Legal Reasoning Exercises, pages 424-26

Your firm represents Amanda and Sam Baker, grandparents of two-year-old Brian Baker. Brian recently injured in a home accident. The two-year-old stuck a hairpin into an electrical outlet and was severely burned. The parents had not installed safety plugs in the outlets because they felt the plugs gave a false sense of security. The plugs are easily removed and were not present in many of their friends' homes. The grandparents want to bring a negligence suit on the child's behalf against the parents.

Assume that the Massachusetts Supreme Judicial Court has decided the following cases:

Sorensen v. Sorensen, 399 N.E.2d. 907 (Mass. 1975) - A child was injured when his father negligently caused an automobile accident. The court held that children could sue their parents but limited the holding to motor vehicle cases and limited the recovery to the amount of available insurance. For its reasoning the court stated that neither the argument that such suits would disrupt the peace and harmony of the family nor the argument that such suits would disrupt the peace and harmony of the family nor the argument that such actions would tend to promote fraud and collusion was valid.

Lewis v. Lewis, 351 N.E.2d 526 (Mass. 1976) A wife was injured when her husband negligently caused an automobile accident. The court held that the wife could sue her husband but limited the holding to motor vehicle cases. The court did not limit the recovery to the amount of insurance, stating: "In the present case there is nothing in the record concerning the availability or the amount of the defendant's liability insurance, and we do not refer to as limiting factor in our holding. We do not interpret the logic (as opposed to the precise holding_ of Sorensen as turning on the availability of insurance in each case, and we decline to limit liability in interspousal tort actions in such a fashion." The court cited Sorensen with approval as standing for the proposition that such suits would not disrupt the peace and harmony of the family or tend to promote fraud and collusion. Finally, while acknowledging that some actions that would constitute torts between strangers might not constitute torts if committed between spouses, the court based its decision on the general principle that normally there should be recovery for tortious injury.

Brown v. Brown, 409 N.E.717 (Mass. 1980) A wife was injured when she slipped on the front steps that her husband had forgotten to salt. The court held that the wife could sue her husband. The court reasoned that while certain behavior between spouses might not be tortious, that was for a trial court to determine at trial and the case should not be dismissed as a matter of immunity.

Based on the prior case law develop arguments both for and against the child's being able to sue his parents for negligence.