LAW 512-001 – Torts II

Familial Immunity


Interspousal Immunity

Under the common law, spouses could not sue each other for tort claims.

The majority of states have completely eliminated interspousal immunity for torts.

Other states have limited it in some way.

  • Most do not provide immunity for intentional torts.
  • Some states allow claims for torts that occurred before the marriage.
  • After a divorce, some states allow suits to be brought for claims that arose during the marriage.
  • Some states only allow claims for automobile accidents.
    • This is the most common type of interspousal suit.
    • This can help for insurance reasons.

Even in states where suits are allowed, they are not allowed for any harm. It must be an excessive or gross abuse of normal privilege.

Parental Immunity

The majority holds that a parent is not liable for ordinary negligence in the performance of parental responsibilities.

The Restatement is similar, espousing a parental privilege.

The minority allow children to sue their parents for negligent supervision under a "reasonable parent" standard.

The overwhelming majority says that children cannot sue for negligent discipline.

Children can nearly universally sue for intentional or willful or wanton infliction of injury.

A slight majority gives absolute parental immunity, but usually parents are granted broad discretion for parental authority or supervision.

Common exceptions made to parental immunity are:

  • Intentional or willful or wanton conduct
  • Death of parent or child
  • Emancipation
  • Automobile accidents

A step-parent can qualify for parental immunity if he was acting in loco parentis.

Parental immunity is reciprocal and also prevents parents from suing their children.

If parent and child are joint tortfeasors, they might not be allowed to sue each other for contribution. However, in comparative negligence states, the jury can compare liability in assessing damages.

Siblings have no immunity.