E. Intrafamily Duties
In this section we consider the impact on duty when the plaintiff and the defendant
are part of the same family unit, an area that has generated much confusion.
Spousal suits. At common law, courts quite commonly barred spouses from suing
one another for personal injury. The common law view was that husband and wife were a
unity for legal purposes--and suits between them were a logical impossibility. But in the
19th century, legislatures began adopting so-called "Married Women's Acts" that gave
wives the right to own property and to sue over property and contract disputes. With this
destruction of the "unity," state courts slowly began eliminating the immunity from tort
liability that spouses had enjoyed against being sued by one another.
Initially, abrogation occurred in suits for intentional torts because these claims
showed that any spousal harmony sought to be preserved had probably already dissipated. It
was harder to abrogate the immunity in suits for negligence because the courts feared not
marital disharmony, but rather fraud and collusion against insurers as one spouse readily
admitted negligence in hurting the other spouse. Virtually all remnants of spousal immunity
have disappeared as to both intentional and negligent harms. See the discussions in Waite v.
Waite, 618 So.2d 1360 (Fla.1993) and Price v. Price, 732 S.W.2d 316 (Tex.1987).
Parent-child suits. The parent-child relationship was never treated as a unity. The
origin of the immunity of parents to suits by their children can be traced to the late
nineteenth century. The ban was very widely adopted, and has recently been an active area
of litigation. We have already considered suits within the family, though they did not
involve the ability of the child to sue. Recall Andre v. Pomeroy, p. __, supra, involving the
child's claim against her mother for negligent driving.
Claims by children against parents for intentional harm are almost universally
permitted today. For an extended discussion of an "issue of first impression," concluding
that a child should be permitted to sue her father for sexual abuse, see Henderson v.
Woolley, 644 A.2d 1303 (Conn. 1994). The major battleground in parent-child injuries has
been over negligently inflicted harms.
BROADBENT v. BROADBENT
Supreme Court of Arizona, 1995.
184 Ariz. 74, 907 P.2d 43.
CORCORAN, Justice.
We must determine whether the doctrine of parental immunity bars Christopher
Broadbent's action against his mother for negligence. . . .
[While defendant mother was watching her 2-1/2-year-old son swimming at the
family residence, the phone rang. Defendant went inside to answer it. When she looked
out and could not see her son she ran out and found him at the bottom of the pool.
Although he was ultimately revived, he “suffered severe brain damage because of lack of
oxygen. He has lost his motor skills and has no voluntary movement.” The action was
brought by the father as conservator of his son. The trial court dismissed the case based
on state precedents and the court of appeals affirmed, 2-1. The parties have “stipulated
that: (1) the real party in interest was Northbrook Indemnity Company, who provided
personal umbrella liability insurance coverage for Laura Broadbent on the date of the
accident; (2) Laura may be entitled to indemnity from Northbrook if Laura is liable for
the injuries to Christopher; (3) Laura did not want to defend the action but agreed that
Northbrook should be permitted to defend; and (4) the only issue in the case was whether
the doctrine of parental immunity applied. The court of appeals ordered that Northbrook
be permitted to appear and defend the case.”]
DISCUSSION
I. History and Purpose of the Parental Immunity Doctrine
A. The Origins of Parental Immunity
We begin by stating a few basic facts about the treatment of children under the
law and family immunities. Under common law, a child has traditionally been
considered a separate legal entity from his or her parent. [ ] Children have generally been
allowed to sue their parents in property and contract actions. Goller v. White, [122
N.W.2d 193, 197 (Wis. 1963)]; [ ]. In contrast, at common law the courts merged the
identity of husband and wife; therefore, spousal immunity prohibited any action by a
wife against her husband because to do so would have been to sue herself. [ ] The
doctrine of spousal immunity has been abolished and there has not been a prohibition
against siblings suing each other [in Arizona].
The doctrine of parental immunity is an American phenomenon unknown in the
English common law. See Gibson v. Gibson, [479 P.2d 648, 649 (Cal. 1971)]; [ ].
Courts in Canada and Scotland have held that children may sue their parents in tort. [ ]
In early American history, children were viewed as "evil and in need of strict
discipline," and the courts recognized wide parental discretion. [ ]. See, e.g., S.C.Code
Ann. § 16-3-40 (Law.Co-op. 1976) (statute originating from 1712 that provided a defense
to "[k]illing by stabbing or thrusting" if done while chastising or correcting your child).
Only recently has the state intervened to protect children. [ ] Viewed against this
backdrop, it is not surprising that no American child had sought recovery against a parent
for tortious conduct until the late nineteenth century.
[The court reviewed three famous early cases. In Hewlett v. George, 711,
9 So. 885, 887 (Miss. 1891), the court held “without citation to legal authority, that a
child could not sue her parent for being falsely imprisoned in an insane asylum because
of parental immunity, a doctrine which that court created from whole cloth.” The basic
ground was that the “peace of society, and of the families composing society, and a sound
public policy, designed to subserve the repose of families and the best interests of society,
forbid to the minor child a right to appear in court in the assertion of a claim to civil
redress for personal injuries suffered at the hands of the parent.”
In McKelvey v. McKelvey, 77 S.W. 664 (Tenn. 1903), the court held that
a minor child could not sue her father for "cruel and inhuman treatment" allegedly
inflicted by her stepmother with the consent of her father. In Roller v. Roller, 79 P.788
(Wash. 1905), the court “held that a minor child could not sue her father for rape, even
though he had been convicted of the criminal violation, because of the doctrine of
parental immunity.”]
This "great trilogy" was the inauspicious beginning of the doctrine of
parental immunity, which was soon embraced by almost every state. [ ] However, the
courts soon began fashioning several exceptions to the doctrine, and in several states the
doctrine has been abolished. See [Gibson]; Glaskox v. Glaskox, 614 So.2d 906, 909-11
(Miss.1992) (abolishing parental immunity where minor injured as result of parents'
negligence in car accident). In several situations, parental immunity does not apply: if
the parent is acting outside his parental role and within the scope of his employment; if
the parent acts willfully, wantonly, or recklessly; if the child is emancipated; if the child
or parent dies; if a third party is liable for the tort, then the immunity of the parent does
not protect that third party; and if the tortfeasor is standing in loco parentis, such as a
grandparent, foster parent, or teacher, then the immunity does not apply [ ].
B. Parental Immunity in Arizona
[The state first recognized immunity in 1967. In 1970, an unemancipated
minor was allowed to sue her parents for injuries resulting from a car accident. Streenz v.
Streenz, 471 P.2d 282 (Ariz. 1970).] In Streenz, this court adopted [Goller]. Under the
Goller standard, parental immunity is abrogated except:
(1) where the alleged negligent act involves an exercise of parental authority over
the child; and
(2) where the alleged negligent act involves an exercise of ordinary parental
discretion with respect to the provision of food, clothing, housing, medical and
dental services, and other care.
[ ] The cases following Streenz show the difficulty in applying this ambiguous standard.”
[In 1981, a child sued his father for leaving the front yard gate open so that
the child could ride his tricycle in to traffic. The court held that “the parent would not be
immune if the parent had a duty to the world at large.” Sandoval v. Sandoval, 623 P.2d
800, 802 (Ariz. 1981). If the parent's duty was “owed to the child alone and a part of the
parental 'care and control' or 'other care' to be provided by the parents,” then the parent
was immune from liability. The suit failed. In Schleier v. Alter, 767 P.2d 1187
(Ariz.App. 1989), the family dog, which had a history of attacking children, bit the
Alters' 11-month-old child. The court “held that the parents had a duty to the world at
large and therefore were not immune from liability.” In Sandbak v. Sandbak, 800 P.2d 8
(Ariz.App. 1990), the child wandered onto the next door neighbors' property where the
neighbors' pit bull terrier severely mauled her. Her parents “knew that the next door
neighbors owned pit bull terriers and that their daughter had a habit of wandering onto
the neighbors' property.” The court barred the child’s claim.]
C. Analysis of the Policy Reasons Advanced in Support of Parental Immunity
Courts and commentators have postulated many policy reasons for the
parental immunity doctrine. The primary justifications for this immunity are:
(1) Suing one's parents would disturb domestic tranquility;
(2) Suing one's parents would create a danger of fraud and collusion;
(3) Awarding damages to the child would deplete family resources;
(4) Awarding damages to the child could benefit the parent if the child
predeceases the parent and the parent inherits the child's damages; and
(5) Suing one's parents would interfere with parental care, discipline, and control.
[ ] We believe that all of these justifications provide weak support for the parental
immunity doctrine.
The injury to the child, more than the lawsuit, disrupts the family
tranquility. In fact, if the child is not compensated for the tortious injury, then peace in
the family is even less likely. In the seminal Arizona case on parental immunity, the
court recognized that family tranquility would not be disturbed if the parents had liability
insurance. [ ]
This fear of upsetting the family tranquility also seems unrealistic when
we consider how such a lawsuit is initiated. The parent most often makes the decision to
sue himself, and the parent is in effect prepared to say that he was negligent. [ ]
The danger of fraud and collusion is present in all lawsuits. We should
not deny recovery to an entire class of litigants because some litigants might try to
deceive the judicial system. The system can ferret out fraudulent and collusive behavior
in suits brought by children against their parents just as the system detects such behavior
in other contexts.
...
A damage award for the child will not deplete, or unfairly redistribute, the
family's financial resources. These cases will generally not be brought if no insurance
coverage is available, and therefore the worry that the family's resources will be depleted
for the benefit of one child is illusory. The opposite is true. If a child has been seriously
injured and needs expensive medical care, then a successful lawsuit against the parent
and subsequent recovery from the insurance company could ease the financial burden on
the family. It would not be a viable rule to say that liability only exists where insurance
exists, but we recognize that lawsuits generally will be brought when there is potential
insurance coverage.
The possibility that the parent might inherit money recovered by the child
is remote. This becomes a concern only if the parent inherits as a beneficiary under
intestate succession laws. This is a concern for the probate courts and the laws of
intestate succession, not tort law. The remedy would be to prohibit inheritance by the
parent--not to deny recovery to the injured child. See Parent-Child Immunity, at 497-98.
The Arizona courts have embraced the rationale that allowing a child to
sue a parent would interfere with parental care, discipline, and control. See [Streenz]. We
have [in Sandoval] cited with approval the Wisconsin Supreme Court's statement that:
[a] new and heavy burden would be added to the responsibility and privilege of
parenthood, if within the wide scope of daily experiences common to the
upbringing of children a parent could be subjected to a suit for damages for each
failure to exercise care and judgment commensurate with the risk.
The justification that allowing children to sue their parents would undercut
parental authority and discretion has more appeal than the other rationales. However, if a
child were seriously injured as a result of the exercise of parental authority, such as by a
beating, then it would constitute an injury willfully inflicted, and parents are generally
not immune for willful, wanton, or malicious conduct. [ ] Furthermore, such a willful
beating would probably constitute child abuse and could be criminally prosecuted. [ ]
We want to protect the right of parents to raise their children by their own
methods and in accordance with their own attitudes and beliefs. The New York Court of
Appeals aptly stated this concern:
Considering the different economic, educational, cultural, ethnic and religious
backgrounds which must prevail, there are so many combinations and
permutations of parent-child relationships that may result that the search for a
standard would necessarily be in vain.... For this reason parents have always had
the right to determine how much independence, supervision and control a child
should have, and to best judge the character and extent of development of their
child.
Holodook v. Spencer, [324 N.E.2d 338, 346 (N.Y. 1974)]. Though we recognize the
importance of allowing parental discretion, we disagree that our searching for a standard
would be "in vain." Parents do not possess unfettered discretion in raising their children.
II. The Abolishment of Parental Immunity and Adoption of the "Reasonable Parent"
Standard for Parent-Child Suits
Although the above concerns make it difficult to draft a proper standard
for the type of action a child may maintain against a parent, we will attempt to do so.
We need to "fashion an objective standard that does not result in second-guessing parents
in the management of their family affairs." [ ] First, we should make clear what the
standard is not. We reject and hereby overrule Sandoval, which created the "duty to the
world at large versus duty to the child alone" distinction. [ ] This distinction is not
capable of uniform application and has no connection with the rationale for parental
immunity. This is especially evident when we compare the facts of Schleier and
Sandbak.
In Schleier, the negligent act was failure to restrain a dog, and the court
found that this was a duty to the world; therefore, parental immunity did not apply. [ ] In
Sandbak, the negligent act was failure to supervise a child who was bitten by a neighbor's
dog, and the court found this was a duty to the child alone; therefore, parental immunity
applied. [ ] The children in Schleier and Sandbak suffered similar injuries; neither case
involved parental discipline, and neither case involved the "provision of food, clothing,
housing, medical and dental services, and other care," unless "other care" is broadly
defined. Both cases involved the negligent supervision of children. If we were to hold
that parents are immune for negligent supervision of children, then the issue of liability
would revolve around whether an activity could be described as "supervision" and
whether lack of supervision was the cause of the injury. This would not involve a
consideration of whether the activity infringed on the parents' discretionary decisions
regarding care, custody, and control. Almost everything a parent does in relation to his
child involves "care, custody, and control."
We add that parents always owe a parental duty to their minor child. The
issue of liability should revolve around whether the parents have breached this duty and,
if so, whether the breach of duty caused the injury.
In accord with the California Supreme Court, "we reject the implication of
Goller [which this court approved in Streenz] that within certain aspects of the
parent-child relationship, the parent has carte blanche to act negligently toward his child.
. . . [A]lthough a parent has the prerogative and the duty to exercise authority over his
minor child, this prerogative must be exercised within reasonable limits." [Gibson]. We
hereby reject the Goller test as set forth in Streenz, and we approve of the "reasonable
parent test," in which a parent's conduct is judged by whether that parent's conduct
comported with that of a reasonable and prudent parent in a similar situation. [ ]
A parent is not immune from liability for tortious conduct directed toward
his child solely by reason of that relationship. [ ] And, a parent is not liable for an act or
omission that injured his child if the parent acted as a reasonable and prudent parent in
the situation would.
III. Application to the Present Case
In this case, the trier of fact may find that the mother, Laura Broadbent,
did not act as a reasonable and prudent parent would have in this situation. The finder of
fact must determine whether leaving a two-and-a-half year old child unattended next to a
swimming pool is reasonable or prudent. . . .
The paradox of parental immunity can be seen if we assume that a
neighbor child from across the street was a guest and was injured at the same time and
under the same circumstances as Christopher. Should the neighbor child be permitted to
sue and recover damages from Laura but Christopher be denied the same opportunity?
A parent may avoid liability because there is no negligence, but not
merely because of the status as parent. Children are certainly accident prone, and
oftentimes those accidents are not due to the negligence of any party. The same rules of
summary judgment apply to these cases as to others, and trial courts should feel free to
dismiss frivolous cases on the ground that the parent has acted as a reasonable and
prudent parent in a similar situation would. [ ]
[The court vacated the decision below and remanded to the trial court for
further proceedings.]
MOELLER, V.C.J., and ZLAKET and MARTONE, JJ., concur.
FELDMAN, Chief Justice, specially concurring.
I join in the abrogation of parental immunity and the court's adoption of
the reasonable and prudent parent test but write separately to sound a note of caution.
Although we abolish a rule of tort immunity, we must bear in mind that "difficult
problems" remain in "determining when a physical harm should be regarded as
actionable." Restatement (Second) of Torts § 895G cmt. k. If the alleged tortious
conduct does not grow out of the family relationship, the question of negligence "may be
determined as if the parties were not related." [ ] However, there are areas of broad
discretion in which only parents have authority to make decisions. In these areas, I agree
with the Restatement's view that "the standard of a reasonable prudent parent ...
recognize[s] the existence of that discretion and thus ... require[s] that the [parent's]
conduct be palpably unreasonable in order to impose liability." . . .
[Here the opinion distinguishes between enrolling “a two-year-old child in
swimming lessons at a neighborhood pool”—where the standard would be “palpably
unreasonable”--and “leaving an unsupervised two-year-old child, who was unable to
swim, at the side of a swimming pool.”]
Notes and Questions
1. Evaluate the five reasons the court offers for the immunity. The
majority asserts that “virtually everything a parent does in relation to his child involves
‘care custody and control.’” Is that correct? What about automobile driving?
2. How does the concurrer disagree with the majority? How different is
the standard of “palpably unreasonable” from the majority’s standard of a “reasonably
prudent parent in a similar situation”?
3. The implications of the New York view, affording protection to parents
charged with negligent supervision, were spelled out in Zikely v. Zikely, 470 N.Y.S.2d
33 (App.Div. 1983) aff’d on the opinion below, 467 N.E.2d 892 (N.Y.1984). The “infant
plaintiff was injured when the defendant parent turned on a hot water faucet in a tub to
prepare a bath and then left the room. The child, left unsupervised, wandered into the
bathroom and fell into or otherwise entered the tub, suffering severe burns.” The majority
understood Holodook to protect parents who created dangers as well as those who failed to
protect children against dangers:
[T]o at least some degree the parents in Holodook took some affirmative action in
creating a danger. Bringing a young child to a neighbor and letting the child loose in
a yard where an eight-year old is playing with a power mower or bringing a child to
a playground containing an 11-foot-high slide involves some affirmative behavior
on the part of the parent in creating a danger that the child, if left unsupervised, will
suffer injury. [To read Holodook to allow suits in such cases would mean that]
[e]very time a parent plugged in an iron, started a toaster, or boiled a pot of water on
the stove, he would be subjected to potential liability if an unsupervised child came
in contact with these common, daily household hazards in a manner which resulted
in injury. To accept such a position would be to strip Holodook of a significant part
of its meaning.
Does the New York view justify protecting a mother who crossed a busy street against a red
light while carrying plaintiff child in her arms? See Kronengold v. Kronengold, 598
N.Y.S.2d 698 (App.Div. 1993) (barring suit). How would the facts of Broadbent be
analyzed in New York? Is the court correct to reject the New York view that in this type
of case “the search for a standard would necessarily be in vain”?
4. As the court notes, California, in Gibson, rejected the Wisconsin view:
[W]e reject the implication of Goller that within certain aspects of the parent-child
relationship, the parent has carte blanche to act negligently toward his child. . . . In
short, although a parent has the prerogative and the duty to exercise authority over
his minor child, this prerogative must be exercised within reasonable limits. The
standard to be applied is the traditional one of reasonableness, but viewed in the light
of the parental role. Thus, we think the proper test of a parent's conduct is this: what
would an ordinarily reasonable and prudent parent have done in similar
circumstances?
Does that approach permit taking into account the various kinds of diversity that the New
York court deems necessary?
5. Was the limitation of parental liability justifiable at the time it was developed
at the turn of the 19th century? If so, what has changed? Would it be defensible to impose
a duty of care and eliminate the immunity only in automobile accident cases? Is it
indefensible to allow a child’s friends to sue the child’s mother for negligent driving but
bar the child from such a suit?
If some immunity is sound, should it extend to siblings? Foster parents? The latter
is the subject of a spirited debate in Commercial Bank v. Augsburger, 680 N.E.2d 822
(Ill.App. 1997).
6. Many of these issues arise in a third party context—in which the child (through a
guardian) has sued a third person, who seeks contribution from a careless parent. What new
issues are raised by adding the third party? In La Torre v. Genesee Management, Inc., 687
N.E.2d 1284 (N.Y. 1997), plaintiff twenty-year-old developmentally disabled man was left
by his mother at an amusement center in a shopping mall while she went shopping. He got
into an altercation with another person. Security guards physically subdued and handcuffed
him. When he sued the mall over the episode, the mall filed a third party action against the
mother. The court rejected the third party action. Since the plaintiff could not have sued his
mother directly because of Holodook, that result should not be permitted indirectly.
Holodook’s concerns of burdensome liability and family stress applied here. Moreover “the
fear of ultimate boomerang liability might well present parents with the conflicted choice of
seeking legal redress on their child’s behalf or anticipatorily avoiding having to defend their
own caretaking conduct and actions in courts.”
Very few states dissent from this position. For a case that permits contribution even
though a direct action against the parent would not lie, see Bishop v. Nielsen, 632 P.2d 864
(Utah 1981). The court viewed "the equities in favor of contribution as far outweighing the
benefits to be achieved by a strict application of the doctrine [of family immunity]." Given
parental immunity, what are the merits of the Bishop approach to contribution? We explore
contribution further in Chapters V and VI.
7. Harm to the fetus. In Bonte v. Bonte, 616 A.2d 464 (N.H. 1992), a child born
alive was allowed to sue her mother for "catastrophic" injuries sustained when her mother
failed "to use reasonable care in crossing the street and fail[ed] to use a designated
crosswalk." The court, 3-2, held that since a fetus born alive could sue a third party for
harm sustained before birth, and since the court had abolished parental immunity, "it
follows" that this action should lie. The majority rejected the notion that fetal injury
warranted different treatment from claims brought by a child already born. One of the three
justices, urging case-by-case development in this area, concluded that the negligence alleged
here was actionable "because a breach of the duty owed to [the] fetus could foreseeably
cause serious harm to an unborn child." (The majority noted in passing that the defendant
mother was "represented by counsel provided by her insurance company," but made nothing
of that fact in its decision.)
The dissenters thought that the majority had "failed to fully appreciate the extent of
the intrusion into the privacy and physical autonomy rights of women." They drew a sharp
distinction between a child suing third persons for what happened in the womb and suing the
mother. "Third parties . . . are able to continue to act much as they did before the cause of
action was recognized." But extending this duty to a pregnant woman "could govern such
details of a woman's life as her diet, sleep, exercise, sexual activity, work and living
environment, and, of course, nearly every aspect of her health care." The dissenters had
"serious doubts" that it was possible to "subject a woman's judgment, action, and behavior
as they related to the well-being of her fetus to a judicial determination of reasonableness in
a manner that is consistent and free from arbitrary results." They also feared difficult
line-drawing problems.
Should a child be permitted to sue a parent for smoking-related harm suffered prior
to birth? What about a suit for respiratory harm caused to a child by a smoking parent after
birth?
8. Should parental duties be modified by religious beliefs? In Lundman v.
McKown, 530 N.W.2d 807 (Minn.App. 1995), cert. denied 516 U.S. 1099 (1996), an 11year-old boy became ill and died after four days without medical attention. During that
period, his condition was easily diagnosable and was treatable by doctors up to two hours
before his death. When he first became ill, his mother and his stepfather, who were
Christian Scientists, called a local church source and were referred to a practitioner who was
"specially trained to provide spiritual treatment through prayer." The mother hired the
practitioner to pray for the boy. As the illness progressed a Christian Science nurse was
hired who tried to keep the boy clean and comfortable, read hymnals to him, and kept the
practitioner informed of the boy's deteriorating condition.
A wrongful death judgment obtained by the boy's father was affirmed against the
mother, stepfather, practitioner and nurse. The mother's duty was clear: a "custodial parent
has a special relationship to a dependent and vulnerable child that gives rise to duty to
protect the child from harm." The stepfather was held to have assumed a duty by his conduct
in participating in the treatment. As to the standard of care, the court rejected any
formulation that would "insulate Christian Scientists from tort liability in cases involving
children." Then, adopting a standard that took account of " ‘good-faith Christian Scientist'
beliefs, rather than an unqualified ‘reasonable person standard,’" the court held that
"reasonable Christian Science care is circumscribed by an obligation to take the state's (and
child's) side in the tension between the child's welfare and the parents' freedom to rely on
spriritual care." A parent's religious belief "must yield when--judged by accepted medical
practice--it jeopardizes the life of a child." Was it correct to adopt a mixed standard? Does
the mixed standard offer any special protection for exercise of religious beliefs?
The nurse and the practitioner argued that the mother had retained them only to
provide services consistent with the mother's religious preferences--that the mother
controlled the treatment. The court disagreed: this was "an instance where Christian
Science professionals should have been aware of the requirement that they yield to the law
of the community." They had a "responsibility on these facts to acknowledge that Christian
Science care was not succeeding and to persuade mother to call in providers of conventional
medicine or, persuasion failing, to override her and personally call for either a doctor or the
authorities."
9. The Impact of Insurance. Broadbent appears influenced by the institution of
insurance. (An umbrella policy protects the insured for sums greater than those afforded by
other more common insurance coverages, such as automobile liability or homeowner’s
liability insurance. We discuss insurance further in Chapter X.) Yet, the court asserts that it
“would not be a viable rule to say that liability only exists where insurance exists.” Why
not? See Ard v. Ard, 414 So.2d 1066 (Fla. 1982), allowing intrafamily suits up to the limit
of any insurance coverage.
In intrafamily cases, a bitter internal feud over allocation of family assets without
liability insurance may become instead a way to obtain outside assistance when one member
has caused injury to another. (Of course, this may be so attractive to the family that it
creates concerns about collusion that must be addressed.)
A few states have preserved total immunity in the face of insurance. See the
discussion in Renko v. McLean, 697 A.2d 468 (Md. 1997), an automobile accident case
in which the court unanimously rejected any liability. The court noted that it had
permitted some exceptions, such as a suit against a father’s business partner for the
negligence of the partnership, and one where “within the span of one week, the father
both murdered the child’s mother and committed suicide in the child’s presence.” But an
exception for automobile accidents “would effectively negate the rule and open
courthouse doors to every conceivable dispute between parent and child.”
The court saw several “infirmities” in the limited abrogation, including the
concern that insurers were placed in the “unenviable position of attempting to defend a
suit that its insured has every incentive to lose.” Moreover, the court was concerned that
“a jury’s generosity is proportionate to the amount of available insurance.” Maryland and
most states bar telling the jury that insurance is involved in a case. Is this type of case
more likely to lead to jury speculation about insurance than the typical auto accident?
Finally, the court was concerned about judgments that exceeded the available liability
insurance. In such a case the feared intra-family rancor would reappear. If the court were
to try to limit the child’s recovery to the amount of available insurance, “the argument
that his or her recovery should be no different than that of any person negligently injured
once again takes center stage.” Further, “many families carry medical insurance that
would necessarily compensate the injured child, and therefore, his or her family, for
injury-related expenses.” How would Broadbent answer each of these concerns?
When states have permitted intrafamily suits for auto accidents or other types of
harm, insurers have frequently responded by excluding that coverage from the policy. See,
e.g., Principal Casualty Ins. Co. v. Blair, 500 N.W.2d 67 (Iowa 1993) (upholding exclusion
of coverage of suit for father’s negligence in assembling a bicycle where policy explicitly
excluded coverage of any claim brought by one member of the family against another).
Some courts permit insurers to exclude coverage of intrafamily claims in non-auto
suits but refuse to allow it in auto suits especially where such insurance is compulsory or
strongly encouraged. See the discussion in Horesh v. State Farm Fire & Cas. Co., 625 A.2d
541 (App.Div.1993) and the three-way split in National County Mut. Fire Ins. Co. v.
Johnson, 879 S.W.2d 1 (Tex.1993). See also Black v. Allstate Insurance Co., 711 N.Y.S.2d
15 (App.Div. 2000) (discussing a statute that bars liability insurance coverage of negligence
actions between spouses unless such coverage is expressly written into the policy—and
urging the legislature to reconsider the matter). We return to insurance in more detail in
Chapter X.