Defendant seeks an order to strike plaintiffs' complaint on the ground that it fails to state a cause of action upon which relief can be granted.
On November 9, 1958 the infant plaintiffs, Olveira Palcsey and Linda Palcsey, unemancipated minors, were passengers in a car owned and operated by their father, Joseph Palcsey, when a collision occurred in which their father was killed and the infants injured. Suit was instituted on behalf of the infants by their mother as quardian ad litem against Mary Tepper as executrix of the estate of Joseph Palcsey, the deceased parent, for damages suffered as a result of their father's simple negligence.
The question presented by this motion is: Does the doctrine of immunity from suit between unemancipated minor children and their parents, which exists during the life of the family relationship, extend to and protect the personal representative of the deceased member of the family?
A large majority of the courts of the United States, including New Jersey, are in accord with the firmly established rule that an unemancipated minor child cannot maintain an action against its living parents for damages for personal injuries as a result of the parents' simple negligence.
Reingold v. Reingold , 115 N.J.L. 532 (E. & A. 1935); Hastings v. Hastings , 33 N.J. 247 (1960); Parks v. Parks , 390 Pa. 287, 135 A. 2 d 65 (Sup. Ct. 1957); also see Annotation 19 A.L.R. 2 d 423, 462.
In the Hastings case, at page 251, the New Jersey Supreme Court stated the basic policy reasons for the rule which grants a living parent immunity from suit by his minor child by quoting with approval the following language from the Pennsylvania case of Parks v. Parks, supra:
"It is a rule based on the sound principle of public policy to promote family unity and avoid family discord and disturbance, it prevents possible collusive action between parent and child in situations where the liability of either parent or child is covered by insurance and it is in line with the great weight of judicial authority represented by practically every court of every state in this country."
It is evident from the foregoing that the question is not one of the absence of duty owed by a parent to his minor child, but instead is one of immunity or disability from suit. The cause of action exists as of the date of the wrongdoing but the courts have interposed a shield of immunity between the family members where the family relationship is still intact. Parks v. Parks , at page 71; cf. Long v. Landy , 35 N.J. 44 (1961). This precise point was made abundantly clear by Mr. Justice Hall in the Hastings case when he stated at page 250:
"The question is not one of the absence of a duty of reasonable care owed by the father to his child, but rather of immunity from suit thereon. Matters of immunity must be determined, in the absence of specific legislation, on the basis of policy or, perhaps more accurately, on the weighing of competing policies. Here we think the weight of a combination of policies dictates the result. In situations other than the precise one before us, consideration of the policies in the light of the specific facts may lead to different results, but it will be time enough to announce a conclusion on them when the occasion is specifically presented to us."
Justice Hall then continued to state the policy factors which he felt justified the ...