STRONG VS. STRONG (CHILD WELFARE)

Key holdings

Practitioner summary

A minor child, through his guardian ad litem, sued his mother for the wrongful death of his father, alleging her negligent, grossly negligent, and wilful driving caused the death; the complaint alleged the child and mother were the decedent's only surviving heirs. The mother's motion to dismiss (for failure to state a claim and to join an indispensable party), treated by consent as one for summary judgment, was granted. The stipulated issue was whether sec. 8554, N.C.L. 1931-1941 Supp. (the wrongful death statute) confers on an unemancipated minor the right to sue his mother for the wrongful death of his father. The wrongful death remedy is wholly statutory and in derogation of the common law (Wells, Inc. v. Shoemake, 64 Nev. 57; Estes v. Riggins, 68 Nev. 336), creating a new and independent right in the injured kindred. Appellant conceded the common-law rule barring a minor's tort suit against a parent and disclaimed any repeal by implication, resting solely on the contention that the statute's generality effected a direct repeal of the immunity. The court found no language in sec. 8554 effecting such a repeal: the statute limits the action to the decedent's heirs (or personal representatives for their benefit) and defines the recoverable damages, but nowhere directly abrogates the common-law parental immunity. Distinguishing Minkin v. Minkin, 336 Pa. 49, 7 A.2d 461 (where four of seven justices in fact rejected the theory), the court held that a departure from the immunity rule must find expression in a legislative act and affirmed.

In plain language

A little boy, not yet two years old, sued his own mother through a guardian ad litem (an adult appointed to represent a child in court). The lawsuit claimed the mother's negligent, grossly negligent, and wilful driving of a car in October 1952 had killed the boy's father, and it sought damages for the loss of the father's support and companionship. The complaint said the boy and his mother were the father's only surviving heirs. The mother asked the court to dismiss the case, and the trial court granted her summary judgment. The child appealed. The single question was whether Nevada's wrongful death statute gave an unemancipated minor the right to sue his own mother for the wrongful death of his father. The child's lawyers accepted the long-standing common-law rule that a minor child normally cannot sue a parent in tort, and they did not argue that the wrongful death statute quietly repealed that rule. Instead, they argued that the statute's broad, unrestricted language directly repealed the parent-child immunity. The Nevada Supreme Court disagreed. The wrongful death statute created a new cause of action for a person's death, but nowhere did it directly repeal the common-law immunity that shields a parent from a tort suit by a minor child. The court noted that the one case directly on point, a Pennsylvania decision, was so divided that four of its seven justices actually rejected the theory. The court held that any departure from the immunity rule must come from the legislature, and it affirmed the dismissal.