explaining that the court retains power to change a court-made rule even though the legislature refused to make the change
How later courts described this case
- explaining that the court retains power to change a court-made rule even though the legislature refused to make the change
- retaining parental immunity only where the act involves (1) exercise of parental authority, or (2) exercise of ordinary parental discretion with respect to provision of food, clothing, housing, medical and dental services and other care
- abrogating doctrine but providing that parent would not be liable for negligent acts committed in exercise of parental supervision or discretion in caring for child
- in which the court overturned a common law rule after noting that the legislature had refused to act to change the rule
Written by the judges who cited it.
Later courts went against this
Criticized by Broadbent v. Broadbent, 184 Ariz. 74 (1995)
In accord with the California Supreme Court, “we reject the implication of Goller [which this court approved in Streenz ] that within certain aspects of the parent-child relationship, the parent has carte blanche to act negligently toward his child____ [Although a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits.
Disagreed with by Gibson v. Gibson, 3 Cal. 3d 914 (1971)
However, we reject the implication of Goller that within certain aspects of the parent-child relationship, the parent has carte blanche to act negligently toward his child.
The opinion
Brown, C. J.
(concurring). I concur in the decision that the insurance policy does not give coverage to White in this accident.
I concur in the result that White is not immune from liability to the infant Goller for the results of White’s negligence but that is because I do not believe that the circumstances of Goller’s residence in White’s household have created parental relationship. I would not extend to White the immunities possessed by a true parent.
I disagree with the decision of the majority that even a parent shall no longer have the immunity recognized by law for many years. This change, resting upon the court’s conception of desirable public policy is subject to very *414 strong arguments for not changing the retention of the time-honored parental immunity.
The majority of the court say that there is no difference in principle between the right of action by a wife against her husband, a right presently recognized, and a similar right of action by a child against its parent, a right which the court now says ought to be and now will be recognized. When the legislature considered that public policy made advisable rights of action by wives against their husbands the legislature stated that right by statute. Till then this court refrained from announcing a public policy in this field primarily coming within the legislative function. See Wait v. Pierce (1926), 191 Wis. 202, 209 , 209 N. W. 475 , 210 N. W. 822 , cited by the majority. I think the court should do now as our predecessors did and leave the business of the legislature to that august body.
Therefore, while affirming the result reached by the majority in this case, I believe the authority of Wick v. Wick (1927), 192 Wis. 260 , 212 N. W. 787 , should be retained until the legislature has spoken.
The following was filed July 9, 1963 :
Supplemental Opinion.
Currie, J.
Our original opinion abolished the rule of parental immunity in negligence actions subject to the exceptions noted. The effect of this change of rule was not limited to cases arising in the future. Since the filing of that opinion, the court has given further consideration to whether such abolishing of the rule should be made prospective as was done in Widell v. Holy Trinity Catholic Church (1963), 19 Wis. (2d) 648, 121 N. W. (2d) 249 ; Holytz v. Milwaukee (1962), 17 Wis. (2d) 26, 115 N. W. (2d) 618 ; and Kojis v. Doctors Hospital (1961), 12 Wis. (2d) 367, 107 N. W. (2d) 131 , 107 N. W. (2d) 292 . *415 We have concluded that there are compelling reasons for making this change in existing law prospective only. Therefore, the change in the rule of parental immunity announced in our original opinion is to be limited to causes of action arising on or after June 28, 1963, the date of the filing of such original opinion, except that it is to be applicable to the instant case.