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Pavlick v. Pavlick9/12/1997
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY John M. Folkes, Judge
The question for decision in this appeal is whether the doctrine of intra-family immunity bars recovery of damages for the death of an unemancipated child as a result of a parent's negligent or intentional act. The question stems from a motion for judgment filed by Shari G. Pavlick, Administratrix of the Estate of Justin Robert Pavlick, deceased, against the defendant, Thomas Matthew Pavlick, Jr., seeking damages for the wrongful death of the deceased, the infant son of Shari Pavlick and the defendant.
The defendant filed a plea to the motion for judgment asserting that he was "immune from suit under the doctrine of intra-family immunity." The trial court sustained the plea and dismissed the plaintiff's motion for judgment. We awarded the plaintiff an appeal.
Justin was born June 24, 1994. He died August 18, 1994, when less than two months old, allegedly from injuries sustained while in the care and custody of the defendant. In her two-count motion for judgment, the plaintiff alleged that Justin died as a result of the defendant's negligence or, alternatively, that the death resulted from the defendant's intentional act.
In sustaining the plea of immunity, the trial Judge noted that there is no Virginia precedent "supporting a denial of the plea." The plaintiff responds on appeal with a request that we abrogate the rule of intra-family immunity completely or, alternatively, that we recognize an exception to the rule allowing recovery for the death of a child resulting from the intentional act of a parent.
Citing numerous out-of-state cases, the plaintiff says that " ourts in the majority of states which have considered the matter in recent years have found that the doctrine of intra-family immunity can not be justified and have abolished parental tort immunity." In abolishing parental immunity, the plaintiff states, courts have rejected the several factors that prompted adoption of intra-family immunity in the first place, viz., "(1) the wish for domestic peace and tranquility; (2) the desire to allow the parent to discipline and control the child; (3) the wish not to allow family resources to be depleted; (4) the wish to avoid possible fraud or collusion." Quoting Kirchner v. Crystal, 474 N.E.2d 275 (Ohio 1984), the plaintiff asserts that "these rationalizations outdated, highly questionable and unpersuasive." Id. at 276.
With respect to injuries caused by the intentional acts of a parent, the plaintiff says that " irtually every reported case that has considered [the issue] has held that the bar of intra-family immunity should not apply to such [acts]." In so holding, the plaintiff states, courts "have recognized that to permit a child to maintain a suit against a parent [for injuries] resulting from an intentional or willful tort is no more disruptive to the family peace and tranquility than depriving the child of the right to bring such a suit." The defendant argues, on the other hand, that " he doctrine of intra-family/parental immunity is alive and well in Virginia." There are no cases in Virginia, the defendant states, "which allow suit by a deceased unemancipated child's estate against living parent [for the parent's allegedly negligent or intentional acts,] given the instant circumstances." The defendant asserts that while there are several exceptions to the doctrine in Virginia, none is applicable here.
The considerations prompting the initial adoption of intra-family immunity are still viable, the defendant maintains, especially when, as here, the family includes another child of the parents' marriage. The defendant submits that "
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