Opinion
No. 8518SC37
Filed 17 September 1985
1. Parent and Child 2.1 — riding lawnmower not motor vehicle — parent-child immunity — action for contribution against parent barred A riding lawnmower is not a "motor vehicle" within the meaning of G.S. 1-539.21, the statute creating an exception to the doctrine of parent-child immunity for tort actions arising out of the operation of motor vehicles. Therefore, in an action against the manufacturer and seller of a lawnmower to recover for injuries received by the minor plaintiff when she was struck by the blade of a riding lawnmower operated by her father, the doctrine of parent-child immunity barred the manufacturer's third-party action against the father for contribution based on an allegation that his negligent operation of the lawnmower was one of the proximate causes of the minor plaintiffs injuries.
2. Parent and Child 2.1 — doctrine of parental immunity — no judicial expansion The Court of Appeals will not judicially expand the limited statutory exception to the doctrine of parental immunity by providing unemancipated minors with a right to maintain an action for personal injury against their parents in all cases where the injury does not arise from a negligent act involving the exercise of parental authority or discretion.
APPEAL by Defendant and Third-Party Plaintiff, Mowett Sales Company, Inc., from Washington, Judge. Order entered 15 October 1984 in Superior Court, GUILFORD County. Heard in the Court of Appeals 27 August 1985.
Nichols, Caffrey, Hill, Evans Murrelle, by Karl N. Hill, Jr. and Clyde H. Jarrett, for defendant and third-party plaintiff appellant.
Adams, Kleemeier, Hagan, Hannah Fouts, by Daniel W. Fouts and Margaret E. Shea, for third-party defendant appellee.
Judge BECTON dissenting.
This civil action was brought on behalf of the minor plaintiff, Jennifer Lee, to recover damages for personal injuries which she received as a result of being struck by the moving blade of a riding lawnmower operated by her father. The minor plaintiff alleged negligence and breach of warranties by defendants, Mowett Sales Company, Inc. (Mowett), the manufacturer of the lawnmower, and Lowe's of N.C. (Lowe's), the seller. Mowett answered, denying fault, and filed a third-party complaint against the minor plaintiff's father, Kyu C. Lee, alleging that his negligent operation of the lawnmower was at least one of the proximate causes of the minor plaintiff's injuries and seeking contribution for any damages which she might recover.
The third-party defendant, Kyu C. Lee, moved to dismiss the third-party complaint of Mowett on the grounds that it was barred by the doctrine of parent-child immunity. The trial court dismissed the third-party complaint for failure to state a claim upon which relief could be granted and further ordered, pursuant to G.S. 1A-1, Rule 54 (b), that the order be entered as a final judgment. Mowett appealed.
Defendant and third-party plaintiff Mowett Sales Company, Inc. asserts on appeal that the trial court incorrectly relied upon the doctrine of parent-child immunity in dismissing the third-party complaint. Since, under present North Carolina law, parental immunity would have barred a personal injury action brought by the minor plaintiff directly against her father, it also bars this action by a third party to recover contribution from the father for injuries to his minor child. We affirm the order dismissing the third-party action.
It is the general rule in North Carolina that unemancipated minors may not maintain an action against their parents to recover damages for an unintentional tort. Skinner v. Whitley 281 N.C. 476, 189 S.E.2d 230 (1972); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923). Since the parent cannot be held liable in a direct action against him by the injured child, a third-party may not maintain an action against the parent, based on allegations of joint negligence, to recover contribution for damages awarded to the minor. Watson v. Nichols, 270 N.C. 733, 155 S.E.2d 154 (1967).
By the enactment of G.S. 1-539.21, the legislature created a limited exception to the common law doctrine of parent-child immunity in North Carolina. G.S. 1-539.21 provides:
The relationship of parent and child shall not bar the right of action by a minor child against a parent for personal injury or property damage arising out of the operation of a motor vehicle owned or operated by such parent.
(Emphasis added.) This statutory exception applies solely to tort actions arising out of the operation of motor vehicles. We do not believe that a riding lawnmower is a "motor vehicle" within the meaning of G.S. 1-539.21 and therefore hold that the limited statutory exception created thereby does not apply to this case.
Mowett concedes the North Carolina rule to be as stated above but, citing the trend in other jurisdictions toward abrogation of the doctrine of parent-child immunity, urges that we judicially expand the limited statutory exception to the doctrine by providing unemancipated minors with a right to maintain an action for personal injury against their parents in all cases where the injury does not arise from a negligent act involving the exercise of parental authority or discretion. Our responsibility, however, is to follow the decisions of the Supreme Court of North Carolina; those decisions continue to recognize the common law doctrine of parental immunity except as abrogated by G.S. 1-539.21. See e.g., Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984); Gillikin v. Burbage, supra. Moreover, as stated by Justice Huskins in Skinner v. Whitley, supra, in response to a similar argument:
If the immunity rule in ordinary negligence cases is no longer suited to the times, as some decisions suggest, we think innovations upon the established law in this field should be accomplished prospectively by legislation rather than retroactively by judicial decree. Such changes may be accomplished more appropriately by legislation defining the areas of non-immunity and imposing such safeguards as may be deemed proper. Certainly that course is much preferred over judicial piecemeal changes in a case-by-case approach.
Id. at 484, 189 S.E.2d at 235.
Affirmed.
Judge WEBB concurs.
Judge BECTON dissents.