Kirchner v. Crystal

Clifford F. Brown, J.,

concurring. Death in Ohio of the parental immunity rule by our holding today is long overdue, for the exhaustive, well-founded reasons expressed in Justice Sweeney’s excellent opinion. Why intelligent Justices of this court had to wait this long to discern the justice in eliminating parental and child immunity is inexplicable. The parental and child immunity doctrines could and should have been eliminated by our court in 1982 in Karam v. Allstate Ins. Co. (1982), 70 Ohio St. 2d 227 [ 24 O.O.3d 327 ], for the detailed reasons set forth in my dissent in Karam , at 235-239. Karam recognized immunity of the defendant parent in a suit by an unemancipated child in a negligence action against the administrator of the estate of the child’s mother. Thus for two more years until our decision today some parents and children were denied due process of law and equal justice. This was an unnecessary judicial extravagance.

Although our holding today overrules the immunity of a minor child in a negligence suit by his parent, Mauk v. Mauk (1984), 12 Ohio St. 3d 156 , and overrules the immunity of a parent in a negligence suit by his minor child, Teramano v. Teramano (1966), 6 Ohio St. 2d 117 [ 35 O.O.2d 144 ], it should be noted that Karam v. Allstate Ins. Co., supra, is a judicially dead dodo just as it should be. Karam in its syllabus followed Teramano, supra. We have overruled Teramano today, thus destroying the underpinning for Karam . Also in Dorsey v. State Farm Mut. Auto. Ins. Co. (1984), 9 Ohio St. 3d 27 , in the syllabus, we expressly overruled Karam . However, the body of the opinion in Dorsey appeared not to overrule Karam without reservations or limitations. See Justice William B. Brown’s dissent, at 30, in Dorsey . Our decision today is intended to overrule Karam without any reservations or limitations, as perspicaciously urged by Justice Brown in Dorsey, supra.

Now, it is long overdue for this court when the issue arises in a future case, in continuing its enlightened path of equal justice in the quiet revolution of the law, to overrule for similar reasons the interspousal immunity rule last sanctified and glorified by this court in Bonkowsky v. Bonkowsky (1982), 69 Ohio St. 2d 152 [ 23 O.O.3d 188 ], and in Varholla v. Varholla (1978), 56 Ohio St. 2d 269 [ 10 O.O.3d 403 ]. (See dissent by Justice William B. Brown, at 271-275.) We should join the mainstream of excellent judicial thinking in most jurisdictions in the United States.