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Family Immunity

At COMMON LAW, a child could sue a parent for breach of contract and for torts related to property. An adult could sue his or her parent for any tort, whether personal or related to property. In 1891, the Mississippi Supreme Court, in Hewllette v. George, 9 So. 885 (1891), held that a child could not seek compensation for personal injury that was caused by a parent's wrongdoing, so long as the PARENT AND CHILD were obligated by their family duties to one another. The decision was based not on precedent but rather on public policy: The court found that such a lawsuit would undermine the "peace of society and of the families composing society." Criminal laws, the court found, were adequate to protect children.

Other states fell in step with Mississippi, adopting parental immunity of varying degrees. Some parental-immunity laws prohibited only claims of negligence, whereas others prohibited lawsuits for intentional torts such as rapes and beatings. The rationale supporting parental-immunity laws includes the need to preserve family harmony and, with the availability of liability insurance, the need to prevent parents and the children from colluding to defraud insurance companies.

Unjust results have led courts in many states that espouse parental immunity to carve out exceptions to the rule. For example, a child usually can sue a parent for negligence when the parent has failed to provide food or medical care, but not when the parent has merely exercised parental authority. Most courts have abolished the parental-immunity defense for car accident claims, and many allow children to sue their parents for negligent business or employment actions. Courts normally permit WRONGFUL DEATH suits to be brought by a child against a parent or by a parent against a child, because death terminates the parent-child relationship. Moreover, most states allow a child to sue a parent for injuries suffered in utero owing to the negligence of the mother.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Hypoxia to Indirect evidenceImmunity - Sovereign Immunity, Governmental Tort Immunity, Official Immunity, Immunity From Prosecution, Family Immunity, Further Readings