.2d 337 , and rejected the unity of marriage concept. It held, at 121, 107 N.E.2d 337:

"In Ohio, the Constitution and the pertinent statutes have the effect of so modifying the common-law rule as to authorize the maintenance of the action by the plaintiff against her husband and consequently against the defendants."

But the court reverted to the old common-law immunity standard in 1965, when, in Lyons v. Lyons (1965), 2 Ohio St.2d 243, 208 N.E.2d 533 , it restricted the Damm holding to the facts of that case, a slip-and-fall suit against an unincorporated association of which the spouse was a member. The Lyons decision set forth three rationales for disallowing interspousal negligence suits: the preservation of marital harmony, the prevention of fraud and collusion, and the theory that changes in public policy should emanate from the legislature.

The Lyons holding,...