Maryland Court of Special Appeals Determines Parent-Child Immunity Lives on In Wrongful Death Action

Maryland's intermediate appellate court has determined that the doctrine of parent-child immunity precluded an action by the estate of a deceased minor child against their negligent parent.

The case derived from the tragic drowning of a two year old while in the care of his non-custodial parent. A lawsuit for wrongful death and a survival action were instituted in the Circuit Court for Howard County, Maryland  and wended its way through Maryland's appellate courts prior to this decision, which upheld a circuit court dismissal of the legal action.

The precedent which underpinned the decision Scheneider v. Schneider, arose more than 90 years ago and was reiterated in Smith v Gross in 1990 wherein it was determined that a child who died due to the negligence of their parent could not bring a legal action through the personal representative of their estate as that child would have been barred from bringing a negligence action against their parent while alive.

Similarly, survival actions for the child's pain and suffering due to the negligence of a parent are not permissible. The ostensible reason for such a doctrine is to preseve "family integrity and harmony" and to protect " parental discretion in the discipline and care of the child."

In the instant case it was pointed out that the parents of the minor decedent were never married to one another and were estranged, with the mother the custodial parent in charge of discipline and care of the child. Which is to say that the reasons for the doctrine are long since outmoded and were inapplicable in this factual situation.

There was no family harmony or integrity to preserve and in the opinion, Judge Kevin Arthur noted that " social mores, expectations and values" have changed. He indicated that if it were up to him he would abrogate this arcane doctrine and permit such a legal action.

Interestingly, one exception to parent child immunity concerns motor vehicle torts where the Maryland required insurance law has resulted in such lawsuits at least to the extent of Maryland's minimum insurance limits of $30,000.00,

The inevitable question in this case, to the extent that the allegedly negligent father has applicable homeowners or renters liability coverage, shouldn't a lawsuit be permitted to the extent of those liability limits?

It will be interesting to see how Maryland's highest court grapples with this factual scenario and the outdated legal precedents applicable to it.

Robert V. Clark
Maryland Car Accident and Personal Injury Lawyer
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