Bushey v. Northern Assurance Co. of America

ELDRIDGE, J.,

concurring:

I agree that the judgments below should be reversed, and I concur in Parts I and III of the majority opinion. Furthermore, the majority correctly concludes in Part II of the opinion that the parents’ claim is not barred by the doctrine of parent-child immunity. Nonetheless, I do not agree with the majority that there is a sound basis for distinguishing Smith v. Gross, 319 Md. 138 , 571 A.2d 1219 (1990). The public policy rationale for not applying parent-child immunity in this case, which is the same public policy rationale underlying our refusal to apply parent-child immunity in Eagan v. Calhoun, 347 Md. 72 , 698 A.2d 1097 (1997), cannot be reconciled with the decision in Smith v. Gross. The Smith v. Gross decision was not supported by any enactments of the General Assembly, was not supported by any prior decisions of this Court, and was not supported by public policy. Instead of attempting to distinguish Smith v. Gross, the case should be overruled.

As discussed by Judge Wilner for the Court in Eagan v. Calhoun, supra, 347 Md. at 74, 76 , 698 A.2d at 1099 , the *653 doctrine of parent-child immunity from suit in tort actions did not exist under English common law or Maryland common law prior to the twentieth century. The doctrine was invented by the Supreme Court of Mississippi in 1891, Hewlett v. George, 68 Miss. 703 , 9 So. 885 (1891), and was initially adopted by this Court in 1930, Schneider v. Schneider, 160 Md. 18 , 152 A. 498 (1930). 1 The doctrine has never been sanctioned by the General Assembly of Maryland.

The principal public policy in support of the judicially created parent-child immunity doctrine is “the protection of family integrity and harmony and of parental discretion in the discipline and care of the child.... ” Eagan v. Calhoun, supra, 347 Md. at 75 , 698 A.2d at 1099 . See, e.g., Renko v. McLean, 346 Md. 464, 469 , 697 A.2d 468, 470 (1997) (“the parent-child immunity doctrine ... serv[es] the compelling public interest in preserving, under normal circumstances, the internal harmony and integrity of the family unit and parental authority in the parent-child relationship”); Warren v. Warren, 336 Md. 618, 626 , 650 A.2d 252, 256 (1994) (“We are not willing to open the door to rebellious children and frustrated parents and allow the courts to become the arbitrator of parent-child disputes and the overseer of parental decisions”); Frye v. Frye, 305 Md. 542, 551 , 505 A.2d 826, 831 (1986) (“ ‘the chief reason’ for the rule [is] that ‘such tort actions would disrupt and destroy the peace and harmony of the home which is against the policy of the law,’ ” quoting Waltzinger v. Birsner, 212 Md. 107, 126 , 128 A.2d 617, 627 (1957)). We have also pointed out that the rule prevents “fraud and collusion” and prevents “litigation between parents and children [that] would deplete family resources.” Eagan v. Calhoun, supra, 347 Md. at 75 , 698 A.2d at 1099 . 2

*654 Under circumstances where the public policy reasons underlying parent-child immunity in tort actions have no application, ie., under circumstances where, at the time of the tort action, there is no parent-minor child relationship which will be disrupted by the tort suit, this Court has generally held that the suit is not barred by the doctrine of parent-child immunity. See Eagan v. Calhoun, supra, 347 Md. at 76-77 , 698 A.2d at 1099-1100 (In prior cases, “we essentially adopted the view ... that, although the doctrine was useful within the bounds of a normal parent-child relationship, it had no rational justification where the foundation did not exist”); Warren v. Warren, supra, 336 Md. 618 , 650 A.2d 252 (majority opinion), 336 Md. 631 , 650 A.2d 258 (Raker, J., concurring) (Parent-child immunity doctrine does not bar a child’s negligence action against his stepparent; as emphasized in the concurring opinion, the stepparent did not stand in loco parentis to the child); Hatzin-icolas v. Protopapas, 314 Md. 340, 357 , 550 A.2d 947, 956 (1988) (Parent-child immunity is inapplicable to a tort suit brought by a minor child against her father’s business partner, even though the father and business partner may have been joint tortfeasors and the partner might be able to obtain contribution from the father, with the Court stating: “Preservation of the family interests ... does not require that we extend parent-child immunity to bar any recovery from a parent’s partner”); Waltzinger v. Birsner, supra, 212 Md. 107 , 128 A.2d 617 (An emancipated child may sue his or her parent in tort); Mahnke v. Moore, 197 Md. 61, 68 , 77 A.2d 923, 926 (1951) (“there can be no basis for the contention that the daughter’s suit against her father’s estate would be contrary to public policy, for the simple reason that there is no home at all in which discipline and tranquility are to be preserved”).

*655 The above-cited cases clearly reflect the principle that the court created doctrine of parent-child immunity is inapplicable where a parent-minor child relationship does not exist and where, consequently, the public policy underlying the doctrine would not be served. The only case in this Court representing an exception to this principle is Smith v. Gross, supra, 319 Md. 138 , 571 A.2d 1219 . Smith v. Gross is wholly out-of-step with our other cases dealing with parent-child immunity from tort suits.

Smith v. Gross, like Eagan v. Calhoun, supra, 347 Md. 72 , 698 A.2d 1097 , and the present case, was a wrongful death action. Also, as in the case at bar, there was a count under the survival statute. Moreover, the actions in both this case and the Smith case were based on the death of a minor child in an automobile accident, allegedly caused by the negligent driving of another family member. In Smith , the parents were not married, did not live together as a family unit, and the child lived with his mother. The child had never lived with his father. A few days after the child’s second birthday, the father was driving an automobile with the child as a passenger, and the child died in an accident allegedly caused by the father’s negligent driving. The child’s mother, who was the personal representative of the child’s estate, brought wrongful death and survival actions against the father. The trial court granted a motion to dismiss based on parent-child immunity, and this Court, in a 5-2 decision, affirmed on that ground.

The plaintiff-appellant’s principal argument in Smith was that “the parent-child immunity doctrine is inapplicable to the case at bar because there is no parent-child relationship to protect.” 3 The plaintiff-appellant contended: “The key to the immunity doctrine is the protection of the parent-child relationship. Upon the death of the infant, this relationship is extinguished. There simply is no relationship to protect and no policy reason to invoke the doctrine.” 4 Reliance was placed on *656 Waltzinger v. Birsner, supra, 212 Md. 107 , 128 A.2d 617 , and Mahnke v. Moore, supra, 197 Md. 61 , 77 A.2d 923 .

This Court rejected the plaintiff-appellant’s policy argument in Smith because, according to the Court, there was a parent-child relationship prior to the tortious conduct and the death. Smith, 319 Md. at 148 , 571 A.2d at 1223 . The Court pointed out that, under the wrongful death statute, “wrongful act” is defined as “an act, neglect, or default ... which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” Maryland Code (1974, 1998 Repl.Vol.), § 3-901(e) of the Courts and Judicial Proceedings Article. The Court also pointed out that the survival statute refers to “a personal action which the decedent might have commenced or prosecuted.... ” Code (1974, 1991 Repl.Vol., 2000 Supp.), § 7-401(y) of the Estates and Trusts Article. Relying on these statutory provisions, the Smith majority leaped to the conclusion that a “prerequisite” for bringing a wrongful death or survival action was the ability of the decedent to have brought an action if there had been no death. 319 Md. at 149 , 571 A.2d at 1224 . Since, in the view of the Smith majority, parent-child immunity would have precluded a tort action by the child against the father if there had been no death, the same judicially created immunity precluded wrongful death and survival actions.

The majority today reiterates the holding and “reasoning” of Smith . The majority states that there is a “requirement of the wrongful death statute that the viability of the claim of the injured party be tested as if death had not ensued.” (Opinion 'at 647, emphasis added). Referring to Smith , the majority continues (ibid.): “This made the relevant period of the relationship between father and son the period before the accidental death and not after it.” The majority then attempts to distinguish the present case from Smith on the ground that, “[i]f death had not ensued[,] Miranda could sue Susan. There is no inter-sibling immunity.” (Ibid.).

Preliminarily, there are problems with the majority’s distinction of Smith and the majority’s view that the relevant *657 period of the parent-child relationship is the period before death. Miranda was a minor and could not have, herself, brought a tort action against Susan. If the sisters had not died, the action against Susan, on behalf of Miranda, would have been brought by Miranda’s parents who also are Susan’s parents. See Maryland Rule 2-202(b). Language in this Court’s opinion in Schneider v. Schneider, supra, 160 Md. at 22-23 , 152 A. at 499-500 , the case adopting the doctrine of parent-child immunity, suggests that the parents, on behalf of Miranda, could not have sued their other minor child, Susan.

Furthermore, if the relevant period of the parent-child relationship is the period before the tortious death, then, arguably, both Eagan v. Calhoun, supra, 347 Md. 72 , 698 A.2d 1097 , and Mahnke v. Moore, supra, 197 Md. 61 , 77 A.2d 923 , are inconsistent with the instant opinion and with Smith v. Gross. In addition, this Court emphasized in Eagan, 347 Md. at 82 , 698 A.2d at 1102 , that a wrongful death action “is not derivative in the sense” that the defenses, or non-defenses, in a wrongful death action are the same as those in a tort action if the decedent had lived. The Court in Eagan continued (ibid.):

“It follows from the fact that the action is a personal one to the claimant that the claimant is ordinarily subject to any defense that is applicable to him or her, whether or not it would have been applicable to the decedent. Thus, the fact that [the deceased mother] would not have been barred by any doctrine of parent-child immunity from suing [the tort-feasor father] does not relieve [the children] of that impediment.”

The converse should also apply. The fact that a plaintiff in a tort suit may have been barred by parent-child immunity from suing the defendant does not mean that different plaintiffs in a wrongful death action, where there is no parent-child relationship, should be barred from suing.

More importantly, however, the reasoning of the majority in Smith v. Gross and the majority today is fundamentally flawed. The critical language from the wrongful death act *658 relied upon by the majority, ie. the reference to an act which would have been the basis for a suit if there had been no death, is not a “prerequisite” or a “requirement” for bringing a wrongful death action. The language is simply part of the definition of “wrongful act,” and is a shorthand way of describing the tortious conduct that will permit suit. At common law, there was no cognizable tort if death occurred. The references to an act which would have permitted a tort suit if there had not been death was employed in the wrongful death and survival statutes in lieu of listing basic elements of various torts and basic, established defenses.

The language in the wrongful death and survival statutes, referring to an action if death had not ensued, was in the original wrongful death act enacted by the General Assembly in 1852 and was in the original survival statute enacted by the General Assembly in 1798. See Ch. 299, § 1, of the Acts of 1852; Ch. 101, Subch. 8, § 5, of the Acts of 1798. There was no such thing as a parent-child immunity doctrine in 1798 or 1852. As previously discussed, this Court adopted the doctrine in 1930; the General Assembly has never embraced the doctrine. Obviously, when the General Assembly enacted the survival and wrongful death statutes in 1798 and 1852, it did not contemplate parent-child immunity which was judicially created in 1930. The General Assembly very likely envisioned basic tort defenses then existing such as contributory negligence or assumption of the risk. The Legislature also may have contemplated basic general defenses to various torts which might in the future be adopted pursuant to the authority to change the common law. It is quite doubtful, however, that the Legislature intended that a judicially created defense, designed for certain circumstances because of public policy, would be applied to the entirely different circumstances addressed by the wrongful death and survival statutes, where the public policy would not be served.

The parent-child immunity doctrine was created solely for the situation involving a tort action between a live parent and a live minor child. A tort suit, otherwise authorized by the law, might disrupt the parent-child relationship in this situation. *659 When there is no action between a live parent and a live child, and no parent-minor child relationship to be disrupted by the suit, the immunity doctrine is obviously inapplicable. It was not created by this Court to be applied under such circumstances, as shown by the decisions in Waltzinger v. Birsner, supra, 212 Md. 107 , 128 A.2d 617 , and Mahnke v. Moore, supra, 197 Md. 61 , 77 A.2d 923 . The Smith v. Gross opinion, however, misused statutory language, enacted long before the adoption of the parent-child immunity doctrine, to apply that doctrine to a situation where there was no parent-child relationship.

To reiterate, the parent-child immunity doctrine has no statutory basis; it was judicially created solely for the situation where there is an ongoing parent-minor child relationship which an intervivos tort action might disrupt. Where there exists no ongoing parent-minor child relationship to be disrupted, there is utterly no reason to apply the doctrine. Smith v. Gross should be overruled.

Judge Raker has authorized me to state that she joins this concurring opinion.

. Interestingly, the Supreme Court of Mississippi overruled Hewlett v. George 101 years after that case was decided. See Glaskox v. Glaskox, 614 So.2d 906 (Miss.1992).

. The persuasiveness of these additional reasons is questionable. Thus, we have abolished the doctrine of interspousal immunity in tort actions *654 based on negligence. See Doe v. Doe, 358 Md. 113, 120 , 747 A.2d 617, 620 (2000); Boblitz v. Boblitz, 296 Md. 242 , 462 A.2d 506 (1983). Negligence actions between spouses present the same danger of fraud and collusion as negligence actions between parent and child.

With regard to depleting family resources, many allowable non-tort actions involving parents and children present a much greater danger that family resources will be depleted. In the case of negligence actions between parent and child, there will normally be liability insurance.

. Briefs September Term 1989, No. 79, appellant’s brief at 3.

. Id. at 6-7.