Stamboulis v. Stamboulis
Stamboulis v. Stamboulis
Opinion of the Court
On April 12,1984, the defendant, who operated the College Square Pizza on Southbridge Street in Worcester, took her three year old daughter with her to the pizza facility. The defendant was making pizzas, and Fevronia was putting dough in pizza pans. When the defendant went to answer the telephone, Fevronia undertook to put dough through an electric dough rolling machine on a kitchen counter. One of her hands was caught in the machine and injured.
In this action, Fevronia by her father seeks to recover against her mother for negligently causing Fevronia’s injury. Her father
The judge’s ruling followed our decisions concerning parent child immunity. See Luster v. Luster, 299 Mass. 480 (1938); Oliveria v. Oliveria, 305 Mass. 297 (1940), which recognized the principle and Sorensen v. Sorensen, 369 Mass. 350 (1973), which abrogated the rule in a limited respect. The judge’s decision concerned only the question of the.immunity of the defendant mother from liability for negligently causing injury to her minor child. The judge did not consider the circumstances of the accident and whether, absent parental immunity, there was a breach of duty.
In the Sorensen case, the court abrogated the principle of parent-child immunity for motor vehicle torts only.
There is nothing special about negligently caused motor vehicle injuries that sets them apart from all other negligently caused injuries. A distinction based on motor vehicle versus non-motor vehicle accidents in deciding the limits of parental immunity has no rational justification. Indeed, no logical line based on immunity can be drawn, and none should be. Restatement (Second) of Torts § 895G (1979).
Once immunity is eliminated, the focus should be on the duty of care that should be applied in deciding a minor child’s negligence claim against a parent. The fact of parenthood is relevant to the standard of care which a court should apply. Courts which have abrogated (or never have adopted) parental immunity have taken different views of the appropriate standard of care in various situations.
All we decide here is that no absolute curtain of immunity protects a parent who negligently causes injury to his or her minor child.
Judgment reversed.
The third count, concerning the father’s emotional distress, remains open.
Justice O’Connor’s dissent attributes to the court an unexpressed intention to allow a child to recover for negligent parental supervision. We take no view on this issue because it was not presented to the court below. Moreover, the facts set forth on the summary judgment motion do not permit an appropriate analysis of the issue.
The opinion indicated that immunity was to be abrogated in motor vehicle tort cases only if there was insurance coverage involved. Id. at 352-353. This distinction is not logical, and it may not survive. See New Hampshire Ins. Co. v. Fahey, 385 Mass. 137, 138 (1982); Pevoski v. Pevoski, 371 Mass. 358, 362-363 (1976) (Quirico, J., concurring); Lewis v. Lewis, 370 Mass. 619, 630 n.4 (1976). If this court were to regard insurance as a reason for finding liability in the case before us, the requirement is met because the defendant mother has a business owner’s policy with a limit of $300,000 for completed operations and products hazards.
“A parent or child is not immune from tort liability to the other solely by reason of that relationship.” Restatement (Second) of Torts § 895G (1) (1979). Section 895G approves the trend toward abrogation of the doctrine of parent-child immunity “and takes the position that under the better law the immunity between parent and child is entirely abrogated.” Id. at comment j.
A number of courts have abolished the doctrine, which has no old common law origin. See Gibson v. Gibson, 3 Cal. 3d 914, 921-922 (1971) (adopting a reasonable parent standard); Petersen v. Honolulu, 51 Hawaii 484, 486 (1969) (parent-child negligence suits will be allowed regardless of the presence or absence of insurance); Anderson v. Stream, 295 N.W.2d 595, 601 (Minn. 1980) (adopting a reasonable parent standard); Briere v. Briere, 107 N.H. 432, 436 (1966); Kirchner v. Crystal, 15 Ohio St. 3d 326, 330 (1984); Falco v. Pados, 444 Pa. 372, 376, 378-379 (1971) (citing opinions in twelve States which had abolished the doctrine); Elam v. Elam, 275 S.C. 132, 134, 137 (1980) (abolishing the parental immunity common law doc
Scholarly comment since the adoption of § 895G appears to be strongly in favor of the rejection of parent-child immunity. See 2 F. Harper, F. James, & O. Gray, Torts § 8.11, at 574-581 (2d ed. 1986); W.L. Prosser & W.P. Keeton, Torts § 122, at 904-907 (5th ed. 1984); Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L. Rev. 489 (1982); Note, Ard v. Ard: Limiting the Parent-Child Immunity Doctrine, 44 U. Pitt. L. Rev. 977 (1983); Note, The Unsupervised Child: Parental Negligence or Necessity?, 15 Val. U.L. Rev. 167 (1980).
Some courts have adopted the position of the Restatement (Second) of Torts § 895G (1979), and have applied a reasonable parent standard. See Gibson v. Gibson, 3 Cal. 3d 914, 921 (1971); Anderson v. Stream, 295 N.W.2d 595, 600-601 (Minn. 1980). Others have declined to impose liability for negligent supervision. See, e.g., Foldi v. Jeffries, 93 N.J. 533, 547 (1983). Some courts have allowed recovery when the tort was committed in the course of a business activity of the parent. See, e.g., Signs v. Signs, 156 Ohio St. 566, 577 (1952); Felderhoff v. Felderhoff, 473 S.W.2d 928, 930 (Tex. 1971). New York has taken the position that a parent may be held liable for breach of a duty “ordinarily owed, apart from the family relation,” but not for “negligent supervision” resulting in injury to the child. Holodook v. Spencer, 36 N.Y.2d 35, 50, 51 (1974).
Concurring Opinion
(concurring). I agree with the result reached by Justices Wilkins, Liacos, and Abrams. I also agree with their reasoning in all but one respect, as follows. The opinion lists and briefly describes several cases in which we have rejected the status of a party to the tort (e.g., a spouse, a charity, a government entity) as a controlling element in determining liability for negligence. Also listed is Schofield v. Merrill, 386 Mass. 244 (1982), in which a majority of this court concluded that an adult trespasser, not known to be in peril, was barred from recovering in a negligence claim against the landowner. The implication is that the result in Schofield is inconsistent (it is cited as “contra”) with the “status” cases. Not so. I suppose that in a dictionary sense we are indicating a status when we speak of a trespasser. More significantly, we are referring to conduct. “Trespasser” is a label for a person who has unlawfully entered the land of another. I joined a majority of this court in Schofield in determining that such a wrongdoer, whether burglar or mere interloper, can prevail only upon a showing of wilful, wanton, or reckless conduct of the defendant landowner. I suggest that the Schofield result is sound policy, and also is consistent with the reasoning that the status of a party should not be a controlling element in determining liability for negligence.
Dissenting Opinion
(dissenting, with whom Lynch, J., joins). I dissent. In the case of Sorensen v. Sorensen, 369 Mass. 350 (1975), we allowed an exemption to the parent-child immunity doctrine in automobile tort actions to the extent that the damages were paid from motor vehicle liability insurance. Although subsequent decisions have questioned the validity of the insurance coverage requirement of Sorensen, see Lewis v. Lewis, 370 Mass. 619, 630 n.4 (1976); Pevoski v. Pevoski, 371 Mass. 358, 363 (1976) (Quirico, J., concurring); New Hampshire Ins. Co. v. Fahey, 385 Mass. 137, 138 (1982), never has the court expanded the parent-child immunity exception beyond motor vehicle torts.
Our reticent approach to dismantling the immunity between child and parent is best explained in the concluding passages of
To allow the child in the instant case to maintain an action against her mother for failing properly to supervise her activities at the pizza shop is to ignore each of the reservations expressed by the Sorensen court. Unlike a motor vehicle tort action, allowance of the present action tends to undermine parental authority and discipline by substituting for parents’ discretion in the care and rearing of minor children that of the court. Nor should we create a new immunity exception that would allow a child to maintain an action against a parent where the alleged negligent supervision occurred at the parent’s place of business, a limited exception that even the plaintiffs describe as “not logically defensible.”
The decision today to strike the parent-child immunity doctrine in this case alleging negligent parental supervision flies in the face of a majority of the State courts. See, e.g., Thomas v. Inmon, 268 Ark. 221, 223 (1980) (immunity bars action for negligence against persons standing in loco parentis); Horton v.
Furthermore, a review of the minority of jurisdictions that do provide a business exception to the parent-child immunity doctrine discloses that the underlying theory of the exception is premised on the existence of a master-servant relationship between child and parent, and not merely on the location of the alleged negligent act. See, e.g., Felderhoff v. Felderhoff, 473 S.W.2d 928, 929, 933 (Tex. 1971).
Dissenting Opinion
(dissenting, with whom Lynch, J., joins). I fully agree with Justice Nolan’s dissenting opinion. I add further comments, however, because I perceive in the court’s
The court states, ante at 764, that “ [w]e have rejected the status of a party to the tort as a controlling element in determining liability for negligence,” and cites five cases as authority for that statement. In four of the cited cases, the court rejected the particular status of the parties as entitling the defendants to immunity. However, immunity aside, this court has never rejected the principle that the status of the parties may control with respect to whether a party owes another party a duty to exercise reasonable care for his well-being. In the fifth case cited by the court, Mounsey v. Ellard, 363 Mass. 693 (1973), a case not dealing with immunity but rather with duty, we did not reject the status of the parties as a controlling factor in determining whether a landowner owes a duty of reasonable care to persons on his land. We simply held that a landowner does owe such a duty to one lawfully on the premises irrespective of whether the party enjoying that status is an invitee or only a licensee. We stated in Mounsey, supra at 707 n.7, that “there is significant difference in the legal status of one who trespasses on another’s land as opposed to one who is on the land under some color of right — such as licensee or invitee.” Our recognition of that significant difference in status was the basis of our subsequent holding in Schofield v. Merrill, 386 Mass. 244 (1982), that a landowner does not owe to an adult
Reference
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- Fevronia Stamboulis & Another vs. Marianna Stamboulis
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