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January 1978 Civil Liability in Child Abuse Cases Rowine Hayes Brown Richard B. Truitt Yhttp://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=2292&context=cklawreview 

LAWSUITS ON BEHALF OF THE ABUSED CHILD Child v. Parent Children in the United States generally have been denied the right to sue parents who have abused them.27 The immunity of parents from suits by their children for torts to their children has been created by stare decisis. The established common law rule in an action for damages caused by maltreatment to an infant is that an unemancipated minor cannot sue his parent in tort.28 This general rule is based upon the court's reluctance to create litigation and strife between members of the family unit 29 and its apparent insistence upon maintenance of parental discipline and control.30 The parental immunity doctrine extends to adoptive parents3 ' and persons in loco parentis32 and, consequently, would protect .the occasional foster parent who was the child abuser. Currently this immunity is not absolute. An action may now be maintained by a child against his parents for willful and wanton misconduct by them, including intentional torts.33 However, the great majority of appellate cases allowing a child to recover against his/her parents deal with automobile injuries resulting from reckless driving.34 It has been held that liability attaches to the parent for conduct beyond the bonds of reasonable parental authority or discretion 35 but a problem exists regarding the establishment of standards of "reasonable" parental authority and discretion. For example,  Loco parentis occurs when a person temporarily undertakes the care and control of another person in the absence of supervision by this other person's natural parents and without formal legal approval. Griego v. Hogan, 71 N.M. 280, 284, 377 P.2d 953, 955 (1963). 33. Nudd v. Matsoukas, 7 111. 2d 608, 131 N.E.2d 525 (1956); Rodebaugh v. Grand Trunk W. Ry., 4 Mich. App. 559, 145 N.W.2d 401 (1966). 34. See, e.g., Nudd v. Matsoukas, 7 IlI. 2d 608, 131 N.E.2d 525 (1956); Rodebaugh v. Grand Trunk W. Ry., 4 Mich. App. 559, 145 N.W.2d 401 (1966). 35. See, e.g., Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968); Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963). CHICAGO-KENT LAW REVIEW whether courts should impose culturally or class biased standards arises. Problems also arise with respect to neglect hearings and custody proceedings. "Western man has never been able to make up his mind what a child is-weak and innocent, needing protection, or wild and primitive, needing discipline and education. And adults are still swinging metronomically from one extreme to another. ' 36 The legislatures in typical child abuse statutes 37 have not provided standards or guidelines beyond "endangering life or health," but have allowed the courts to formulate their own standards. Public policy considerations of the parental immunity doctrine may prevent filing suits alleging mere negligence, 38 but such policy should not prevent a minor from obtaining redress for willful and wanton misconduct of his parents. "To tolerate such misconduct and deprive a child of relief will not foster family unity but will deprive a person of redress, without any corresponding social benefit, for an injury long recognized at common law." 39