concurring. The doctrine of parental immunity still governs in Arkansas negligence law, but it takes little prophetic ability to realize that the doctrine’s life expectancy is short. The second edition of the Restatement of Torts broadly rejects the doctrine, with some exceptions. Restatement, Torts (2d), § 895G (1979). Prosser & Keaton’s newest revision of Torts shows that in a rapid sequence of developments beginning in 1963, the doctrine has been rejected, also with exceptions, in more than half the states. Section 122 (5th ed. 1984).
One exception to a complete rejection of parental immunity is stated in the Restatement, Section 895G, Comment k:
Just as the parent-child relationship creates an analogy to consent in the case of an intentional tort, so in the case of a negligent tort there is an analogy to the defense of assumption of risk. For activities central to that relationship, particularly within the home itself, there is some relaxation of the stricter standard of conduct applied in dealing with third persons. A child thoughtlessly leaves his skates in a hallway and the parent trips over them or slides on them and falls, or a parent delays fixing a slightly broken step or calling a carpenter to do it and the child falls as a result; these occurrences are normally regarded as commonplace incidents in family life and usually treated as accidents rather than the basis for imposing legal liability.
I think that reasoning applies to this case. As Justice Holmes said in what was for many years the landmark case on the unborn child’s cause of action, “the unborn child was a part of the mother at the time of the injury.” Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242 (1884). In our case the unborn child was still in fact completely dependent upon the mother when the accident occurred. Her own instinct for self-preservation protected the child better than anything else could possibly have done, so that the analogy of assumed risk is appropriate.
Moreover, in all probability the surviving husband and children have inherited all the property that Mrs. Carpenter may have had. The survivors’ grief for the loss of wife and mother must have been overwhelming. For them to come into a court of law and seek compensation, doubtless from an insurance company, on the theory that the mother’s negligence somehow violated a duty she owed to them is repugnant to one’s sensibilities. I do not believe that the law should countenance a cause of action as ignoble as this one seems to me to be.