Chapter 57: Parent – Child Immunity

§57.1 Generally

The Case: Broadwell v. Holmes , 871 S.W.2d 471 (Tenn. 1994).

The Basic Facts: Mother was sued for death on one child and injuries to another which arose out of an automobile accident.

The Bottom Line:

• "This Court granted permission to appeal in order to re-examine the parental immunity doctrine, first adopted in this state McKelvey v. McKelvey, [77 S.W. 664 (Tenn. 1903)], and most recently reaffirmed Barranco v. Jackson, [690 S.W.2d 221 (Tenn. 1985)], a case in which the dissent advocated that parental immunity be abolished in 'automobile tort' cases." 871 S.W.2d at 472.
• "The exemption from liability recognized in these cases [from around the nation] is not based on the absence of a duty of care. Obviously, parents owe a high duty of care to their children. However, the rights, responsibilities, and privileges of parents in relation to their children are so unique that the ordinary standards of care which regulate conduct between others are not applicable to conduct incident to the particular relationship of parent and child. That relationship includes responsibilities not owed by parents to any persons other than their children; these responsibilities are inseparable from the privileges that parents have in rearing their children which are not recognized in any other relationship." Id. at 475.
• "Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand.... Consequently, [a]llowing a cause of action for negligent supervision would enable others, ignorant of a case's peculiar familial distinctions and bereft of any standards, to second-guess a parent's management of family affairs.... Paige v. Bing Construction Co., [233 N.W.2d 46, 49 (Mich. Ct. App. 1975)]." Id.
• "Even though the courts routinely and successfully intervene in order to protect a child when the parent's conduct towards the child is criminal or where the child's physical or mental health is seriously endangered, the court system is not an appropriate or effective forum for resolving controversies between parent and child, when such controversies necessarily involve ethical, religious, moral, or cultural values. See Beal,"Can I Sue Mommy?", An Analysis of a Woman's Tort Liability for Prenatal Injuries to her Child Born Alive, 21 San Diego L.Rev. 325 (1984)." Id.
• "The parental right to govern the rearing of a child has been afforded protection under both the federal and state constitutions. This Court has stated, 'Tennessee's historically strong protection of parental rights and the reasoning of federal constitutional cases convince us that parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution.' Hawk v. Hawk, [855 S.W.2d 573, 579 (Tenn. 1973)]; Davis v. Davis, [842 S.W.2d 588, 601 (Tenn. 1992) cert. denied, 113 U.S. 1259 (1993)]; Bellotti v. Baird, [443 U.S. 622 (1979)] (recognition of parents' right to be free of undue, adverse interference by state); Quilloin v. Walcott, [434 U.S. 246 (1978)] (recognition that parent-child relationship is constitutionally protected); Wisconsin v. Yoder, [406 U.S. 205 (1972)] (recognition of parents' primary role in child rearing as a 'fundamental interest' and 'an enduring American tradition'); Prince v. Massachusetts, [321 U.S. 158, 166 (1944)] (recognition that the custody, care and nurture of the child 'reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder'). The integrity of the family unit has found protection against arbitrary state interference in the Due Process Clause of the Fourteenth Amendment, Cleveland Board of Education v. LaFleur, [414 U.S. 632, 639-40 (1974)]; Roe v. Wade, [410 U.S. 113, 152-53 (1973)]; Meyer v. Nebraska, [262 U.S. 390, 399 (1923)]; the equal protection clause of the Fourteenth Amendment, Skinner v. Oklahoma, [316 U.S. 535, 541 (1942)]; and the Ninth Amendment. Griswald v. Connecticut, [381 U.S. 479, 496 (1965)] (Goldberg, J., concurring)." Id. at 475-76.
• "Courts have expressed a concern that without the imposition of parent-child immunity, juries would feel free to express their disapproval of what they consider to be unusual or inappropriate child rearing practices by awarding damages to children whose parents' conduct was only unconventional. See, e.g., Pedigo v. Rowley, [610 P.2d 560, 564 (Idaho 1980)]; Holodook v. Spencer, [324 N.E.2d at 345-46 (N.Y. 1974)]. Courts also properly have found that parents whose '[p]hysical, mental or financial weakness [causes them] to provide what many a reasonable man would consider substandard maintenance, guidance, education and recreation for their children, and in many instances to provide a family home which is not reasonably safe as a place of abode,' should not be liable to the child for these 'unintended injuries.' Chaffin v. Chaffin, [397 P.2d 771, 774 (Or. 1964)] (en banc), overruled by Heino v. Harper, [759 P.2d 253 (Or. 1988)] (abolishing interspousal immunity); Cannon v. Cannon, [40 N.E.2d 236, 237-38 (N.Y. 1942)], overruled by Gelbman v. Gelbman, [245 N.E.2d 192, 193 (N.Y. 1969)] (abolishing bar to intrafamily lawsuits), Holodook v. Spencer, [324 N.E.2d at 342] (negligent failure to supervise child not recognized as a tort). Such imposition of liability could effectively curtail the exercise of constitutionally guaranteed parental discretion in matters of child rearing. Consequently, it reasonably can be argued that parental immunity that relates to the right and duty to rear children implements a constitutional right. Hawk v. Hawk, 855 S.W.2d at 579 (recognizing a fundamental constitutional right of parents to care for their children without unwarranted state intervention)." Id. at 476.
• "However, the relationship between parents and their children is not exclusively that of parent-child. A parent's conduct that injures a child may be outside the scope of their relationship as parent -child, and a child may be injured by a parent's conduct that is not in the exercise of parental authority, supervision, care, or custody. Consequently, the scope of the exemption from liability should be limited or defined by the purpose for granting the immunity, and the definition of the duty alleged to have been breached will disclose whether there is immunity. Cates v. Cates, [619 N.E.2d at 729]." Id.
• "The Court's essential task is to craft an objective standard, recognized in the above cases, that defines the conduct that should be protected by a parental immunity. The principle is perhaps most precisely stated in Cates v. Cates. In Cates, as in the case before the Court, the plaintiff was injured while riding in an automobile operated by her parent. The court declined to limit the modification of parental immunity to automobile negligence cases, finding that 'there is no fundamental distinction between automobile negligence situations and other negligence scenarios.' Id. at 19, 619 N.E.2d at 720. The Illinois court, instead, limited immunity to 'conduct [that] concerns parental discretion in discipline, supervision and care of the child.' Id. at 28; 619 N.E.2d at 729. The court stated:

  [I]mmunity should afford protection to conduct inherent to the parent-child relationship; such conduct constitutes an exercise of parental authority and supervision over the child or an exercise of discretion in the provision of care to the child. These limited areas of conduct require the skills, knowledge, intuition, affection, wisdom, faith, humor, perspective, background, experience, and culture which only a parent and his or her child can bring to the situation; our legal system is ill-equipped to decide the reasonableness of such matters. Id."

  Id. (footnote omitted).
• "Parental immunity in Tennessee is limited to conduct that constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody. The operation of an automobile under the circumstances alleged in this case is not protected conduct under this standard." Id. at 476-77.

Other Sources of Note : Butterworth v. Butterworth, 154 S.W.3d 79 (Tenn. 2005) (the question of whether parental employment applies to employment-related activities is to be determined on a case-by-case basis); Setters v. Permanent General Assur. Corp., 937 S.W.2d 950 (Tenn. Ct. App. 1996) (The logic of Broadwell may not be extended to find an insurance policy excluding children from liability insurance coverage was violative of public policy).

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