Parental Immunity Doctrine: Alive and Well in Colorado
| Jurisdiction | Colorado,United States |
| Citation | Vol. 20 No. 5 Pg. 935 |
| Pages | 935 |
| Publication year | 1991 |
1991, May, Pg. 935. Parental Immunity Doctrine: Alive and Well in Colorado
Historically, members of a family have been precluded from bringing suit against one another. In the past, the family immunity doctrine has prevented a spouse from suing a spouse; a sibling from bringing action against another sibling; or a child from suing a parent. Modern courts have begun to vitiate the family immunity doctrine, placing emphasis on the duty owed rather than on the family relationship.
Now, most states, including Colorado, recognize a spouse's right to bring suit against a tort-feasor spouse(fn1) and a sibling's right to recover from a sibling.(fn2) However, one vestige of the family immunity doctrine that has maintained its vitality is the parental immunity doctrine. Colorado is one of many states that still preclude children from initiating suit against a negligent parent. This article examines the historical development of the parental immunity doctrine and its application in Colorado.
The doctrine of parental immunity acts as a bar to children who attempt to recover damages for injuries sustained as a result of their parents' tortious conduct. The doctrine was created in 1891 in Hewellette v. George,(fn3) in which the Mississippi Supreme Court held that an unemancipated minor child could not maintain a tort action against his or her parents. The Hewellette court reasoned that public policy is designed to "subserve the repose of families and the best interests of society"(fn4) and, consequently, forbids an unemancipated minor child from asserting a claim for personal injuries against a parent.(fn5) The court held that
so long as the parent is under the obligation to care for, guide, and control, and the child is under the reciprocal obligation to aid and comfort and obey, no such action as this can be maintained."(fn6)
In another leading parental immunity case, Holodook v. Spencer,(fn7) the New York Court of Appeals made the following observation:
We can conceive of few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents' constant surveillance and instruction, though detriment more subtle and perhaps more harmful than physical injury might result.(fn8)
There are many reasons relied on by courts as justification for the denial of an action by a child against his parents. These include (1) the family as a unit,(2) immunity between husband and wife,(fn9) (3) the possibility of collusion or fraud, (4) the possibility that the amount recovered as damages might be inherited, (5) the effect on family finances, (6) the disruption of the family unit and (7) interference with parental discipline.(fn10) Courts justifying parental immunity have relied heavily on these factors as rationale that the doctrine should maintain its viability.(fn11)
The Restatement (Second) of Torts ("Restatement") takes a more liberal view and provides that "a parent or child is not immune from tort liability to the other solely by reason of that relationship."(fn12) The Restatement encourages the trend toward total abolition of the doctrine of parental immunity and takes the position that "under the better law the immunity between parent and child is entirely abrogated."(fn13)
Commentators have been strongly in favor of the Restatement since its adoption.(fn14) A number of jurisdictions have followed the Restatement and abolished the parental immunity doctrine entirely.(fn15) Others have simply never adopted the doctrine.(fn16) Finally, some courts have followed the Restatement by adopting...
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