dissenting:
For two reasons, I respectfully dissent. First, I am unable to discern how the parent-child tort immunity doctrine does not apply to the facts of the instant case. Parental immunity is founded on the firm principle that the law should not intrude into parent-child interactions which occur in the context of and arise from the family relationship. (See, e.g., Hogan v. Hogan (1982), 106 Ill. App. 3d 104, 435 N.E.2d 770; Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill. App. 3d 234, 403 N.E.2d 1256.) As the Illinois Supreme Court recently observed, “it is clear that public policy demands the development and the preservation of family relations. Exemplary of that policy in the tort context is the rule prohibiting suits by children against their parents for negligence. [Citations.]” (Cockrum v. Baumgartner (1983), 95 Ill. 2d 193, 201, 447 N.E.2d 385.) The doctrine has long been applied to a wide range of encounters between parents and their children of a variety of ages, of which the more common has been the family excursion in the family car. (E.g., Eisele v. Tenuta (1980), 83 Ill. App. 3d 799, 404 N.E.2d 349; Johnson v. Myers (1972), 2 Ill. App. 3d 844, 277 N.E.2d 778.) I fail to perceive the distinction between these cases, where the doctrine was applied, and the facts of the case at bar, where the doctrine is not applied. Schenck v. Schenck (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12, relied upon by the majority is, in my opinion, distinguishable from the instant case, since there are no facts here to show that the accident occurred “during the exercise by both the [mother] and the child of [her] individual rights on the public streets and with no direct connection to the family relationship.” (100 Ill. App. 2d 199, 206.) Moreover, I am unable to discern how the plaintiff here will be able to prove upon remand that a mother’s driving her child (or children) to eat dinner at a restaurant does not constitute a “family purpose.”
Second, by declining to apply the doctrine of parental immunity to the facts of the instant case, the majority decision may result in more than a simple refusal to apply the doctrine to a particular fact situation. Although it has repeatedly been said that parental immunity “is a court-formulated rule which is not based on an absence of duty but upon immunity from suit” (Johnson v. Myers (1972), 2 Ill. App. 3d 844, 845, 277 N.E.2d 778), refusal to apply the doctrine may nonetheless lead to recognition of new causes of action. In the context of the case at bar, if a mother is no longer immune from liability to her child1 for negligent acts causing prenatal injuries to that child, it is but a short step to impose a specific or particular duty upon the mother regarding the care of an unborn child. This, in turn, would require a determination of the scope of her duty to that child, when the duty arises (at conception, upon viability, upon birth), and how breach of that duty is to be determined. The abolition of the doctrine of parental immunity in other jurisdictions, even in limited circumstances, has created a host of unresolved issues and conflicting results; by far the knottiest of such questions has been a mother’s liability for prenatal injury to her child. (See Beal, “Can I Sue Mommy?” An Analysis of a Woman’s Tort Liability for Prenatal Injuries to Her Child Born Alive, 21 San Diego L. Rev. 325 (1984).) In my view, if the parent-child tort immunity doctrine is to be discarded or even further restricted as it applies to actions directly between the parent and child, it should be done forthrightly and not by a continuous chipping away at the doctrine; then the responsibilities and duties of parents to their children and to third parties could be established according to a comprehensive framework, of which an integral part would be a mother’s liability for prenatal injuries.
1I note parenthetically that the mother in the case at bar may not be immune from liability to the driver of the other automobile also involved in the accident which allegedly caused the child’s injuries. The accident here occurred after March 1, 1978, and thus falls within the purview of the Contribution Among Joint Tortfeasors Act. (Ill. Rev. Stat. 1983, ch. 70, par. 301.) Therefore, the driver of the other automobile, also a defendant in this action, may maintain a suit in contribution against the mother, alleging that her conduct was also a proximate cause of the child’s injury. See Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 435 N.E.2d 221.