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ATTWOOD v. ESTATE OF ATTWOOD5/24/1982
Janice Attwood, individually and as mother and next friend of Richard Breck Attwood, brings this appeal contending that the court below erred in dismissing her complaint against the estate of Richard Breckenridge Attwood. The suit was dismissed
pursuant to Arkansas Rules of Civil Procedure, Rule 12(b) (6) for failure to state facts upon which relief can be granted. The lower court found that the family immunity doctrine was a bar to the claim asserted in the complaint.
In her complaint, appellant pled that she and Richard Breckenridge Attwood were divorce some time prior to July 3, 1979 and that he had visitation rights with respect to their child, Richard Breck Attwood. Appellant further pled that on July 3, 1979, Richard Breckenridge Attwood became willfully and intentionally intoxicated and drove a vehicle while so intoxicated with the child as a passenger and also drove at a speed greatly in excess of the posted speed limit, thereby causing the vehicle to leave the roadway and overturn, killing himself and injuring the child, Richard Breck Attwood.
On appeal, appellant urges reversal on two grounds:
(1) The family immunity doctrine violates the constitutional rights of unemancipated minors to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution in that it precludes minor children from suing their parents for injuries caused by the negligence of the parents;
(2) The automobile accident in which Richard breck Attwood was injured resulted not from the voluntary negligence of the father but from the father's willful, reckless and intentional actions and as such the family immunity doctrine is inapplicable.
As we have held many times that we do not rule on constitutional questions if the litigation can otherwise be resolved, we first consider the second of appellant's two points for reversal. County of Searcy v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968).
Appellee's motion to dismiss, filed pursuant to Arkansas Rules of Civil Procedure, Rule 12(b)(6), is essentially the same as filing a demurrer before enactment of the new
rules. A demurrer admits any well pled fact. Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980); L.A. Green Seed Company of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969). We, therefore, assume for purposes of resolving the issues presented herein that the facts recited in the complaint are true.
This appeal again brings into focus the family immunity or parental immunity doctrine. This Court in Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), held that an unemancipated minor child could not sue a parent for an involuntary tort. The court reasoned that to permit such a suit would interfere with the parent's authority over the child and would, therefore, encourage disobedience. This in turn would interfere with the family harmony. When next called upon to rule on this doctrine, this Court refused to extend the doctrine to include an intentional tort committed by an adoptive father on his adopted son. Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245 (1939). Recently, this Court was presented with the question of whether the family immunity doctrine should bar recovery by an unemancipated minor from one standing in loco parentis for injuries resulting from an unintentional tort. Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980). In reaffirming the doctrine, this Court stated:
"We are not persuaded by appellant's contention that the family immunity doctrine has become a legal anachronism. Nor do we believe that the policy considerations of family harmony and prevention of collusion and fraud are no longer
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