Familial Immunity Doctrines – Sibling, Spousal & Grandparent Immunities

August 11, 2009

By: David K. Jaffe

The concept of familial immunity had its inception in 1891 in a Mississippi case which held that a minor child could not maintain a negligence action for personal injuries against his parent.[1] Connecticut first recognized the doctrine of parental immunity in 1929,[2] and then in 1942, the Connecticut Supreme Court held that parental immunity also prevents a parent from maintaining a personal injury action against his child. In Shaker v. Shaker,[3] the Court applied the reasoning of the 1929 case and found that a lawsuit brought by a parent against a child would be just as harmful to the family unit as a lawsuit brought by a child against a parent. In fact, such a lawsuit would be even more harmful to the family harmony since it is the parent who is charged with protecting and caring for the child; thus, a relationship of trust between the parent and child would not be maintained. Moreover, the court found that society in general would be injured by allowing such litigation because families are the composition of society, and if family life is not functioning property, society too, will not operate effectively. Thus, the injury to public welfare as a result of the family discord flowing from such litigation would outweigh the loss suffered by the parent due to the negligence of the child.[4]

Additionally, the court in Shaker rejected the plaintiff's contention that, where automobile insurance is likely to cover the injury in question, family harmony would not be jeopardized because the judgment would be paid by the insurance company. The court found, first, that because not all children are covered by liability insurance, the risk of disturbing family harmony would remain in many instances. It would be unfair to base a decision solely on whether the defendant child is insured, because not every child is insured against liability for his torts. Furthermore, even if all children were covered by insurance, the insurance policy would not cover the injury to the parent unless liability was first established against the child. Therefore, even though any judgment would likely be covered by insurance, the process of finding the child liable for the parent's injury would surely cause friction in the family.[5]

Shaker held that a father cannot sue his unemancipated minor son for the negligent operation of a motor vehicle. Subsequently, in 1967, the legislature abrogated the doctrine with respect to the negligent operation of motor vehicles. See Conn. Gen. Stat. § 52-572c. In 1979, this exception was expanded to include aircraft and vessels.

Conn. Gen. Stat. § 52-572c provides:

Parent-child immunity abrogated in certain negligence actions. In all actions for negligence in the operation of a motor vehicle, and in all actions accruing on or after October 1, 1979, for negligence in the operation of an aircraft or vessel, as defined in section 15-127, resulting in personal injury, wrongful death or injury to property, the immunity between parent and child in such negligence action brought by a parent against his child or by or on behalf of a child against his parent is abrogated.

Although actions between a minor child and a parent are barred, the court in Brown v. Brown, 88 Conn. 42 (1914) permitted a suit between a husband and wife for personal injuries.[6] Brown based its decision on the Married Women's Property Act of 1877,[7] which granted a woman separate legal identity from her husband.

The court in Mesite (which recognized the doctrine of parental immunity in 1929) explained that the apparent discrepancy between the permissible spousal action and the impermissible parent-child action could be justified because the relationship between a husband and wife is, by nature, somewhat different from that between a child and parent. The husband or wife, unlike the child, is presumed to be of mature intelligence, has independent legal identity, and is unrelated by blood to his spouse. The child, on the other hand, is dependent on the parent for care and protection during his minority and looks to the parent as a role model. Because the spousal relationship is different from the parent-child relationship, the law protects it differently.

Familial immunity was again examined in Overlock v. Ruedemann,[8] in which the Connecticut Supreme Court recognized a cause of action in negligence between minor unemancipated siblings for personal injuries. The Court, while acknowledging the importance of preserving family harmony, explained that a person should not owe any less of a duty of reasonable care to another merely because both of them happened to be in the same family.

Suits by a minor are properly brought by the minor "by the next friend."[9] The caption is often in the form of "Minor, PPA, Next Friend," PPA being, in this case, an abbreviation of the French phrase " per prochien ami." This is frequently, but not necessarily, a parent. As a general rule, any person may serve as next friend of an infant plaintiff, whether he is related or not.[10] The next friend is not the real party in the action. The next friend representing an infant plaintiff is in no sense a party to the action, or has he any interest in the litigation, but the real party plaintiff in the suit is still the infant. Consequently, the process must run in the name of the infant by his next friend, and not in the name of the next friend acting for the infant.[11]

A mother may bring an action against her husband under respondeat superior for the negligent conduct of their child, if appropriate under the fact, despite the inability to bring the action directly against the child.[12]

There is no indication in Connecticut law that grandparents have immunity for suits brought by their grandchildren.[13]


[1] Hewellette v. George, 9 So. 885 (Miss. 1891).

[2] See Mesite v. Kirchenstein, 109 Conn. 77 (1929).

[3] Shaker v. Shaker, 129 Conn. 518 (1942) (holding that a father cannot sue his unemancipated minor son for the negligent operation of a motor vehicle). Subsequently, in 1967, the legislature abrogated the doctrine with respect to the negligent operation of motor vehicles. See Conn. Gen. Stat. § 52-572c. In 1979, this exception was expanded to include aircraft and vessels.

[4] Shaker v. Shaker, 129 Conn. 518, 523 (1942).

[5] Shaker v. Shaker, 129 Conn. 518, 524 (1942).

[6] Brown v. Brown, 88 Conn. 42, 43 (1914) (permitting a wife to state a cause of action for damages against her husband for an assault and battery and false imprisonment).

[7] The Act was first interpreted in Mathewson v. Mathewson, 79 Conn. 23 (1906), where a wife had sued her husband for breach of contract. In Mathewson, the court held that "in enacting the Marred Women's Act, the State adopted a fundamental change of public policy ... the unity in the husband of his own and his wife's legal identity was removed, and equality of husband and wife in legal identity and capacity of owning property was laid and that the right of a husband and wife to sue each other for breach of contract is one of the consequences of the new status established by the Act." Brown v. Brown, 88 Conn. 42, 44-45 (1914) (quoting Mathewson, 79 Conn. 23, 27 (1906). Brown took Mathewson a step further in holding that the Married Women's Act permitted a cause of action for personal torts between husbands and wives. Shortly after Brown, in Bushnell v. Bushnell, 103 Conn. 583, 587 (1925), the court allowed a wife's cause of action against her husband for injuries she sustained in an automobile accident allegedly caused by his negligence. Bushnell was superseded by statute on other grounds. See Dzenutis v. Dzenutis, 200 Conn. 290 (1986).

[8] Overlock v. Ruedemann, 147 Conn. 649 (1960) (a twelve-year-old and fourteen-year-old were injured when their seventeen-year-old sister lost control of the car in which they were riding and crashed into a utility pole).

[9] Tulin v Tulin, 124 Conn. 518, 522 (1938).

[10] Botelho v. Curtis 28 Conn. Supp. 493, 496 (1970); 42 Am. Jur. 2d Infants, § 159.

[11] Botelho v. Curtis 28 Conn. Supp. 493, 496 (1970); 42 Am. Jur. 2d Infants, § 159.

[12] See Silverman v. Silverman, 145 Conn. 663, 666-68 (1958) (allowing suit under family car doctrine).

[13] See Roberts v. Caton, 224 Conn. 483 (1993) (discussing sexual abuse action brought by grandchild without mentioning immunity).