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Gross v. Sears

Decided: April 20, 1978.

JEFFREY GROSS, AN INFANT BY HIS GUARDIAN AD LITEM, SUZANNE GROSS, AND SUZANNE GROSS, PLAINTIFFS-APPELLANTS,
v.
SEARS, ROEBUCK & COMPANY, AND STEPHEN GROSS, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Halpern, Larner and King. The opinion of the court was delivered by Halpern, P.J.A.D.

Halpern

This appeal involves an undecided aspect in intra-family tort actions. The principal issue presented is whether an unemancipated 10-year-old child may maintain an action against his father based on the latter's alleged negligence in operating a power lawnmower on his property which resulted in injury to the child. If the principal issue is answered in the affirmative, we are then faced with the issue of whether the injury sustained by the child occurred as a result of the negligent exercise of parental authority or supervision over his child so as to be an exception to the abrogated rule of parental immunity.

The suit by the infant, through his mother as guardian ad litem , and the mother individually (plaintiffs), against the father and Sears, Roebuck & Company (the distributor of the lawnmower) was dismissed on summary judgment as to the father only on the basis of parental immunity. We granted plaintiffs leave to appeal and now reverse.

Interspousal, Familial and Parental Immunity

Briefly stated, the philosophy behind the immunity rule was to prevent suits which could threaten family bliss and concord, or subvert parental discipline in the case of children. In later years an added reason to retain immunity emerged. It was feared that abolition of immunity would lead to fraudulent and collusive litigation against insurance carriers. This latter reason has been universally rejected. See Immer v. Risko , 56 N.J. 482 (1970), and cases cited therein. Therefore, we will not discuss that phase of the problem.

We have come a long way since the decision in Hastings v. Hastings , 33 N.J. 247 (1960) in which the court, by a 4-3 decision, reviewed the doctrine of parental immunity

in suits by unemancipated minors against their parents in auto negligence cases, and refused to overrule the doctrine. This despite the strong urging and cogent reasons advanced by the minority that the time had come for a change in this so-called common law immunity doctrine. Thereafter, inroads were made in the immunity rule, and the philosophy expressed by the minority in Hastings is today the law in New Jersey. Immer, supra (wife permitted to sue husband for auto tort); France v. A.P.A. Transport Corp. , 56 N.J. 500 (1970) (unemancipated child permitted to sue parent for auto tort although the court carefully limited its decision to auto cases). In an extensive and enlightened review of the entire subject Justice Jacobs abolished interspousal and parental immunity in cases of intentional wrongdoing by permitting the husband to be sued for the alleged intentional drowning of his wife. Small v. Rockfeld , 66 N.J. 231 (1974). The parental immunity was further limited in a case where an unemancipated child was permitted to sue its parent under an existing statute (N.J.S.A. 4:19-16) for injuries sustained resulting from being bitten by his parents' dog. Dower v. Goldstein , 143 N.J. Super. 418 (App. Div. 1976). So, too, a parent may now maintain a suit for injuries sustained in an auto accident where his unemancipated child was the driver. Guterman v. Guterman , 66 N.J. 69 (1974).

We recognize that in France, supra , the court abandoned the doctrine of parental and interspousal immunity in auto negligence cases and refrained from dealing with other types of tort. However, one cannot read France and Small and conclude otherwise than that the parental immunity doctrine has been abrogated in New Jersey in all tort cases, except for some limited exceptions hereinafter to be discussed. The Small, France and Immer decisions, in announcing the new rules on the subject of interspousal, familial and parental immunity, not only reevaluated the principles of justice involved, but relied on practical considerations of current economic and social realities, and the

effect the new rules would have upon the law, the public, the family and insurance companies. We can see no substantial difference between permitting an unemancipated child to sue his parent for injuries resulting from the parent's negligence in driving a car, and permitting him to sue the parent for the negligent ...


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