Balts v. Balts

Rogosheske, Justice

(concurring specially).

While I concur in the result and greatly admire the scholarly discussion of the immunity rule by my Brother Otis, I find it difficult to justify going beyond stating the rules necessary to dispose of this case, except possibly to indicate our attitude toward the immunity rule when applied to intrafamily suits arising out of motor vehicle accidents. To announce our future intention to abolish the defense in all tort actions brought by a parent against a child in language equally critical of the defense in all intrafamily actions without being confronted with the precise issue is a most unusual procedure. It does not accord with my views of proper judicial restraint, and in my experience, such action usually creates more problems than it solves.

Moreover, I am not convinced that experience demonstrates either a necessity or desirability to judicially abolish the defense in actions arising out of ordinary domestic activities not involving the operation of a motor vehicle. It takes little imagination of those currently faced with the multitude of problems of raising a family to conceive of cases where such tort actions, especially by a child against a parent, would indeed disrupt family harmony, promote strife, breed disrespect, encourage disobedience, and subvert family peace. In the light of the public’s known fear and distaste for litigating otherwise private disputes in a public courtroom, this would be a natural result in every case where a trial was neces *438 sary. Far more important, however, such suits would be the vehicle by which to launch a new and divisive assault upon the family as an institution. Were the remedy made available without limitation, as some might readily anticipate from a reading of the opinion, it would insidiously invite rebellion against a parent and disobedience and disrespect from the child. This impact would be felt by families who never became aware of the rule as well as by those families where claims arose which were litigated to the bitter end. Any breach in family relations would likely be permanent where economic disaster followed the forced payment of damages awarded. Because lawyers, juries, and courts have been able to dispose of parent-child litigation unrelated to torts, it does not follow that such litigation has not visited untold miseries and discord upon the family circle.

Admittedly the “harm” is done when a tort occurs in the household. To then draw only the inference that “the prospect of reconciliation is enhanced as much by equitable reparation as by denying relief” is to overlook the more significant inference that permanent reconciliation can only be achieved by that kind of forgiveness which eliminates forever holding the family wrongdoer accountable. Experience teaches that the inestimable benefits of such forgiveness will never be experienced where it is conditioned upon the payment of money damages.

Further, there is no great weight of authority, indeed there is no American court, which has gone as far as abolishing parent-child immunity for torts apart from those arising out of the operation of a motor vehicle. This demonstrates, I believe, not a slavish adherence to precedent nor a failure to recognize a need for change, but rather that the problem is peculiarly one requiring legislative resolution. Neither judicial impatience with that process nor the fact that the defense was court-created justifies, in my opinion, such an extrajudicial prospective reversal of existing law.