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OLR Research Report
June 4, 1999
By: Benjamin H. Hardy, Research Analyst
You asked us to review the doctrine of parental immunity underlying the 1998 Connecticut Supreme Court decision in Ascuitto v. Farricielli (244 Conn. 692). You wanted our review to include a comparison with other states. We enclose a copy of the decision.
The common law doctrine of parental immunity generally bars unemancipated minors and their parents from suing one another for personal injuries caused by negligence. In Ascuitto the Court held, in a six to one decision, that the doctrine applies to prevent children of divorced parents from bringing a negligence lawsuit against a noncustodial parent for injuries the child sustained while in that parent's home during a scheduled visitation.
In reaching its conclusion, the Court rejected the plaintiff's arguments that (1) divorce had already destroyed family harmony, preservation of which is the doctrine's chief purpose; (2) the defendant's negligence was unrelated to parental supervision but rather posed a risk to the general public; and (3) the trial court failed to consider properly the defendant's insurance coverage.
The Court also concluded that despite the parents' divorce, the relationship between the defendant and his daughter indicated a degree of family harmony, the alleged negligence did not fit the exceptions to the doctrine in case law and statute, and the trial court took proper notice of insurance in reaching its decision.
In his dissent, Justice Berdon disparaged the parental immunity doctrine, emphasizing (1) the range of litigation Connecticut allows between parents and children despite the doctrine and (2) a substantial body of criticism by legal scholars and courts in other states. He asserted that by ruling in the defendant's favor the court blocked access to his insurance benefits that would have mitigated the family's injury, producing an effect opposite to that which it intended. He urged the court to adopt a “reasonable parent” standard and leave such cases to the competence of juries.
Experience with the parental immunity doctrine has varied considerably in other states:
● Eight states and the District of Columbia never adopted it,
● Eight that adopted it have since abrogated it completely,
● Eight recognize a parent-child immunity except with regard to motor vehicle injuries,
● Sixteen (including Connecticut) provide immunity in actions based on negligent exercise of parental authority,
● Four provide full immunity except for torts involving willful, wanton, or intentional conduct, and
● Six provide full, unrestricted parental immunity.
The plaintiff Ascuitto and the defendant Farricielli divorced in 1990 when their daughter Ariana was less than two years old. The parents shared legal custody. Ascuitto had sole physical custody but Farricielli's visitation rights increased as the child grew older. The closeness of the relationship between father and daughter was not in dispute.
To escape a fire in his home in August 1994, Faricielli jumped from a second story window carrying Ariana in his arms. Both suffered injuries. The plaintiff filed an action on her daughter's behalf, alleging her injuries resulted from the defendant's negligence concerning electrical wiring, smoke detectors, and handling of a burning cigarette in his home. She made no allegation as to his leap from the burning building.
The trial court granted the defendant's motion to dismiss the lawsuit based on the doctrine of parental immunity. The Supreme Court assumed jurisdiction from the Appellate Court upon the plaintiff's appeal.
ARGUMENTS ON APPEAL
The plaintiff claimed the doctrine of parental immunity did not apply to the case. She argued (1) the doctrine did not serve family harmony because the parents were divorced and the child was suing the noncustodial parent, (2) the defendant's negligence did not involve parental supervision and discretion but rather posed a risk to the general public, and (3) the trial court had failed to consider properly whether the defendant had liability insurance coverage.
THE DOCTRINE OF PARENTAL IMMUNITY
The doctrine of parental immunity generally prevents unemancipated minors and their parents from suing one another for personal injuries. Previously unknown at common law, parental immunity first appeared in the United States in Hewellette v. George, 68 Miss. 703, 711, 9 So. 885 (1891). The Connecticut Supreme Court first adopted it in Mesite v. Kirchenstein, 109 Conn. 77 (1929) and retains it today, albeit modified by case law and statute (Squeglia v. Squeglia, 234 Conn. 264-65 (1995)).
The Court has abrogated parental immunity in two circumstances: (1) where the alleged negligence involves the parent's business operations away from the home (Dzenutis v. Dzenutis, 200 Conn. 299 (1986)), and (2) where a child sues for sexual abuse, sexual assault, or sexual exploitation (Henderson v. Wooley, 230 Conn. 472, 486 (1994)).
The legislature has modified the doctrine by excluding negligence in the operation of a motor vehicle (1967 P. A. 596, codified at CGS § 52-572c), later broadened to aircraft and vessels (P. A. 79-5).
In an opinion by Justice Katz, the Court held that the parental immunity doctrine barred the lawsuit. It concluded that the doctrine primarily protects the parent-child relationship rather than that between parents or others within the traditional nuclear family. They thus rejected the plaintiff's arguments that the child and her father did not comprise a family and that his residence was not a family home.
The Court also rejected the plaintiff's arguments that defendant Farricielli had violated a duty he owed the general public. It reasoned that his negligent act involved ordinary exercise of parental authority or supervision in his family home, and therefore did not constitute breach of a duty to the general public.
The Court characterized liability insurance as only one element—not primary or decisive—in an immunity case. In the Court's opinion, giving undue weight to insurance availability risks discriminating between defendants on the basis of whether they have coverage. Regardless of insurance, the Court argued, litigation threatens family harmony in a variety of ways by creating tension between the adversaries and interfering with their communication.
In summary, the Court held (1) the alleged negligent acts did not constitute breach of a duty owed the general public, (2) they involved exercise of parental discretion deserving protection from court interference, (3) an element of family harmony survived the divorce, and (4) availability of insurance did not support abrogating the doctrine of parental immunity. According to the majority, the doctrine barred the plaintiff's negligence action. The Court affirmed the trial court judgment.
Justice Berdon began his strongly worded dissent with an attack on parental immunity's contribution to the preservation of family harmony. He pointed to the widespread acceptance of litigation, including that between family members, to protect children's property. He emphasized Connecticut's exceptions for negligence in operating motor vehicles, aircraft, or vessels, for injuries at a place of business, and for those resulting from sexual abuse, sexual assault, or sexual exploitation.
He asserted that insurance reduces the threat to family harmony, since an insurer typically satisfies an adverse judgment whereas often the defendant must pay other awards. The majority's reliance on the parental immunity doctrine thus serves families ill, he wrote, given that a child's uncompensated injury is a greater threat to family peace than a negligence holding.
Justice Berdon called for the Court to hold that a parent or child is not immune from tort liability to the other solely by reason of that relationship. The proper test of a parent's conduct, he declared, should be what an ordinarily reasonable and prudent parent would have done in similar circumstances. Juries, he concluded, have proved their ability to apply the reasonableness standard in negligence actions, including those involving parent and child.
Both the ruling and the dissent cited cases in other states. The states have demonstrated considerable variety in their experience of the doctrine of parental immunity:
The District of Columbia, Hawaii, Kansas, Montana, Nevada, New Hampshire, South Dakota, Utah, and Vermont never adopted the parental immunity doctrine.
California, Minnesota, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, and South Carolina have completed abrogated it.
Colorado, Florida, Missouri, North Carolina, Rhode Island, West Virginia, and Wyoming have limited parent-child immunity.
Alaska, Arizona, Connecticut, Delaware, Idaho, Illinois, Iowa, Kentucky, Maine, Massachusetts, Michigan, New Jersey, Oklahoma, Texas, Virginia, and Wisconsin retain immunity in actions based on the negligent exercise of parental authority.
Alabama, Arkansas, Nebraska, and Washington have full immunity except for torts involving willful, wanton, or intentional conduct.
Georgia, Indiana, Louisiana, Maryland, Mississippi, and Tennessee recognize full, unrestricted parental immunity.