Rousey v. Rousey

BELSON, Associate Judge,

with whom Chief Judge PRYOR joins, dissenting:

I write separately because I prefer to state narrowly the reason I think this court should not abrogate the doctrine of parental immunity.

Although the majority opinion states that the doctrine of parental immunity has never been established in this jurisdiction, see supra at 420 n. 8, District of Columbia law, as reflected by decision and by practice, attests to the contrary. Cf. Dennis v. Walker, 284 F.Supp. 413, 415 (D.D.C.1968) (trial court recognizes doctrine of parental immunity in absence of appellate court authority). It is true that neither this court nor our federal counterpart has ever adopted expressly the doctrine of parental immunity. The United States Court of Appeals for the District of Columbia Circuit, however, twice has expressed its approval of the doctrine, and a decision of the United States District Court for the District of Columbia has adopted it affirmatively. See Perchell v. District of Columbia, 144 U.S.App.D.C. 122, 123-24 , 444 F.2d 997, 998-99 (1971); Villaret v. Villaret, 83 U.S.App.D.C. 311, 311-12 , 169 F.2d 677, 677-78 (1948); Dennis v. Walker, supra, 284 F.Supp. at 417 .

In Villaret , a federal diversity case, the court applied the “overwhelmingly prevalent rule that public policy forbids” suits by minor children against their parents. 83 U.S.App.D.C. at 312 , 169 F.2d at 678 . Relying on this policy, the court held that, under Maryland law, the minor plaintiff had failed to state a claim against his mother upon which relief could be granted. Id. at 312-13 , 169 F.2d at 678-79 .

Next, in Dennis v. Walker, the District Court followed “the overwhelming weight of authority in this country” to hold that the doctrine of parental immunity should apply in the District of Columbia. 284 F.Supp. at 417 . Since the minor plaintiff could not maintain a suit against her parents, the court reasoned, the defendant in that case could not seek contribution from the minor plaintiffs parents, whose negligence allegedly was a proximate cause leading to the plaintiff's injuries. Id. at 417-19 .

Several years later, the United States Court of Appeals, by unmistakable implication, accepted the District Court’s conclusion that minor children may not sue their parents in tort. Perchell, supra, 144 U.S. App.D.C. at 123-24, 444 F.2d at 998-99 . The court expressly modified “[t]he doctrine of parental immunity as applied in Dennis v. Walker ” to allow the defendant to sue for contribution from the minor plaintiffs’ father, despite the fact that parental immunity barred the minor plaintiffs themselves from suing him. Id. at 124 , 444 F.2d at 999 . By so modifying the doctrine of parental immunity, the court implicitly acknowledged its existence in this jurisdiction. Although not binding upon this court, see M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971), Perchell reflects what the state of the law regarding parental immunity has been in the District of Columbia.

Given this jurisdiction’s consistent adherence, until now, to the doctrine of parental immunity, the majority decision’s departure from the doctrine reflects a determination of public policy better suited to consideration by the District of Columbia Council. As an elected legislative body, the Council is in a better position to weigh competing policy considerations such as the potential for collusive lawsuits, divisiveness in fami *425 ly structures, and the need to compensate tort victims.

For the reasons stated, I respectfully dissent.