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Pavlick v. Pavlick9/12/1997
intra-family immunity to an intentional tort committed by a parent against a child. Therefore, to recognize an exception with respect to an intentional tort by a parent resulting in the death of a child would neither disturb established precedent nor offend principles of stare decisis.
Furthermore, such an exception would be supported by logic and common sense. The factors which prompted adoption of intra-family immunity in the first place are totally irrelevant when considered in the context of the death of a child caused by the intentional act of a parent. Indeed, such an act defeats the very purpose of the immunity rule. Paraphrasing the opinion of the Supreme Court of Oregon in Cowgill v. Boock, 218 P.2d 445 (Or. 1950), it is absurd to talk about maintaining the peace and tranquility of the home when it has already been disrupted by such a monstrous crime as the murder of a child by a parent. Id. at 450. Or, paraphrasing the opinion of the Court of Appeals of Maryland in Mahnke v. Moore, 77 A.2d 923 (Md. 1951), there can be no basis for the contention that a suit against a father for the murder of his child would be contrary to public policy, for the simple reason that there is no home at all in which discipline and tranquility are to be preserved. Id. at 926.
Finally, we do not overlook the defendant's argument based upon Hewellette v. George, supra, that " he state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand." However, while enforcement of the criminal laws may serve the public interest in protecting children from parental violence, such enforcement does not serve to redress the loss suffered by the survivors of a child whose death results from the intentional act of a parent. They have the right to demand more. Furthermore, to allow recovery against the parent here may also serve as a deterrent against similar conduct by other parents.
For these reasons, we refuse to abrogate the rule of intra-family immunity completely. Accordingly, we will affirm the trial court's judgment to the extent it sustained the plea of intra-family immunity with respect to the defendant's alleged negligence. However, we will reverse the judgment to the extent it failed to recognize an exception to the rule of intra-family immunity that would have allowed recovery against the defendant for the death of his unemancipated child as a result of his allegedly intentional act, and we will remand the case for further proceedings consistent with the views expressed in this opinion.
Affirmed in part, reversed in part, and remanded.
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