Defendant is correct that in three cases decided in 1982 and 1984, the Illinois Appellate Court held that parent-child immunity was not a bar to contribution claims brought under the Joint Tortfeasor Contribution Act (Contribution Act), 740 Ill. Comp. Stat. 100/0.01 through 100/5 (West 2004). See Hartigan v. Beery, 470 N.E.2d 571 (Ill.App.Ct. 1984); Moon v. Thompson, 469 N.E.2d 365 (Ill.App.Ct. 1984); Larson v. Buschkamp, 435 N.E.2d 221 (Ill.App. Ct. 1982); see also Aimone by Aimone v. Walgreen's Co., 601 F. Supp. 507, 516 (N.D. Ill. 1985) (district court recognized that, based upon the decisions of the Illinois appellate courts regarding contribution, immunity doctrines do not automatically come into play). In Larson, three minor children were passengers in a car driven by their father and were injured when the car collided with another vehicle.
hile her mother was driving her home from a piano lesson ( Hogan v. Hogan (1982), 106 Ill. App.3d 104, 435 N.E.2d 770); and where a minor was injured in a car driven by her father after he had picked her up from work ( Wilkosz v. Wilkosz (1984), 124 Ill. App.3d 904, 464 N.E.2d 1232). Illinois courts have held that the immunity doctrine was not a bar to a cause of action where minor children sued a deceased parent ( Johnson v. Myers (1972), 2 Ill. App.3d 844, 277 N.E.2d 778); where a minor sued his grandparents ( Gulledge v. Gulledge (1977), 51 Ill. App.3d 972, 367 N.E.2d 429; Busillo v. Hetzel (1978), 58 Ill. App.3d 682, 374 N.E.2d 1090); where a minor alleged that she was injured as a result of her parent's failure to trim trees which was a violation of a city ordinance ( Cummings v. Jackson (1978), 57 Ill. App.3d 68, 372 N.E.2d 1127); and where a third party sought contribution from the parents of an injured minor alleging that their negligence contributed to the minor's injuries ( Larson v. Buschkamp (1982), 105 Ill. App.3d 965, 435 N.E.2d 221; Moon v. Thompson (1984), 127 Ill. App.3d 657, 469 N.E.2d 365). Recently, the appellate court has ruled that a party may maintain an action for contribution against parents of an injured minor child based on negligent supervision of the child. ( Hartigan v. Beery (1984), 128 Ill. App.3d 195.) Additionally, in Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 178-79, 347 N.E.2d 705, 712, three dissenting justices noted that our supreme court has never decided the question of whether a parent is liable for injuries to his child absent wilful and wanton misconduct.
See Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963) (seminal case as to partial abrogation); see also Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983). To similar effect, see Larson v. Buschkamp, 105 Ill. App.3d 965, 61 Ill.Dec. 732, 435 N.E.2d 221 (1982); Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex. 1971). The availability of liability insurance is a major consideration of the courts in reaching the decisions in those cases.
• 1 This court has previously held that the parental-immunity doctrine does not bar a contribution action against a parent. (See Larson v. Buschkamp (1982), 105 Ill. App.3d 965.) The parental-immunity doctrine, unlike the Dramshop Act, was created by the courts, and the court is free to modify it. 105 Ill. App.3d 965, 967.
We have held that the same result follows when the immunity involves the relationship between a parent and a child. ( Larson v. Buschkamp (1982), 105 Ill. App.3d 965, 970-71.) In both instances we noted the legislative history of the contribution statute.
The sole issue to be determined herein is whether contribution may be sought under the pleadings from a parent of an injured minor plaintiff where said parent's alleged negligent supervision contributed to the injuries. In Larson v. Buschkamp, 105 Ill. App.3d 965, 61 Ill.Dec. 732, 435 N.E.2d 221 (1982), the court faced a similar issue in that the contribution claim was based on the parent's negligence in driving the car which defendant's car struck. The Second District held that parental immunity was not a bar to the contribution action.
Originally, the doctrine provided that a parent was immune from tort actions brought by his or her unemancipated minor children. ( Larson v. Buschkamp (1982), 105 Ill. App.3d 965, 968, 435 N.E.2d 221, 224.) The public policy behind the doctrine was to maintain family harmony, to avoid litigation and strife, and to insure a proper atmosphere of cooperation, discipline, and understanding in the family.
Several jurisdictions, however, never adopted it, including Hawaii, South Dakota, Utah, and Vermont. Still others subsequently abolished the doctrine: California, Florida, Illinois, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Carolina, and Wisconsin. See Gibson v. Gibson, 3 Cal. 3d 914, 479 P.2d 648 (1971); Ard v. Ard, 395 So. 2d 586 (Fla.Dist.Ct.App. 1st Dist. 1981),aff'd in part, 414 So. 2d 1066 (Fla. 1982); Larson v. Buschkamp, 105 Ill. App. 3d 965, 435 N.E.2d 221 (2d Dist. Ill. 1982); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1970); Black v. Solmitz, 409 A.2d 634 (Me. 1979); Sweeney v. Sweeney, 402 Mich. 234, 262 N.W.2d 625 (1978); Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966);France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970);Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192 (1969); Kirchner v. Crystal, 15 Ohio St. 3d 326, 474 N.E.2d 275 (1984); Winn v. Gilroy, 296 Or. 718, 681 P.2d 776 (1984);Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Elam v. Elam, 274 S.C. 132, 268 S.E.2d 109 (1980);Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).
LaSalle cites numerous Illinois cases in which contribution was allowed despite the fact that the third-party defendant was immune from liability to the original plaintiff. See Larson v. Buschkamp, 105 Ill. App.3d 965, 61 Ill.Dec. 732, 435 N.E.2d 221 (2d Dist. 1982) (contribution from plaintiff's parent allowed although parent-child immunity barred direct action by child against parent); Wirth v. City of Highland Park, 102 Ill. App.3d 1074, 58 Ill.Dec. 294, 430 N.E.2d 236 (2d Dist. 1981) (interspousal immunity between plaintiff and third-party defendant did not preclude contribution). These cases are not inconsistent with the holding in Roberts.
The Second District has recognized that negligent supervision presents a special situation but refused to address the issue. Larson v. Buschkamp, 105 Ill.App.3d 965, 61 Ill.Dec. 732, 435 N.E.2d 221 (1982). This, together with the fact that both decisions neglected to determine whether or not negligent supervision would form the basis of a tort action between the child and parent, indicate that Illinois Supreme Court would decide otherwise.