APPEAL from the Circuit Court of Winnebago County; the Hon.
ROBERT C. GILL, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The Illinois National Bank and Trust Company filed a complaint as the guardian of Benjamin Turner, a minor, alleging personal injury to the minor as the result of his father's negligence in the operation of a motor vehicle. Harold L. Turner, the father, filed a motion to dismiss alleging that the bank's complaint failed to set forth any facts to show that the conduct of the father arose outside the family relationship and that by virtue of the rule of parental immunity the action was barred, because the complaint alleged ordinary negligence and not willful and wanton misconduct. The father's motion was supported by an affidavit stating that he is the father of the child, and at all times since his birth on May 20, 1976, he has provided financial support and care for him and has lived in the same household with him. The court entered an order dismissing the complaint on the basis that the child was barred from suing the father by virtue of the rule of parental tort immunity.
The bank raises two issues on appeal: (1) Whether the court properly dismissed the complaint by virtue of the parental tort immunity rule and (2) Whether the rule of parental tort immunity should be abrogated.
The complaint alleges that the father's car was parked on a hill in front of the residence at 909 Paris Street, Rockford, Illinois. The emergency brake was not engaged nor were the front wheels turned as required by section 11-1401 of the Illinois Motor Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-1401). The father opened the door to let his young son, Matt, enter the car. Matt slid across the front seat and disengaged the gear shift. The car rolled backward and the father's other young son, Benjamin, plaintiff in this cause, was struck and injured.
The first case making reference to the common law doctrine of parental tort immunity was the 1891 case of Hewlett v. George (1891), 68 Miss. 703, 9 So. 885. In Illinois, the first case referring to this doctrine appeared in Foley v. Foley (1895), 61 Ill. App. 577, an early case from Grundy County which was then a part of the second district. The reference, contained in part of the court's instructions to the jury, cited no authority and reads as follows at page 579:
"`[T]he child can not maintain a civil action for damages against its parents for such injury. This rule of law, as the court conceives, is founded upon consideration of public policy, affecting family government; that is, that the child shall not contest with the parent the parent's right to govern the child.'"
The first comment on, and modification of, the doctrine by the Illinois Supreme Court appeared in Nudd v. Matsoukas (1956), 7 Ill.2d 608, 619:
"Any justification for the rule of parental immunity can be found only in a reluctance to create litigation and strife between members of the family unit. While this policy might be such justification to prevent suits for mere negligence within the scope of the parental relationship, we do not conceive that public policy should prevent a minor from obtaining redress for wilful and wanton misconduct on the part of a parent." (Emphasis added.)
Additionally, the court said:
"We do not feel that the announcement of this doctrine should be left to the legislature. The doctrine of parental immunity, as far as it goes, was created by the courts>. It is especially for them to interpret and modify that doctrine to correspond with prevalent considerations of public policy and social needs."
1 Later, the supreme court in Mroczynski v. McGrath (1966), 34 Ill.2d 451, 454-55, commented on its earlier review of the principle of parental immunity in Nudd, stating that it had there "recognized the public policy of Illinois [relating to parental immunity] as declared by early decisions" but notwithstanding the policy, held that a minor should not be denied redress from his parents in a case of willful misconduct. Ten years later, in Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, three justices, including the chief justice, dissented from the majority opinion and commented that contrary to the apparent belief of the majority and the parties to the appeal, the question of whether a parent is liable to his child for injuries absent willful and wanton misconduct has never been decided by the supreme court and should not, therefore, be considered "settled law." (63 Ill.2d 165, 178-79.) However, subsequent supreme court cases have restated the parental tort immunity rule for mere negligence. (Gerrity v. Beatty (1978), 71 Ill.2d 47; Thomas v. Chicago Board of Education (1979), 77 Ill.2d 165.) It would appear, then, that the doctrine announced in Nudd is, in fact, the rule in Illinois. Consequently, absent willful and wanton misconduct on the part of the parents, children may not maintain suits against their parents for mere negligence within the scope of the parental relationship.
The phrase "within the scope of the parental relationship" is noteworthy since it has been relied upon in several appellate court cases as the basis for strict interpretation of the parental tort immunity rule. In the case of Schenk v. Schenk (1968), 100 Ill. App.2d 199, the court found that a complaint filed by a father against his daughter for injuries to him as a result of her mere negligence in driving a car stated a cause of action since there was no allegation that this negligence occurred while either party was engaged in conduct arising out of the parent-daughter relationship or in the furtherance of the usual family objectives. The father was simply a pedestrian on the street when he was struck by the car driven by his unemancipated daughter. Since the negligence had "no direct connection with the family relationship" (100 Ill. App.2d 199, 206), the court did not find the doctrine of parental tort immunity to be a bar to the action. Neither did the court have any qualms about the reversal of the traditional status of the litigants wherein the parent is generally the defendant, not the plaintiff. We point out that the complaint in Schenk did not allege conduct arising within the family relationship. However, it did not affirmatively allege that the conduct arose outside the family relationship either. The Schenk court, therefore, reversed the trial court's dismissal of the complaint for failure to state a cause of action and remanded the cause.
The court in Cosmopolitan National Bank v. Heap (1970), 128 Ill. App.2d 165, did not apply the Schenk inside/outside family relationship rationale per se. In Heap, the child sued his father for injuries sustained allegedly as the result of the father's negligence in permitting the existence of a loose stairway rug in the family home. Although the plaintiff's amended complaint specifically alleged that the duty to maintain a safe rug was a duty defendant owed to all persons (i.e., outside the family relationship), the court found the complaint failed to state a cause of action because it alleged only mere negligence and was therefore barred by the parental tort immunity rule. Although the court did not specifically find that the negligent maintenance of a stairway rug in a home was a duty considered to be "within the family relationship," it may be inferred that that was indeed what it felt, since it explicitly subscribed to the Schenk court's view that:
"`* * * there are no impelling reasons for eroding or emasculating the family immunity rule for conduct * * * arising out of the family relationship and directly connected with the family ...