MAY A CHILD SUE HIS PARENTS?
July 26, 2017
The doctrine of parental immunity in its most basic form prevents children from recovering compensation from a parent for negligence. The parental immunity doctrine was first judicially created in Mississippi over 100 years ago in 1891. States vary in how they apply the doctrine. Numerous exceptions to the doctrine exist in different states.
In 1971, the Texas Supreme Court established a test to determine when the parental immunity doctrine would apply to a lawsuit. The test retains immunity for the parent when there are “alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child.” The Court did not want to impair parents in exercising their parental duties. These duties include things such as providing shelter, clothing, food, education, medical care and recreation.
The Texas Supreme Court in 1988 ruled that a parent driving a car with children is “an activity not essentially parental.” The court reasoned that every driver has to follow laws regarding driving. Allowing a child to sue his parent for negligent driving “will not threaten parental authority or discipline.” Consequently, a child may sue a parent for injuries incurred as a result of negligent driving by a parent. Interestingly, a minor does not have standing to sue, so the other parent sues as next of friend for the child.
If the parent has automobile insurance, as the law requires, the parent’s automobile insurance pays for the family members’ injuries incurred in the automobile accident as a result of the parent’s negligence. If you were involved in an automobile collision, contact the O’Hara Law Firm to determine your rights regarding compensation.