Winn v. Gilroy, s. 120015

Citation681 P.2d 776,296 Or. 718
Decision Date17 April 1984
Docket Number120016,A23681,Nos. 120015,Nos. A23680,s. 120015,s. A23680
PartiesLori A. WINN, Personal Representative of the Estate of Heather Lee Winn, Deceased, Petitioner on Review, v. Sharon Ellen GILROY, Personal Representative of the Estate of Clarence C. Gilroy, Deceased, Defendant, Steven A. Winn, Respondent on Review. Lori A. WINN, Personal Representative of the Estate of Jennifer K. Winn, Deceased, Petitioner on Review, v. Sharon Ellen GILROY, Personal Representative of the Estate of Clarence C. Gilroy, Deceased, Defendant, Steven A. Winn, Respondent on Review. TC; CA; SC 29330.
CourtSupreme Court of Oregon

Paul J. DeMuniz, Salem, argued the cause and filed the petition for review. With him on the petition was Garrett, Seideman, Hemann, Robertson & DeMuniz, P.C., Salem.

J. Philip Parks, Salem, argued the cause and filed the response for respondent on review. With him on the response was Parks & Bauer, Salem.

Before PETERSON, C.J., LINDE, PETERSON, CAMPBELL, ROBERTS, CARSON and JONES, JJ.

LINDE, Justice.

Petitioner is the personal representative of the estates of her two minor children who died in an automobile collision while traveling in an automobile driven by their father, defendant Steven A. Winn. She commenced wrongful death actions against both drivers, alleging that each was responsible for the collision by one or more of several specifications of negligent driving, as well as "wilful" driving while intoxicated. The Court of Appeals summarized the facts alleged in the complaint as follows:

"Plaintiff, decedents' mother, and defendant Winn were husband and wife. At the time of the accident they had separated and were living apart. Decedents, ages 4 and 5, lived with their mother. On December 15, 1979, decedents were visiting their father. Plaintiff's complaints allege that defendant Winn had been drinking when he decided to take his daughters by car from Salem to Stayton and that he drove at an excessive speed, failed to keep a proper lookout and eventually lost control of his vehicle, colliding head-on with an automobile driven by defendant-decedent Gilroy. The complaints also allege that Winn was intoxicated at the time and that the two children were killed as a result of the accident."

61 Or.App. 243, 245, 656 P.2d 386 (1983) (footnote omitted). The circuit court dismissed the complaints against the father on the ground that he was immune from liability for negligence toward his children, and the Court of Appeals affirmed. We allowed the petition for review to examine the tort law applicable to a parent's liability for injuries to a child under the circumstances alleged in the complaints. We hold that under those circumstances defendant Steven A. Winn was not immune from liability and therefore reverse the Court of Appeals and remand the case to the circuit court for further proceedings.

In affirming the dismissal of the complaints, the Court of Appeals followed this court's opinions in Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964) and Cowgill, Adm'r v. Boock, Adm'r, 189 Or. 282, 218 P.2d 445 (1950), each of which also dealt with actions for damages against a father whose negligent driving allegedly caused the death of a minor child riding with him. In those cases, the only two in which this court has considered the question, the majority opinions concluded that a minor child could sue a parent for "wilful" torts, stating in dictum that a parent is immune from liability toward a minor child for injuries caused by the parent's negligence. The Court of Appeals, however, expressed its view that this broad doctrine of parental immunity might be ripe for reconsideration. Winn v. Gilroy, supra, 61 Or.App. at 245, 656 P.2d 386. In a concurring opinion, Judge Van Hoomissen reviewed the widespread criticism and rejection of the doctrine during the past 20 years and the arguments, which the majority opinion acknowledged to be "cogent," for abandoning the doctrine in its present form. 61 Or.App. at 246-253, 656 P.2d 386. For the reasons that follow, we agree with that view.

I.

The origins and history of parental immunity summarized in Judge Van Hoomissen's opinion, the reasons stated for it by the courts that invented it, and the criticism leveled against it have been set forth in many judicial opinions and scholarly articles and need not be repeated at length here. 1 For present purposes, the narrower question concerns not the early development of the doctrine in other states but its treatment in this state.

The doctrine of a general parental immunity from tort liability to unemancipated minor children did not meet an enthusiastic reception when the question first reached this court in 1950 in Cowgill, Adm'r v. Boock, Adm'r, supra. Justice Belt cited sources indicating that parental immunity apparently was not part of the common law that was adopted before statehood in 1843, having been invented by the Mississippi Supreme Court in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). 2 He described the question of immunity and its limits as one of "public policy." Cowgill, Adm'r v. Boock, Adm'r, supra, 189 Or. at 293, 218 P.2d 445. He noted the early criticism of absolute parental immunity, including a dissent of Cardozo, Andrews, and Crane, JJ., to its adoption in New York, Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551 (1928), and the qualified phrasing of the rule in other jurisdictions. 189 Or. at 296-301, 218 P.2d 445. The Cowgill court then stated its conclusion in terms addressed more to what should be excluded from parental immunity than to adoption of the general concept itself:

"After a careful consideration of the authorities, we think the general rule--so well established by the authorities--should be modified to allow an unemancipated minor child to maintain an action for damages against his parent for a wilful or malicious personal tort. The evidence in the instant action certainly shows that the decedent-father was guilty of wilful misconduct. Ordinary negligence or the doing of an unintentional wrong can not be the basis for such an action. To apply a hard and fast rule of nonliability to the facts in this case would, in our opinion, defeat justice and not subserve a sound public policy."

189 Or. at 301, 218 P.2d 445.

The announced modification sufficed to affirm the judgment for the child's estate in that case. That was the holding. Strictly speaking, the acknowledgement of "the general rule" denying parental liability for ordinary negligence or the doing of an unintentional wrong was dictum. The court might have written instead that even if parental immunity from liability for ordinary negligent acts should be held to be the law in Oregon, it would not aid the defendant in the aggravated circumstances before the court. But what the court wrote was not unconsidered dictum, and it set the stage for what followed.

The court was divided, however, on the logic and the feasibility of the modified rule. Because the difference expressed by the concurring and dissenting opinions in Cowgill remain unresolved 34 years later, we review them here. In his concurrence, Justice Rossman wrote:

"When the rule of non-parental liability is applied in instances of injury inflicted while the parent was discharging his duties as a parent, the result of no liability is just and promotes a wholesome purpose. Thus, the parent should not be held liable for chastisement which he administered as head of the household; ... Likewise, the father should not be suable by his child for an injury sustained through the disrepair of the home, even though the father was negligent...."

"Immunity is accorded the parent, not because he is a parent, but because, as a parent, he pursues a course within his household which society exacts of him and which is beneficial to the state. Society expects parents to keep the home in order, to preserve within it domestic tranquility, to see to it that the children go to school and that they deport themselves properly in the neighborhood. The parental non-liability is not granted as a reward, but as a means of enabling the parents to discharge the duties which society exacts."

Cowgill, Adm'r v. Boock, Adm'r, supra, 189 Or. at 304-305, 218 P.2d 445. Justice Rossman would make the test of immunity whether the father's allegedly tortious act was done "in his capacity as parent" or "exercising a parental function," and he would hold that the father's making a child accompany him while driving a vehicle in an intoxicated condition "was outside the scope of his parental prerogatives." 189 Or. at 307-308, 218 P.2d 445. Justice Latourette, who also concurred, added that to allow a child's action against a parent for misappropriation of the child's property but not for injury or death caused by the parent's drunken driving "would be placing 'property rights' over human rights." 189 Or. at 309, 218 P.2d 445.

The dissenters' criticism was directed at the majority's choice of "wilful misconduct" for drawing a boundary to parental immunity. Justice Lusk, with whom Justice Bailey concurred, noted that "wilful" had been held to include "wanton" or "reckless" acts and acts of "gross negligence"; and he thought that such acts would not prove that "the security, tranquility and peace of the home have already been disrupted," if that was the reason for denying parental immunity. Cowgill, Adm'r v. Boock, Adm'r, supra, 189 Or. at 309-311, 218 P.2d 445. Justice Brand, with whom Justice Bailey and Justice Lusk also concurred, thought that the majority might have rejected parental immunity entirely, but he criticized its compromise as "a nebulous middle position" which would make "court and jury flounder about in a mass of uncertainty as to the difference between simple and gross negligence and attempt to determine when a wrong, neither malicious nor intentional nor merely negligent, constitutes an actionable wilful...

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