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04/22/85 DEBORAH ANN JACKSON BARRANCO v. RICHARD P.

April 22, 1985

DEBORAH ANN JACKSON BARRANCO, AS NATURAL MOTHER AND ADMINISTRATRIX OF THE ESTATE OF TERRI JANET JACKSON, DECEASED, PLAINTIFF-APPELLANT,
v.
RICHARD P. JACKSON, DEFENDANT-APPELLEE



Shelby Law; Hon. Cecil J. McWhirter, S.J.

Harbison, J. wrote the opinion. Cooper, C.j., and Tatum, Sp. J., concur; Brock and Drowota, JJ., Dissent.

The opinion of the court was delivered by: Harbison

HARBISON, J.

In this case the Court is asked to modify or to abolish the rule of parental immunity in tort cases first adopted in this state in McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W.2d 664 (1903), and followed thereafter in numerous cases.

Appellant insists that this rule should be modified in view of the action of the Court in Davis V. Davis, 657 S.W.2d 753 (Tenn. 1983) abolishing spousal immunity and in view of the decisions of other states which have modified or abrogated parental immunity

The majority are of the opinion that there are substantial differences between the parent-child relationship and that of spouses. In the opinion of the majority, the rule announced in McKelvey has continuing vitality and should be adhered to unless modified or changed by action of the General Assembly. Accordingly the judgment of the Court of Appeals is affirmed at the cost of appellant, and the cause is remanded to the trial court for any further orders which may be necessary.

Cooper, C.J., and Tatum, Sp. J., concur; Brock and Drowota, JJ., Dissent.

FRANK F. DROWOTA, III, Justice

Justice Brock and I respectfully Dissent from the majority's Disposition of this case. Plaintiff has asked this Court to re-examine the doctrine of parental immunity. After careful study, two members of this Court are of the opinion that the application of the doctrine, adopted in Tennessee in 1903, should be restricted. The policy considerations which have been relied upon in the past in support of the doctrine of parental immunity have either been completely eroded and rendered invalid or have no application in the context of the facts involved in the instant appeal.

The majority opinion in adhering to McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W.2d 664 (1903), found it unnecessary to discuss the facts of this case. Justice Brock and I feel that this case warrants a detailed analysis of the many state court decisions that have addressed the modern status of parental immunity.

This wrongful death action was brought by the mother of a deceased, unemancipated minor child against the child's father. The complaint alleges that the minor child was a passenger in an automobile being driven by her father, and her death was the direct and proximate result of the negligent acts of her father. At the time of the accident the mother and father were divorced and the mother had been awarded custody of the minor child.

The Defendant filed a motion to dismiss for failure to state a claim and for judgment on the pleadings. This motion was predicated on the fact that Tennessee's wrongful death statute treats the cause of action as the decedent's, not the survivor's *fn1, and that suit would therefore be barred by the rule in Tennessee that an unemancipated minor cannot sue its parents for personal injuries. The trial court granted Defendant's motion and dismissed Plaintiff's suit. The Court of Appeals affirmed, deferring to this Court any decision to abolish or modify the parental immunity doctrine.

Plaintiff points out that parental immunity in tort is of recent origin in American jurisprudence. American courts have long permitted actions between parent and child in disputes involving property rights. In 1891, parental immunity was, for the first time, judicially created by the Mississippi Supreme Court as an exception to general tort liability. Hewlett v. George, 68 Miss. 703, 9 So. 885 (Miss. 1891). The Hewlett court cited no authority but relied exclusively on what it deemed to be necessary public policy. Tennessee was the second state to create parental immunity in 1903. In McKelvey v. McKelvey, supra, this Court quoted with approval from Hewlett, supra, the policy arguments as follows:

So long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and of 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. The State, through its s, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand. [9 So. at 887]

111 Tenn. at 390, 391.

In McKelvey suit was instituted by a minor child seeking to recover damages for cruel and inhuman treatment inflicted upon her by her father and stepmother. In dismissing the suit, the McKelvey court in dealing with parental immunity stated that: "n analogy is furnished in the relation of husband and wife. It has been held that neither husband nor wife can maintain an action against the other for wrongs committed during converture." 111 Tenn. at 391. The court concluded that "there was no civil remedy either during or after coverture, because there was no civil right to be redressed." 111 Tenn. at 392, 393. The court affirmed the trial court's dismissal of suit based upon "a sound public policy." 111 Tenn. at 393. In light of the reliance in McKelvey upon the analogy between the relation of husband and wife and parent and child, we are unable to understand how the majority can say McKelvey has "continuing vitality" after this Court's total abolition of inter-spousal immunity in our recent opinion in Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983).

In Davis v. Davis, supra, we noted that "he formalistic legal foundations that originally lent support to the doctrine of inter-spousal immunity have long ago crumbled away," and we held that the new justifications that emerged to nourish the rule were not valid reasons to retain inter-spousal immunity. These new justifications as outlined and discussed in Davis, supra, and Luna v. Clayton, 655 S.W.2d 893 (Tenn. 1983) are that: "bolition of inter-spousal tort immunity (1) would necessarily undermine and destroy marital harmony and tranquility, (2) could encourage fraud and collusion where a defendant is protected by insurance, (3) would overburden the judicial system with a multitude of trivial and frivolous lawsuits, and (4) would violate the principle of stare decisis and should await legislative sanction." Luna v. Clayton, 655 S.W.2d at 896; Davis v. Davis, 657 S.W.2d at 756, 757.

Plaintiff argues that the rationale traditionally advanced for retaining both parental and inter-spousal immunity is similar, if not identical, and that we should abolish parental immunity because the underlying basis for the doctrine no longer exists, and the doctrine serves only to deny legitimate claims of tort victims. The grounds most frequently advanced in support of parental immunity are: (1) it is necessary for the protection of family peace, domestic harmony and tranquility; (2) there is the danger of fraud and collusion between parent and child; (3) any change in the rule would interfere with parental care, discipline, and control; (4) depletion of family resources in favor of the injured child would occur at the expense of the other children in the family; and (5) any change would violate the principle of stare decisis and should await action by the Legislature.

Many of the above cited purported justifications were discussed at length in Davis and Luna, supra, and found to be insufficient to justify the continued application of the doctrine. In Luna, Chief Justice Fones, speaking for the Court, stated: "it is impossible for us in this case to see how denying Plaintiff access to the courts for the redress of a wrong suffered would encourage marital harmony where the marriage has ceased upon the death of a spouse." Luna, 655 S.W.2d at 896. In the case at bar, the parents are divorced and the parent-child relationship terminated upon the death of ...


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