Parent-Child Tort Immunity In Oklahoma:
Some Considerations For Abandoning The Total Immunity Shield

By: Mitchell E. Ignatoff

Parent-child tort immunity shields parents from suits for acts of ordinary negligence which result in personal injury to their unemancipated minor children. It similarly gives children a shield for their acts of negligence which cause injury to their parents (1). This comment will primarily examine the parental immunity aspect of the doctrine, from its origin to its current status in Oklahoma. This analysis will provide the basis for a suggested alteration of the Oklahoma immunity rule to allow suits by minor against their parents for acts of ordinary negligence in certain instances.

History of Parent-Child Immunity

Two reasons were originally espoused by early cases (2) for denying an unemancipated minor a cause of action in tort against his parents. First, it was asserted that a cause of action for a minor’s personal injury tort claims against his parents did not exist in common law (3). Second, policy reasons were invoked to deny the right to bring such a cause of action. Under this rationale, it was urged that denying a minor a cause of action against his parents would decrease the possibility of undue interference with harmonious family relations (4). A suit between parents and child for personal injury was perceived to be a challenge to the authority of the parents (5) and a deprivation to any other children of the benefit of the family fund when one child was awarded compensation from that fund (6). Liability insurance has added a new reason to deny a cause of action due to the danger of fraud and collusion between parent and child (7). The current status of the parent-child immunity doctrine showed that seventeen stated have abrogated, limited or rejected the doctrine, (8) while four states have not reached the question. (9)

The Rule in Oklahoma

The parent-child tort immunity issue is no stranger to the Oklahoma courts. (10) Tucker v. Tucker, (11) the leading decision in Oklahoma, denied plaintiff recovery from his parents for personal injuries suffered due to their alleged negligence. Tucker was based on the premises that a common law there was no cause of action against one’s parents and that public policy precluded the action. The court therefore concluded that no action existed in Oklahoma until expressly created by the legislature, as had previously been done in regard to children’s property rights. (12)

The rationale of Tucker appears to be faulty in at least two respects. First, the Oklahoma Supreme Court had earlier held that the statues giving minors the power to sue parents in regard to property matters were merely declaratory, not in derogation, of the common law.(13) Furthermore, instead of expressly banning these personal injury actions, the common law simply was not confronted with the issue.(14) Finally, it should be noted that Tucker involved an action, instituted after the minor had reached majority, for injuries received during minority.(15) Thus, minority does not confer an immunity which disappears when the child reaches majority or is emancipated; the cause of action is not tolled until the child’s disability ends.(16) The court’s focus is on the status of the parties at the time the wrong was sustained.(17)

Exceptions to the Immunity Rule in Oklahoma

The rule banning parents as possible defendants of their children’s personal injury actions is not absolute. Some of the common exceptions (18) include wanton or gross negligence, (19) intentional torts, (20) majority (21) and emancipation. (22) The parental shield has also been extended to those is loco parentis to the child; (23) however at least one Oklahoma court had permitted an action between a minor and an employer, where the employee, who was primarily liable for the child’s injuries, stood in loco parentis to the plaintiff. (24) This result may be explainable by noting that the conduct of the employee was characterized by the court as wanton or gross negligence. (25) As a result, the extent of this exception to parental tort immunity is unclear.

Another potential exception to tort immunity is presented by the Oklahoma wrongful death statue. The statue provides:

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore against the latter . . . if the former might have maintained an action had he lives, against the latter. . . . The damages must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin; to be distributed in the same manner as personal property of the deceased. (26)

To determine if a wrongful death action resulting from negligence can be maintained, a court must decide if the deceased, had he lived, could have maintained an action against the tortfeasor. If the deceased is the child of the defendant, neither the natural parent (27) nor the party in loco parentis to that child (28) can maintain a wrongful death action, since the child would have been unable to sue had he lived. (29) Similar reasoning would deny child. Yet if both parents are dead, due to the negligence of on of them, an action for the wrongful death of the innocent parent could be maintained by the child since Oklahoma has eliminated interspousal tort immunity. (30) Likewise, if the tortfeasor parent is still alive, an unemancipated child should be able to maintain an action on behalf of the deceased parent for wrongful death negligently inflicted by the surviving parent, since the deceased parent could have sued the other spouse had he survived. (31)

The hypothetical above clearly presents the dilemma faced by the Oklahoma courts. An action for wrongful death is intended, in part, to compensate the plaintiff for the damages he has suffered by the wrongful death of the decedent. (32) Thus, if the child maintained an action successfully, he would recover damages from the living parent for injuries caused to the child by the parent; yet the purpose of the parents-child tort immunity is to deny the parent or child relief from the other’s negligence. (33) In another context, the Oklahoma Supreme Court had attempted to justify its adherence to the rule of immunity on face of legislation which appears to contradict the rule’s purpose. It noted that it would be error to "conclude the Oklahoma was legislatively pioneering in the right of a child to sue its parents for injuries sustained as a result of ordinary negligence."(34) However, if the court’s observation is applied to the wrongful death statute, further conflicts are created since that statue, according to the court, "is clear and unambiguous and . . . [applies] to actions which could have been maintained by deceased had he lived."(35) Since, in the hypothetical under consideration, the deceased comes within the terns of the statute, the court, if and when the issue is presented, must decide whether to make a statute less "clear and unambiguous" in order to further a doctrine which needs drastic reevaluation.

The rationale of Tucker, (36) which denies a cause of action for parent-child torts unless expressly created by the legislature, is an inflexible and narrow view of the functions of the judiciary. Besides its inaccuracy, (37) it provides little opportunity for a meaningful reshaping of the nature and extend of parent-child immunity. However, the court had recently fashioned a more flexible tool to reevaluate the current status of the law.

Workman v. Workman: An Opportunity for Meaningful Analysis

In Workman v. Workman, (38) plaintiff mother sued defendant husband-stepfather for the wrongful deaths of her two children and to recover damages for personal injuries that she and her surviving child received as a result of the defendant’s negligence. While the Oklahoma court invoked the parent-child immunity shield to dismiss certain aspects of the action, (39) the significance of the opinion lies in the rationale espoused by the court in arriving at this conclusion. It noted the "[t]he reason for the rule of immunity is that public policy and the best interests of society forbids the right of an unemancipated minor child to appear in court and assert a claim for personal injuries suffered at the hands of the parent."(40)

Denying the cause of action because it did not exist at common law was not mentioned by the court. This, the court seems to have switched its primary basis for denying the action to the notion of public policy. Unfortunately, however, the court’s treatment of public policy was inadequate. Instead of a conclusory approach to the problem, the court should have considered the policies that were promoted by the immunity rule. In addition, attention should have been given to the aspects of public policy which were violated or hampered by the existence of the rule. (41)
Denying a parent-child cause of action on public policy grounds is based on the idea that such a rule will decrease family conflicts, promote discipline and prevent depletion of family funds. (42) In the majority of cases, where liability insurance is presumably present, (43) family harmony will not be disrupted of the action is successful since the child will receive compensation for his injuries from a source not directly connected to the family fund. If the action is not allowed, however, the child may be deprived of the chance to obtain compensation for his injuries from the independent source. (44) Thus, while the rule may prevent disruptions from an intense legal battle over the liability of one family member to another, it completely ignores the potential disruption that may result when the family fund (45) is unnecessarily depleted because the proceeds from liability insurance cannot be reached. (46) Moreover, when the parent is injured by the child’s negligence, not only must compensation for the injuries come out of the family fund, but the fund is also diminished by an interruption in the earning power of the injured parent.

Of course there are times when the tort committed between parent and unemancipated minor child is not covered by liability insurance. When the unavailability of insurance forces compensation for the injury out of the family fund, the likelihood of disrupting family harmony had never prevented awarding compensation to a stranger injured by the tort of a family member. Liability attaches in such cases without regard to the effect that a lack of insurance will have on the family fund. Consideration must also be given to the exceptions to the rule of parent-child immunity. Since public policy considerations of family harmony do not prevent suits between parent and child where property rights, gross negligence or intentional torts are involved, (47) it seemed inconsistent the these same considerations should operate to deny an action when mere negligence is involved. (48)

Finally, an examination must be made of the public policies that are violated by the existence of the immunity rule. The most fundamental policy violated is contained in the Oklahoma Constitution: "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice,"(49) Exceptions to this declaration cannot be justified by the argument that the constitutional provision was drafted at a time when "it apparently had not occurred to any one that a child could sue is parent in . . . tort."(50) The exceptions to parent-child immunity refutes the basis of this argument.

The final policy violated by the immunity shield occurs in the wrongful death context. To deny an action for wrongful death under the circumstances previously noted would create uncertainty and confusion in the application of a statutory scheme which the court has declared to be "cleat and unambiguous" in its application. (51)

The force of these considerations demands that the court seriously evaluate the need for a substantial modification of the immunity rule. The following section offers a solution which protects both the interests of the family unit and its individual members.

REASONABLENESS AS A STANDARD FOR IMMUNITY

The parent rule of parental immunity should be replaced with a rule which has as its basis the concept of the reasonably prudent parent. This standard recognizes that parents should have more discretion than third parties regarding their conduct toward their children, yet permits recovery from them when their conduct falls below the standard of care requires for the protection of their children. The standard advocated is the adopted by the California Supreme Court in Gibson v. Gibson. (52) Overruling the traditional immunity rule for ordinary negligence, the court formulated the following test as a guide: "what would an ordinary reasonable and prudent parent have done in similar circumstances?"(53) In the event that the parent’s actions fall below this standard, the action proceeds as any other negligence case "but viewed in light of the parental role."(54) This test respects the discretion and authority of parents, while providing protection to the child when the parent strays from his proper function.

The California rule offers a further advantage in that it is more consistent with the public policy of Oklahoma. This consistency is best demonstrated by focusing on the criminal and civil proceedings available in Oklahoma against parents who do not perform their parental duties. Parents who fail to provide the proper degree of care to their children may face criminal sanctions or the termination of their parental rights. (55) While both criminal and civil remedies can be invoked to insure that children receive maintenance, care and education, sanctions are imposed only if the parent acts unreasonably. The law recognizes, for example, the need to disciple minor children. As a result, the Oklahoma legislature has provided that the exercise of reasonable force against the child is not unlawful

[w]hen committed by a parent. . . in the exercise of a lawful authority to restrain or correct his child. . . provided restraint or correction has been rendered necessary by the misconduct of such child. . . or by his refusal to obey the lawful command of such parent . . . and the force or violence used is reasonable in manner and moderate is degree. (56)

Thus, Oklahoma has provided that a parent cannot be held criminally liable when disciplining his child if the force used "is reasonable in manner and moderate in degree." The parent is exercising lawful authority and providing proper care if he is reasonable in disciplining his child; he is criminally liable only if he intentionally uses unreasonable force when disciplining his child.

Likewise, the parent’s duty to care for the child is subject to a standard of reasonableness. Thus, in determining whether a parent has fulfilled his obligations, the court will consider whether the particular care or conduct involved is of the same quality as that rendered by "an ordinary prudent person, solicitous for the welfare of his child."(57) This standard is virtually identical to the California standard enunciated in Gibson. (58)

The duties imposed upon a parent under Oklahoma law are similar to the areas in which the Wisconsin Supreme Court, in Goller v. White, (59) held that the parent has immunity from a suit by his minor unemancipated child. These area include: "(1) where the alleged negligent act involves an exercise of parental authority over the child; and (2) there the alleged negligent act involves an exercise of ordinary parental discretion with respects to the provision of food, clothing, housing, medical and dental services, and other care."(60)

The California Supreme Court has expressly rejected this test of parental immunity because it found "intolerable the notion that if a parent can succeed in bringing himself within the ‘safety’ of parental immunity, he may act negligently with impunity."(61) For example, if the parent, with adequate financial resources, negligently fails to provide dental services to correct his child’s protruding teeth, the parent would presumably be liable to the child under the California test. Under Wisconsin test, however the parent would not be liable to his unemancipated minor child for his negligent failure to correct the child’s protruding teeth since the act involved an exercise of ordinary parental discretion. Should an Oklahoma court ever be faced with this hypothetical situation, it presumably would look to see if "an ordinary prudent person, solicitous for the welfare of his child."(62) Would provide dental services to correct the child’s protruding teeth. The result should be the same as that reached under the California test.

CONCLUSION

The Oklahoma Supreme Court concluded that no cause of action existed for ordinary negligence between parent and unemancipated child because no such action existed at common law. The supreme court held that only the legislature could give a child the right to sue his parent, and vice versa, since such actions would be in derogation of the common law. The court seems to have abandoned this rationale today, relying solely on social policy to deny a cause of action between parent and child. As a result, the supreme court’s conception of social policy is suspect, since the policy is riddles with exceptions. It is time for Oklahoma to consider abandoning the immunity rule and substituting a rule giving the parent immunity only if he has acted as a reasonably prudent parent.

Oklahoma adheres to the reasonableness standard when it considers whether criminal sanctions should be imposed or whether parental rights should be terminated. To avoid inconsistency and to promote the welfare of the child, as well as of the family and society, this standard should govern the minors right to bring suit against his parents.

Parent-Child Tort Immunity In Oklahoma: Some Considerations For Abandoning The Total Immunity Shield

Parent-Child Tort Immunity In Oklahoma:
Some Considerations For Abandoning The Total Immunity Shield