Sorensen v. Sorensen

• Decision Date: 29 December 1975
• Citation: 339 N.E.2d 907,369 Mass. 350
• Parties: Jessica SORENSEN v. Paul SORENSEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 907

339 N.E.2d 907

369 Mass. 350

Jessica SORENSEN

v. Paul SORENSEN.

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 18, 1975.

Decided Dec. 29, 1975.

Jerry E. Benezra, Boston (Thomas E. Cargill, Jr., Boston, with him), for plaintiff.

Walter T. Radulski, Wakefield, for defendant.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

The plaintiff, an unemancipated minor, brought this action by her mother and next friend, Linda Sorensen, to recover for personal injuries ¹ sustained by the plaintiff in a collision between an automobile operated by her father, the defendant Paul Sorensen (the father), and an automobile driven by one Marlene Norton. The plaintiff's amended declaration contained, inter alia, two counts alleging, respectively, the negligence and gross negligence of the father. After the filing of an amended answer and the plaintiff's amended replication, the trial judge allowed the defendant's motion for entry of judgment on the pleadings. ² This court on its own motion transferred the plaintiff's appeal from the Appeals Court pursuant to G.L. c. 211A, § 10(A).

This appeal requires us to consider whether an unemancipated minor may recover in an action against a parent for injuries allegedly caused by the negligence or gross negligence of the parent in the operation of an insured motor vehicle. In Luster v. Luster, 299 Mass. 480, 13 N.E.2d 438 (1938), and Oliveria v. Oliveria, 305 Mass. 297, 25 N.E.2d 766 (1940), we held that, in the circumstances of those cases, suits between parent and child for negligence were barred by public policy. The plaintiff asks that we ree xamine the principles underlying those holdings 'in light of today's 'contemporary conditions and concepts of fairness. '' She argues that such principles no longer support parental immunity in automobile negligence actions and urges that we abrogate the doctrine of parental immunity to the extent necessary to permit her action. She contends further that the undisputed existence of liability insurance coverage in the instant case should justify an exception to the general rule of parental immunity. ³ In this respect, she emphasizes that the respective ad damnums in the counts of the amended declaration relating to the father do not exceed the father's insurance coverage and asserts that, as a result, the insurance company is the true party defendant hefe. ⁴ We believe that an absolute parental immunity to actions in neglience is not consistent with contemporary conditions and is no longer required by the necessities of modern family life. Accordingly, we hold that in a tort action for negligence (a) arising from an automobile accident and (b) brought by an unemancipated minor child against a parent, the doctrine of parental immunity is abrogated to the extent of the parent's automobile liability insurance coverage. Luster and Oliveria are overruled to the extent that they are inconsistent with the result reached here.

The doctrine of parental immunity in tort is apparently a creature of relatively modern American jurisprudence. The early English common law authorities are 'meager, conflicting, and obscure.' McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030, 1059 (1930). Careful research has disclosed no early decisions involving personal injury actions between parent and child (see Luster v. Luster, 299 Mass. 480, 482, 13 N.E.2d 438 (1938); Gibson v. Gibson, 3 Cal.3d 914, 916, 92 Cal.Rptr. 288, 479 P.2d 648 (1971); Badigian v. Badigian, 9 N.Y.2d 472, 475, 215 N.Y.S.2d 35, 174 N.E.2d 718 (1961) (Fuld, J., dissenting); W. L. Prosser, Torts § 122 (4th ed. 1971)). However, the English and American common law has long permitted actions between parent and minor child for matters of contract and property. McCurdy, supra at 1057--1058. Comment, Tort Actions Between Members of the Family--Husband & Wife--Parent & Child, 26 Mo.L.Rev. 152, 180 (1961). See Petersen v. City & County of Honolulu, 51 Hawaii 484, 487, 462 P.2d 1007 (1969); Dunlap v. Dunlap, 84 N.H. 352, 353--354, 150 A. 905 (1930); Goller v. White, 20 Wis.2d 402, 410, 122 N.W.2d 193 (1963). Dean Prosser has concluded '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 . . .' (footnotes omitted). Prosser, supra at § 122. Others have put the matter more positively: 'Nothing in the English common law precluded an action by a minor who had been wronged by his parent.' Hastings v. Hastings, 33 N.J. 247, 255, 163 A.2d 147, 152 (1960) (Jacobs, J., dissenting). Accord, Hebel v. Hebel, 435 P.2d 8, 10 (Alas.1967); Badigian v. Badigian, supra; 1 F. Harper & F. James, Torts § 8.11 (1956).

The first American formulation of the doctrine of parental immunity as it is currently known was announced by the Supreme Court of Mississippi in Hewlett v. George, 68 Miss. 703, 704, 9 So. 885 (1891). In Hewlett, the plaintiff, a minor, brought an action against her mother for 'wilfully, illegally, and maliciously' securing her imprisonment in an insane asylum in order to obtain her property. Without citation to any authority, the court held that, while the relationship of parent to unemancipated minor child persisted, ⁵ such an action could not be maintained. The court reasoned 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 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.' Id. at 711, 9 So. at 887. ⁶

The Hewlett decision was followed in most American jurisdictions. Prominent among the early cases were McKelevy v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), and Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905). In McKelvey, the Supreme Court of Tennessee affirmed dismissal of a suit by a minor child against her father and stepmother for cruel and inhuman treatment. The court relied on Hewlett, 'the only case which the diligence of counsel has been able to find,' (111 Tenn. at 390, 77 S.W. at 664) and held that 'a well-settled rule controlling the relation of father and child' and 'sound public policy' supported the decision below. Id. at 393, 77 S.W. at 665. In Roller, the Supreme Court of Washington reversed a judgment in favor of an unemancipated minor child who had been raped by her father. The court held that such an action between father and daughter would not lie because of 'the interest that society has in preserving harmony in the domestic relations.' 37 Wash. at 243, 79 P. at 788. In rejecting the argument of the plaintiff's counsel that harmonious relations had already been disrupted, the court stated: 'There seems to be some reason in this argument, but it overlooks the fact that courts, in determining their jurisdiction or want of jurisdiction, rely upon certain uniform principles of law, and, 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; for the same principle which would allow the action . . . in this case, would allow an action to be brought for any other tort.' Id. at 244, 79 P. at 789. ⁷ Many of the early cases which, in partial reliance on these cases, established the rule of parental immunity in other jurisdictions are collected in Luster v. Luster, 299 Mass. 480, 480, n.*, 13 N.E.2d 438 (1938).

This court adopted the rule of parental immunity for negligence actions brought by unemancipated minor children in 1938. In the Luster case, a case of first impression in this jurisdiction, we held that an infant plaintiff could not recover damages from his father for injuries sustained when his father, acting in the course of business, 'backed his truck upon and over the plaintiff.' Id. at 481 13 N.E.2d at 439. Although we recognized that 'pure logic interposes no obstacle to such an action,' we held that, at the time, a 'practical' view of 'sound public policy' precluded maintenance of the action. Ibid. Justice Qua wrote: 'Such actions, at least when not collusive, would almost inevitably tend to the destruction of the peace and unity of family life and to the impairment of parental authority and discipline. In the continued intimate contact between parent and child through the long years of the child's minority many occasions must arise out of which claims, real or specious, could be made that the parent had been negligent in some matter of commission or omission to the injury of the child. During the minority of the child such claims, even if valid, commonly could be investigated and prosecuted only through the intervention of outsiders whose intrusions, not always disinteested, into the intimacies of family life would seek excuse and justfication on the ground that perhaps a cause of action might be unearthed for the benefit of the child. . . . We are unable to accept the theory that the family as the ultimate social unit is so far moribund that these considerations have ceased to have vitality.' Id. at 481--482, 13 N.E.2d at 439.

The court's view of the sound public policy was buttressed by the 'overwhelming weight of authority' in favor of parental immunity which had 'built up in this country.' Id. at 482, 13 N.E.2d 438. It was noted in the opinion that criticism of the majority rule was restricted to the works of some commentators and text writers, several vigorous dissents in leading cases, and the majority opinion in Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930), a case which distinguished cases supporting the majority rule. However, the court...