On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Handler, J.
These two cases present the issue of whether the claim of a husband or wife for damages for personal injuries arising from a domestic or household accident attributable to the negligence of the other spouse is barred by the doctrine of interspousal tort immunity. Resolution of this important question requires a decision whether to extend our holding in Immer v. Risko, 56 N.J. 482 (1970) which abrogated interspousal immunity in automobile negligence suits.
For purposes of the appeals, no essential facts are disputed. In the Merenoff case, Barbara and Allen Merenoff were trimming the bushes in the walkway in front of their house on September 2, 1974. Allen noticed that his wife seemed to be having trouble with a low bush she was trying to trim and he walked over to her, picked up the hedge trimmer and clipped the bush. In so doing, Allen cut off his wife's left index finger at the first phalanx. Barbara commenced a tort action against her husband on April 17, 1975 for the injuries he inflicted. In his answer Allen alleged that plaintiff's injuries were caused by her own negligence and that plaintiff's claim is barred by the doctrine of interspousal immunity. In response to interrogatories, however, he stated that he clipped the bush without giving notice to his wife and before "checking" with her and that his negligence was the sole cause of the accident.
Both Merenoffs are insured under a homeowner's insurance policy which provides for personal liability coverage of
"all sums which the Insured shall become legally obligated to pay as damages because of bodily injury * * * caused by an occurrence." The insurance company is defending in this action. Each party filed a motion for summary judgment and defendant's motion based on interspousal tort immunity was granted. Plaintiff filed a notice of appeal in the Appellate Division and then moved for direct certification pursuant to R. 2:12-2.
In the companion Mercado litigation, according to depositions, on or about October 20, 1972 Santos Mercado bought two one gallon cans of Canolite Contact Cement for the purpose of attaching formica in the kitchen of his apartment. He had never used this cement at any time prior to this accident. A Canolite Contact Cement can has the word "flammable" written on it. Santos was unable to read English; nevertheless, he had had experience as a painter and was accustomed to seeing the word on paint cans and understood its meaning. The next day Santos was using the cement when Bienvenida, his wife, entered the kitchen and stood with her back to a gas stove. Her husband was in front of her spreading glue from the can which was about one and one-half feet from the stove. A flame leapt from the pilot light in the stove, igniting the cement can, a brush and the piece of formica which Santos was holding. Bienvenida, who was in the path of the fire as it shot from the oven toward the glue, was set aflame and burned, severely in some respects, on the left side of her face, left elbow and both legs.
On June 11, 1973 Bienvenida filed a complaint against her husband Santos for her injuries. She later added as defendants Two Guys From Harrison, Inc., Woodall Industries, Inc. and Staley Chemical, respectively, the retailer, manufacturer and distributor of the cement. Santos denied negligence and posed as defenses the negligence of plaintiff and the doctrine of interspousal immunity. A number of cross-claims were filed by defendants. The Mercados have a homeowner's insurance policy in both their names which provides the same
personal liability coverage as the Merenoff policy. The insurance company is defending the action.
Summary judgment was granted in favor of defendant Santos against plaintiff and defendants who cross-claimed against him on the ground that the interspousal immunity doctrine barred such actions. Plaintiff then appealed to the Appellate Division. The trial court's judgment was affirmed on the ground that interspousal immunity continues to apply to a tort action based on "simple domestic negligence." This Court considered plaintiff's petition for certification together with the petition in the Merenoff case and certified both cases. 71 N.J. 499; 517 (1976).
To set a perspective to the legal issue we address, it is helpful to recapitulate briefly the history and nature of the doctrine of interspousal immunity. That doctrine originated at common law and had its roots in the historical, legal identity of husband and wife as a single, juridical entity. The rigidity and tenacity of the traditional immunity arising from this legal conception of marriage are exemplified by Phillips v. Barnet, 1 Q.B.D. 436 (1876), first followed in this country by Abbott v. Abbott, 67 Me. 304 (Sup. Jud. Ct. 1877), which ruled categorically that "[t]he legal character of an act of violence by husband upon wife and of the consequences that flow from it, is fixed by the [marital] condition of the parties at the time the act is done." Abbott v. Abbott, supra, 67 Me. at 306. The legal incidents and characteristics of marriage at common law, "some substantive, some procedural, some conceptual" were in effect hybridized into an absolute bar "* * * for one spouse ever to be held civilly liable as a tortfeasor, in any situation and without exception, to the other for any act, antenuptial or during marriage, causing personal injury which would have been a tort but for the marriage." McCurdy, "Personal Injury Torts Between Spouses," 4 Vill. L. Rev. 303, 307 (1959). See also
1 Blackstone, Commentaries*fn* 442; McCurdy, "Torts Between Persons in Domestic Relation," 43 Harv. L. Rev. 1030, 1031-1035 (1930); Harper & James, The Law of Torts 643 (1956); Prosser, Law of Torts 859-860 (4th ed. 1971); Hudson v. Gas Consumers' Association, 123 N.J.L. 252, 253 (E. & A. 1934); Bendler v. Bendler, 3 N.J. 161, 173-174 (1949) (Ackerson, J., dissenting).
For more than a century, starting about 1844, Married Women's Acts so-called were enacted in every American jurisdiction. The intended effect of these statutes was to give married women a separate legal identity. They purported to confer upon women separate ownership and control of their own property, including choses in action. Women became separately responsible for their torts and were given the capacity to sue or be sued without joinder of the husband. Prosser, supra at 861. These statutes, however, rarely addressed with any preciseness the question of whether a cause of action for tort between married persons could be brought. Consequently, the impact of these statutory laws upon the doctrine of interspousal immunity has been uneven throughout common law jurisdictions. McCurdy, supra, 4 Vill. L. Rev. at 336. As a result, it is difficult to categorize and characterize the status of the doctrine of interspousal immunity at the present time.
It is generally believed that a majority of jurisdictions favor marital immunity. Prosser, supra at 862. Upon close analysis, however, one finds that currently only a handful of courts unqualifiedly retain the doctrine in its pristine formulation. See, e.g., Paiewonsky v. Paiewonsky, 446 F.2d 178 (3 Cir. 1971), cert. den. 405 U.S. 919, 92 S. Ct. 944, 30 L. Ed. 2d 788 (1972) (applying Virgin Islands law); Monk v. Ramsey, 223 Tenn. 247, 443 S.W. 2d 653 (Sup. Ct. 1969); Donsbach v. Offield, 488 S.W. 2d 494 (Tex. Ct. Civ. App. 1972). Most have abrogated the concept in varying degrees. For example, many permit suit where the marriage has been terminated by death or divorce. See, e.g., Jones v. Pledger, 363 F.2d 986 (D.C. Cir. 1966)
(applying District of Columbia law) Apitz v. Dames, 205 Ore. 242, 287 P. 2d 585 (Sup. Ct. 1955). Several allow recovery for antenuptial torts. See, e.g., Moulton v. Moulton, 309 A.2d 224 (Me. Sup. Jud. Ct. 1973); O'Grady v. Potts, 193 Kan. 644, 396 P. 2d 285 (Sup. Ct. 1964). A few have invalidated the immunity in the broad field of automobile negligence. See, e.g., Rupert v. Stienne, 90 Nev. 397, 528 P. 2d 1013 (Sup. Ct. 1974); Richard v. Richard, 131 Vt. 98, 300 A.2d 637 (Sup. Ct. 1973); Surratt v. Thompson, 212 Va. 191, 183 S.E. 2d 200 (Sup. Ct. 1971). Some have sanctioned recovery between spouses for intentional personal injury. See, e.g., Flores v. Flores, 84 N.M. 601, 506 P. 2d 345 (Ct. App.), cert. den. 84 N.M. 592, 506 P. 2d 336 (Sup. Ct. 1973). Others indicate that if the action can be brought against a third party, the action can be maintained even though it assumes a cause of action between spouses. See, e.g., Fields v. Synthetic Ropes, Inc., 215 A.2d 427 (Del. Sup. 1965) (wife's suit against husband's employer for injuries negligently inflicted by husband in course of his employment sustainable).
Some jurisdictions have oscillated. Compare Taylor v. Patten, 2 Utah 2d 404, 275 P. 2d 696 (Sup. Ct. 1954) (abrogating immunity) with Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P. 2d 389 (Sup. Ct. 1963) (reinstating immunity). In several states, the legislature has reacted to judicial initiatives and has passed legislation to overcome or otherwise modify court decisions. E.g., Ill. Rev. Stat. ch. 68, § 1 (1953) (Ill. Ann. Stat. ch. 40, § 1001 (Smith-Hurd 1977)), (reinstating interspousal immunity) supplanting Brandt v. Keller, 413 Ill. 503, 109 N.E. 2d 729 (Sup. Ct. 1953) (abrogating interspousal immunity); N.Y. Dom. Rel. Law § 57 (1937) (N.Y. Gen. Oblig. Law § 3-313 (McKinney 1964)) (granting either spouse a right of action against the other for tortious injury to person or property) and N.Y. Ins. Law § 109 (3-a) (N.Y. Ins. Law § 167 (3)
(McKinney 1939)) (no insurance policy shall be deemed to insure against an injury to an insured's spouse, unless expressly provided for in the policy) superseding Allen v. Allen, 246 N.Y. 571, 159 N.E. 656 (Ct. App. 1927) (disallowing tort suits between spouses); Wis. Stat. § 246.075 (1951) and N.C. Gen. Stat. § 52-5 (1951) (each authorizing interspousal suits by both spouses) overruling respectively Fehr v. General Accident Fire & Life Assurance Corp., 246 Wis. 228, 16 N.W. 2d 787 (Sup. Ct. 1944) and Scholtens v. Scholtens, 230 N.C. 149, 52 S.E. 2d 350 (Sup. Ct. 1949) (each holding that Married Women's Acts authorized suits only by wives against their husbands but not the converse). In fact if any one dominant position can be said to have emerged from this variegated experience, it is that expressed by a plurality of at least twenty jurisdictions which have completely abrogated interspousal immunity. See, e.g., Klein v. Klein, 58 Cal. 2d 692, 26 Cal. Rptr. 102, 376 P. 2d 70 (Sup. Ct. 1962); Freehe v. Freehe, 81 Wash. 2d 183, 500 P. 2d 771 (Sup. Ct. 1972). See generally American Law Institute, Restatement (Second) Torts (Tentative Draft No. 18) § 895(G) at 72-78 (April 26, 1972); Annot., "Right of one spouse to maintain action against other for personal injury," 43 A.L.R. 2d 632 (1955) and Later Case Service. See also Note, 6 U. of Rich. L. Rev. 379, 380 (1972); Sanford, "Personal Torts within the Family", 9 Vand. L. Rev. 823, 826-832 (1959); Farage, "Recovery for Torts Between Spouses", 10 Ind. L.J. 290, 294, 296-300 (1935).
What thus unfolds from a canvass of the doctrine of interspousal immunity across the country is that its application is far from consistent or uniform; its efficacy as a legal principle has divided jurisdictions; and its utility as a social tool or instrument of justice has confounded courts, legislators and commentators. It is clear, nonetheless, that despite its survival in varying forms, interspousal immunity is no longer the doctrinal monolith it was in olden times.
The experience of our State with the doctrine of interspousal immunity in many ways typifies the unstable interaction between a common law tradition whose potency has waned in modern times and statutory laws of uncertain import. New Jersey's Married Persons Act, N.J.S.A. 37:2-1 et seq., portions of which were originally enacted in 1877, sought to accord legal recognition to a wife as a separate individual and in effect give a wife a definable legal identity apart from that of her husband. See, e.g., N.J.S.A. 37:2-6 (married woman may sue or be sued without joining her husband); N.J.S.A. 37:2-8 (married woman solely responsible for her torts); N.J.S.A. 37:2-9 (married woman may maintain action in own name, without joining her husband, for torts committed against her or her separate property); N.J.S.A. 37:2-10 (married woman solely liable for her debts contracted before or after marriage); N.J.S.A. 37:2-12 (married woman's right to own separate property); N.J.S.A. 37:2-16 (married woman can enter into contracts without joinder of husband; her contracts can be enforced by and against her in her own name and apart from her husband). Nevertheless in our State, no judicial stampede away from the firmly fastened common law concept of interspousal immunity ensued. The cases invariably erected the doctrine as a bar with respect to suits at law. E.g., Woodruff v. Clark & Apgar, 42 N.J.L. 198 (Sup. Ct. 1880); Drum v. Drum, 69 N.J.L. 557 (Sup. Ct. 1903); Metzler v. Metzler, 8 N.J. Misc. 821, 151 A. 847 (Cty Ct. 1930). The courts, in some instances, allowed an action to be maintained in equity but even then limited such causes to those founded on property or contract, e.g., Gray v. Gray, 39 N.J. Eq. 511 (E. & A. 1885); Wood v. Chetwood, 44 N.J. Eq. 64 (Ch. 1888), aff'd o.b. 45 N.J. Eq. 369 (E. & A. 1899); Zansinger v. Zansinger, 46 N.J.L.J. 74 (Ch. 1923), but not in tort. E.g., Von Laszewski v. Von Laszewski, 99 N.J. Eq. 25 (Ch. 1926); Bendler v.
In Eule v. Eule Motor Sales, 34 N.J. 537 (1961) there was a perceptible movement away from the universal application of the traditional immunity doctrine. That case held that a wife was entitled to bring a tort action against a partnership of which her husband was a member for injuries negligently inflicted by him. The Court found that the threat of marital discord which the immunity was intended to prevent was remote and that the liability of an employee to reimburse the employer was theoretical and anachronistic. Cf. Hudson v. Gas Consumers' Assoc., supra (wife entitled to sue her husband's employer on the basis of the husband's negligence, noting that the bar of interspousal immunity is personal to the husband); see also Felice v. Felice, 34 N.J. Super. 388 (App. Div. 1955) (awarding worker's compensation against a partnership to the wife of a partner, although in a prior case, Bendler v. Bendler, supra, a compensation recovery on behalf of a wife had not been approved where the husband was the individual employer). And it was held in Long v. Landy, 35 N.J. 44 (1961), that a widow may sue her husband's estate for negligent injury which had been inflicted by her husband, the Court observing that "[t]he concept of the unity of husband and wife is terminated upon the death of either spouse and the common law reason for ...