Chapter 26 - § 26.2 • PARENT-CHILD IMMUNITY

• Jurisdiction: Colorado

§ 26.2 • PARENT-CHILD IMMUNITY

§ 26.2.1—Historical Background

Unlike marital torts discussed above, parent-child immunity did not originate in English common law, but was adopted for a variety of reasons by American courts. Caroline E. Johnson, "A Cry for Help: An Argument for Abrogation of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Cases," 21 Fla. St. U. L. Rev. 617, 620 (1993). In Hewlett v. George, 9 So. 885 (Miss. 1891), the mother of a young woman separated her from her husband. The young woman brought suit against her mother for damages resulting from an alleged false imprisonment. The Mississippi Supreme Court refused to allow the daughter to bring suit against her mother, reasoning that

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 interest 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.

Id. at 887.

Less than two decades later, the Tennessee Supreme Court, in McKelvey v. McKelvey, 77 S.W. 664 (Tenn. 1903), followed the Hewlett case and recognized the doctrine of parental immunity. The Tennessee court reasoned that judicial interference in the area of parental control and discipline would contravene public policy. Id. at 665. Just two years later, the Washington Supreme Court in Roller v. Roller, 79 P. 788 (Wash. 1905), refused to allow a minor child to sue her father for damages after he was convicted of sexually assaulting her. The court reasoned that if it is established that a child has a right to sue a parent for a tort, there is no practical line of demarcation that can be drawn. Id. at 789.

Courts relied on several policy justifications in support of the parent-child immunity doctrine. These justifications included:

(1) Protection of the family unit and family harmony;
(2) Prevention of interference with parental care, discipline, and control;
(3) Prevention of fraud or collusion, particularly in cases involving insurance;
(4) Prevention of depletion of the family funds in favor of the claimant at other family members' expense;
(5) Prevention of inheritance by the tortfeasor of any damages awarded because of the tortfeasor's actions; and

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