Dreier, J.c.c., Temporarily Assigned.
[148 NJSuper Page 69] Plaintiffs John Fritz and Joan Fritz instituted this action, individually and on behalf of their infant son James Fritz, for injuries sustained by the infant plaintiff while on premises owned by defendants Anderson. The Andersons contracted with the other defendants to construct a building upon their property, which abutted a portion of plaintiff's backyard. The infant plaintiff was injured when he fell into an excavation.
Defendant Steve's Excavating Co. by leave of court, filed a counterclaim against the adult plaintiffs for common law indemnification and contribution under the Joint Tortfeasors Act, N.J.S.A. 2A:53A-1. The claims are based upon the alleged failure of the adult plaintiffs "properly [to] supervise, control and instruct" the infant plaintiff at the time of the accident.
Plaintiffs have moved to dismiss the counterclaim on the ground that it is barred by the doctrine of parent-child immunity. The motion, made pursuant to R. 4:6-2(e), implicates matters outside the pleadings, and thus will be treated by the court as one for summary judgment under R. 4:46. For the reasons set forth below, the counterclaim against plaintiffs is dismissed.
The viability of defendant's counterclaim depends on the ability of the court to extend the abrogation of the parent-child immunity doctrine, beyond the limits established by the Supreme Court in France v. A.P.A. Transport , 56 N.J. 500 (1970). This follows because the claims for contribution under N.J.S.A. 2A:53A-1 and for indemnification are derivative in nature, dependent for their viability on the recognition of a potential claim by the infant plaintiff himself against his parents. See Pressler, New Jersey Court Rules , Comment to R. 4:6. As noted in the dissenting opinion of Justice Francis in France (see 56 N.J. at 507), under Kennedy v. Camp , 10 N.J. 390 (1954), "the Joint Tortfeasors Contribution Law provides no remedy unless there are tortfeasors who have a joint or common liability." Thus if the parents are immune from suit, they are a fortiori removed "from the category of a possible tortfeasor."
In France, supra , a death action was brought by a husband-father on behalf of the estate of his deceased wife, and a survival action was brought by him on behalf of his minor children, both against defendant motorist. The motorist counterclaimed for contribution against the husband-father inasmuch as it was the husband-father who negligently drove the vehicle at the time of the accident. Based upon an
analysis of the philosophies behind the immunity doctrine and the current trends of the law discarding the immunity, the court in France held that the doctrine should be abrogated in this State. The counterclaim was therefore allowed.
In reaching its conclusion the court traced the origins of the doctrine, as well as the philosophy behind the immunity, since its adoption in Reingold v. Reingold , 115 N.J.L. 532 (E. & A. 1935). There a 19-year-old unemancipated child was barred from recovering damages for injuries suffered while a passenger in a vehicle negligently operated by her father. The philosophy adopted in Reingold was that the application of the bar prevented the disruption of parental care, discipline and control. Cases from other jurisdictions had cited as their rationale the dangers of fraud and collusion, and these justifications were approved in later New Jersey cases. See Hastings v. Hastings , 33 N.J. 247 (1960); Heyman v. Gordon , 40 N.J. 52 (1963); Franco v. Davis , 51 N.J. 237 (1968).
France was decided on the same day as the interspousal immunity case of Immer v. Risko , 52 N.J. 482 (1970). The France court, after examining the authorities, decided that the Immer philosophy was applicable to parent-child immunity. Additionally, the court considered that the application of immunity was, being variably and inconsistently applied (unemancipated minors could always sue their parents on theories of contract or property), it had been subjected to serious criticism, and an examination of progressive jurisdictions indicated that its application was on the wane.
However, since negligence which may be asserted in other cases could differ from the type of negligence discussed by the Court in France , the court placed the following limitations upon its holding:
Our decision today goes no further than allowing suits between unemancipated children and their parents for injuries suffered as a result of the negligent operation of a motor vehicle. . . . We realize that there may be areas involving the exercise of parental authority and care over a child which should ...