For reversal -- Justices Jacobs, Hall, Sullivan and Pashman. For affirmance -- Justice Clifford. For remandment -- Judge Conford. The opinion of the Court was delivered by Jacobs, J. Clifford, J. (dissenting). Conford, P.J.A.D., Temporarily Assigned (dissenting).
[66 NJ Page 233] The plaintiff Clara Small, as administratrix ad prosequendum of her deceased daughter Linda Rockfeld, brought a wrongful death action in the Law Division against her deceased daughter's surviving spouse the defendant Robert D. Rockfeld. Her complaint charged in its first count that the defendant murdered Linda, and in its second count that he caused her death by conduct which was grossly negligent and was in wanton, reckless disregard of her safety and life. It sought damages allowable under the terms of the Wrongful Death Act (N.J.S.A. 2A:31-1 et seq.). The defendant filed an answer and in advance of trial moved for judgment on the pleadings, asserting that the plaintiff's action was "barred by operation of the interspousal and intrafamilial immunity doctrines.' In the Law Division, Judge Harrison granted the motion. Though he viewed the result as "incongruous' he considered that the common law precedents dictated it and that necessary changes in the law "should
emanate from our Appellate Courts' rather than our trial judges. The plaintiff duly appealed to the Appellate Division and thereafter we granted certification. 65 N.J. 579 (1974).
Both parties agree that at this stage of the proceeding we must accept as true the facts as they are alleged by the plaintiff in her Law Division complaint (Rappaport v. Nichols, 31 N.J. 188, 193 (1959)); and we judicially notice such pertinent facts as appear in a current Chancery Division proceeding captioned Robert D. Rockfeld, M.D. plaintiff v. Linda M. Rockfeld etc. et als. Linda and Robert were married in January 1970 and their only child Scott David Rockfeld was born in January 1972. In December 1972 Linda, then five months pregnant, accompanied Robert on a trip to Florida. While there he took her out in a small outboard motorboat. The defendant states that the outboard motor fell partially off, that they drifted and were buffeted by large waves, that they then abandoned the motorboat and swam towards shore, and that he made it but she did not. The complaint alleges in one count that the defendant did "wilfully, maliciously and deliberately scheme and plan to kill his wife,' that conduct on his part detailed in the complaint was all pursuant to such scheme, and that Linda's death was "a direct consequence and proximate result'. The complaint also alleges in a separate count that when the defendant took his wife out in the motorboat he knew or should have known that weather conditions had so deteriorated as to cause the issuance of small craft warnings, that he failed to check the motorboat or its equipment and failed to secure life preservers, that he disregarded warnings not to proceed beyond a designated point, that he caused his wife to leave the motorboat in shark infested waters though he knew she was a poor swimmer and was physically handicapped by her pregnancy, that he "deserted and abandoned his wife in the waters of the Gulf of Mexico and returned to safety alone' and that his conduct was "grossly negligent,' was in "wanton, reckless disregard' of her safety and life, and caused her death.
In May 1973 the plaintiff Clara Small was duly appointed as administratrix ad prosequendum of her deceased daughter Linda; earlier the defendant Robert D. Rockfeld had been appointed as general administrator of Linda's estate which approximates $750,000, a gift to her from her parents. In the Chancery Division proceedings the plaintiff and her husband were granted visitation rights with respect to their grandson Scott David Rockfeld. See N.J.S.A. 9:2-7.1. The situation with respect to Scott's residence was summarized by Judge Kimmelman in the Chancery Division as follows: "It appears that since mid-December 1972 Scott David Rockfeld has been residing with his aunt and uncle, Mr. & Mrs. Gerald Dorf, who reside at 2 Kettle Creek Road, Freehold Township, New Jersey. Mrs. Dorf is the sister of the child's father, who is Robert D. Rockfeld. The child's father, Dr. Rockfeld, also resides with his sister and brother-in-law as frequently as it is possible for him to do so. He is currently attached to the medical staff of the hospital in The Bronx as a resident and he is only able to get home, so to speak, to the house of his sister and brother-in-law three or four nights a week. The remainder of the time the evidence shows he spends either at the hospital or at an apartment which he maintains in the New Rochelle area.'
Mr. Dorf testified that "Scott has, in effect, become a son of ours'; and the defendant testified that he had discussed with Mr. and Mrs. Dorf the possibility of their adopting Scott as their own son. In this connection Judge Kimmelman, in the course of his determination on visitation, had this to say: "Now, in addition I am somewhat motivated in the ruling I will make by Dr. Rockfeld's statement that there is a possibility some day that his sister and brother-in-law might adopt Scott David Rockfeld. The fact that he expresses in court the possibility that he might surrender his child to his sister and brother-in-law for adoption is a circumstance which I can take into account in considering the extent of the visitation rights which I will allow to the maternal grandparents.'
In his brief the defendant recognizes that for the purposes of his motion the allegations of the plaintiff's complaint were necessarily "treated as true' and that the issue now presented to us is "solely one of law.' His contention is that, assuming he committed the shocking wrongs alleged in the complaint, he is nonetheless entirely immune from any action under the Wrongful Death Act (N.J.S.A. 2A:31-1 et seq.) for the resulting damage to the innocent surviving member of the family. He grounds his contention on common law familial immunities which are not mentioned in wrongful death acts and which some courts have held to have no bearing thereon. See In re Estate of Pickens, 255 Ind. 119, 263 N.E. 2d 151 (1970); Jones v. Pledger, 363 F.2d 986 (D.C. Cir. 1966); Mosier v. Carney, 376 Mich. 532, 138 N.W. 2d 343 (1965); see also Heyman v. Gordon, 40 N.J. 52 (1963), where conflicting cases on the subject are referred to in the majority and minority opinions. Our Wrongful Death Act creates a new cause of action maintainable by the administrator ad pros. provided the decedent, if he had survived the defendant's wrongful act or neglect, would have been entitled to maintain an action for damages. The cases cited in the Heyman v. Gordon opinions divide as to whether this proviso pertains only to the elements in the tort itself, e.g., negligence, contributory negligence, etc., or whether it extends to personal immunities as well. However, we need not pursue this issue for we are satisfied that, in any event, none of the common law immunities may fairly or justly be applied in the circumstances at hand to preclude the maintenance of the wrongful death action instituted against the defendant by Linda's administratrix ad pros.
The common law recognized certain immunities which have, however, increasingly come under disfavor. National and state governmental immunity from suit was originally carried over from English law though Dean Prosser notes that it is a bit hard to understand how this "feudal and monarchistic doctrine ever got itself translated into the law
of the new and belligerently democratic republic in America'. Prosser, Law of Torts § 131 at 971 (4 th ed. 1971). In our own State there has been persistent judicial whittling, first at the immunities of lower governmental levels and finally at the immunity of the State itself. See Cloyes v. Delaware Tp., 23 N.J. 324, 327-330 (1957); Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, 51 N.J. 230, 234-235 (1968); P, T & L Const. Co. v. Comm'r Dept. of Trans., 55 N.J. 341 (1970); and Willis v. Dept. of Cons. & Ec. Dev., 55 N.J. 534 (1970), where this Court, after pointing out (at 538) that "[t]here has been a steady movement away from immunity', held that the State was not immune from a damage action grounded on the State's tortious conduct in negligently failing to erect suitable barriers in High Point Park around a bear which mauled a child's arm requiring its amputation. See Comment, "Judicial Abrogation of Sovereign Immunity in New Jersey: A Prelude to Legislative Reform?', 2 Seton Hall L. Rev. 149 (1970); L. 1972, c. 45; N.J.S.A. 59:1-1 et seq.; Perillo v. Dreher, 126 N.J. Super. 264, 267 (App. Div. 1974).
In Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958), this Court abrogated the common law immunity in favor of charitable organizations. We noted that judicial exceptions have been declared from time to time, that the immunity runs counter "to widespread principles which fairly impose liability on those who wrongfully and negligently injure others', and that it "operates harshly and disregards modern concepts of justice and fair dealing'. 27 N.J. at 47-48. Dean Prosser has collected the cases elsewhere which have similarly abrogated the charitable immunity doctrine and has confidently predicted that "the next two decades will see its virtual disappearance from American law.' Prosser, supra, § 133 at 996; cf. N.J.S.A. 2A:53A-7 et seq.; Winters v. Jersey City, 63 N.J. 7 (1973); Tramutola v. Bortone, 63 N.J. 9, 18 (1973).
The common law's interspousal immunity was largely grounded on concepts which admittedly have no place in current thinking. Thus the common law viewed the legal existence of the wife during marriage as having been suspended or at least "incorporated or consolidated into that of the husband.' 1 Blackstone, Commentaries 442. Under this medieval concept the wife was precluded from maintaining an action against her husband for his wrongful conduct whether it was intentional or negligent, affected her person or property, or occurred before or during the marriage. By the 18th century, equity had developed its own doctrine of the married woman's separate estate under which it entertained various actions by wives against husbands, and in the 19th century comprehensive legislation which was designed to advance the general emancipation of married women was enacted in England and throughout the United States. See Koplik v. C.P. Trucking Corp., 27 N.J. 1, 13 (1958) (dissenting opinion).
Despite the foregoing and 20th century social changes some states still refuse to permit tort actions by a wife against her husband. In the course of his comprehensive discussion of such refusal Dean Prosser said:
The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy -- and this even though she has left him or divorced him for that very ground, and although the same courts refuse to find any disruption of domestic tranquility if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it. Prosser, supra, § 122 at 863.
In our own State there has been a recent line of cases which for the most part terminated the interspousal immunity. While in Koplik v. C.P. Trucking Corp., supra, 27 N.J. 1, the majority still adhered to the immunity,
three members of this Court urged its termination pointing out that the academic world had vigorously attacked it and that an ever increasing number of courts elsewhere had come to reject it. In their dissenting opinion they made the following pertinent comments:
In general those who favor the majority view no longer seek to support it on the fanciful common law notion that since the spouses are "one person, one cannot sue the other'; instead they now urge that the husband's immunity serves to preserve domestic tranquillity and tends to avoid fraudulent and collusive actions. In the rare instance where the wife will sue her husband despite his objection there is probably not much tranquillity to preserve and in other instances (as here) the husband, protected by insurance, may welcome her action. In any event, it is difficult to see how a personal injury action would disrupt tranquillity more than a property or contract action which is admittedly maintainable. The fear of fraudulent actions, and collusive actions where the husband is insured, furnishes equally tenuous basis for the majority view. There is opportunity for fraud and collusion in many legal proceedings, but our system of courts and juries is very well designed to seek them out and its presence clearly furnishes no just or moral basis for precluding honest and meritorious actions. 27 N.J. at 14-15.
In Long v. Landy, 35 N.J. 44 (1961), the wife sustained injuries as the result of a collision involving a car operated by her husband and a car operated by a stranger. Her husband died and she sued his estate along with the stranger. The legal representative of the husband's estate asserted the interspousal immunity but his motion for judgment grounded thereon was denied. In sustaining the denial, this Court noted without dissent that "[t]he negligent infliction of injury by a husband upon his wife is a wrongful act' and that "[i]t does not lose this quality merely because the wife is prohibited by the common law doctrine from enforcing liability for her damage.' 35 N.J. at 50. In view of the husband's death the Court concluded that the interspousal action would not violate any policy against marital disharmony and would not entail any significant danger of collusion. 35 N.J. at 53.
In Immer v. Risko, 56 N.J. 482 (1970), the plaintiff was injured while riding in the car of the defendant whom she later married. She sued the defendant on the ground that his negligence caused her injuries but the lower courts held that her suit against her husband was barred by the interspousal immunity. We reversed in an opinion by Justice Proctor which in effect overruled Koplik (27 N.J. 1), and which unequivocally accepted the arguments in favor of abrogation of the immunity. He pointed out that the original metaphysical basis for the immunity was no longer seriously advanced and that the reasons now advanced by those who still support the immunity are primarily (1) the disruptive effect upon the harmony of the family and (2) the possibility of collusion against the frequent real party in interest, namely, the insurance carrier. 56 N.J. at 488.
With respect to the first reason Justice Proctor doubted that the marital relation would be more disturbed by allowing the action than by denying it; as he put it: "Where one's conduct is such that his spouse elects to sue him, if there is no insurance, the damage probably has already been done.' 56 N.J. at 488. Where there is insurance the danger, if any, is not family disharmony but collusion; on that aspect Justice Proctor noted that the possibility of collusion should not "be deemed sufficient to bar all interspousal tort claims' (56 N.J. at 493) since, after all, it is the business of courts to deal with such problems and "we ought not assume the task is too onerous without some basis in experience for the assumption.' 56 N.J. at 494.
In its ultimate holding Immer was limited to the termination of the interspousal immunity in proceedings involving "claims arising out of motor vehicle accidents.' 56 N.J. at 495. This was done because strictly that was all that was before the Court and the Court was aware that there may still be some special areas in the marital relationship between husband and wife "that courts should not become involved in.' 56 N.J. at 495. Those special areas may, as
was early pointed out by Professor McCurdy in his article on "Torts Between Persons in Domestic Relation,' 43 Harv. L. Rev. 1030, 1055 (1930), give rise to privileged actions in the marital relationship and to substantive limitations on causes of action grounded on simple domestic negligence. But obviously those privileges and those limitations have no relationship to the defendant's alleged misconduct here or to the causes of action grounded thereon as set forth in the plaintiff's complaint. The reasoning and tenor of Justice Proctor's opinion in Immer leave no room whatever for doubt that he, along with the colleagues who joined him, considered the interspousal immunity to have been ...