On defendant Judith Convery's motion for summary judgment what survives of a tort defense of parent-child immunity is at issue. Her motion is based upon the pleadings, depositions and answers to interrogatories.
William Convery brought this action alleging negligence both of his mother and of codefendant Mrs. Maczka in failing to supervise him. Codefendants Maczka cross-claimed for contribution. The undisputed facts are as follows. His mother brought William, then five years old, on a visit to the Maczkas. While the adults stayed in the kitchen William joined three other children, including one of the Maczkas, in the basement. In discovery neither Mrs. Convery nor Mrs. Maczka testified to any instruction or warning to William. After about 15 minutes of unsupervised play in the basement William jumped from a chair and sustained a fracture of his left arm.
The doctrine of parent-child tort immunity was adopted in a published opinion of the highest court of this State for the first time in Reingold v. Reingold , 115 N.J.L. 532 (E. & A. 1935),*fn1 which relied upon Hewlett v. George , 68 Miss. 703,
9 So. 885 (Sup. Ct. 1891). Upheld by a 4-3 vote in Hastings v. Hastings , 33 N.J. 247 (1960), an automobile negligence action, the doctrine was abrogated in such actions only in France v. A.P.A. Transport Corp. , 56 N.J. 500 (1970). Subsequently parent-child immunity was rejected as a bar in a wrongful death action for murder or gross negligence in Small v. Rockfeld , 66 N.J. 231 (1974), in an action under the strict liability dog bite statute, N.J.S.A. 4:19-16, in Dower v. Goldstein , 143 N.J. Super. 418 (App. Div. 1976), and in an action for negligence in the operation of a power lawnmower in Gross v. Sears, Roebuck & Company , 158 N.J. Super. 442 (App. Div. 1978). The apprehension of family disharmony or financial loss, which was the rationale for parent-child immunity, is viewed as unrealistic in this era of widespread insurance. France , 56 N.J. at 505.
In France Justice Proctor states in dictum (at 507): "We realize that there may be areas involving the exercise of parental authority and care over a child which should not be justiciable in a court of law." Justice Jacobs refers to that dictum favorably in Small , 66 N.J. at 244, again as dictum.
Also in Small Justice Jacobs (at 243) quotes from Goller v. White , 20 Wis. 2d 402, 122 N.W. 2d 193 (Sup. Ct. 1963), limiting parental tort immunity to circumstances:
(1) Where the alleged negligent act involves an exercise of parental authority over the child; and (2) Where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.
The Goller exceptions to the abrogation of parental tort immunity were approved, again as dictum, in Gross. That opinion recommends that the trial judge should determine as a threshold question whether parental tort immunity applies in accordance with the Goller exceptions.
A further analysis is as follows. Parental tort immunity is abrogated wherever a right of action would
lie absent the parent-child relationship, e.g. for automobile negligence or for negligence of an owner or occupier of land in failing to remedy or warn against a dangerous condition. But the abrogation of parental tort immunity does not initiate any previously unrecognized right of action in favor of a child against his parent. See Holodook ...