parental immunity in Florida

2019Singletary's Estate relied on Ard v. Ard, 414 So. 2d 1066, 1067 (Fla. 1982) ("While we reaffirm our adherence to parental/family immunity, we hold that, in a tort 1Forease of reference and to avoid confusion, we will use Dylan's and Jasper's first names throughout this opinion. -2- action for negligence arising from an accident and brought by an unemancipated minor child against a parent, the doctrine of parental immunity is waived to the extent of the parent's available liability insurance coverage.

2014Similarly, the Court evaluated policy considerations in Ard v. Ard, 414 So.2d 1066, 1067 (Fla.1982), to hold that in a negligence action brought by an unemancipated minor child against a parent, “the doctrine of parental immunity is waived to the extent of the parent’s available liability insurance coverage.” It is highly unlikely that, in McCain , the Supreme Court silently abandoned the common law function of a court to consider public policy in deciding whether a legal duty in negligence exists.

2001We disagree and affirm on the authority of Raford v. State, 792 So.2d 476 (Fla. 4th DCA) ("We interpret the 1988 legislative changes following Kama as eliminating the parental privilege recognized by Kama under the pre-1988 statutes except for simple battery, e.g., a typical spanking. 507 So.2d at 156 ." (emphasis supplied)), review granted, 790 So.2d 1107 (Fla.2001).

2001See Raford v. State, 792 So.2d 476 (Fla. 4th DCA 2001) (holding that the legislative changes following Kama eliminated the parental privilege recognized by Kama except for simple battery). [1] Therefore, the common law privilege for corporal punishment relied upon in Kama should not have been applied to the present case.

2011The Raford court expressly recognized “a typical spanking” as “reasonable” or “non-excessive corporal punishment.” Id.; see also Czapla v. State, 957 So.2d 676, 679-80 (Fla. 1st DCA 2007) (distinguishing permissible form of parental corporal punishment, (i.e. “spanking”), from abuse by a father toward his son when the father punched the child on the head for failing to do yard work, pushed him into an adjoining room and onto the floor and then kicked him in the side while he was on the floor).

2011The Raford court expressly recognized "a typical spanking" as "reasonable" or "non-excessive corporal punishment." Id.; see also Czapla v. State, 957 So.2d 676, 679-80 (Fla. 1st DCA 2007) (distinguishing permissible form of parental corporal punishment, (i.e. "spanking"), from abuse by a father toward his son when the father punched the child on the head for failing to do yard work, pushed him into an adjoining room and onto the floor and then kicked him in the side while he was on the floor).

2008While a teacher may be subject to disciplinary charges for violating the school board's employment policy, that policy should not trump the argument that certain conduct has not violated the criminal law." However, the Raford court's reference to the common-law origins of the parental privilege was merely an historical acknowledgment; after noting this history and the subsequent legislation in the area of child abuse laws, Raford held that the parental privilege of corporal punishment is no longer a creature of common law: To the extent [prior caselaw] relied upon any common law privilege for

2008Raford recognized that the difficult task of "delineating a precise line between permissible corporal punishment and prohibited child abuse" is "principally a legislative function, better left to the Legislature." Id. at 1020-21 .

2001See Goller v. White, 20 Wis.2d 402 , 122 N.W.2d 193 (1963) (looking back on thirty-five years since the abrogation of interspousal immunity to predict possible effect of abrogating parental immunity). [16] As a final and alternative point, the minor in this case argues that the trial court erred in even applying the parental immunity doctrine to bar his suit because he was at least twenty years old when he filed it and the doctrine only precludes suits by unemancipated minor children.

2001See Goller v. White, 20 Wis.2d 402 , 122 N.W.2d 193 (1963) (looking back on thirty-five years since the abrogation of interspousal immunity to predict possible effect of abrogating parental immunity). [16] As a final and alternative point, the minor in this case argues that the trial court erred in even applying the parental immunity doctrine to bar his suit because he was at least twenty years old when he filed it and the doctrine only precludes suits by unemancipated minor children.

2001We disagree and affirm on the authority of Raford v. State, 792 So.2d 476 (Fla. 4th DCA) ("We interpret the 1988 legislative changes following Kama as eliminating the parental privilege recognized by Kama under the pre-1988 statutes except for simple battery, e.g., a typical spanking. 507 So.2d at 156 ." (emphasis supplied)), review granted, 790 So.2d 1107 (Fla.2001).

2001Appellant's argument is grounded on the parental privilege to discipline a child and is based on Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987), in which a stepfather was charged with inflicting injuries including bruises consistent with being struck by a belt.

2019More recently, the supreme court explained that the rationale behind "[a]brogation of the parental immunity doctrine in accident cases has been largely based on the prevalence of liability insurance." Herzfeld, 781 So. 2d at 1074 .

2012See generally Herzfeld v. Herzfeld, 781 So.2d 1070 (Fla.2001) (describing the doctrine of parental immunity); Ard v. Ard, 414 So.2d 1066, 1069 (Fla.1982) (expressing policy of avoiding “depletion of the family assets at the expense of the other family members”).

1999See Orefice v. Albert, 237 So.2d 142 (Fla. 1970).

1981Because our Supreme Court has not in any case to date been required to adjudicate and apply the parental immunity doctrine (but has instead only acknowledged the rule by dictum in Orefice v. Albert, 237 So.2d 142 (Fla. 1970) [1] , and Raisen, supra ), we conclude that the requirement for following its precedent ( Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)) does not relieve this court of the obligation to consider and act on the merits of this issue on which there exists no such controlling precedent.

1987See Ard v. Ard, 414 So.2d 1066 (Fla.1982), Allstate Insurance Co. v. Boynton, 486 So.2d 552 (Fla. 1986) and Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

1981Because our Supreme Court has not in any case to date been required to adjudicate and apply the parental immunity doctrine (but has instead only acknowledged the rule by dictum in Orefice v. Albert, 237 So.2d 142 (Fla. 1970) [1] , and Raisen, supra ), we conclude that the requirement for following its precedent ( Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)) does not relieve this court of the obligation to consider and act on the merits of this issue on which there exists no such controlling precedent.

1982See Raisen v. Raisen, 379 So.2d 352 (Fla. 1979), cert. denied, 449 U.S. 886 , 101 S.Ct. 240 , 66 L.Ed.2d 111 (1980).

1981Because our Supreme Court has not in any case to date been required to adjudicate and apply the parental immunity doctrine (but has instead only acknowledged the rule by dictum in Orefice v. Albert, 237 So.2d 142 (Fla. 1970) [1] , and Raisen, supra ), we conclude that the requirement for following its precedent ( Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)) does not relieve this court of the obligation to consider and act on the merits of this issue on which there exists no such controlling precedent.

2019If the parent is without liability insurance, or if the policy contains an exclusion clause for household or family members, then parental immunity is not waived and the child cannot sue the parent."), and Joseph v. Quest, 414 So. 2d 1063, 1063 (Fla. 1982) (answering the certified question as to whether "an action for contribution lies against the parent of an injured child . . . by holding that contribution is available against a parent to the extent of existing liability insurance coverage for the parent's tort against the child").

2014See Puryear v. State, 810 So.2d 901, 905 (Fla.2002) (holding that the Supreme Court “does not intentionally overrule itself sub silentio”).

2001CHILD SEXUAL ABUSE EXCEPTION Notably, some courts have created specific exceptions to the parental immunity doctrine for sexual abuse cases. [11] See, e.g., Henderson v. Woolley, 230 Conn. 472 , 644 A.2d 1303 (1994); Hurst v. Capitell, 539 So.2d 264, 266 (Ala.1989); Doe v. Holt, 332 N.C. 90 , 418 S.E.2d 511 (1992); Wilson v. Wilson, 742 F.2d 1004, 1005 (6th Cir.1984).

2001See, e.g., Attwood v. Estate of Attwood, 276 Ark. 230 , 633 S.W.2d 366 (1982); Foldi v. Jeffries, 93 N.J. 533 , 461 A.2d 1145 (1983); Elkington v. Foust, 618 P.2d 37 (Utah 1980). [12] A claim arises in negligence most often as an allegation that a parent failed to protect or prevent the child from sexual abuse by another person, including the other parent.

2001See, e.g., Attwood v. Estate of Attwood, 276 Ark. 230 , 633 S.W.2d 366 (1982); Foldi v. Jeffries, 93 N.J. 533 , 461 A.2d 1145 (1983); Elkington v. Foust, 618 P.2d 37 (Utah 1980). [12] A claim arises in negligence most often as an allegation that a parent failed to protect or prevent the child from sexual abuse by another person, including the other parent.

2001See Raydel, Ltd. v. Medcalfe, 178 So.2d 569 (Fla.1965).

2001CHILD SEXUAL ABUSE EXCEPTION Notably, some courts have created specific exceptions to the parental immunity doctrine for sexual abuse cases. [11] See, e.g., Henderson v. Woolley, 230 Conn. 472 , 644 A.2d 1303 (1994); Hurst v. Capitell, 539 So.2d 264, 266 (Ala.1989); Doe v. Holt, 332 N.C. 90 , 418 S.E.2d 511 (1992); Wilson v. Wilson, 742 F.2d 1004, 1005 (6th Cir.1984).

2001See also, State v. Coffman, 746 So.2d 471 (Fla. 2d DCA 1998).

2001See, e.g., Robinson v. Robinson, 323 Ark. 224 , 914 S.W.2d 292, 294 (1996) (holding that doctrine was applicable to the child's case because although she had attained her legal age when the action was commenced, she was an unemancipated minor at the time of the alleged tort); Henderson v. Woolley, 230 Conn. 472 , 644 A.2d 1303 (1994) (analyzing the parental immunity doctrine based on claim brought by a thirty-three-year-old plaintiff who alleged to have been sexually abused by her father from the age of four until she turned fourteen). [17] Although the minor child encourages us to completely

2001See, e.g., Robinson v. Robinson, 323 Ark. 224 , 914 S.W.2d 292, 294 (1996) (holding that doctrine was applicable to the child's case because although she had attained her legal age when the action was commenced, she was an unemancipated minor at the time of the alleged tort); Henderson v. Woolley, 230 Conn. 472 , 644 A.2d 1303 (1994) (analyzing the parental immunity doctrine based on claim brought by a thirty-three-year-old plaintiff who alleged to have been sexually abused by her father from the age of four until she turned fourteen). [17] Although the minor child encourages us to completely