Cates v. Cates

CHIEF JUSTICE MILLER, dissenting:

I cannot agree with the majority’s decision to modify the parent-child tort immunity doctrine. This is a subject appropriately reserved to legislative consideration, and for that reason I dissent.

The majority’s discussion of dicta, though itself dictum, demonstrates the existence of a rule of parent-child tort immunity in this State, a rule that today’s decision changes dramatically. As the majority explains, although this court has not specifically held that the rule of immunity governs negligence actions between parent and child, the court has consistently approved that doctrine through judicial dicta. (See, e.g., Gerrity v. Beatty (1978), 71 Ill. 2d 47 ; Mroczynski v. McGrath (1966), 34 Ill. 2d 451 ; Nudd v. Matsoukas (1956), 7 Ill. 2d 608 .) More recently, in Stallman v. Youngquist (1988), 125 Ill. 2d 267 , this court vacated the portions of a lower court’s judgments partially abrogating the immunity doctrine, concluding that an examination of the rule was unnecessary in that case. The appellate court has applied the doctrine in a variety of factual settings (see, e.g., Davis v. Grinspoon (1991), 212 Ill. App. 3d 282 ; Edgington v. Edgington (1990), 193 Ill. App. 3d 104 ; Lawber v. Doil (1989), 191 Ill. App. 3d 323 ); that court has drawn exceptions to the rule in cases in which the tortious conduct fell outside the scope of the parental relationship (Schenk v. Schenk (1968), 100 Ill. App. 2d 199 ) or in which the tortfeasor subsequently died (Johnson v. Myers (1972), 2 Ill. App. 3d 844 ).

In view of these precedents, and of the general nature of the issue before us, I believe that abrogation of the immunity doctrine, whether in whole or in part, should be accomplished through legislative action, and not by judicial fiat. To be sure, the immunity rule was originally a judicial creation, and we do not lack the authority to modify or even eliminate it. But the scope of the immunity protection is fundamentally a question of public policy, and hence a matter that is better resolved by the legislature than by the judiciary. Prudence, and not power, should guide our action here.

Expressions of public policy are found primarily in the constitution and statutes of the State, and only secondarily in its judicial decisions. (American Federation of State, County & Municipal Employees v. State of Illinois (1988), 124 Ill. 2d 246, 260 ; Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367, 374 ; Routt v. Barrett (1947), 396 Ill. 322, 340 .) The preferred role of the legislature as an expositor of public policy simply reflects the basic principle that a court, constrained by the particularity of the specific controversy before it, is singularly ill-suited to making broad pronouncements of policy. The legislature, with its vastly different functions and resources, is better able to undertake a thorough examination of the different concerns that underlie a matter such as this. The judicial branch is not equipped to perform that mission.

Any change in the area of parent-child immunity implicates a number of important interests. The most significant of these is the traditional responsibility of a parent for deciding questions involving the supervision, care, and control of a minor child. Determining which aspects of that relationship should no longer be immunized requires a careful appraisal of parental obligation in light of modern conditions and circumstances. Moreover, as the majority acknowledges, actions involving parents and children are generally brought because liability insurance provides a potential source of recovery. (156 Ill. 2d at 100-01.) Modification of the immunity doctrine could substantially affect existing underwriting standards and measurements of risk. But the far-reaching effects of today’s decision do not even end there. By statute, teachers stand in loco parentis, and the provisions of the School Code codifying our traditional immunity rules will also require reexamination. 105 ILCS 5/24 — 24, 5/34— 84a (West 1992); see Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165 ; Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165 .

Any doubt that modification of the immunity doctrine is, at bottom, a question of public policy is dispelled by a consideration of the language used in the majority opinion. The very terms employed by the majority in describing developments in this area of the law betray the essentially legislative function being conducted in the present case. Thus, the court declares:

“A public policy based on the principle of preserving family harmony necessarily argues against every kind of intrafamily litigation. The allowance of a variety of intrafamily negligence actions by exception reveals that the family harmony rationale, an apparently absolute principle, is in fact balanced against other considerations or is not, as a practical matter, a viable consideration. [Citation.] *** [T]he immunity exists only to further the parent-child relationship, and where that relationship is not impacted, the policies supporting the doctrine lose their persuasive strength.” 156 Ill. 2d at 98-99.

Making declarations of public policy is primarily a legislative function (see People v. Felella (1989), 131 Ill. 2d 525, 539 ), and I would leave to that branch of government the consideration of changes to the rule of parent-child tort immunity. I do not doubt our power to modify the immunity doctrine, but I must question the wisdom of our doing so. Because I believe that further development in this area of the law should come from the legislature rather than from the courts, I respectfully dissent from today’s decision.