Winn v. Gilroy

• Decision Date: 12 January 1983
• Docket Number: No. 120016,No. 120015,120015,120016
• Citation: 61 Or.App. 243,656 P.2d 386
• Parties: Lori A. WINN, Personal Representative of the Estate of Heather Lee Winn, Deceased, Appellant, v. Sharon Ellen GILROY, Personal Representative of the Estate of Clarence C. Gilroy, Deceased, Defendant, Steven A. Winn, Respondent. Lori A. WINN, Personal Representative of the Estate of Jennifer K. Winn, Deceased, Appellant, v. Sharon Ellen GILROY, Personal Representative of the Estate of Clarence C. Gilroy, Deceased, Defendant, Steven A. Winn, Respondent. ; CA A23680,; CA A23681.
• Court: Oregon Court of Appeals

Page 386

656 P.2d 386

61 Or.App. 243

Lori A. WINN, Personal Representative of the Estate of Heather Lee Winn, Deceased, Appellant, v. Sharon Ellen GILROY, Personal Representative of the Estate

of Clarence C. Gilroy, Deceased, Defendant,

Steven A. Winn, Respondent.

Lori A. WINN, Personal Representative of the Estate of Jennifer K. Winn, Deceased, Appellant, v. Sharon Ellen GILROY, Personal Representative of the Estate

of Clarence C. Gilroy, Deceased, Defendant,

Steven A. Winn, Respondent.

No. 120015; CA A23680, No. 120016; CA A23681.

Court of Appeals of Oregon.

Argued and Submitted Sept. 20, 1982.

Decided Jan. 12, 1983.

Paul J. DeMuniz, Salem, argued the cause for appellant. With him on the brief was Garrett, Seideman, Hemann, Robertson & DeMuniz, P.C., Salem.

J. Philip Parks, Salem, argued the cause for respondent. With him on the brief was Parks & Bauer, Salem.

Before RICHARDSON, P.J., JOSEPH, C.J., and VAN HOOMISSEN, J.

RICHARDSON, Presiding Judge.

Plaintiff appeals from a trial court judgment order dismissing consolidated wrongful death actions on the ground that defendant Winn, decedents' father, was immune from liability under the parental immunity doctrine. The issue is whether the allegations of plaintiff's complaints state a cause of action. We affirm.

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. ¹

Plaintiff's amended complaints fail to state a cause of action against defendant Winn under Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964); Williamson v. McKenna 223 Or. 366, 354 P.2d 56 (1960); and Cowgill, Adm'r v. Boock, Adm'r, 189 Or. 282, 218 P.2d 445 (1950).

Plaintiff urges that we abrogate the parental immunity doctrine. Plaintiff's brief presents a cogent argument for abrogation, at least to the extent of the claims presented here. Principled obedience to the Cowgill-Chaffin rule need not prevent awareness that it may be ripe for reconsideration. The concurring opinion sets forth a comprehensive analysis of the bases of the parental immunity doctrine and makes a cogent argument for its abolition. However, we are not free to disregard controlling precedents.

Affirmed.

VAN HOOMISSEN, Judge, concurring.

I concur in the result reached by the majority under the binding precedent of Cowgill Adm'r. v. Boock Adm'r., 189 Or. 282, 218 P.2d 445 (1950), and Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964). However, at least to the extent of the claims presented here, that precedent should be reexamined.

The doctrine of parental immunity has relatively modern roots. No record exists of a decision at early English common law involving a personal tort action based on negligence between parent and child, although no authority suggests that there was a prohibition against such actions. See McCurdy, Torts Between Persons in Domestic Relations, 43 Harv L Rev 1030, 1059 (1930). In Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891), the court held that a minor child could not maintain an action against her mother for false imprisonment in an asylum. The decision was based on the court's assumption that " * * * the peace of society, * * * and the sound public policy, designed to subserve the repose of families and the best interests of society" forbid intra-family tort actions. The court cited no authority for its decision but, rather, relied on the lack of contrary authority.

In McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), the court denied a child's action against her father for allowing the child's stepmother to mistreat her. The McKelvey court said, citing Hewlett, that a common law rule denied a civil remedy in such a case. In Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), the court held that a child could not recover from her father who had raped her. Acknowledging the absurdity of claiming parental immunity as a protector of family harmony in a case that involved rape, the court nonetheless feared that allowing recovery for so heinous a tort would allow recovery for even those minor torts that arise in normal parent-child relationships. An injured child could look only to the criminal law for protection; she was not entitled to civil damages.

These three cases constitute the "Great Trilogy" on which the American rule of parent-child tort immunity is based. Comment, Tort Action Between Members of the Family--Husband & Wife--Parent & Child, 26 Mo L Rev 152, 182 (1961). Although the issue did not arise frequently, from 1930 to the early 1960s almost every jurisdiction that faced the issue of a personal tort negligently inflicted by a parent on a child embraced the doctrine. 26 Mo L Rev at 183.

Although favored by the courts, the doctrine was not without its critics. Critical examinations of the policy include Prosser, Handbook of the Law of Torts, § 122 (4th ed 1979), and 1 Harper and James, The Law of Torts, § 8.11 (1956). The dissent in Hastings v. Hastings, 33 N.J. 247, 163 A.2d 147, 151 (1960), lists 44 articles and texts written as of that date that condemned the doctrine. Numerous articles written over the past 20 years call for at least partial abrogation. ¹ Traditionally, five reasons are advanced for retaining immunity: (1) the danger of fraud or collusion between family members seeking a recovery from an insurance company; (2) the "family exchequer" theory--the depletion of family funds and the detriment to other members of the family if one member is allowed to recover from a parent; (3) analogy to the denial of a claim between husband and wife; (4) preservation of domestic tranquility and harmony; and (5) retention of traditional parental discretion in carrying out the parental duties of discipline and care. Other reasons advanced in favor of the rule include: (1) if the child dies, the parent may inherit any money the child recovers in such an action; (2) the child would otherwise be permitted to bring a "stale" action on reaching majority (based on statutes that toll the applicable statute of limitation during the minority of a plaintiff); and (3) sovereign family government demands immunity. These arguments, however, have been generally dismissed as "too unsubstantial to be considered as more than mere makeweights." Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930); Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1950).

Most of these traditional factors have little validity today, if they ever justified denying a remedy to an entire class of injured persons. As for the possibility of collusion between a parent and child to defraud an insurance company, of course the possibility exists, just as it does in every insured case. However, courts have not seen fit to deny, because of this possibility, actions between siblings, between an adult child and a parent, between two parents or between other relatives. I see no compelling reason to allow recovery in some of these cases but not against a parent in an action by a child. Other, more appropriate safeguards are available:

" * * * Every day we depend on juries and trial judges to sift evidence in order to determine the facts and arrive at proper verdicts. Experience has shown that the courts are quite adequate for this task. In litigation between parent and child, judges and juries would naturally be mindful of the relationship and would be even more on the alert for improper conduct. We further must recognize that, under provisions ordinarily included in an insurance plicy, the insurance company has the right to disclaim liability when there is lack of cooperation with the insurance company on the part of the insured. Lack of cooperation may be found in inconsistent or contradictory statements by the insured or in collusion between the injured party and the insured which results in false statements to the company." Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135, 142 (1980).

Furthermore, the child's interest in recovering far outweighs the possible threat of collusion.

"It would be a sad commentary on the law if we were to admit that the judicial processes are so ineffective that we must deny relief to a person otherwise entitled simply because in some future case a litigant may be guilty of fraud or collusion. Once that concept were accepted, then all causes of action should be abolished. Our legal system is not that ineffective." Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 106, 376 P.2d 70, 73, (1962).

The "family exchequer" theory also lacks merit when examined against the realities of modern life. Children may sue their parents in actions based on contract or property, where no insurance likely exists, without fear of depletion of family resources. If insurance exists, denial of a cause of action is a more severe drain on family resources than would be recognition of a claim for relief. If a parent is insured, no actual monetary loss will result to the family if the parent is found negligent. Without access to insurance funds, however, the family must provide from its own funds for the injured child's medical bills and other expenses. Moreover, it is less likely that an action will be brought against a member of the family who does not have liability insurance or who is not already separated from the family unit. In such cases, depletion of family funds will not result. Professor James wrote in 1948:

"Recovery by the unemancipated...