un-emancipated minor may not hold a parent or person standing in loco parentis liable for involuntary tort committed against him
How later courts described this case
- un-emancipated minor may not hold a parent or person standing in loco parentis liable for involuntary tort committed against him
- policy considerations of family harmony and the prevention of fraud and collusion remain valid
- immunity bars action for negligence against persons standing in loco parentis
- grants immunity to grandparents acting in loco parentis
Written by the judges who cited it.
The opinion
Richard L. Mays, Justice, dissenting. Formulated by the Mississippi Supreme Court less than 90 years ago, the doctrine of parental immunity for personal torts is an exception to the well established rule of liability for breach of the duty of ordinary care for the safety of others. Hewlett v. George, 68 Miss. 703 , 9 So. 885 (1891). As with most exceptions to important legal principles, the burden of persuasion should be shouldered by those pressing the case. Traditionally, those justifying the abolition of the right of a minor child to enforce the duty of ordinary care against a parent by suing for damages have relied upon two considerations:
(1) disruption of family harmony
(2) fraud or collusion between family “adversaries”
Unlike the majority of the court today, I am not persuaded that these policy considerations adequately underpin the doctrine of parental immunity and, therefore, would abolish the doctrine.
Although a tort action by a child against his parent may suggest family disharmony, generally the real party in interest is the insurance company which provides financial protection to the parent. Just as most tort suits are not undertaken in the absence of a deep pocket, few minor children would sue their parents in the absence of insurance. Moreover, no greater disruption of family harmony is caused by a suit pitting a child against a parent than a suit pitting brother against sister or husband against wife which is allowed. Leach v. Leach, 227 Ark. 559 , 300 S.W. 2d 15 (1957). As to the consideration of fraud or collusion, no greater danger of collusion exists in child-parent suits than in other suits among family members. Although the possibility of fraud or perjury exists to some degree in all cases, we do not abolish a cause of action solely because of that danger. In short, the likelihood of family discord or collusive suits is not significantly enhanced by permitting child-parent suits and certainly does not justify abolishing an unemancipated child’s right to be made financially whole when wrongfully injured.
I do not deny that a suit between a parent and child, or for that matter between any family members, may be repugnant to natural sentiments. Not only is a parent-child relationship uniquely underpinned with strong emotional ties, but it is accented with an obligation to support and a special need for parental authority and discipline. The uniqueness of the relationship, however, should not provide a privilege for negligent conduct or insulate the conduct of the parent from reasonable judicial scrutiny. Such scrutiny has not destroyed the relationship in the 25 other jurisdictions which permit child-parent suits. See, e.g., Smith v. Kaufman, 212 Va. 181 , 183 S.E. 2d 190 (Va. 1971). After all, the injury to the child is no less severe when caused by a parent than a stranger.
The judgment should be reversed and the cause remanded.