Stamboulis v. Stamboulis , 401 Mass. 762 ( 1988 )

Wilkins, J.

On April 12,1984, the defendant, who operated the College Square Pizza on Southbridge Street in Worcester, took her three year old daughter with her to the pizza facility. The defendant was making pizzas, and Fevronia was putting dough in pizza pans. When the defendant went to answer the telephone, Fevronia undertook to put dough through an electric dough rolling machine on a kitchen counter. One of her hands was caught in the machine and injured.

In this action, Fevronia by her father seeks to recover against her mother for negligently causing Fevronia’s injury. Her father seeks on his own behalf to recover for medical expenses and also for negligent infliction of emotional distress. A Superior Court judge allowed the mother’s motion for summary judgment on Fevronia’s claim against her mother and on the father’s claim for medical expenses. Judgment was entered under Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1965), as to the counts on which summary judgment was granted in favor of the mother, and Fevronia and her father appeal.² We allowed the plaintiffs’ application for direct appellate review.

The judge’s ruling followed our decisions concerning parent child immunity. See Luster v. Luster, 299 Mass. 480 (1938); Oliveria v. Oliveria, 305 Mass. 297 (1940), which recognized the principle and Sorensen v. Sorensen, 369 Mass. 350 (1973), which abrogated the rule in a limited respect. The judge’s decision concerned only the question of the.immunity of the defendant mother from liability for negligently causing injury to her minor child. The judge did not consider the circumstances of the accident and whether, absent parental immunity, there was a breach of duty.³

In the Sorensen case, the court abrogated the principle of parent-child immunity for motor vehicle torts only.⁴ We recognized that, just because the wrongdoer was a parent of the injured minor, the defendant was not insulated from liability. Our rejection of parental status as a conclusive factor in deciding a liability question is consistent with a pattern of tort decisions from this court in the past twenty years. We have rejected the status of a party to the tort as a controlling element in determining liability for negligence. See Colby v. Carney Hosp., 356 Mass. 527, 528 (1969) (defendant’s status as a charity not to be a bar to liability in future cases); Mounsey v. Ellard, 363 Mass. 693, 707 (1973) (landowner’s duty of care not affected by status of person lawfully on the premises); Lewis v. Lewis, 370 Mass. 619, 630 (1976) (interspousal immunity abolished as to motor vehicle accidents); Whitney v. Worcester, 373 Mass. 208, 210 (1977) (common law governmental immunity to be abrogated); Brown v. Brown, 381 Mass. 231, 231 (1980) (interspousal immunity abolished as to non-motor vehicle torts). Contra Schofield v. Merrill, 386 Mass. 244 (1982) (adult trespasser, not known to be in peril, absolutely barred from asserting negligence claim against landowner, but see id. at 254-259 [Liacos, J., dissenting, with whom Wilkins and Abrams, JJ., joined]).

There is nothing special about negligently caused motor vehicle injuries that sets them apart from all other negligently caused injuries. A distinction based on motor vehicle versus non-motor vehicle accidents in deciding the limits of parental immunity has no rational justification. Indeed, no logical line based on immunity can be drawn, and none should be. Restatement (Second) of Torts § 895G (1979).⁵ See Brown v. Brown, 381 Mass. 231, 232 (1980), where we said that “the reasons for abrogation [of the immunity for negligence] are not limited to [motor vehicle] cases.” The point is that status should not be determinative in either situation.

Once immunity is eliminated, the focus should be on the duty of care that should be applied in deciding a minor child’s negligence claim against a parent. The fact of parenthood is relevant to the standard of care which a court should apply. Courts which have abrogated (or never have adopted) parental immunity have taken different views of the appropriate standard of care in various situations.⁶ The issue is not before us. We do not decide it and could not on the record before us.

All we decide here is that no absolute curtain of immunity protects a parent who negligently causes injury to his or her minor child.

Judgment reversed.

2 The third count, concerning the father’s emotional distress, remains open.

3 Justice O’Connor’s dissent attributes to the court an unexpressed intention to allow a child to recover for negligent parental supervision. We take no view on this issue because it was not presented to the court below. Moreover, the facts set forth on the summary judgment motion do not permit an appropriate analysis of the issue.

4 The opinion indicated that immunity was to be abrogated in motor vehicle tort cases only if there was insurance coverage involved. Id. at 352-353. This distinction is not logical, and it may not survive. See New Hampshire Ins. Co. v. Fahey, 385 Mass. 137, 138 (1982); Pevoski v. Pevoski, 371 Mass. 358, 362-363 (1976) (Quirico, J., concurring); Lewis v. Lewis, 370 Mass. 619, 630 n.4 (1976). If this court were to regard insurance as a reason for finding liability in the case before us, the requirement is met because the defendant mother has a business owner’s policy with a limit of $300,000 for completed operations and products hazards.

5 “A parent or child is not immune from tort liability to the other solely by reason of that relationship.” Restatement (Second) of Torts § 895G (1) (1979). Section 895G approves the trend toward abrogation of the doctrine of parent-child immunity “and takes the position that under the better law the immunity between parent and child is entirely abrogated.” Id. at comment j.

A number of courts have abolished the doctrine, which has no old common law origin. See Gibson v. Gibson, 3 Cal. 3d 914, 921-922 (1971) (adopting a reasonable parent standard); Petersen v. Honolulu, 51 Hawaii 484, 486 (1969) (parent-child negligence suits will be allowed regardless of the presence or absence of insurance); Anderson v. Stream, 295 N.W.2d 595, 601 (Minn. 1980) (adopting a reasonable parent standard); Briere v. Briere, 107 N.H. 432, 436 (1966); Kirchner v. Crystal, 15 Ohio St. 3d 326, 330 (1984); Falco v. Pados, 444 Pa. 372, 376, 378-379 (1971) (citing opinions in twelve States which had abolished the doctrine); Elam v. Elam, 275 S.C. 132, 134, 137 (1980) (abolishing the parental immunity common law doctrine in South Carolina, and also declaring a State statute abolishing this doctrine only in motor vehicle cases unconstitutional on equal protection grounds). Other courts have declined to adopt the doctrine of parental immunity, not found at common law, as a rule of law. See Rupert v. Stienne, 90 Nev. 397, 404-405 (1974); Wood v. Wood, 135 Vt. 119, 121-122 (1977).

Scholarly comment since the adoption of § 895G appears to be strongly in favor of the rejection of parent-child immunity. See 2 F. Harper, F. James, & O. Gray, Torts § 8.11, at 574-581 (2d ed. 1986); W.L. Prosser & W.P. Keeton, Torts § 122, at 904-907 (5th ed. 1984); Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L. Rev. 489 (1982); Note, Ard v. Ard: Limiting the Parent-Child Immunity Doctrine, 44 U. Pitt. L. Rev. 977 (1983); Note, The Unsupervised Child: Parental Negligence or Necessity?, 15 Val. U.L. Rev. 167 (1980).

6 Some courts have adopted the position of the Restatement (Second) of Torts § 895G (1979), and have applied a reasonable parent standard. See Gibson v. Gibson, 3 Cal. 3d 914, 921 (1971); Anderson v. Stream, 295 N.W.2d 595, 600-601 (Minn. 1980). Others have declined to impose liability for negligent supervision. See, e.g., Foldi v. Jeffries, 93 N.J. 533, 547 (1983). Some courts have allowed recovery when the tort was committed in the course of a business activity of the parent. See, e.g., Signs v. Signs, 156 Ohio St. 566, 577 (1952); Felderhoff v. Felderhoff, 473 S.W.2d 928, 930 (Tex. 1971). New York has taken the position that a parent may be held liable for breach of a duty “ordinarily owed, apart from the family relation,” but not for “negligent supervision” resulting in injury to the child. Holodook v. Spencer, 36 N.Y.2d 35, 50, 51 (1974).