Parental Immunity Doctrine

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August 11, 2009

The doctrine of parental immunity,[1] which shields parents from liability in actions of negligence brought by their children, has in recent years undergone close scrutiny and criticism in many jurisdictions throughout the country. A number of states have carved out exceptions to the doctrine; some have even eliminated the doctrine altogether, recognizing that the original purpose of the doctrine, which is to protect family harmony, no longer applies in a contemporary society characterized by divorce and other phenomena undermining family unity.

Since the inception of the doctrine of parental immunity in 1891, courts throughout the country have continually wrestled with the concept. In 1891, the Mississippi Supreme Court, in the landmark decision of Hewellette v. George,[2] held that a minor child may not maintain a negligence action for personal injuries against his or her parent. The court found that the child-parent relationship imposes a duty on the parent to "protect and care for and control" the child; and the child, in turn, carries an obligation to "aid and comfort and obey" the parent. Anything that allows a child to question the authority of the parent weakens familial harmony, and thereby threatens the welfare of society as a whole.[3] Thus, public policy is best served by barring minor children from suing their parents.

In 1929, Connecticut first recognized the doctrine of parental immunity in Mesite v. Kirchstein,[4] following the reasoning set forth in Hewellette. The court explained that the state has an interest in the unity of the family and in the preservation of the family relation. Accordingly, the well-being of the family outweighs the right of a child to obtain compensation.[5]

In the 1995 case of Squeglia v. Squeglia,[6] the son was injured when he was attacked by a dog owned by the father. At the time of the attack, the son was four years old, and the attack occurred in the father's home. The son filed a strict liability action against the father and the father claimed parental immunity. The trial court returned a judgment in favor of the father, and the son appealed. The Appellate Court affirmed the judgment,[7] and the son sought review. The Connecticut Supreme Court noted that the question was whether the doctrine of parental immunity, although not limited to negligence, barred an action in strict liability. The factors for considering in whether to abrogate the doctrine included the nature of the misconduct, family harmony, whether the parent owed a duty to the public at large, and the availability of insurance coverage. The Court held that none of the factors considered supported abrogating the doctrine in this case of strict liability. Thus, because there was no genuine issue of material fact, the Appellate Court properly affirmed the trial court's decision granting the father's motion for summary judgment on the ground of parental immunity.

The doctrine of parental immunity bars an action against a non-custodial parent for injuries suffered by a minor child during a scheduled visitation at the non-custodial parent's home. In Ascuitto v. Farricielli,[8] the Court rejected the plaintiff's claim that the doctrine of parental immunity should not apply because the purpose which underlies the doctrine, preservation of family harmony, is not appropriate where the parents are divorced and the child is suing the non-custodial parent. The emphasis of the doctrine of parental immunity is not on the relationship between the parents, but rather between the parent and child, and it is this relationship which, the court opined, would be jeopardized of lawsuits were permitted. Additionally, the court was unwilling to give great weight to the plaintiff's claim that the defendant had a policy of liability insurance which would have afforded coverage. In a strongly worded dissent, Justice Berdon indicated that the prohibition of suits between minors and their parents does not extend to contract or property actions, and, for that matter, does not apply in cases involving the operation of motor vehicles. He noted that "the speculative theory of family disruption upon which the doctrine of parental immunity is largely based has been criticized and rejected by legal scholars without exception."[9]

[1] See generally Romualdo P. Eclavea, Annotation, Liability of Parent for Injury to Unemancipated Child Caused by Parent's Negligence - Modern Cases, 6 A.L.R. 4 th 1066 (providing a comprehensive survey indicating each state's position on parental immunity).

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

[3] Hewellette v. George, 9 So. 885, 887 (Miss. 1891).

[4] Mesite v. Kirchstein, 109 Conn. 77 (1929).

[5] Mesite v. Kirchstein, 109 Conn. 77, 84 (1929).

[6] Squeglia v. Squeglia, 234 Conn. 259 (1995).

[7] Squeglia v. Squeglia, 34 Conn. App. 866 (1994).

[8] Ascuitto v. Farricielli, 244 Conn. 692 (1998).

[9] Ascuitto v. Farricielli, 244 Conn. 692, 712 (1998).