# Rousey v. Rousey > District of Columbia Court of Appeals · June 23, 1987 · 528 A.2d 416 URL: https://www.frixlaw.com/law-library/cases/9746351 ## Case - **Full name:** Smith W. ROUSEY, Next Friend of Cheryl T. Rousey, a Minor, Appellant, v. Doris S. ROUSEY, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** June 23, 1987 - **Citations:** 528 A.2d 416; 56 U.S.L.W. 2028; 1987 D.C. App. LEXIS 408 - **Precedential status:** Published - **Opinion:** Dissent by Nebeker - **Judges:** Pryor, Nebeker, MacK, Newman, Ferren, Belson, Terry, Rogers, Steadman - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9746351 ## How later opinions describe it (automated extraction) - concluding that parental immunity is a vestige from a bygone era when children were without legal protection from their parents - declining, over a strong dissent, to adopt the doctrine in the District of Columbia ## Opinion text NEBEKER, Associate Judge, dissenting: The majority gives all the appearances of being quite unsure about its new holding. In the face of a division opinion limiting suits by issue to automobile accidents covered by insurance, Rousey v. Rousey, 499 A.2d 1199 (D.C.1985), the majority now retreats from that unusual view to general amenability to suits by offspring. They then hedge, as does the Restatement, by hinting at unknown exceptions where in the future we may conclude the case involves the type of conduct which may “on a case-by-case basis” be identified as “privileged or non-tortious.” Ante at 421 note 9. The court thus behaves like an ill-advised legislature, acting broadly while it continues to study the need to make exceptions to the broad new enactment. This, in my view, is a poor way to take such a serious step. The hedging also implicitly recognizes that this question is for the legislature. Moreover, the majority chooses to ignore what to me are obviously damaging consequence to family structure and a moral imperative that compel the opposite conclusion. In declining to adopt parental immunity, the majority disparages the wisdom of the past which championed the family unit, as if a contrary modem view is obviously superior. The majority finds solace in the fact that at common law there was no parental immunity and that children could enforce their own contract and property rights and bring their own action in tort. Ante at 416-417. This selective recourse to history ignores a body of law from the ecclesiastical courts where, in their domain, such suits were unthinkable. See McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030, 1060 n. 141 (1930). The majority criticizes an analogy to spousal immunity and asserts that the rationales which support it are not applicable to parental immunity. Ante at 416-417. I agree with this point. Because the common law view of the husband-wife relationship differed from that of the parent-child, any justification by way of analogy is tenuous. Accepting this, however, I find somewhat perplexing the majority’s process of rejecting parental im *422 munity by comparing it to the statutory abolition of spousal immunity in the District of Columbia in 1976. But enough of their fallacious reasoning! The main concern is misguided policy. I view the fact that parental immunity did not exist at common law to be irrelevant because “no American child tortiously injured by his parents had ever sought to recover damages until late in the nineteenth century.” Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L.Rev. 489, 498 (1981-1982). It seems that prior to 1891, our social and legal evolution had not “progressed” to the point that a child, or more accurately one in concert with him, could or would consider suing a parent in tort. The reason may have been that our society tolerated “almost unbridled parental authority,” id. at 493, or that prior to our saturation with liability insurance, there was less incentive to sue. Of course, collusive actions were not permitted. 1 In any event, it appears the legal profession and a family oriented society simply deemed it unthinkable for a child to bring a tort action against his parent. Thus, the testing of liability was simply not contemplated. Accordingly, a doctrine of immunity would have been superfluous. In 1891, when a tort claim was eventually brought by a daughter against her mother, the Supreme Court of Mississippi promulgated the doctrine of parental immunity. Hewellette v. George, 68 Miss. 703 , 9 So. 885 (1891). Although it has been attacked as an “exception to the general rule of liability for negligently caused injury,” Hol-lister, supra, 50 Fordham L.Rev. at 504, parental immunity is more appropriately considered a judicial response to the latter-day attempt to pit child against parent and other family members. I see rejection of this immunity as part of the pandemic course to expand compensation for injury to yet another outer limit. The likelihood of harm to the family structure if parrental immunity is rejected has summarily been dismissed by the majority — in a manner similar to the decisions from other jurisdictions which have undertaken to reject this immunity, see Petersen v. City and County of Honolulu, 51 Hawaii 484 , -, 462 P.2d 1007, 1009 (1969). Moreover, I submit that pointing to the familial discord which may also result from intentional, wanton or grossly negligent conduct is misdirected. The case before us is not one of an intentional or criminally reckless nature. Rather, it stems from an activity which today is essential to the functioning of a household — the operation of the family automobile. Anyone who has reared children today can attest to the near indispensability of the family car or cars. I note that the majority seems to hope that family discord from offspring suits will be avoided because insurance will eliminate true adversity. It will not; and it will foster collusion. But liability insurance should not serve as the basis for rejecting the doctrine of parental immunity in any event. The majority notes the prevalence of liability insurance as its primary justification for creating new legal rights and duties within the family. I believe it imprudent public policy to sanction a new area of tort liability on the grounds that “[t]he availability of insurance relieves the parents of direct financial responsibility for injuries sustained by their children....” Ante at 420. The theory of insurance is that it is supposed to give financial protection against the occurrence of a known risk. Once a type of insurance exists, it is not supposed to encourage the creation of new actions at law. The rationale in this case says, in essence, that because liability insurance exists, this jurisdiction will now create a new *423 class of tort claimants who are eligible to recover because it is hoped most claims will be covered. It would be just as well for the majority to justify its new rule on the hope that suits will not be brought absent insurance coverage. The whole principle of insurance becomes distorted when the presence of insurance encourages new kinds of liability. As additional types of liability are permitted by the court, the insurance companies must either raise policy premiums or exclude coverage as to that particular risk. This latter approach, which is both logical and lawful, if chosen, would eliminate the very reason for the court’s holding in the first place. In the meantime, we encourage collusive suits where no adversity exists, 2 or pit family members against each other in true adversity. Permit me to ask some unanswered questions where insurance is not a part of the scheme. Does our new rule permit actions for negligent failure to seek medical treatment or diagnosis, or to provide special education? Moreover, with abortions being lawful, may a child now sue a parent for wrongful birth if he is born with a foreseeable defect? Through a “case-by-case” process, we will find out sooner or later. The rearing of a child is a unique and delicate responsibility. The teaching, nurturing and disciplining functions performed by every parent vary. They are a function of the social, economic and religious circumstances in every household. To subject a parent to liability based upon near indefinable standards will, I fear, have a detrimental impact on the family unit. The threat of a tort suit could shackle a parent and prevent the flexibility needed to exercise parental control. As a child progresses through the more intractable stages of adolescence, a parent’s fear of being sued must clearly undermine the exercise of parental authority, and thus the family structure. These concerns loom larger as our society grows more litigious. I fear the majority has thought precious little of the consequences. They would no doubt justify their holding on the ground that they simply compensate injury by making the one at fault pay. But how will this really work? In a family structure it is usual to have both parents share in the rearing function. If one parent causes an injury and is at fault, does the other parent owe a duty to the injured child to seek recovery? I suppose so, though we do not say so. If that parent, out of concern for other children or simple devotion to the other parent, or negligence, fails to pursue recovery until a case cannot be proved, what of that parent’s liability? Can an older child, upon reaching majority, sue within the limitations period and deprive younger siblings of the family income or assets? I am sure the response is — “we will decide those cases later ‘on a case-by-case basis.’ ” Such tinkering with the already fragile family structure by judges with no formal training or experience in such matters is ill-advised. It tears at family unity. With or without liability insurance, it unavoidably pits one child against any others for limited family resources and one parent against the other. At a time when families find it hard or impossible to exist without both parents working, we now create a competition for income within the family. And insurance is not the palliative. When a claim is made, the policy can be canceled or the premium increased. In automobile accidents this can be devastating to the family. Moreover, I anticipate that pressure to sue one or both parents will strain the moral fiber which holds families together. Well-structured families will probably ignore our permissive holding. Those not so stable will find little solace in their lucre when they discover the inevitable decay in *424 their moral fiber. Should one of a number of children get a greater share of family assets or in some other way burden the others because one or both parents caused an injury? What “next friend” will make that choice and at what price within the family? I cringe at this holding and what it can mean to our most precious national resource — the family. It foists upon parents, or other family members such as grandparents, aunts and uncles, a choice that can only be described as damnable. What we have wrought I am not sure, but of this I am certain — it is an intruder into any family circle as much as any burglar or disease. And what is worse, it rides a steed called law. I opt for immunity and family unity; so I dissent. . “The cooperation clause [a requirement in the standard liability policy which requires the cooperation of the insured] will be deemed to be violated if the insured, by fraud or collusive conduct, assists the claimant in the maintenance of his suit, rather than the insurer.” 8 J. Apple-man & J. Appleman, Insurance Law and Practice § 4779 (1981). See also Elliot v. Metropolitan Casualty Ins. Co. of New York, 250 F.2d 680, 683 (1957) ("The inherent nature of the subject matter of automobile liability insurance necessitates the mutual obligation of cooperation between insured and insurer_"), cert. denied, 356 U.S. 932 , 78 S.Ct. 774 , 2 L.Ed.2d 762 (1958). . “Because a child has only limited knowledge and ability in legal matters, the decision to sue is usually made by his parents.” Hollister, supra, 50 Fordham L.Rev. at 500. See Streenz v. Streenz, 106 Ariz. 86, 88 , 471 P.2d 282, 284 (1970) ("Where [automobile liability] insurance exists ... in reality the sought after litigation is not between child and parent but between child and parent’s insurance carrier."); Sorensen v. Sorensen, 369 Mass. 350, 362 , 339 N.E.2d 907, 914 (1975) (“When insurance is involved, the action between parent and child is not truly adversaiy_”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746351. Public record. Not legal advice.