dissenting:
The majority observes that the principle of parent-child immunity serves “the public policy that discipline in the family not be impaired and that tranquility of the home be preserved.” Frye v. Frye, 305 Md. 542, 552, 505 A.2d 826, 831 (1986). I dissent in this case because the majority has applied parent-child immunity to a situation where the underlying public policy will not be served. In light of Roland Gross, Jr.’s death, there is no family discipline to impair or home tranquility to preserve.
I agree with the majority’s holding that parent-child immunity would have applied, under our prior holdings and the facts of this case, if the child were still alive.1 I do not, however, read the survival and wrongful death statutes to require a recognition of this immunity where no public policy would be served.
*151At common law, “if an injury were done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom or by whom, the wrong was done.” Stewart v. United Elec. L. & P. Co., 104 Md. 332, 333-334, 65 A. 49, 50 (1906). By enacting Ch. 101, Subch. 8, § 5, of the Acts of 1798, the General Assembly enabled executors and administrators to bring survival actions:
“Executors and administrators shall have full power and authority to commence and prosecute any personal action whatever, at law, or in equity, (as the case may require,) which the testator or intestate might have commenced and prosecuted, except actions of slander, and for injuries or torts done to the person____”
By the late nineteenth century, the exclusion for tortious injuries had been eliminated, giving executors and administrators full power to commence suits for the recovery of damages for injuries suffered by the testator or intestate in his lifetime. Stewart v. United Elec. L. & P. Co., supra, 104 Md. at 337, 65 A. at 51. Today, Maryland Code (1974), § 7-401(x) of the Estates and Trusts Article, provides that a personal representative:
“may prosecute, defend, or submit to arbitration actions, claims, or proceedings in any appropriate jurisdiction for the protection or benefit of the estate, including the commencement of a personal action which the decedent might have commenced or prosecuted, except [an action for slander]....”
The wrongful death statute was also a modification of the common law. “Prior to 1852, under the common law, Maryland permitted no recovery for pecuniary loss suffered by a relative of one killed by the negligence of another.” McKeon v. State, Use of Conrad, 211 Md. 437, 442, 127 A.2d 635, 637 (1956). By Ch. 299, § 1, of the Acts of 1852, the General Assembly, borrowing from Lord Campbell’s Act, provided that:
“whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or *152default is such as would (if death had not ensued), have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”
Under current law, Code (1974, 1989 Repl.Vol.), § 3-902(a) of the Courts and Judicial Proceedings Article, “[a]n action may be maintained against a person whose wrongful act causes the death of another.” Section 3-901(e) defines a “wrongful act” as:
“an act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” Thus, the two phrases emphasized by the majority, “a
personal action which the decedent might have commenced or prosecuted” from the survival statute, and “which would have entitled the party injured to maintain an action and recover damages if death had not ensued” from the wrongful death statute, are substantially unchanged from the language in the Acts of 1798 and 1852, respectively.
As the majority notes, this Court has held that defenses such as lack of privity, contributory negligence and assumption of risk, on the part of the decedent, are defenses to a wrongful death claim. I agree with the majority that these types of defenses would also be recognized in survival actions. I believe that the purpose of the two phrases quoted above was to identify the types of events that would trigger liability under the statutes: the events had to give rise to cognizable causes of action. Circumstances such as contributory negligence and assumption of risk bar every tort action, regardless of the identity or relationship of the parties. An immunity such as parent-child immunity, on the other hand, does not mean that no cause of action exists. It means that a recovery will not be permitted because of overriding public policy. I doubt that the surviv*153al and wrongful death statutes were intended to incorporate every immunity and public policy defense that this Court had recognized, or would recognize in the future, under circumstances where no public policy would be served by incorporation.
The Court of Appeals first recognized parent-child immunity in 1930, over 75 years after the enactment of the wrongful death statute, and over 130 years after the survival statute went into effect. See Schneider v. Schneider, 160 Md. 18, 152 A. 498 (1930). In Yost v. Yost, 172 Md. 128, 134, 190 A. 753, 756 (1937), the Court stated that as a “general principle,” “for acts of passive negligence incident to the parental relation, there is no liability.” In that case, the Court emphasized the need to preserve the peace and harmony of the home and recognize the authority of parents. Ibid. See Frye v. Frye, supra.
This Court has not applied the general principle of parent-child immunity in cases where the public policy underlying the principle would not be served. For example, in Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951), the plaintiff infant’s father murdered her mother and later committed suicide, both in the child’s presence. When the child sued her father’s executrix to recover for personal injuries, parental immunity was imposed as a defense. Under the circumstances of the case, the Court reasoned that
“there can be no basis for the contention that the daughter’s suit against her father’s estate would be contrary to public policy, for the simple reason that there is no home at all in which discipline and tranquility are to preserved.” 197 Md. at 68, 77 A.2d at 926.
The Court also concluded that
“when, as in this case, the parent is guilty of acts which show complete abandonment of the parental relation, the rule giving him immunity from suit by the child, on the ground that discipline should be maintained in the home, cannot logically be applied, for when he is guilty of such acts he forfeits his parental authority and privileges, including his immunity from suit.” Ibid.
*154Furthermore, in Waltzinger v. Birsner, 212 Md. 107, 125-126, 128 A.2d 617, 626-627 (1957), this Court held that there was no parental immunity to bar a suit between a parent and a child who was emancipated. Moreover, we recently held, in Hatzinicolas v. Protopapas, 314 Md. 340, 550 A.2d 947 (1988), that the policies served by parent-child immunity did not require an extension of the principle to bar a child’s recovery in negligence from a parent’s business partner, where the partnership was responsible for an injury.
In both Mahnke v. Moore, supra, and Waltzinger v. Birsner, supra, where no parent-child relationship still existed, the Court did not recognize an immunity. In this case, the death of Gross, Jr. severed the parent-child relationship and terminated the basis for immunity. This suit cannot “be contrary to public policy, for the simple reason that there is no home at all in which discipline and tranquility are to be preserved.” Mahnke v. Moore, supra, 197 Md. at 68, 77 A.2d at 926. I disagree with the majority’s conclusion that “[t]he death of the child did not serve to remove the immunity dictated by the rule.” I would follow the reasoning of courts that have refused to recognize parent-child immunity where, because of a death, no public policy would be served by the immunity.
In Harlan National Bank v. Gross, 346 S.W.2d 482 (Ky.1961), Kentucky’s highest court held that the principle of parent-child immunity would not bar the administrator of a deceased infant’s estate from bringing a cause of action against the infant’s parent for wrongful death caused by negligence in an automobile accident. The court explained (346 S.W.2d at 483):
*155Many other state courts are in accord with this view. See, e.g., Johnson v. Myers, 2 Ill.App.3d 844, 277 N.E.2d 778, 779 (1972) (“when the family relationship has been dissolved by death the stated policy behind the rule of family immunity ceases”); Plumley v. Klein, 31 Mich.App. 26, 187 N.W.2d 250, 252-253 (1971), aff'd, 388 Mich. 1, 199 N.W.2d 169 (1972) (“the reasons for the doctrine of intra-family immunity have been terminated by death”); Palcsey v. Tepper, 71 N.J.Super. 294, 176 A.2d 818, 819 (1962) (“It is self-evident that if the family relationship no longer exists, having been dissolved by death, then the public policy consideration which supports the rule of immunity likewise no longer exists”); Sisler v. Seeberger, 23 Wash.App. 612, 596 P.2d 1362, 1364 (1979) (“Here, the parent is dead and the relationship is thus severed. As a result, there is no parental authority or family tranquility to be preserved”); Brennecke v. Kilpatrick, 336 S.W.2d 68, 73 (Mo.1960); Gaudreau v. Gaudreau, 106 N.H. 551, 215 A.2d 695, 696 (1965); Dorsey v. State Farm Mut. Auto. Ins. Co., 9 Ohio St.3d 27, 457 N.E.2d 1169, 1171 (1984); Parks v. Parks, 390 Pa. 287, 135 A.2d 65, 71 (1957). See also Barnwell v. Cordle, 438 F.2d 236, 240 (5th Cir.1971); Dennis v. Walker, 284 F.Supp. 413, 416-417 (D.D.C.1968); Restatement (Second) of Torts § 895G comment g (1977); 2 Harper, James & Gray, The Law of Torts, § 8.11 at 574 (2d ed. 1986) (“It would seem, however, that the reasons of policy developed in these cases [establishing the principle of parent-child immunity] are [not] persuasive ... where one of the parties has died »J 2
*154“[t]he reason for denying a cause of action in tort by a living child against its parent no longer applies to a suit by the child’s administrator. The rule of non-liability is based upon a public policy to protect from disruption a family relationship. This potential evil is removed by the death of the child. Consequently there is no longer such a public policy objection to a claim asserted by an administrator.”
*155The majority suggests that “[i]f the legislature intended that the judicially created parent-child immunity rule be excepted from the legislatively created survival and wrong*156ful death actions, it has had ample opportunity to say so.” Of course, when the General Assembly created the survival and wrongful death actions, there existed in Maryland no parent-child immunity rule to be “excepted.” The rule was created by this Court at a much later date, and this Court has not hesitated to hold the rule inapplicable when the policy underlying the rule is inapplicable.
Parent-child immunity is a general principle that sometimes serves a public policy of promoting family discipline and domestic tranquility. As our prior cases show, it is not an absolute rule. Therefore, I would hold that the circuit court erred in recognizing parent-child immunity in a case where, because of the death of the child, there was no policy to be served.
Judge ADKINS has authorized me to state that he concurs with the views expressed herein.. In her complaint, Virginia Lee Smith alleged that Gross, Sr. “operat[ed] his automobile while under the influence of alcohol ... [and] in a careless and reckless manner____” She also alleged that his driving "constituted a reckless and careless disregard of the safety of the decedent thereby entitling Plaintiff to punitive damages.” A plaintiff must show malice to support an award of punitive damages. Miller Building Supply v. Rosen, 305 Md. 341, 348, 503 A.2d 1344, 1347 (1986). Even under the circumstances of this case, Gross, Sr.’s conduct would not rise to the level of “abandonment of the parental relation” necessary for him to forfeit his parental immunity. See Mahnke v. Moore, 197 Md. 61, 68, 77 A.2d 923, 926 (1951).
. There are other courts that have held to the contrary. See, e.g., McNeal v. Administrator of Estate of McNeal, 254 So.2d 521, 523-524 (Miss. 1971); Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230, 234 (1972); Castellucci v. Castellucci, 96 R.I. 34, 188 A.2d 467 (1963); Campbell v. Gruttemeyer, 222 Tenn. 133, 432 S.W.2d 894, 897-900 (1968); Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33, 35 (1940).