¶1concurring in part and dissenting in part:
¶2I concur with the majority in upholding the dismissal of count VI against the City as being duplicitous of count II and I concur in their reasoning. However, I respectfully dissent from the reinstatement of count V against the mother.
¶3This court in Schenk elected to view the doctrine of parental immunity in terms of duty rather than in terms of policy. This was followed by the Heap court, even though Mr. Justice English stated, “[T]he question is not one of the absence of a duty of reasonable care owed by a father to his son, but, rather, one of immunity from suit, based on public policy.” 128 Ill. App. 2d 165, 167, 262 N.E.2d 826, 827.
¶4Given the premise that the purpose of the policy is to avoid family strife, it is difficult, if not impossible, for me to comprehend how the strife is any less real because the injury happened on the public street rather than in the home on a stairway.
¶5In a very real sense exceptions to the family immunity doctrine bear a direct relationship to the collateral source rule. How many suits of this nature would ever be brought in the first place in the absence of insurance? It makes no sense to me to defend to the death the collateral source rule on the one hand, and on the other, carve out exceptions sub silentio by permitting some intrafamily litigation under the guise of a general duty. If, as has frequently been said, modern jurors are sufficiently sophisticated to be reasonably sure of the existence of insurance in an ordinary lawsuit between strangers, they must be convinced beyond a shadow of a doubt of it when the suit is between family members. This will only create another series of charades, of which the general public believes the bench and bar to be infinitely capable.
¶6The foregoing may properly be considered nothing more than a personal, and somewhat archaic, viewpoint. At root, what is involved is my fundamental disagreement with the dictum found in Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 619, 131 N.E.2d 525, 531:
“We do not feel that the announcement of this doctrine should be left to the legislature. The doctrine of parental immunity, as far as it goes, was created by the courts. It is especially for them to interpret and modify that doctrine to correspond with prevalent considerations of public policy and social needs.”
¶7My reasons for such disagreement are fully set forth in my dissent in Kirk v. Financial Security Life Insurance Co. (1977), 54 Ill. App. 3d 192, 369 N.E.2d 340.
¶8Either the doctrine of parental immunity should be abolished altogether or left standing intact. The piecemeal approach, taken in this case and in Schenk, can lead to nothing but confusion.