# Newsome v. Department of Human Resources > Court of Appeals of Georgia · February 25, 1991 · 199 Ga. App. 419 URL: https://www.frixlaw.com/law-library/cases/9573466 ## Case - **Full name:** NEWSOME Et Al. v. DEPARTMENT OF HUMAN RESOURCES Et Al. - **Court:** Court of Appeals of Georgia - **Decided:** February 25, 1991 - **Citations:** 199 Ga. App. 419; 405 S.E.2d 61; 1991 Ga. App. LEXIS 489 - **Precedential status:** Published - **Opinion:** Concurrence by Carley - **Judges:** Sognier, McMurray, Banke, Birdsong, Cooper, Andrews, Carley, Pope, Beasley - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9573466 ## Opinion text Carley, Judge, concurring specially. I concur in Divisions 1 and 3 and in the affirmance of the grant of summary judgment in favor of appellee-defendants. I cannot, how-eyer, concur in Division 2 because, in my opinion, the reasoning employed by the majority therein is erroneous. If a familial relationship exists at the time that suit is filed, the doctrine of family tort immunity applies even though no familial relationship had existed at the time that the cause of action arose. See Nelson v. Spalding County, 249 Ga. 334, 337 (3a) ( 290 SE2d 915 ) (1982) (spousal tort immunity applies in post-marriage negligence suit for pre-marriage tort). The majority apparently assumes that the converse must necessarily be true and that, if a familial relationship no longer exists at the time that suit is filed, the doctrine of family tort immunity does not apply even though a familial relationship had existed at the time that the cause of action arose. In my opinion, this assumption is erroneous. See Stanfield v. Stanfield, 187 Ga. App. 722 ( 371 SE2d 265 ) (1988) (spousal tort immunity applies in post-divorce suit for pre-divorce tort); Wallach v. Wallach, 94 Ga. App. 576 ( 95 SE2d 750 ) (1956) (spousal tort immunity applies in post-divorce suit for pre-divorce tort). It is clear that a parental relationship warranting application of family tort immunity existed at the time that appellant-plaintiff’s alleged cause of action against appellees arose. Brown v. Phillips, 178 Ga. App. 316 (1) ( 342 SE2d 786 ) (1986). Accordingly, the issue that I perceive to be presented for resolution in the instant case is whether, as is true in the case of subsequently divorcing spouses, the doctrine of family tort immunity nevertheless applies notwithstanding the subsequent severance of the parental relationship. The instant case is most nearly analogous to that wherein a subsequently emancipated child brings a negligence suit against his parent for the alleged commission of a pre-emancipation tort. “[A]n action is maintainable, if the child was emancipated at the time of the tort and the action. [Cits.]” (Emphasis supplied.) Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338, 340 (4) ( 183 SE 210 ) (1935). If, however, the child was unemancipated at the time of the tort, his subsequent emancipation will not authorize him to initiate a negligence suit against his parent. “An emancipated child cannot maintain an action against his parent for a tort committed before emancipation if at the time of the wrong the action was not maintainable.” 59 AmJur2d, Parent & Child, § 145. There is no controlling or persuasive authority to the contrary. Nelson v. Spalding County, supra, merely holds that the existence of a familial relationship at the time that suit is filed warrants applica *427 tion of the doctrine of family tort immunity. That case does not purport to overrule Stanfield v. Stanfield, supra; Wallach v. Wattach, supra, and Fowlkes v. Ray-O-Vac, supra. Nor does Nelson hold that the subsequent severance of a familial relationship renders the doctrine of family tort immunity inapplicable. Arnold v. Arnold, 189 Ga. App. 101 ( 375 SE2d 225 ) (1988) was affirmed by the Supreme Court, but only on the limited basis that the doctrine of family tort immunity is otherwise inapplicable in an action between siblings. Arnold v. Arnold, 259 Ga. 150 ( 377 SE2d 856 ) (1989). Morris v. Brooks, 186 Ga. App. 177 ( 366 SE2d 777 ) (1988) is a two-judge case and has no prece-dential value. In my opinion, there is no reason to depart from, and every reason to adhere to, the rule that the doctrine of family tort immunity which bars a child from maintaining a negligence action against his parent is not obviated by subsequent emancipation or severance of the parental relationship. The recognized rationale for the doctrine of family tort immunity is that it “ ‘implements a public policy protecting family unity, domestic serenity, and parental discipline.’ [Cit.]” Eschen v. Roney, 127 Ga. App. 719, 724 ( 194 SE2d 589 ) (1972). Division 2 of the majority opinion certainly does not implement that public policy. One presumably chooses to become a foster parent so as to provide a home for a child who is in need of family unity, domestic serenity and parental discipline. Few, if any, citizens of this state will elect to become foster parents if the effect of that election is to invite a potential plaintiff to live in one’s home. Even those few who may be willing to take the risk will not be entirely free to act as parents to their foster children, but must comport themselves so as to avoid becoming defendants in a future negligence lawsuit. Moreover, if the bar of family tort immunity is lifted by the subsequent severance of the foster parent relationship, it would also be lifted by the subsequent emancipation of a natural child. The inchoate right of a presently un-emancipated natural child to maintain a post-emancipation negligence suit against his parents can only have a deleterious rather than beneficial effect upon family unity, domestic serenity and parental discipline. An unemancipated foster or natural child is not barred from suing his foster or natural parent for a willful or malicious tort such as would authorize a severance of the parental relationship. Wright v. Wright, 85 Ga. App. 721 (2) ( 70 SE2d 152 ) (1952). However, the majority’s conclusion that a subsequently emancipated foster or natural child is not barred from suing his foster or natural parent for alleged pre-emancipation simple negligence is, in my opinion, inconsistent with the underlying rationale for the doctrine of family tort immunity. Accordingly, I would base the affirmance of the trial court’s grant of summary judgment in favor of appellees upon the additional ground that appellant-plaintiff’s suit is barred by the doc *428 trine of family tort immunity. Decided February 25, 1991 Rehearing denied March 29, 1991 William L. Salter, Jr., Charles W. Cook, for appellants. Jones, Cork & Miller, Thomas C. Alexander, Thomas W. Joyce, Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Jennifer L. Hackemeyer, Assistant Attorney General, for appellees. I am authorized to state that Judge Pope joins in this special concurrence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9573466. Public record. Not legal advice.