William goldman 9/20/2011

particularly if they were living together under a single roof

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*214 of married couples, particularly if they were living together under a single roof,40 and particularly if they had children. The family harmony view posits that tort law should focus not only on the individualistic rights of the plaintiff, but also on the happiness of the children, who could be harmed as an outcome of filing a tort. The children have an interest that their parents, even if separated, maintain a cordial relationship. Moreover, the domestic harmony argument exists even when the couple has no children, simply out of a desire to promote family life and to enhance even the slightest chance that the couple could reunite.41

Some states have made significant improvements with regard to claims for bodily harm and other torts that occurred while the parties were still a couple. Many courts have ruled that there is no necessary connection between blocking such suits and the harmony of the family unit, and that it is inappropriate to block personal claims while accepting property claims.42 The development of the mechanism for submitting tort claims in general has also contributed to this view.43 Indeed, the Restatement now no longer differentiates among types of suits, stating, “A husband or wife is not immune from tort liability to the other solely by reason of (the marital) relationship.”44 Although the Restatement does not bar tort suits between spouses, it does imply that suits against spouses should nevertheless be treated differently from those against non-relatives.45 Some states have abolished *215 the immunity completely as a result of this standard46 and have rejected the claim that only the legislature can repeal the immunity.47

Today, in about half of the states in the United States, the doctrine of spousal immunity to tortious suits has been completely abolished, either through judicial rulings or by legislation. The reasoning for the abolition has been mainly constitutional, since maintaining the immunity “would amount to a repudiation of the constitutional guarantee of equal protection under the law.”48 However, most American courts do not easily accept such suits, and some states have not completely severed the connection to the concept of immunity.49 Before imposing liability, states still typically respect the “subtle ebb and flow of married life.”50 To respect the “ebb and flow,” some states have established that the revocation of immunity applied only in certain circumstances that do not threaten family harmony, such as traffic accidents, cooking mishaps, and other domestic accidents.51 Some states have revoked immunity in cases where one spouse is no *216 longer living.52 Others have cancelled immunity only in cases of intentional or outrageous torts, as opposed to negligent torts, based on the assumption that the tort itself, rather than the lawsuit, has destroyed the fabric of the family relationship.53

In the states where immunity officially exists,54 judicial decisions have created exceptions. Some courts have carved out exceptions for torts carried out prior to the marriage (a problematic exception in regard to couples who are not officially married).55 *217 Others permit suits after divorce or separation, even if the tort had occurred previously.56 In some jurisdictions, immunity is unavailable in instances in which it is clear that no harmony exists in the spousal relationship.57 Similarly, some states do not allow claims that do not involve intentional harm, claims where the damage is intangible or purely economic, and claims that are not accompanied by bodily harm.58

Thus, the key rationale that underlies common law immunity is that recognition of tort litigation between spouses endangers the harmony of the family unit, which is against society’s interest in the completeness of the family unit. In a more refined version of the argument, such claims should be barred only when there is a chance of restoring family harmony. The family approach does not want to bar all intrafamilial claims, but it wants to make sure that such claims benefit the family as a whole if they are heard. By withdrawing such claims from judicial treatment when there is a chance of restoring tranquility to the family, there is a legitimate, appropriate preference to the interest of the family as a whole, over the narrow interest of one of the individual family members.59 The assumption inherent in this view is that spouses do not always correctly assess the implications of their legal actions when they choose to sue each other in tort; they only see the short-term remedy and not the risk to their relationship as a whole.60

States differ in their legal treatment of this issue. Although there is greater legal intervention today in relations between spouses than in the past,61 the intervention has yet to garner universal approval. The current situation in the United States regarding familial torts remains precariously lodged between complete immunity and an absolute abrogation of the immunity.62

*218 2. Family Harmony as an Argument for Blocking Intrafamilial Claims

The argument for family harmony is rather broad, consisting of a cluster of similar rationales that give credence to the idea that tort litigation between spouses should not be recognized. These rationales, which comprise the foundations of the family approach,63 include: the justifiability of the claims and the appropriateness of the legal discussion in these claims; the complexity of the claims and the need to hear them along with divorce proceedings; the assumption of the risk doctrine as a basis for blocking the claims; the need to deal with the claims in an extra-judicial forum; and the fear that the tortfeasor will have access to the compensation monies that he has paid.

One school of thought believes that claims within the family unit are not justiciable due to their sensitive nature and the inappropriateness of discussing family relationships in a public forum.64 Lord Atkin explains the difficulty of judging families and the need for independence of the family unit in a rather creative way: “The parties themselves are advocates, judges, courts, sheriff’s officers and reporter.”65 In contrast to Lord Atkin, some draw a distinction and say that even if such relationships are justiciable in principle, they are not appropriate for legal-tort discussion given their nature.66 The underlying intimacy of such relationships is inconsistent with the normal concepts of negligence and strict liability that underlie tort law.67 The legal treatment of these issues should remain either within the sphere of family and divorce law or within the public sphere, where such issues should be dealt with using penal law, under which it is the state that conducts the proceedings as a result of an offense against societal norms. Immunity can also be justified by the desire to grant privacy to the family unit and the unwillingness (rather than *219 the inability) to intervene legally in the personal and intimate relations therein.68

Another school of thought believes that these claims should be blocked because intrafamilial disputes are more complex than the specific tort the plaintiff wishes to litigate and are generally a symptom of a broader family problem.69 Therefore, it would be more practical to join the tort claim to the divorce proceedings, if such proceedings are in progress, which would lead to savings in the cost and duration of litigation.70 Those who oppose such a step argue that it may lead to delays in dealing with important decisions, such as child custody, and that it combines substantive and procedural issues that should be treated differently.71 (This view differs from the individualistic approach with respect to the goal of distributive justice, under which tort law was seen as completing the picture of the dispute as a whole.)

An additional argument proposes that these torts should be blocked based on the common law defense of assumption of risk.72 According to this argument, adult spouses who have willingly entered into a binding relationship must have evaluated the risk of being exposed to slight assaults or minor instances of negligence within the family, even if the couple had not explicitly consented to the occurrence of such incidents.73 Taking the argument to its extreme, one may even argue that a battered wife could be considered as having willingly endangered herself, or that her own contributory negligence led to her situation, as she did not take action and leave her abusive *220 husband. This argument, however, is obviously problematic and inappropriate, because even if we accept contributory negligence as the guiding standard, the line for barring intrafamilial torts should be that between intentional and unintentional torts. Assumption of the risk does not make sense when dealing with intentional torts; it cannot be argued that spouses have evaluated the risk of being exposed to intentional torts.74

An alternative to the legal system, which would not have such a negative effect on family harmony, is to refer intrafamilial tort claims to an alternative forum, such as counseling or pastoral services, particularly when there is a chance for the restoration of domestic harmony.75 Compared to litigation, extrajudicial proceedings are perceived as more natural and accessible for the family unit. Because the availability of litigation would minimize the use of these alternative proceedings, it would be better for the family if such claims were not justiciable.76

Finally, opponents of intrafamilial torts are also concerned that the tortfeasor-spouse will ultimately have access to the compensation monies he has paid. However, concern over the tortfeasor’s access to compensation monies cannot be remedied by preventing the right to sue. Even if the tortfeasor does have access to the money, such access may not be a sign of the tortfeasor aggressively seizing control of the money, but rather a sign of reconciliation between the parties.77 Furthermore, if the parties are no longer living together and no longer share a common purse, the chances of the tortfeasor gaining access to the compensation monies are low. Thus, although a tortfeasor’s access to the compensation monies is of great concern for intrafamilial torts, because this access could be mitigated in several ways, access to compensation monies cannot be a self-sustaining reason to block intrafamilial torts.

*221 3. Fear of Insurance Fraud

There are other arguments, aside from family harmony, that support blocking tort claims and granting immunity from litigation. One consideration is the possibility of insurance fraud. Commentators and courts fear that members of the same family would submit fictitious claims that would enrich the family at the expense of the insurance companies.78 Employers or others who often bear the brunt of compensation in tort claims may be similarly defrauded by such claims.79 Yet the courts accept direct claims against employers, insurers, or anyone else that may be vicariously liable for the spouse’s tort, rather than blocking such claims, based on the rationale that the immunity is personal and that “[o]thers may not hide behind the skirts of his immunity.”80 At the same time, the assumption that “[n]o wife would want to sue her husband for a negligent tort except as a raid on an insurance company”81 certainly no longer holds. Moreover, it seems that the courts are well enough equipped to examine this issue; the insurance companies have an effective tool in cross-examination82 and the costs of litigation that insurance companies expend trying these cases would ultimately be reflected in the cost of the premiums paid by the consumers. Conditions established by insurance companies that include an interspousal exemption have been rejected in some courts in the United States as contrary to public policy.83 It has also been determined that concern for insurance fraud should not serve to block a lawful right to sue84 and that there *222 is nothing unique in this rationale in regard to family members.85 The question of the existence of insurance coverage and the effect of litigation on the insurance cannot have relevance for the determination of liability itself.86 Furthermore, the typical tort claims for violence, abuse, rape, neglect, or defamation are generally not covered by insurance. Nevertheless, many states have granted immunity in cases covered by insurance, a move that has drawn extensive criticism from scholars.87

4. The Floodgates Argument and the Slippery Slope

Some courts refuse to recognize spousal tort claims for fear that accepting them would breach the floodgates and lead to a deluge of such suits, which could clog the judicial system and hinder its effectiveness.88 This concern is particularly real if it would be possible to sue over minor issues. It is unclear whether society would herald the regulation of family relations through the courts. However, this concern is not realistic. In most cases of familial torts, the parties would consider alternative channels for resolving the problem prior to turning to the courts.89 The search for alternative dispute resolution avenues would greatly reduce the number of suits filed over inconsequential grounds, although such claims would not be totally unexpected.

Those who favor immunity also cite a slippery slope argument, positing that even if judicial rulings limit spousal tort claims to the most severe instances, the chance remains that suits would be filed against family members in less serious instances, allowing many unforeseen issues that may not be justiciable to enter the legal realm.

Nonetheless, these two arguments need not be given significant weight within the totality of considerations, nor do they on their own justify rejecting intrafamilial claims. There is no evidence that permitting tort litigation in the family framework has led to the courts being flooded with such cases. Even if there were an increase, it would not clog the system, because in many instances of claims against a family member, the injuries are purely emotional rather than monetary or physical. The problem of proving emotional harm *223 and proving causation between the emotional harm and the tortious behavior serves as a natural filter; it ensures that many claims would not be accepted. Therefore, it is not clear that the floodgates would be breached.90

5. The Goals of Tort Law in the Eyes of the Family Approach

On the surface, it seems that the goals of tort law are met by the individualistic approach. But the same goals can also be met by the family approach. In the following sections, compensation, corrective justice, distributive justice, and deterrence will be dealt with from the family approach perspective.

a. Compensation

Although blocking claims would also block court-awarded compensation, this situation does not pose a significant problem for the family approach, because compensation is often neither desired nor beneficial. According to general principles of tort law, the spouse who has been harmed should receive monetary compensation for the harm done. However, when discussing highly charged claims on the basis of a long-term relationship, at times the plaintiff may be interested in a remedy that is beyond the power of the law to provide. This limitation often prevents the court from uncovering the true wishes of the plaintiff and awarding him the remedy that he truly seeks. When individuals sue family members in tort and ask the courts to award compensation, sometimes this is the appropriate remedy, but at other times it is the remedy sought only for lack of any other option. An extrajudicial proceeding such as therapy or mediation may be of assistance where tort law is limited in its ability to order the remedy that is truly desired.

b. Corrective Justice

In terms of the goal of corrective justice, the tortfeasor himself must compensate the victim for the full damages. On the surface, strict adherence to this goal does not leave any alternative to the individualistic track, and it is the tortfeasor (and not other mechanisms) who must pay. But when the same family is on both sides of the divide, repairing the injustice done to the victim-plaintiff may seriously damage family harmony, possibly leading to the destruction of the family. One cannot realistically look at a dispute between two *224 family members through a purely corrective justice perspective without feeling compassion towards the components of the family unit and the destruction that may be caused to the family as a whole.

The relationship between spouses is a long-term one, by virtue of both nature and the law, and it is based on the idea of intimacy. Therefore, an intrafamilial tort has aspects similar to relational contracts,91 analysis of which should influence our analysis in a number of aspects. First, a tort suit is meant to conclude a dispute between the spouses, which does not necessarily imply the termination of their ongoing relationship. Second, the dispute often influences third parties such as the couple’s children,92 even if the parties themselves have terminated or will be terminating their relationship. The traditional perception of corrective justice is less suitable in intrafamilial torts, since one has to consider other interests: those of the family as a whole and those of the children. Thus, corrective justice should be interpreted with more flexibility in the intramilial tort context.

A strict corrective justice viewpoint must be softened in familial torts because compensation for the tort paid to the plaintiff may come at the expense of the welfare of other family members--e.g., in cases where the father who is paying child support sues the mother. In addition, the plaintiff may be perceived as the enemy of the family *225 and responsible for its collapse and not as a legitimate plaintiff whose rights have been infringed; the children, for example, might view the plaintiff in such a negative light. Ostensibly, in this respect, the idea of family harmony no longer seems important, especially if the couple is divorced and the family unit no longer exists. This idea of harmony seems to become even more irrelevant if the suit was filed for some issue that arose subsequent to the couple’s separation, such as breach of visitation rights or defamation. However, it is still important that a minimal level of proper relations between the couple be maintained, even if only to ensure a “smooth” handover of the children between visits or participation of both parents in the children’s lives. Meanwhile, care must clearly be taken not to use the welfare of the child as leverage in the suit. If the other family members’ interests are not taken into account, then even when the plaintiff and defendant are no longer together, the influence on the other family members may be severe and destructive, particularly when there is still a chance to salvage the couple’s relationship.

Some believe that tort proceedings are easier on the family than criminal proceedings.93 However, since a tort claim is voluntary, unlike a criminal proceeding which is initiated and controlled by the state, the plaintiff retains the choice to submit the tort or to withdraw it. This fact brings the plaintiff and the defendant into open opposition. In the case of intrafamilial torts, because the parties are (or were) a couple, this dispute is more charged than other civil suits. A legal proceeding that commences with the submission of a legal claim invites direct confrontation, which includes mutual recriminations, examination of witnesses who are well known to both parties, the use of sensitive material obtained by private investigators, and more. Given that in certain circumstances the parties will continue to reside under the same roof throughout the case and even thereafter, the situation may become unbearable from the moment the claim is served. Hence, a legal treatment that is insufficiently delicate, because it focuses solely on the need to “coldly” rectify the injustice between the tortfeasor spouse and the plaintiff spouse, without any consideration of the children and even other family members, may result in the destruction of the whole family unit. In other words, the theory of corrective justice must be relaxed when dealing with intrafamilial torts. Considering pure corrective justice without taking

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