Stamboulis v. Stamboulis

O’Connor, J.

(dissenting, with whom Lynch, J., joins). I fully agree with Justice Nolan’s dissenting opinion. I add further comments, however, because I perceive in the court’s *769 opinion a strong suggestion that not only is the doctrine of parent-child immunity no longer the law of this Commonwealth but also, henceforth, the court will recognize a parent’s legal duty to exercise reasonable care in the supervision of his or her child, violation of which will be the basis of liability. If that is not the court’s message, it is difficult to understand why, in this negligent supervision case, the court reverses the summary judgment for the parent. Indeed, it would make little sense for the court to abolish the immunity doctrine in cases alleging negligent parental supervision without also recognizing a violation of duty with regard to supervision as a basis of liability. Such recognition is highly undesirable for the reasons rooted in the autonomy of the family expressed by Justice Nolan in support of the proposition that parent-child immunity should be retained.

The court states, ante at 764, that “ [w]e have rejected the status of a party to the tort as a controlling element in determining liability for negligence,” and cites five cases as authority for that statement. In four of the cited cases, the court rejected the particular status of the parties as entitling the defendants to immunity. However, immunity aside, this court has never rejected the principle that the status of the parties may control with respect to whether a party owes another party a duty to exercise reasonable care for his well-being. In the fifth case cited by the court, Mounsey v. Ellard, 363 Mass. 693 (1973), a case not dealing with immunity but rather with duty, we did not reject the status of the parties as a controlling factor in determining whether a landowner owes a duty of reasonable care to persons on his land. We simply held that a landowner does owe such a duty to one lawfully on the premises irrespective of whether the party enjoying that status is an invitee or only a licensee. We stated in Mounsey, supra at 707 n.7, that “there is significant difference in the legal status of one who trespasses on another’s land as opposed to one who is on the land under some color of right — such as licensee or invitee.” Our recognition of that significant difference in status was the basis of our subsequent holding in Schofield v. Merrill, 386 Mass. 244 (1982), that a landowner does not owe to an adult *770 trespasser, not in a known position of peril, a duty to exercise ordinary care for his safety. The status of the parties in Schofield barred the plaintiff’s recovery, and the status of the parties here should bar recovery as well, both because parent-child immunity in the circumstances of this case should be retained, and because, in any event, parental liability for negligent supervision of the parent’s child should not be recognized.