Turner v. Turner, No. 64320

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMcCORMICK; All Justices concur except LeGRAND, ALLBEE and McGIVERIN, JJ., who dissent and LARSON; LeGRAND
Citation304 N.W.2d 786
PartiesRick TURNER and Rob Turner, Minor Children, by Bonnie Turner Flynn, Their Mother and Next Friend, and Bonnie Turner Flynn, Appellants, v. Robert Gordon TURNER, Appellee.
Decision Date15 April 1981
Docket NumberNo. 64320

Page 786

304 N.W.2d 786
Rick TURNER and Rob Turner, Minor Children, by Bonnie Turner Flynn, Their Mother and Next Friend, and Bonnie Turner Flynn, Appellants,
v.
Robert Gordon TURNER, Appellee.
No. 64320.
Supreme Court of Iowa.
April 15, 1981.

J. C. Salvo and Richard Schenck of Hines, Sawin, Lewis, Salvo & Deren, Harlan, for appellants.

Robert J. Laubenthal of Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.

Considered en banc.

McCORMICK, Justice.

In Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968), this court made an exception to the common law right of unemancipated minor children to sue their parents. The court held that such minors could not sue their parents for negligence torts. In the present case, plaintiffs Rick and Rob Turner sued their father, defendant Robert Turner, for damages which they alleged they sustained in an automobile accident caused by their father's negligence. We granted interlocutory review of a trial court holding that the action is precluded by Barlow. Upon reexamination of the parental immunity doctrine, we now abrogate the absolute ban on negligence suits imposed in Barlow. Because we hold that the present action may be maintained, we reverse the trial court and remand the case for further proceedings.

Plaintiff Bonnie Turner Flynn is the mother of the minor plaintiffs. She is divorced from defendant and has custody of the children. The petition alleges that the children were passengers in a motor vehicle driven by defendant on September 11, 1977. Plaintiffs aver that defendant drove the vehicle negligently, recklessly and while intoxicated causing it to overturn. The children seek damages for their resulting injuries, and the mother seeks damages in her own right under Iowa R.Civ.P. 8. The mother's claim is not involved in this appeal. In answering the children's claim, defendant asserted the doctrine of parental immunity as an affirmative defense. When plaintiffs petitioned for an adjudication of law points on the merits of that defense, the trial court held the immunity barred the children's action. The only question in the children's appeal is whether that ruling is correct. In turn, the correctness of the

Page 787

ruling depends on the present viability of the Barlow rule.

When a rule is of judicial origin, it is subject to judicial change. Kersten Co., Inc. v. Department of Social Services, 207 N.W.2d 117, 118 (Iowa 1973). We have exercised our prerogative to abrogate other court-created immunities. See Shook v. Crabb, 281 N.W.2d 616, 620 (Iowa 1979) (abolishing interspousal immunity); Kersten, 207 N.W.2d at 122 (abolishing governmental immunity in contract cases); Haynes v. Presbyterian Hospital Association, 241 Iowa 1269, 1274, 45 N.W.2d 151, 154 (1950) (abolishing immunity of charitable institutions). The common thread running through these decisions is our responsibility to reconsider court-made rules when their continued validity is questionable. Our recent decision in Shook, abolishing interspousal immunity, has raised a serious question concerning the absolute immunity of parents to negligence suits by their unemancipated minor children.

The Barlow court recited seven reasons which had been articulated by courts in other jurisdictions in support of parent-child immunity:

(1) danger of fraud, (2) possibility of succession, (3) family exchequer, (4) analogy to denial of cause of action between husband and wife, (5) domestic tranquility, (6) domestic government, and (7) parental discipline and control.

261 Iowa at 716, 156 N.W.2d at 107. After reviewing these reasons, the court concluded: "Domestic tranquility, proper parental discipline and control, family unity, and social responsibility are ample grounds to sustain the policy and the doctrine." Id. at 718, 156 N.W.2d at 107-08 (emphasis in original).

Courts which have rejected the doctrine in whole or in part have found that the reasons advanced for retaining it are outweighed by countervailing reasons for giving children the same right of legal redress for injuries as others enjoy. See, e. g., Lee v. Comer, 224 S.E.2d 721, 722 (W.Va.1976). These courts recognize that to the extent the immunity is abrogated it does not create a new liability. Instead it merely removes a judicially imposed procedural barrier to recovery. See, e. g., Gelbman v. Gelbman, 23 N.Y.2d 434, 439, 245 N.E.2d 192, 194, 297 N.Y.S.2d 529, 532 (1969).

When we rejected the interspousal immunity doctrine, we rejected the arguments concerning the danger of fraud and the threat to domestic tranquility which are asserted in support of parent-child immunity. Shook, 281 N.W.2d at 619-20. We reject those arguments on the same basis in the present context. Contentions concerning the possibility of parental succession to the minor's recovery and the assumption that the "family exchequer" will be so depleted by the minor's recovery that other children will suffer are also without sufficient merit to support retention of the doctrine. These considerations have not been adequate to defeat children's rights to sue parents in contract and property cases. They have no greater force as justifications for denial of tort recovery. See, e. g., Goller v. White, 20 Wis.2d 402, 410, 122 N.W.2d 193, 197 (1963).

Furthermore, proponents of the doctrine can no longer rely on the analogy to interspousal immunity. Because interspousal immunity has been abolished, the analogy to interspousal rights now supports abrogation of parent-child immunity.

Forceful arguments have been advanced for retaining the doctrine based on the "domestic government" and "parental discipline and control" concepts. They have been countered by arguments that even a parent should not be able to injure children negligently with impunity and that the court system provides a reliable mechanism for screening out unmeritorious claims. Concern for supervisory prerogatives of parents and the possibility of bizarre claims has not been sufficient in most jurisdictions to justify retaining absolute immunity. Instead courts with such concern have delineated parental supervision and discretion exceptions to its abolition or have imposed other limitations on its abrogation. Compare Goller, 20 Wis.2d at 413, 122 N.W.2d at

Page 788

198 (exceptions for negligent supervision and ordinary parental discretion), with Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891, 893 (1980) (any exceptions will be determined on a case-by-case basis). One court which once recognized the Goller exceptions has recently abandoned them. See Anderson v. Stream, 295 N.W.2d 595 (Minn.1980). The American Law Institute supports general abrogation of the doctrine with some limitation:

(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.

(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.

Restatement (Second) of Torts § 895 G (1979).

When Barlow was decided, the court found only one jurisdiction, New Hampshire, which had completely abrogated the family immunity doctrine. Two jurisdictions, Minnesota and Wisconsin, had abolished it in part, retaining the Goller exceptions. See 261 Iowa at 721, 156 N.W.2d at 112. Now, however, we find twenty-seven jurisdictions which, on various grounds, reject the doctrine at least in circumstances like those in the present case. 1 We are persuaded by the reasoning in the cases and experience in these jurisdictions that the absolute parental immunity doctrine should be abrogated. We endorse the statement and vindicate the prediction of the dissenting justices in Barlow :

We should strive to make justice...

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40 practice notes
  • Rousey v. Rousey, No. 84-669.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • June 23, 1987
    ...550 (1985); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); Unah v. Martin, 676 P.2d 1366 (Okla. 1984). 6. Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.App. 1970); Black v. Solmitz 409 A.2d 634 (Me. 1979); Plumley v. Klein, 388 Mich. 1, 199 ......
  • Dubay v. Irish, No. 13239
    • United States
    • Supreme Court of Connecticut
    • May 17, 1988
    ...201, 205, 610 P.2d 560 (1980); Cosmopolitan National Bank v. Heap, 128 Ill.App.2d 165, 169-70, 262 N.E.2d 826 (1970); Turner v. Turner, 304 N.W.2d 786, 788-89 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 769-70, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921, 923 (Ky.1971); B......
  • Warren v. Warren, No. 4
    • United States
    • Court of Appeals of Maryland
    • September 1, 1994
    ...torts to extent of insurance); Cates v. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 619 N.E.2d 715 (1993) (motor torts); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981) (total abrogation except when parental discretion/authority involved); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980)......
  • Szollosy v. Hyatt Corp., No. CIV.A.3:99 CV 870CFD.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 26, 2005
    ...in part, 414 So.2d 1066 (Fla.1982); Larson v. Buschkamp, 105 Ill.App.3d 965, 61 Ill.Dec. 732, 435 N.E.2d 221 (1982); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1970); Black v. Solmitz, 409 A......
  • Request a trial to view additional results
40 cases
  • Rousey v. Rousey, No. 84-669.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • June 23, 1987
    ...550 (1985); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); Unah v. Martin, 676 P.2d 1366 (Okla. 1984). 6. Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.App. 1970); Black v. Solmitz 409 A.2d 634 (Me. 1979); Plumley v. Klein, 388 Mich. 1, 199 ......
  • Dubay v. Irish, No. 13239
    • United States
    • Supreme Court of Connecticut
    • May 17, 1988
    ...201, 205, 610 P.2d 560 (1980); Cosmopolitan National Bank v. Heap, 128 Ill.App.2d 165, 169-70, 262 N.E.2d 826 (1970); Turner v. Turner, 304 N.W.2d 786, 788-89 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 769-70, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921, 923 (Ky.1971); B......
  • Warren v. Warren, No. 4
    • United States
    • Court of Appeals of Maryland
    • September 1, 1994
    ...torts to extent of insurance); Cates v. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 619 N.E.2d 715 (1993) (motor torts); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981) (total abrogation except when parental discretion/authority involved); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980)......
  • Szollosy v. Hyatt Corp., No. CIV.A.3:99 CV 870CFD.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 26, 2005
    ...in part, 414 So.2d 1066 (Fla.1982); Larson v. Buschkamp, 105 Ill.App.3d 965, 61 Ill.Dec. 732, 435 N.E.2d 221 (1982); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1970); Black v. Solmitz, 409 A......
  • Request a trial to view additional results

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