- Find Attorney
Parental immunity doctrine refers to a principle that children cannot sue their parents, and that parents cannot sue their children, for tort claims. The doctrine is based upon the public policy of maintaining family tranquility and avoiding the fear of undermining a parent’s control and authority over his or her children. This doctrine was created by American courts and appeared first in the case HEWLETT v. GEORGE, 68 Miss. 703 (Miss. 1891) where the court held that so long as the parent is under obligation to care for, guide and control, and the child is under reciprocal obligation to aid and comfort and obey, no action for malicious prosecution can be maintained. The 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 to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand.
However there are many exceptions to this doctrine. For example, in Merrick v. Sutterlin, 93 Wn.2d 411 (Wash. 1980) the court held that a minor child injured by the negligence of a parent in an automobile accident has a cause of action against that parent. Likewise in Schenk v. Schenk, 100 Ill. App. 2d 199 (Ill. App. Ct. 4th Dist. 1968) it was held that immunity does not apply when an injury is inflicted by the parent or child through willful, wanton, or criminal conduct. The court opinioned that “Any justification for the rule of parental immunity can be found only in a reluctance to create litigation and strife between members of the family unit. While the policy might be such justification to prevent suits for mere negligence within the scope of the parental relationship public policy should not prevent a minor from obtaining redress for willful and wanton misconduct on the part of a parent. The doctrine of parental immunity was court created and may be court destroyed. The public policy involved is the interest of the State in maintaining harmony, avoiding strife, and insuring a proper atmosphere of cooperation, discipline and understanding in the family.”