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Parent-Child Tort Immunity

The doctrine of parental immunity for torts against a child is an American invention. The immunity was judicially created to advance specific policies, mainly the preservation of family harmony and the right of parents to raise their children as they saw fit and the prevention of collusive suits. The immunity was adopted in almost every jurisdiction in the United States.

Abrogation of Immunity

The immunity remained in force until the mid-1960’s. The first case to abrogate the immunity entirely abrogated parental immunity except when the alleged negligent act involves an exercise of parental authority over the child or parental discretion with respect to the provision of food, clothing, shelter, and care. Since that decision, the immunity has been abrogated in whole or in part in almost every state. States have generally followed either the approach of carving out areas where the immunity will still apply or the approach of abrogating the immunity entirely but applying a special standard, known as the ”reasonable parent” standard, to judge the duty of care.

Parental Immunity Only for Injury Caused by Negligence

A few states have adopted their own approaches in partially abrogating the immunity, such as immunizing corporal punishment administered for disciplinary purposes or immunizing all negligence except vehicular negligence. To the extent that parental immunity exists in any jurisdiction, it applies only to injury caused by negligence. No recent case in any jurisdiction has held that the immunity applies to willful, wanton, or malicious infliction of physical injury on a child by a parent or a parental substitute.

Immunity for Persons Acting In Loco Parentis

Even states that retain some form of parental immunity do not necessarily extend that immunity to other persons who stand in loco parentis to the child, such as grandparents, step-parents, and foster parents. A court held that parental immunity did not apply to foster parents because they differ from parents and other relatives in that they can terminate the foster parent-child relationship when they choose to do so and they are regulated by the state. However, another court considered foster parents to have the same duties as other parents and abrogated parental immunity as to foster parents and natural parents.