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Foldi v. Jeffries

Decided: July 13, 1983.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 182 N.J. Super. 90 (1982).

For affirmance -- Chief Justice Wilentz and Justices Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Garibaldi, J.


Today we return to the thorny problem of ascertaining the parameters of the doctrine of parent-child tort immunity. Specifically, we consider whether the doctrine of parental immunity bars recovery by an unemancipated minor for personal injuries arising from an accident attributable to her mother's negligent lack of supervision. Resolution of this question requires us to decide whether to continue to apply our holdings in France v. A.P.A. Transp. Corp., 56 N.J. 500 (1970), and Small v. Rockfeld, 66 N.J. 231 (1974), to all tort actions, except some special areas involving the "exercise of parental authority and adequacy of child care." Small, 66 N.J. at 244 (construing France, 56 N.J. at 507).

For purposes of this appeal, the essential facts are not disputed. On May 7, 1974 at approximately 6:30 p.m., plaintiff Jennifer Foldi, then 2 1/2 years old, accompanied her mother to the front yard of their family residence in Morris Plains. Mrs. Foldi knelt and began planting some greenery on the side of the house. Jennifer was at her side, with a sand bucket and a garden trowel. While Mrs. Foldi was gardening, Jennifer wandered out of the yard and over to a neighbor's residence two doors away. There she was bitten on the face by a dog.

Mrs. Foldi, busy in the garden, had been unaware that her daughter had wandered off. As soon as she noticed that Jennifer had disappeared, she ceased her gardening and began to search for her. In her deposition Mrs. Foldi stated that only 5 to 10 minutes elapsed from the time that she had last seen Jennifer to the time that she found her in the neighbor's driveway.

Jennifer, by her guardian ad litem, filed a complaint in Superior Court against Dorsie and Florence Jeffries, the dog's owners. Mr. and Mrs. Jeffries filed an answer and a third party complaint against Jennifer's parents, alleging contributory negligence and seeking indemnification from the Foldis for resulting costs and damages. Thereafter, Jennifer filed an amended complaint adding her parents as defendants in the suit.

The trial court granted the Foldis' motion for summary judgment against Jennifer and the Jeffries, invoking the doctrine of parent-child immunity. Subsequently, the court entered an order that settled all claims between Jennifer and the Jeffries. The Appellate Division affirmed, 182 N.J. Super. 90 (1981), holding also that the parental immunity doctrine barred Jennifer's claim and the Jeffries' third-party claim for indemnity. Judge Furman dissented for the reasons set forth in his opinion in Convery v. Maczka, 163 N.J. Super. 411 (Law Div.1978).

On the basis of the dissent below, Jennifer filed an appeal as of right to this Court, pursuant to R. 2:2-1(a)(2). We affirm the Appellate Division's judgment.


The English common law did not recognize the doctrine of parental immunity. The doctrine emerged later in this country in three state court decisions, sometimes referred to as "The Great Trilogy." In the first, Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891), the Supreme Court of Mississippi refused to allow an unemancipated daughter to maintain a claim of false imprisonment against her mother for maliciously committing her to an insane asylum. The court cited no legal authority for its holding, but based its position on the grounds that "[t]he peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society . . ." forbid a minor child from suing his or her parent for personal injuries. 68 Miss. at 711, 9 So. at 887.

Hewlett was followed twelve years later by McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903). In McKelvey the Tennessee Supreme Court denied a child the right to sue her father and stepmother for alleged cruel and inhumane treatment that the stepmother had inflicted upon her with the father's consent. In reaching that conclusion, the court relied upon the parent's right to control and discipline the child. 111 Tenn. at 390, 77 S.W. at 664. It also analogized parental immunity to the pre-existing doctrine of spousal immunity, viewing both concepts as supportive of unity within the family. Id. at 392, 77 S.W. at 665. The final case in the Trilogy, Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), reached the absurd result of refusing to entertain a civil suit by a minor against her father who had been convicted of raping her. As support for its position, the Supreme Court of Washington relied on the spousal immunity analogy, the problem of shifting family assets away from the support of other children in the household, and the difficulty of distinguishing between serious parental misconduct warranting recovery and less extreme torts that should be immunized. 37 Wash. at 243, 79 P. at 788-89.

Numerous states thereafter adopted the doctrine of parent-child immunity and applied it to both negligent and intentional torts. Prosser, Torts, § 122 at 865 (4th ed. 1971). Yet, as various jurisdictions decided cases dealing with the issue, several exceptions and qualifications emerged. Id. at 866-67. As a result, it is difficult to generalize about the status of the doctrine today. Few states retain unqualified parental immunity for all tortious acts. E.g., Owens v. Auto Mut. Indem. Co., 235 Ala. 9, 177 So. 133 (1937) (complete immunity); Horton v. Unigard Ins. Co., 355 So. 2d 154 (Fla.Dist.App.1978), cert. dismissed, 379 So. 2d 459 (Fla.1979) (same); McNeal v. Administrator of Estate of McNeal, 254 So. 2d 521 (Miss.1971) (same). Some jurisdictions have totally abolished the immunity. E.g., Gibson v. Gibson, 3 Cal. 3d 914, 479 P. 2d 648, 92 Cal.Rptr. 288 (1971); Rupert v. Stienne, 90 Nev. 397, 528 P. 2d 1013 (1974); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Elam v. Elam, 275 S.C. 132,

268 S.E. 2d 109 (1980); Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1976). Most states, however, including New Jersey, have partially abrogated the doctrine. See generally Annot., "Liability of Parent for Injury to Unemancipated Child Caused by Parent's Negligence -- Modern Cases," 6 A.L.R. 4th 1066, § 13 at 1113-25 (1981), and cases cited therein. These varied authorities indicate that parental immunity, like interspousal immunity, "is no longer the doctrinal monolith it was in olden times." Merenoff v. Merenoff, 76 N.J. 535, 543 (1978).


The development of the doctrine of parental immunity in New Jersey typifies its evolution in many other states. The doctrine of parent-child immunity was first recognized in this State in Reingold v. Reingold, 115 N.J.L. 532 (E. & A. 1935). In that case, a nineteen year-old unemancipated child was precluded from recovering damages for injuries suffered as a passenger in an automobile owned by her stepmother and negligently driven by her father. The Court of Errors and Appeals articulated as the main reason for its opinion the preservation of family tranquility, citing Hewlett and its progeny as authority. Reingold, 115 N.J.L. at 535.

Reingold was followed by three decisions of this Court: Hastings v. Hastings, 33 N.J. 247 (1960); Heyman v. Gordon, 40 N.J. 52 (1963); and Franco v. Davis, 51 N.J. 237 (1968). All three cases involved ordinary negligence of a parent in operating a motor vehicle. In each case, the doctrine of parental immunity was upheld by a slim 4-to-3 majority. The dissenting opinions in Hastings, Heyman, and Franco, all authored by Justice Jacobs, noted the erosion of parental immunity in other states and urged that this state follow the trend. Hastings, 33 N.J. at 253-61; Heyman, 40 N.J. at 55-60; Franco, 51 N.J. at 242-43.

In France v. A.P.A. Transp. Corp., 56 N.J. 500 (1970), we, for the first time, partially repudiated the parental immunity doctrine. There we held that an unemancipated child could sue his

or her parent for injuries that resulted from the parent's negligent operation of a motor vehicle. Id. at 507. In considering whether such parental negligence should remain immunized, we observed that various exceptions and qualifications that had been judicially fashioned to limit the immunity doctrine had led to "anomalous results." Id. at 504. We specifically noted the incongruity of disallowing a minor child's negligence action against a parent, while permitting a child to sue his parent in property or contract, In re Flasch, 51 N.J. Super. 1 (App.Div.), certif. den., 28 N.J. 35 (1958), and to bring tort actions in cases where the parent had subsequently died, Palcsey v. Tepper, 71 N.J. Super. 294 (Law Div.1962), where the child had become emancipated, Weinberg v. Underwood, 101 N.J. Super. 448 (Law Div.1968), or where grandparents had acted in loco parentis, Wilkins v. Kane, 74 N.J. Super. 414 (Law Div.1962). See France, 56 N.J. at 504.

We further recognized in France that the reasons typically given for retaining immunity for parental negligence -- the preservation of domestic harmony, the deterrence of fraud and collusion, and the protection of the family exchequer -- had little remaining validity. Id. at 504-05. Echoing our analysis in the companion case of Immer v. Risko, 56 N.J. 482 (1970) (abolishing interspousal tort immunity in automobile negligence actions), we noted that the widespread use of liability insurance had virtually nullified the threat that parent-child tort actions had posed to domestic peace and intra-family finances. France, 56 N.J. at 505. We also expressed our confidence that our judicial system would expose most, if not all, of the collusive suits brought against insurance carriers by injured children and their parents. Id.

Although our specific holding in France was limited to the abolition of parental immunity in claims arising out of a parent's negligent operation of a motor vehicle, we nevertheless stated the general view that the immunity "should be abrogated in this State." Id. at 506. We further recognized as dictum 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." Id. at 507. However, since those areas were not implicated in France, we did not decide "what limits, if any, the rule ...

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