Summary
following Kirchner in allowing parent to sue minor child for negligence in connection with automobile accident
Summary of this case from Ales v. AlesOpinion
No. 3708
Decided March 14, 1985.
Torts — Parent may sue unemancipated minor child for negligence.
O.Jur 3d Family Law §§ 844, 845.
The holding of Kirchner v. Crystal (1984), 15 Ohio St.3d 326, which abolished parental immunity without reservation, is to be given retroactive application to permit a parent to sue her unemancipated minor child for negligence.
APPEAL: Court of Appeals for Lorain County.
Joseph R. Grunda and Hollace B. Weizel, for appellant.
John P. Gallagher, for appellee.
The plaintiff-appellant, Noreen Price, appeals the judgment of the trial court granting summary judgment in favor of her son, the defendant-appellee, Timothy Price. This court reverses that judgment.
On November 13, 1981, Timothy, age seventeen, was involved in a car accident while driving his mother, Noreen, to work. Noreen was injured in this accident. She subsequently filed a complaint against Timothy alleging negligence. Timothy filed a motion for summary judgment asserting that the claim was barred by the doctrine of parent-child immunity. The trial court granted this motion. Noreen appeals raising the following assignments of error:
"I. Whether the trial court erred when it extended the doctrine of parent/child immunity to this case of first impression.
"II. Whether the trial court erred when it granted defendant-appellee's motion for summary judgment where the defendant-appellee had not established the existence of the traditional justifications for the application of the doctrine of parent/child immunity as required by Dorsey v. State Farm Mut. Auto. Ins. Co., 9 Ohio St.3d 27 (1983)."
In Mauk v. Mauk (1984), 12 Ohio St.3d 156, the Ohio Supreme Court applied the doctrine of child-parent immunity as a bar to the maintenance of a tort action by a mother and father against their unemancipated minor child. The court stated at 156-157:
"* * * [T]he doctrine of parental immunity was expressly approved by this court in Teramano v. Teramano (1966), 6 Ohio St.2d 117 [35 O.O.2d 144], paragraph one of the syllabus. Generally speaking, the rule operates to preclude an unemancipated minor child from maintaining an action in tort against his parent. Id.
"* * *
"A recognized corollary rule to parental immunity is that a parent may not prosecute a tort action against his unemancipated minor child. * * *"
However, even more recently, the Ohio Supreme Court, in the case of Kirchner v. Crystal (1984), 15 Ohio St.3d 326, abolished the doctrine of parental immunity without reservation. The corollary rule, of necessity, must also be considered abolished. Additionally, the holding in Kirchner v. Crystal, supra, should be given retroactive application. See, generally, Zagorski v. South Euclid-Lyndhurst Bd. of Edn. (1984), 15 Ohio St.3d 10, 12; and Obral v. Fairview General Hospital (1983), 13 Ohio App.3d 57.
Accordingly, this assignment of error is well-taken. The judgment of the trial court is reversed and the case is remanded for proceedings consistent with the law and this opinion.
Judgment reversed and cause remanded.
BAIRD, P.J., and MAHONEY, J., concur.