Later courts went against this
Overruled by Heino v. Harper, 306 Or. 347 (1988)
s also properly have found that parents whose `[p]hysical, mental or financial weakness [causes them] to provide what many a reasonable man would consider substandard maintenance, guidance, education and recreation for their children, and in many instances to provide a family home which is not reasonably safe as a place of abode,' should not be liable to the child for these `unintended injuries.' Chaffin v. Chaffin,…
The opinion
O’CONNELL, J.,
dissenting.
I dissent. I believe that we should abolish the doctrine of spousal and parental immunity in this state under the circumstances of this case. Practically everyone who has written upon the subject concludes that the reasons advanced in the cases for employing these *392 doctrines are unconvincing. ① There is a growing list of states which have abolished the theory of spousal immunity. ② At least one state has eliminated parental immunity with some minor qualifications. ③ In the present case the court does not answer the arguments for the abolition of these doctrines but simply rests its decision on the ground that we should follow precedent and that any change should be made by the legislature. I do not subscribe to this philosophy of judicial inertia. We, not the legislature, are responsible for creating the rule of immunity in these cases; we .should be as ready to east the rule aside if it cannot be defended.-
The judgment should be reversed and the cause remanded for a new trial.
Spousal Immunity: 1 Harper and James, Law of Torts, § 8.10 (1956); Prosser, Torts, §116, p. 883 (3d ed 1964); Mc-Curdy, Personal Injury Torts Between Spouses, 4 Vill L Rev 303 (1959); Tort Actions Between Husband and Wife, 9 ClevMar L Rev 265- (1960); Note, 47 Va L Rev 1450 (1961); Comment, 60 W Va L Rev 294 (1958); Note, 27 Fordham L Rev 422 (1958). Parental Immunity: 1 Harper and James, Law of Torts, § 8.11 (1956); Prosser, Torts, §116, pp. 886-87 (3d ed 1964); Dunn, Parent-Child Tort Action, 12 Clev-Mar L Rev 341 (1963); Ehrenzweig, Parental Immunity in the Conflict of Laws, 23 U Chi L Rev 474, 478 (1956); McCurdy, Torts Between Parent and Child, 5 Vill L Rev 521 (I960); Comment, A Proposed Modification of the Parental Immunity Doctrine, 23 Ohio St L J 339 (1962); Note, 10 Wayne L Rev 602 (1964); Note, 1964 Wis L Rev 714; Comment, 26 Mo L Rev 152', 187 et seq. (1961).
E. g., Cramer v. Cramer, 379 P2d 95 (Alaska 1963); Klein v. Klein, 58 Cal2d 692, 376 P2d 70 (1962); Brown v. Gosser, 262 SW2d 480 ; 43 ALR2d 626 (Ky 1953). For extensive citation of other cases, see Anno: Right of One Spouse To Maintain Action Against Other for Personal Injury, § 6, 43 ALR2d 632, 647-51 (1955).
Goller v. White, 20 Wis2d 402, 122 NW2d 193 (1963).