Ascuitto v. Farricielli

BERDON, J.,

dissenting. The majority continues to justify the doctrine of parental immunity based upon the rationale that it is necessary for “the preservation of family harmony and the protection of the parent-child relationship.” The implausibility of this rationale is demonstrated when it is considered with respect to other litigation between parents and children that is not barred. As Professors Fowler Harper, Fleming James and Oscar Gray point out in their treatise on torts, “[ajctions both at law and in equity have always been maintained between parent and child respecting the child’s property rights, and courts have not hesitated to apply the usual principles merely because the parties *712 were in domestic relation.” 1 2 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 8.11, p. 572. Similarly, the law in this state permits actions in tort between parents and children when the injury arises out of the negligent operation of a motor vehicle, aircraft or vessel, and when the injury occurs at a place of business. Nevertheless, the majority would have us believe that in the interests of family harmony, other tort litigation between parents and children must be barred.

“The speculative theory of family disruption upon which the doctrine of parental immunity is largely based has been criticized and rejected by legal scholars without exception.” Falco v. Pados, 444 Pa. 372, 379-80 , 282 A.2d 351 (1971). “[O]ne state after another [has] reexamined and rejected broad parental immunity from liability for negligence, finding that the doctrine could not logically be supported by any reason that had been advanced for it.” Winn v. Gilroy, 296 Or. 718, 726 , 681 P.2d 776 (1984). Although all litigation between family members carries with it the risk of some disruption to family harmony, it is the wrongful infliction of the injury that constitutes the primary disruption to that harmony. Falco v. Pados, supra, 380. Exceptions to the general principle of liability for wrongdoing and the public policy favoring redress for injuries wrongly inflicted bear *713 a heavy burden of justification. The risk of any further disruption to family harmony beyond that already occasioned by the wrong cannot justify the decision to deprive individuals of a legitimate cause of action and redress for their injuries. 2

The preservation of family harmony theory is particularly vulnerable when the injury is of a sort likely to be covered by insurance. The commentary to the Restatement (Second) of Torts points out that in negligence actions the risk of family discord is diminished by the fact that an adverse judgment typically will be satisfied by an insurance carrier, while in other kinds of actions an award generally must be paid by the defendant personally. See 4 Restatement (Second), Torts § 895G, comment (c) (1979); 2 F. Harper, F. James & O. Gray, supra, § 8.11, p. 576. This court similarly has recognized that “if there is insurance, family discord is too remote a possibility; if there is none, unless the family is already divisive, the suit is not likely to be brought if family assets will be depleted.” Dzenutis v. Dzenutis, 200 Conn. 290, 297 , 512 A.2d 130 (1986). 3

*714 Despite the profusion of criticism of the doctrine and the underlying theory upon which it is based, the majority would apply the doctrine in this case. According to the majority, the five year old child who was severely injured and scarred as a result of her father’s alleged negligence — negligence that did not arise out of an exercise of parental authority or control but, rather, negligence that pertained to the improper maintenance of a home electrical system and the failure to employ a fire alarm system — must be denied compensation for her injuries in the interest of preserving family harmony. In cases such as this one, that interest is poorly served. First, the father’s liability insurance would have assumed the burden of any judgment obtained by the child against him. 4 Second, the uncompensated injury of a child is at least as likely to impede the promotion or preservation of peace in the family as is an action between family members resulting in compensation. Indeed, where there is insurance protection, a greater threat to family harmony exists when a suit is not allowed.

The fear of fraudulent actions between family members also fails to justify the continued preservation of the doctrine. The risk of collusion is no greater in an action by a minor child against a parent than in an *715 action between a husband and a wife, between two siblings, between a parent and an adult child, or for that matter, between a parent and an unemancipated minor child when the negligence arises out of an automobile accident, and all of those actions are permitted in this state. In abrogating the doctrine of parental immunity in 1971, the California Supreme Court acknowledged that “[t]he possibility of fraud or perjury exists to some degree in all cases. But we do not deny a cause of action to a party because of such a danger. ... 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 because in some future case a litigant may be guilty of fraud or collusion. . . . Our legal system is not that ineffectual.” (Internal quotation marks omitted.) Gibson v. Gibson, 3 Cal. 3d 914, 920 , 479 P.2d 648 , 92 Cal. Rptr. 288 (1971). 5

I will not restate the history of the adoption of parent-child immunity in this state which we have repeatedly set forth; see Squeglia v. Squeglia, 234 Conn. 259, 263-65 , 661 A.2d 1007 (1995); other than to remind the reader that it is a judicially crafted doctrine. See Mesite v. Kirchenstein, 109 Conn. 77 , 145 A. 753 (1929). Many states either have never adopted parental immunity or have completely abrogated the doctrine. 6 Only six states *716 presently retain full parental immunity, 7 while the remaining jurisdictions that had adopted the doctrine have since modified it. 8

*717 Since the adoption of parent-child immunity in this state by judicial fiat; Mesite v. Kirchenslein, supra, 109 Conn. 77 (parental immunity); see Shaker v. Shaker, 129 Conn. 518 , 29 A.2d 765 (1942) (child immunity); the legislature and this court have riddled the familial immunity doctrines, including that of parent-child immunity, with exceptions that have undermined the very essence of the stated purpose underlying the doctrines — the preservation of family harmony.

The legislature removed the parent-child immunity defense when the injury arises out of the negligent operation of a motor vehicle, an aircraft or a vessel. 9 General Statutes § 52-572c. Early on, this court rejected the doctrine of spousal immunity and held that a married woman could recover damages from her husband for an assault; Brown v. Brown, 88 Conn. 42, 47 , 89 A. 889 (1914); and that she could recover damages for personal injuries sustained as a result of her husband’s negligent operation of a motor vehicle in which she was a passenger. Bushnell v. Bushnell, 103 Conn. 583, 587 , 131 A. 432 (1925).

In rejecting immunity between siblings, what this court had to say in Overlock v. Ruedemann, 147 Conn. 649 , 165 A.2d 335 (1960), is particularly germane to the present case. Chief Justice Baldwin, for a unanimous court, wrote: “We see no logic or reason in affording an immunity when the plaintiff and the defendant are unemancipated minor children in the same family. . . . The idea that a lawsuit between members of the same family would be disruptive of family unity was created by the courts and became the basis for the common-law rule that such an action is contrary to public policy. . . . But the tendency has been to whittle away the *718 rule by statute and by the process of interpretation, distinction and exception, until we have today a conglomerate of paradoxical and irreconcilable judicial decisions. Family unity is as essential today as it ever was, but we must face the facts of modem living. Should a member of a family owe a lesser duty with respect to the property rights or personal welfare of another member than he owes to a stranger? And why should not those rights be recognized and those duties enforced in our courts? We find nothing to support the claim that public policy prevents an unemancipated minor from recovering damages for the negligence of his unemanci-pated minor brother or sister.” (Citations omitted.) Id., 654-55 .

This court continued the assault on familial immunity in Dzenutis v. Dzenutis, supra, 200 Conn. 299 -300, wherein the court concluded that parental immunity does not bar an action for personal injuries by an unemancipated minor against his parent when the accident occurs at a place of business. In Dzenutis , the court identified three factors that are relevant to whether the doctrine should block a child’s cause of action against a parent: (1) whether the alleged negligent conduct of the parent was a matter of parental discretion; (2) whether the duty breached was owed to the public generally or only to the child; and (3) whether insurance likely existed to cover such a loss. Id., 295-301 . Even under this three-prong test, the facts of the present case argue for denying the parent-child immunity defense: (1) the proper care and maintenance of the wiring in the house did not arise out of the relationship between the defendant and his daughter; (2) the proper care and maintenance of the wiring in the house was a duty that the defendant owed to the community generally, including neighbors and firefighters who might have suffered injury as the result of the fire; and (3) *719 insurance likely existed to cover losses occasioned by the defendant’s negligence.

Most recently, in Henderson v. Woolley, 230 Conn. 472, 486 , 644 A.2d 1303 (1994), we concluded that the doctrine of parental immunity does not bar an action by an unemancipated child against a parent for injuries resulting from sexual abuse, sexual assault or sexual exploitation.

We now find ourselves in the same position as the California Supreme Court in Gibson v. Gibson, supra, 3 Cal. 3d 918 -19. Our decisions in Brown, Bushnell, Overlock, Dzenutis and Henderson have “whittled away” the rule of parent-child immunity, eroding the foundations upon which it purportedly rests. “[T]he reasoning of [prior] decisions has totally destroyed two of the three grounds traditionally advanced in support of . . . immunity: (1) disruption of family harmony and (2) fraud or collusion between family ‘adversaries.’ The third ground, the threat to parental authority and discipline, although of legitimate concern, cannot sustain a total bar to parent-child negligence suits.” Id., 919.

In my view, the time is now ripe for this jurisdiction to abolish immunity in favor of the parent or the child. 10 It has become, as the California Supreme Court has found, “a legal anachronism”; id., 916; and its alleged purpose of preserving family tranquility is simply a legal fiction. What Justice Wheeler of this court had to say *720 almost seventy-five years ago with respect to advocating the abrogation of the rule that the release of one of several joint tortfeasors is a release of all is pertinent. “That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the legislature.” Dwy v. Connecticut Co., 89 Conn. 74, 99 , 92 A. 883 (1915) (Wheeler, J., concurring); also quoted in B. Cardozo, The Nature of the Judicial Process (1921) pp. 151-52.

In short, we should adopt the law as set forth in the Restatement (Second) of Torts, which provides: “A parent or child is not immune from tort liability to the other solely by reason of that relationship.” 4 Restatement (Second), supra, § 895G (1). Abrogation of the doctrine would not mean that the relationship between parent and child is irrelevant with regard to an action predicated on negligence. Section 895G (2) of the Restatement (Second) points out that this repudiation of immunity “does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged . . . .” The privilege referred to in § 895G and discussed in §§ 147 through 155 of the Restatement (Second), entitled “Privilege to Discipline Children,” however, is not applicable to this case.

What is appropriate in the present case is a determination of whether the conduct of the defendant was reasonable. “[Although a parent has the prerogative and *721 the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits. The standard to be applied is the traditional one of reasonableness, but viewed in light of the parental role. Thus, we think the proper test of a parent’s conduct is this: what would an ordinarily reasonable and prudent parent have done in similar circumstances?” (Emphasis added.) Gibson v. Gibson, supra, 3 Cal. 3d 921 ; see Nolechek v. Gesuale, 46 N.Y.2d 332, 346 , 385 N.E.2d 1268 , 413 N.Y.S.2d 340 (1978) (Fuchsberg, J., concurring) (“[E]ach parent-child case [can] be decided by answering the broad question at the heart of negligence law: What would an ordinarily reasonable and prudent person — taking into account the parent-child relationship — have done in similar circumstances?”).

I believe that we should adopt the California “reasonable parent” standard. The determination of whether an act was reasonable given the uniqueness of the parent-child relationship should be left to the proven competence of juries. Juries have a proven ability to understand what is reasonable and long have been applying the reasonableness standard in negligence actions. The mere fact that the action is between a parent and a child should not affect the jury’s ability to arrive at the proper conclusion.

Accordingly, I dissent.

In abrogating the doctrine of parental immunity, the California Supreme Court reasoned that “[i]t would be anomalous for us to give greater protection to property rights than to personal rights.” Gibson v. Gibson, 3 Cal. 3d 914 , 919 n.7, 479 P.2d 648 , 92 Cal. Rptr. 288 (1971). It also noted that “ ‘[i]t is common knowledge that some of the most acrimonious family disputes have arisen in respect to property.’ McCurdy, [‘Torts Between Persons in Domestic Relation,’ 43 Harv. L. Rev. 1030 , 1075 (1930)].” Gibson v. Gibson, supra, 919 n.7.

When it abrogated the doctrine of parental immunity, the Pennsylvania Supreme Court reasoned that: “[The] law has never fashioned protection for parents against actions by their children involving property rights or breach of contract, where litigation can rise to great heights of antagonism. Yet, such protection has been created where the posture of the family is that of trying to repair a rupture by restoring one of its members to health.” Falco v. Pados, 444 Pa. 372, 380 , 282 A.2d 351 (1971).

In deciding, in 1914, to allow a cause of action by one spouse against the other, this court reasoned that “ [t]he danger that the domestic tranquility may be disturbed if husband and wife have rights of action against each other for torts ... we think is not serious. . . . Courts are established and maintained to enforce remdies for every wrong . . . .” Brown v. Brown, 88 Conn. 42, 48-49 , 89 A. 889 (1914). Several years later, the court observed that “the broad principle of liability announced in the Brown case . . . has not been questioned since, and the dangers from it which we then refused to regard as substantial have not in fact made themselves manifest. ” Bushnell v. Bushnell, 103 Conn. 583, 587 , 131 A. 432 (1925).

The majority claims that “the record is silent as to whether [the defendant] carried liability insurance.” I read a different record. First, the trial court’s memorandum of decision acknowledges that liability insurance would cover the defendant for this incident. Second, the defendant does not deny that the incident would be covered by liability insurance. Third, the majority concedes that the defendant had homeowner’s insurance coverage and I take judicial notice that generally homeowners carry liability insurance as part of their overall homeowner’s insurance policy.

More importantly, this court has pointed out that in considering whether to establish an exception to parent-child immunity, it is not the actual *714 presence of insurance in any particular case, but “the likely availability of insurance coverage in particular situations, such as those recognized by § 52-572c, [that] is pertinent in deciding whether parent-child immunity is applicable . . . Dzenutis v. Dzenutis, supra, 200 Conn. 299 ; see id., 299-300 (“[w]e conclude, nevertheless, that because of the general prevalence of liability insurance in the business activity setting, it is appropriate for us to recognize that in most instances family harmony will not be jeopardized by allowing suits between parents and children arising out of business activities conducted away from the home”).

Ironically, the result of the majority’s decision in the present case is that the defendant was able to make an insurance claim for the physical damage to his home, but was not able to make a claim for the physical injury to his daughter’s person.

See footnote 3 of this dissent.

This court recognized and rejected the possibility of collusion as a basis for justifying immunity between siblings: “Courts and juries are frequently called upon to uncover fraud perpetrated in the infinite variety of forms which human ingenuity can devise. There is no reason why they could not as well discover its practice within the family circle.” Overlook v. Ruedemann, 147 Conn. 649, 654 , 165 A.2d 335 (1960), citing Midkiff v. Midkiff, 201 Va. 829, 833 , 113 S.E.2d 875 (1960).

The following jurisdictions never adopted the parent-child immunity doctrine: Rousey v. Rousey, 528 A.2d 416 (D.C. App. 1987) (en banc); Petersen v. Honolulu, 51 Haw. 484 , 462 P.2d 1007 (1969); Nocktonick v. Nocktonick, 227 Kan. 758 , 611 P.2d 135 (1980); Transan),erica Ins. Co. v. Royle, 202 Mont. 173 , 656 P.2d 820 (1983); Rupert, v. Stienne, 90 Nev. 397 , 528 P.2d 1013 (1974); Briere v. Briere, 107 N.H. 432 , 224 A.2d 588 (1966); Elkington v. Foust, 618 P.2d 37 (Utah 1980); Wood v. Wood, 135 Vt. 119 , 370 A.2d 191 *716 (1977). The following jurisdictions have completely abrogated the parent-child immunity doctrine: Gibson v. Gibson, supra, 3 Cal. 3d 914 (en banc); Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980); Guess v. Gulf Ins. Co., 96 N.M. 27 , 627 P.2d 869 (1981); Holodook v. Spencer, 36 N.Y.2d 35 , 324 N.E.2d 338 , 364 N.Y.S.2d 859 (1974); Nuelle v. Wells, 154 N.W.2d 364 (N.D. 1967); Kirchner v. Crystal, 15 Ohio St. 3d 326 , 474 N.E.2d 275 (1984); Winn v. Gilroy, 296 Or. 718 , 681 P.2d 776 (1984); Falco v. Pados, 444 Pa. 372 , 282 A.2d 351 (1971); Elam v. Elam, 275 S.C. 132 , 268 S.E.2d 109 (1980).

The six states that continue to recognize full, unrestricted parental immunity are: Coleman v. Coleman, 157 Ga. App. 533 , 278 S.E.2d 114 (1981); Vaughen v. Vaughen, 161 Ind. App. 497 , 316 N.E.2d 455 (1974); Bondurant v. Bondurant, 386 So. 2d 705 (La. App. 1980); Warren v. Warren, 336 Md. 618 , 650 A.2d 252 (1994); Rayburn v. Moore, 241 So. 2d 675 (Miss. 1970); Barranco v. Jackson, 690 S.W.2d 221 (Term. 1985).

The following jurisdictions have limited parent-child immunity: Meyer v. State Farm Mutual Automobile Ins. Co., 689 P.2d 585 (Colo. 1984) (en banc), citing Trevarton v. Trevarton, 151 Colo. 418 , 378 P.2d 640 (1963); Ard v. Ard, 395 So. 2d 586 (Fla. App. 1981), aff'd in part, 414 So. 2d 1066 (Fla. 1982); Kendall v. Sears, Roebuck & Co., 634 S.W.2d 176 (Mo. 1982) (en banc); Fugate v. Fugate, 582 S.W.2d 663 (Mo. 1979) (en banc); Silva v. Silva, 446 A.2d 1013 (R.I. 1982); Lee v. Comer, 159 W. Va. 585 , 224 S.E.2d 721 (1976); Allstate Ins. Co. v. Wyoming Ins. Dept., 672 P.2d 810 (Wyo. 1983); see also N.C. Gen. Stat. § 1-539.21 (1997).

These jurisdictions specifically retain immunity in actions based upon the negligent exercise of parental authority: Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Sandoval v. Sandoval, 128 Ariz. 11 , 623 P.2d 800 (1981); Gibson v. Gibson, supra, 3 Cal. 3d 914 ; Dubay v. Irish, 207 Conn. 518 , 542 A.2d 711 (1988); Schneider v. Coe, 405 A.2d 682 (Del. 1979); Farmers Ins. Group v. Reed, 109 Idaho 849 , 712 P.2d 550 (1985); Larson v. Buschkamp, 105 Ill. App. 3d 965 , 435 N.E.2d 221 (1982); Wagner v. Smith, 340 N.W.2d 255 (Iowa 1983); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1970); Black v. Solmitz, 409 A.2d 634 (Me. 1979); Sorensen v. Sorensen, 369 Mass. 350 , 339 N.E.2d 907 (1975); Wright v. Wright, 134 Mich. App. 800 , 351 N.W.2d 868 (1984); Foldi v. Jeffries, 93 N.J. 533 , 461 A.2d 1145 (1983); Sixkiller v. Summers, 680 P.2d 360 (Okla. 1984); Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex. 1971); Wright v. Wright, 213 Va. 177 , 191 S.E.2d 223 (1972); Goller v. White, 20 Wis. 2d 402 , 122 N.W.2d 193 (1963).

The following jurisdictions have full immunity except for torts involving wilful, wanton or intentional conduct: Hurst v. Capitell, 539 So. 2d 264 (Ala. 1989); Carpenter v. Bishop, 290 Ark. 424 , 720 S.W.2d 299 (1986); Pullen v. Novak, 169 Neb. 211 , 99 N.W.2d 16 (1959); Talarico v. Foremost Ins. Co., 105 Wash. 2d 114 , 712 P.2d 294 (1986) (en banc).

A “vessel” is defined in General Statutes § 15-127 as “every description of watercraft, other than a seaplane on water, used or capable of being used as a means of transportation on water.”

The majority claims in footnote 4 of its opinion that it leaves the question of whether the doctrine of parent-child immunity should be abrogated “for another day” because the plaintiff has not argued for abrogation of the doctrine in its entirety. I find this statement to be incredible and, from the point of view of the five year old child in this case who was badly burned, scarred, disfigured and otherwise injured, to be wholly unacceptable. This court can effect a change in the law with respect to the general subject matter raised by a party regardless of whether the party has raised the issue in its broad scope as long as the change effected pertains to the issue that the party raised.