Jilani by and Through Jilani v. Jilani

GONZALEZ, Justice,

dissenting.

We have not been presented with any compelling public policy reasons to change the doctrine of parental immunity. Therefore, I would not carve out the exception that the court has made in this case. Furthermore, the court’s opinion has the potential of sowing the seeds of disharmony and conflict in the home and will disrupt the stability that this area of the law has enjoyed for the past 34 years. It is for these reasons that I dissent. I would affirm the judgment of the court of appeals.

This is a suit filed by a wife on behalf of her children, ages 15, 14 and 6, against her husband, the children’s father, as a result of injuries the children received in an automobile accident which occurred while the father was taking them on a vacation. 1 The operative fact is not that the injury occurred in an automobile, but that the family was on vacation.

Under the common law of this State, parents are immune from liability for negligent injury to a child while they are performing their parental duties. Aboussie v. Aboussie, 270 S.W.2d 636, 639 (Tex.Civ.App.-Fort Worth 1954, writ ref’d), Felderhoff v. Felderhoff, 473 S.W.2d 928, 931 (Tex.1971), Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex.1975). 2 One of the parental duties recognized in Felderhoff is providing for recreation. Felderhoff, 473 S.W.2d at 933 . Since taking a family vacation is recreational in nature, this cause comes within the purview of the parental immunity doctrine.

In 1954, our court recognized the importance of the family and the dangers of suits by children for the negligent acts of their parents. In Aboussie , in an opinion *679 which we adopted, the court of appeals stated:

There are God-given ties of love, loyalty and devotion between parents and children that do not exist between the children and other people. We do not think these ties should be cut asunder or endangered by permitting a minor uneman-cipated child to sue its parent for damages based on ordinary, unintentional negligence.

Aboussie, 270 S.W.2d at 640 . This explains why a child should not be allowed to sue his or her parents, while other persons in the same vehicle are permitted to file a lawsuit against the driver.

In 1971, in Felderhoff , we stated:

We trust that it is not out of date for the state and its courts to be concerned with the welfare of the family as the most vital unit in our society. We recognize that peace, tranquility and discipline in the home are endowed and inspired by higher authority than statutory enactments and court decisions. Harmonious family relationships depend on filial and parental love and respect which can neither be created nor preserved by legislatures or courts. The most we can do is to prevent the judicial system from being used to disrupt the wide sphere of reasonable discretion which is necessary in order for parents to properly exercise their responsibility to provide nurture, care, and discipline for their children.

Felderhoff 473 S.W.2d at 933 .

Parents have a duty to: (1) support their children, Tex.Fam.Code Ann. § 4.02 (Vernon Supp.1988); (2) provide medical care, Tex.Fam.Code Ann. § 12.04(3) (Vernon 1986); and manage the estate of their child, except where a guardian is appointed. Tex.Fam.Code Ann. § 12.04(4) (Vernon 1986).

Furthermore, the parents have the right to the earnings of the child. Tex.Fam.Code Ann. § 12.04(5) (Vernon 1986). Parents also have the power to represent the child in legal actions and make other decisions of a substantial legal nature concerning the child, Tex.Fam.Code Ann. § 12.04(7) (Vernon 1986) and to hold or discharge any funds for the benefit of the child. Tex. Fam.Code Ann. § 12.04(8) (Vernon 1986).

Inevitably, there will be some instances where the alleged negligence of the parent will not arise out of the operation of an automobile and/or the parent may have no liability insurance or inadequate insurance. In such cases, there will exist an inherent conflict of interest. On the one hand, the parent will have the duty of supporting the child, while on the other hand, when sued by the minor, the parent is placed in an adversarial position in relation to the child. If the minor recovers a judgment against the parent, the parent would be charged with the responsibility of disbursing a sum of money to the child. However, the duty to manage the child’s estate will in effect cause the money to return to the hands of the parent. If the court chooses to appoint a guardian to administer the funds awarded to the minor, this also will create a potential conflict between the parent, the minor, and the guardian, as to the expenditure of those funds. Whether the money judgment is paid by the parent or an insurance company, children may be more apt to argue with their parents, such as “it’s my money and I can buy a motorcycle or a sports car with the money if I want to. If you don’t let me, I am going to talk to my lawyer.” There may even be an attorney who would initiate another lawsuit against the parents for their refusal to accede to the wishes of the minor. I therefore will not join an opinion that allows our judicial system to be used as a forum for a spectacle where family members are pitted against each other with “paid gladiators” fighting to win to the bitter end.

Even though the court’s opinion is limited in scope and application, I am concerned about the consequences of carving out an exception in this case. History has taught us that once we start making exceptions to a doctrine, other exceptions are likely to follow. When this happens, the assault on the family will continue. 3 The common law *680 is not inflexible. It has capacity for growth and adaptation. However, we have not been presented with any compelling reasons to make the exception that the court has made.

For these reasons, I dissent..

. The State Board of Insurance has adopted a standard automobile policy endorsement which eliminates liability coverage if the claimant is the spouse or other family member of the insured. State Bd. of Ins., 12 Tex.Reg. 1126 (1987) (Texas Automobile Manual). However, the policy in this case did not contain such an exclusion.

. There is a split of authority in other jurisdictions, but it appears that the majority of the states support the view that a parent is exempted from liability for negligent injuries to a child. Annotation, Liability of Parent for Injury to Un-emancipated Child Caused by Parent’s Negligence —Modern Cases, 6 A.L.R. 4th 1066 (1981).

. If there is an accident causing severe injuries to a child, it is likely that a “runner" will de *680 scend on the child in the hospital like a vulture trying to hustle the child for a lawsuit against the parent. See State Bar of Texas v. O’Quinn, 763 S.W.2d 397 , (Gonzalez, J, concurring).