stating “[t]he court may modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable.”
How later courts described this case
- stating “[t]he court may modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable.”
- abrogated the parental immunity rule in negligence cases except in certain situations; child permitted to sue for injuries resulting from auto accidents
- tort action by child against parent
- suit by child against parent
Written by the judges who cited it.
The opinion
Rogosheske, Justice
(dissenting).
I dissent. As in Balts, the reasons stated for the rule announced arguably support the complete abrogation of the immunity rule in all actions for personal injury resulting from ordinary negligence between members of a family living in the same household. As expressed in my disagreement with the Balts opinion, I cannot agree with a holding which I fear will create innumerable legal and social problems and which I believe amounts to an unwarranted intrusion into the family circle.
It may be that the arguments advanced for the removal of the immunity defense in a parent-child action are “legally indistinguishable” from an action by a child against a parent, but the social and legal relationship of a child to its parents presents a far more difficult problem of weighing competing public policies which, as emphasized by the dissent in Balts, the legislature is best equipped to consider and attempt to resolve. In addition to those “different and distinguishable policy considerations” enumerated in Balts, 1 parents may be assumed capable and ex *444 pected to exercise discernment and good judgment before suing their child. Also, a child injured by the negligence of a parent is not without a remedy since the parent is not only instinctively but morally and legally bound to provide adequate care and support.
To use the family automobile accident as a basis for permitting a young, immature child to litigate the claimed fault of a parent in open court under our adversary system in all but the most vague and still to be defined domestic activities is to use a “hatchet instead of a scalpel” to afford a remedy to a child disabled by the negligent operation of the family automobile. While modem day realities may justify abolishing family immunity in tort actions arising out of the operation of a fully insured automobile, the majority opinions of Balts and this case reach far beyond the judicial action necessary to afford relief to the injured child. All that would be required is to eliminate the defense in such cases, coupling with it the permissive joinder of the insurance carrier as a party defendant. Such would be consistent with the language and spirit of our mies of procedure, 2 would minimise the impact of the change upon the family unit, and would make clear that it is the development of liability insurance coverage that is the decisive reason for overruling our prior decisions. This, together with the comprehensive treatment of the entire problem in Balts and this case, would alert the legislature to the growing judicial dissatisfaction with court-created rales of immunity and invite its attention to the end that such legislation would be enacted as would reflect the public’s need and desire for change.
“(a) Subverting parental discipline; (b) depleting family assets; (c) *444 inheriting child’s award; (d) friction protracted by tolling of the statute of limitations; and (e) family government analogous to sovereign immunity.” Balts v. Balts, 273 Minn. 419, 434 , 142 N. W. (2d) 66, 75 .
Rules 18.02 and 20.01, Rules of Civil Procedure; Wright, Minnesota Rules, pp. 116 to 118.