[118 NJSuper Page 339] This motion presents the dual questions of whether the doctrine of parental immunity is applicable
to automobile cases occurring prior to the abrogation of the doctrine in France v. A.P.A. Transport Corp. , 56 N.J. 500 (1970), and, if so, whether defendant is precluded from asserting the immunity for the first time at trial.
The motor vehicle accident out of which this negligence action arises occurred on June 6, 1970 in Carlstadt, New Jersey. Infant plaintiff Charles Hanson was a passenger in an automobile owned and operated by his mother, defendant Charleen Hanson, which vehicle was struck in the rear by a vehicle owned by defendant Theodore Zubatkin and operated by defendant Willie Dennis.
Suit was commenced on behalf of infant plaintiff on August 26, 1970, and an answer was filed on behalf of defendant mother on October 9, 1970. Crossclaims for contribution have been demanded by defendant Hanson against defendants Dennis and Zubatkin, and by defendants Dennis and Zubatkin against defendant Hanson.
A suit brought by other passengers in defendant Hanson's vehicle was consolidated with infant plaintiff's suit for trial, but is unrelated to this motion. At no time did defendant Hanson raise the issue of parental immunity until the time of the trial of liability, when a motion was made by counsel for a dismissal of the suit of infant plaintiff against his parent. Decision on the motion was reserved and the case was tried and submitted to a jury, which rendered a special verdict finding both defendants negligent in the operation of their respective vehicles.
Whether the abrogation of the doctrine of parental immunity is to be of prospective application only and not applicable to automobile accidents occurring prior to July 10, 1970, the date France, supra , was decided, has not been decided by an appellate court. However, in a case involving this issue, Judge Meanor thoroughly considered the problems emanating from a retrospective application and held that the new rights created by France are prospective only. Schwartz v. U.S. Rubber Corp. , 112 N.J. Super. 595 (Cty.
Ct. 1971). Subsequent to Schwartz the Supreme Court gave prospective effect to Immer v. Risko , 56 N.J. 482 (1970), which abrogated the doctrine of interspousal immunity. Darrow v. Hanover Tp. , 58 N.J. 410 (1971).
Although not specifically holding that France be applied prospectively, the court, obiter dicta , generally commented upon the reasons underlying the prospective application of major changes in immunity doctrines, pointing out that the potential for stale claims and the justifiable reliance upon immunity doctrines by defendants and their insurers requires prospectivity. Obviously, these considerations are just as applicable to the effect of the abrogation of parental immunity as to interspousal immunity. Indicative of the thrust of Darrow is that, in support of prospectivity, the court cited decisions of courts in other jurisdictions involving the abrogation of both parental and interspousal immunity. Darrow , at 419.
In view of the hazards of a retrospective application of France , discussed in these cases, and the clear approach to the issue by the court in Darrow , this court concludes that the doctrine of parental immunity applies to the case at bar.
Having decided that parental immunity is applicable to the operative facts of the case at bar, it must be determined if defendant Hanson may now avail herself of the rule. Plaintiff argues that under the rules of pleading the failure to introduce the issue until the time of trial constitutes a waiver of the defense, stressing that nowhere in the answer is the issue raised, even though crossclaims for contribution were served upon the defendant.
Plaintiff's counsel accurately asserts that R. 4:5-4 mandates that an affirmative defense be set forth in a responsive pleading, and that this requirement has only been relaxed when its enforcement would do grave injustice to public policy. Douglas v. Harris , 35 N.J. 270 (1961); Jackson v. Hankinson , 94 N.J. Super. 505 (App. Div. 1967), aff'd 51 N.J. 230 (1968). However, ...