This article will briefly explore the legal protection afforded to family relationships. Initially, it will discuss the immunity doctrine that is aimed at preserving family relationships by eliminating suits by children against their parents. It will then explore recent developments aimed at preventing third parties from interfering with family relationships.
I. Parent-Child Immunity
In the realm of personal injury law, the protection afforded to the parent-child relationship centers primarily around the parent-child immunity doctrine, which shields the parent from liability for injury to his child. The doctrine was first adopted in Illinois in 1895 in Foley v. Foley, 61 Ill.App.577, 580 (1895). The purposes behind this doctrine are three-fold: 1) to preserve family harmony, 2) to preserve family assets and, 3) to preserve parental authority to control the manner in which children are raised. Cates v. Cates, 156 Ill.2d 76, 91, 619 N.E.2d 715, 721, (1993). In its original form, the doctrine specifically applied to minors who were under parental control; it did not apply to adult or emancipated children.
Over the ensuing years of this century, the courts recognized certain public policy exceptions to the rule — most notably the exception for wilful and wanton conduct toward a child. Nudd v. Matsoukas, 7 Ill.2d 608, 619 131 N.E.2d 525, 581 (1956). Although several other exceptions were carved out, the doctrine continued to provide an obstacle to suits for most torts by a child against a parent.
The Illinois Supreme Court recently clarified this doctrine in Cates, 156 Ill.2d at 106, 619 N.E.2d at 729 (1993), finding that the doctrine did not apply in situations where the allegedly tortious conduct was not inherent to the parent-child relationship, such as driving a car. This exception added to earlier exceptions recognizing instances of third party liability (Hartigan v. Beery, 128 Ill.App.3d 195, 470 N.E.2d 591 1st Dist. (1984)) and cases where the child sued a deceased parent (Johnson v. Myers, 2 Ill.App.3d 844, 277 N.E.2d 778, 2nd Dist. (1972)). After Cates, interest in and attention to the doctrine waned, as its limited use found fewer applications in modern tort law. Recent "family" tort cases, however, suggest that the parent-child immunity doctrine is anything but dead law.
A. Foster Parents
The societal problems that have led to a burgeoning number of foster placements rekindled the immunity issue this year. In the case of, Commerce Bank v. Augsberger, 1997 WL 298000, the Fourth District Appellate Court examined whether foster parents are entitled to parent-child immunity. In Augsberger, a child placed with a foster family under the direction of the Illinois Department of Children and Family Services, died of suffocation after being placed in a cabinet inside a bedroom closet. The trial court dismissed the case under the concept of parental immunity by recognizing the standing of the foster parents in loco parentis to the foster child.
The Appellate Court held none of the exceptions to the parental immunity doctrine would apply if the foster parents were, in fact, the natural parents. (The complaint alleged mere negligence as opposed to willful and wanton conduct). The Court found that the foster parents were entitled to parental immunity because their responsibilities were equivalent to those of a natural parent, and because exposing foster parents to suit in this manner would inhibit the goals of foster parenthood. The Court thus expanded parent-child tort immunity after many years of cases eroding the concept.
B. Other Co-Habitants
A different type of expansion of the traditional ‘family’ in tort law may have occurred in Chicago Title & Trust v. Brescia, 285 Ill.App.3d 671, 676 N.E.2d 230 (1st Dist. 1996). In Brescia, the First District Appellate Court was asked to determine whether the live-in girlfriend of a worker killed on the job was entitled to recover under the Structural Work Act. ("Act") The Appellate Court analyzed the Act and determined that the statutory language provided recovery to any "persons who were dependant for support" on the person who died. Although it is unlikely that the legislature intended such a result, the Court upheld the plaintiff’s right to recovery and found that the language implicitly recognized that individuals outside of the traditional ‘family’ were protected, provided they could prove dependancy. While no finding was made that the live-in girlfriend was part of the deceased-worker’s ‘family’, it is probable that the Court’s ruling was influenced by the increasing acceptance of unmarried cohabitation in society. This mores could possibly lead to application of the parent-child immunity doctrine to persons who co-habitate with the parent of a child, but who have no legal relationship to that child.
C. Parental Duty to the Unborn
In Cullotta v. Cullotta, 678 N.E.2d 717 (1st Dist. 1997), a suit was brought on behalf of a child injured prenatally by his mother’s negligent operation of a vehicle. The child was born four days premature after the accident and the plaintiff sought recovery against the deceased-mother’s estate. The Cullotta Court recognized that the Supreme Court’s decision in Cates, infra, would allow the action as an exception to the parent-child immunity doctrine, if the child had been born, since the mother was deceased. The Cullotta Court, nevertheless, held that a mother owed no duty to avoid unintentional prenatal harm to her child. This decision appears to comport with the immunity doctrine’s underlying purposes of preserving parental control over children and of preserving family harmony, as a mother’s fear of liability might impair her ability to make the decisions she felt were in the best interests of her child.
II. New "Family" Torts
A. Interference with the Parent-Child Relationship
The law recently intervened to prevent third parties from interfering with family relationships. In the case of Doe v. McKay, No. 2-96-0532 (2d Dist. 1997), Plaintiff John Doe sued his daughter’s psychotherapist, claiming a loss of society with his daughter. The therapist treated Doe for "repressed memories" of sexual abuse committed upon her, by her father. The allegations included a claim that the therapist brought John Doe into one of the therapy sessions, had the daughter accuse the father of sexually abusing her and suggested to the daughter that her father might further harm her. The trial court dismissed the lawsuit, finding that no duty existed between the daughter’s therapist and her father.
The Appellate Court reversed, recognizing a duty on the part of therapist to refrain from acts that ‘intentionally and directly’ interfere with a parent-child relationship. The Court noted that "the risk and magnitude of harm to our society, namely, tearing a family apart without regard to the manner in which false accusations of sexual abuse are made, is so significant that it requires the protection of our law." Slip op. at 7.
A second noteworthy factor in Doe was the Appellate Court’s finding that the father could seek recovery for loss of his daughter’s society and companionship, even though the child was not fatally injured.
B. Adoptive Parents
Another area where the law intervenes to protect families by expanding the right of recovery in tort, is adoption. The Adoption Act, ("Act") 750 ILCS 50/1 et.seq. (West 1992), was recently amended to expand the duties of adoption agencies to provide background information on children prior to adoption. The amendment to the Act was undoubtedly intended to address the heartbreak of some adoptive families, who discover only after adoption, that their child has serious disabilities which could have been disclosed prior to placing the child for adoption. These cases generally arise when there is significant information withheld about the medical and mental health history of the child’s biological family or about the child’s own medical history.
The Adoption Act now provides that a detailed medical and mental health history of the child, his biological parents and immediate relatives, is required at the time the child is first placed with potential adoptive parents. 750 ILCS 50/18.4. This statutory provision provides a new avenue of recovery in tort for parents faced with the severe financial impact of raising a disabled child.
III. Limitations on the Protection Afforded to Family Relationships
A. Parental Liability
Despite the parent-child immunity doctrine, the Illinois legislature long ago recognized a limited liability on the part of parents for the intentional torts committed by their minor children on third persons. In the Parental Responsibility Law, 740 ILCS 115/3 (West 1992), the legislature imposed on parents the obligation to control their minor children to prevent intentional harm to others. The legislature limited this liability to $1000.
B. Parent-Child Privilege
In Roe v. United States, No. 96-1767, the U.S. Supreme Court reviewed whether there is a common law parent-child privilege. In Roe, a father was subpoenaed to testify before a grand jury about conversations he had with his son, and attempted to claim a parent-child privilege. He claimed a privilege similar to that afforded to communications between spouses at common law, arguing that no relationship in society was more important and deserving of protection than that of a parent and child. The Supreme Court held that there was no such common law privilege. The Court noted that although the states of Idaho and Minnesota recognized a statutory privilege, only the state of New York has recognized a judicially created common law privilege.
Through the years, the law has consistently aimed to foster healthy family relationships to preserve parental control over children. Exceptions were formulated where circumstances or societal changes warranted a corresponding change in the law. As the concept of the traditional "family" changes, the law will continue to search for modern, meaningful ways to apply traditional family values to "family" situations.
Brian J. Diamond is a Principal of Walsh, Knippen, Knight & Diamond, Chartered, Wheaton. His practice is concentrated in Plaintiff’s Civil Litigation. He received his Undergraduate Degree in 1979 from Notre Dame and his Law Degree in 1982 from University of Illinois.