stating that "[i]f the elimination of parental immunity were a bad legal position, one would reasonably expect to find that those states [that have now rejected the doctrine after initially adopting it] were experiencing problems with the abrogation ... [and] there is no evidence or persuasive material that any of these states [that never adopted the doctrine] ever suffered adverse consequences for the lack of such a rule"
How later courts described this case
- stating that "[i]f the elimination of parental immunity were a bad legal position, one would reasonably expect to find that those states [that have now rejected the doctrine after initially adopting it] were experiencing problems with the abrogation ... [and] there is no evidence or persuasive material that any of these states [that never adopted the doctrine] ever suffered adverse consequences for the lack of such a rule"
- doctrine extends only to negligence arising from parental care, supervision or discretion
- abrogating parental and interspousal immunity
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
concurring. Although within a period of six months we have twice declared parental immunity dead, namely, in Kirchner v. Crystal (1984), 15 Ohio St. 3d 326 , and in the Shearer case here, there are still strident judicial voices striving to resurrect and to rekindle the burned-out judicial ashes of the parental immunity doctrine. Hopefully for the good of all citizens such stridency is only a misdirected, unsuccessful expenditure of judicial energy to turn the judicial clock back to the nineteenth century or earlier.
As I stated before, and I state it again, it is inexplicable how intelligent justices of this court could wait so long to discern the justice in eliminating the parental and child immunity doctrine. Kirchner, supra, concurring opinion of Clifford F. Brown, J., at 331.
In my dissent in Karam v. Allstate Ins. Co. (1982), 70 Ohio St. 2d 227, 235 [ 24 O.O.3d 327 ], I explained the flimsy rationalization and irrelevant nonsense concerning prevention of fraud and collusion and preserving domestic harmony asserted by judges to give continuing life to the interspousal immunity doctrine in Bonkowsky v. Bonkowsky (1982), 69 Ohio St. 2d 152 [ 23 O.O.3d 188 ], and that this was reason enough to eliminate spousal immunity.
Urgency for death of the parental immunity rule was equally compelling for the same reasons. The parental immunity rule existed to pull the chestnuts out of the fire for liability insurance companies by reducing in a very small measure liability insurance benefits payable, thereby very slightly reducing liability insurance premiums for all policyholders. The rule therefore was devoid of a sense of justice. Karam, supra, at 236 . Judicial partiality and prejudice must be the basis for the former parental immunity rule because it was created and existed only in a small category of cases, actions for negligence between parent and child, but not in any other area of litigation where liability insurance does not protect the defendant. This smacks of judicial hypocrisy at its zenith. The same criticism is applicable to the spousal immunity rule. As pointed out in the majority opinion of Judge Grey in this case concerning interspousal immunity there never has been any spousal immunity in actions for intentional injury, and in actions involving property, contracts and criminal ac *103 tivity. To this listing could be added the lack of immunity in actions involving will contests, contesting interests and claims in family estates, divorces, torts excepting negligence, as well as in every other area of litigation. See dissents of Justice William B. Brown in Varholla v. Varholla (1978), 56 Ohio St. 2d 269, at 271-275 [ 10 O.O.3d 403 ], and in Bonkowsky v. Bonkowsky (1982), 69 Ohio St. 2d 152, at 156-162 [ 23 O.O.3d 188 ]. See, also, Dorsey v. State Farm, Mut. Auto. Ins. Co. (1984), 9 Ohio St. 3d 27 , concurring opinion of William B. Brown, J., at 30; Mauk v. Mauk (1984), 12 Ohio St. 3d 156 , dissenting opinion of Clifford F. Brown, J., at 160-162.