{ "id": 8527808, "name": "ELVERA A. COFFEY v. MICHAEL COFFEY", "name_abbreviation": "Coffey v. Coffey", "decision_date": "1989-08-01", "docket_number": "No. 8822SC968", "first_page": "717", "last_page": "723", "citations": [ { "type": "official", "cite": "94 N.C. App. 717" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "139 S.E. 2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "263 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570014 ], "year": 1965, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0361-01" ] }, { "cite": "231 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "291 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558884 ], "year": 1977, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0646-01" ] }, { "cite": "361 S.E. 2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 790", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728992, 4724768, 4725943, 4730841, 4728572 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0790-04", "/nc/320/0790-02", "/nc/320/0790-03", "/nc/320/0790-01", "/nc/320/0790-05" ] }, { "cite": "358 S.E. 2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132142 ], "year": 1987, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0397-01" ] }, { "cite": "371 U.S. 178", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450547 ], "weight": 6, "year": 1962, "pin_cites": [ { "page": "182" }, { "page": "230" }, { "page": "226" }, { "page": "182" }, { "page": "230" }, { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/us/371/0178-01" ] }, { "cite": "271 S.E. 2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568314 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0522-01" ] }, { "cite": "266 S.E. 2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 725", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553283 ], "year": 1980, "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0725-01" ] }, { "cite": "365 S.E. 2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "716", "parenthetical": "\"Although defendants may not be held jointly liable, plaintiff is not precluded from pursuing his claims against both defendants in the same civil action\"" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521284 ], "year": 1988, "pin_cites": [ { "page": "249", "parenthetical": "\"Although defendants may not be held jointly liable, plaintiff is not precluded from pursuing his claims against both defendants in the same civil action\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0242-01" ] }, { "cite": "220 S.E. 2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "380" }, { "page": "381" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546990 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "102" }, { "page": "102-3" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0100-01" ] }, { "cite": "22 Wake Forest L. Rev. 607", "category": "journals:journal", "reporter": "Wake Forest L. Rev.", "year": 1987, "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "77 N.M. 139", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805522 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "142" }, { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0139-01" ] }, { "cite": "142 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "640", "parenthetical": "action cannot be maintained against mother for personal injuries inflicted by mother during minority \"even after [child] has attained her majority\"" } ], "opinion_index": 0 }, { "cite": "264 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574958 ], "year": 1965, "pin_cites": [ { "page": "697", "parenthetical": "action cannot be maintained against mother for personal injuries inflicted by mother during minority \"even after [child] has attained her majority\"" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0694-01" ] }, { "cite": "224 S.E. 2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "722", "parenthetical": "quoting from 59 Am. Jur. 2d Parent and Child Sec. 145 at 277" } ], "opinion_index": 0 }, { "cite": "159 W.Va. 585", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8579690 ], "year": 1976, "pin_cites": [ { "page": "587-88", "parenthetical": "quoting from 59 Am. Jur. 2d Parent and Child Sec. 145 at 277" } ], "opinion_index": 0, "case_paths": [ "/w-va/159/0585-01" ] }, { "cite": "365 S.E. 2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "676" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522122 ], "year": 1988, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0347-01" ] }, { "cite": "254 S.E. 2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568906, 8568939, 8568972, 8569016, 8569052 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0585-01", "/nc/296/0585-02", "/nc/296/0585-03", "/nc/296/0585-04", "/nc/296/0585-05" ] }, { "cite": "249 S.E. 2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "864" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551164 ], "year": 1978, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0224-01" ] }, { "cite": "337 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719882, 4716177, 4714993, 4714074, 4715326 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0182-03", "/nc/315/0182-02", "/nc/315/0182-05", "/nc/315/0182-04", "/nc/315/0182-01" ] }, { "cite": "333 S.E. 2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "532" }, { "page": "531" }, { "page": "533" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527548 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0504-01" ] }, { "cite": "342 S.E. 2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "884" }, { "page": "884", "parenthetical": "listing five policy reasons supporting parent-child immunity doctrine" }, { "page": "884", "parenthetical": "listing five policy reasons supporting parent-child immunity" }, { "page": "885" } ], "opinion_index": 0 }, { "cite": "316 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700149 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "492" }, { "page": "492" }, { "page": "492" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0489-01" ] }, { "cite": "139 S.E. 2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "757" } ], "opinion_index": 0 }, { "cite": "263 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569848 ], "year": 1965, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0317-01" ] } ], "analysis": { "cardinality": 755, "char_count": 16293, "ocr_confidence": 0.757, "pagerank": { "raw": 5.828817610195341e-07, "percentile": 0.9516996936887054 }, "sha256": "d61212fb085e8c3de0d51e3cf5fe134320a9ce202f431bea7360256899e1ef4d", "simhash": "1:7a23512644bf8962", "word_count": 2753 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ARNOLD concurs.", "Judge LEWIS dissents in part." ], "parties": [ "ELVERA A. COFFEY v. MICHAEL COFFEY" ], "opinions": [ { "text": "GREENE, Judge.\nOn 27 January 1988, plaintiff filed a complaint against her son (hereinafter \u201cdefendant\u201d) alleging that she sustained injuries as a result of defendant\u2019s negligent operation of an automobile on 17 August 1985 in which plaintiff was a passenger. On 19 May 1988, the plaintiff moved to amend her complaint to join Clayton Coffey, the father of the defendant, as an additional party defendant. The proposed amended complaint alleged that the father was liable under the family purpose doctrine, as the son was a member of the father\u2019s household and the father provided the automobile in which the plaintiff was a passenger for the pleasure and general use of the family. The trial court on 1 June 1988, without assigning any reasons, denied the plaintiff\u2019s motion to amend. On 12 July 1988, the trial court in response to defendant\u2019s Rule 12(b)(6) motion and after receiving a stipulation from the parties that the defendant was on 17 August 1985 the unemancipated minor son of the plaintiff, entered summary judgment for the defendant and dismissed \u201cwith prejudice\u201d plaintiff\u2019s complaint. Plaintiff appeals the denial of her motion to amend the complaint and the granting of defendant\u2019s motion for summary judgment. The parties stipulated that at the time of the accident the defendant was living with the plaintiff and was sixteen years old, having been born on 11 November 1968. On the date the complaint was filed, 27 January 1988, the defendant was nineteen years old.\nThe issues presented are: I) whether the defendant who had reached the age of majority at the time of the lawsuit is immune from suit by his parent, the plaintiff, for negligent conduct occurring when the defendant was an unemancipated minor; and II) whether the trial court erred in denying plaintiff\u2019s motion to amend her complaint to add as a party defendant the defendant\u2019s father.\nI\nThe general rule in North Carolina is that \u201can unemancipated minor child cannot maintain a tort action against his parent for personal injuries.\u201d Gillikin v. Burbage, 263 N.C. 317, 321, 139 S.E. 2d 753, 757 (1965). As the child\u2019s immunity is considered the reciprocal of the parents\u2019 immunity, a parent likewise cannot sue an unemancipated minor child for a personal tort. Id. The parent-child immunity doctrine \u201cdoes not apply to actions by an unemancipated minor with respect to contract and property rights, actions by an unemancipated minor involving willful and malicious acts, or actions by an emancipated child for torts committed after emancipation.\u201d Lee v. Mowett Sales Co., 316 N.C. 489, 492, 342 S.E. 2d 882, 884 (1986). However, our General Assembly created an exception to the general rule which permits a minor child to sue a parent for \u201cpersonal injury or property damage arising out of the operation of a motor vehicle owned or operated by such parent.\u201d N.C.G.S. Sec. 1-539.21 (1983). This exception, however, is limited and did not abolish the unemancipated minor\u2019s immunity from suits by his parents. Allen v. Allen, 76 N.C. App. 504, 506, 333 S.E. 2d 530, 532, disc. rev. denied, 315 N.C. 182, 337 S.E. 2d 855 (1985); Ledwell v. Berry, 39 N.C. App. 224, 226, 249 S.E. 2d 862, 864 (1978), cert. denied, 296 N.C. 585, 254 S.E. 2d 35 (1979); Camp v. Camp, 89 N.C. App. 347, 348, 365 S.E. 2d 675, 676 (1988).\nThe plaintiff nonetheless contends that since defendant was an adult on the date the complaint was filed, the unemancipated minor\u2019s immunity does not bar the parent\u2019s action against the adult child. Specifically, plaintiff argues that the rule prohibiting the parent\u2019s action against the child should not apply since one of the bases of the rule, maintenance of the family relationship, vanishes when the child reaches majority or is emancipated. See Lee, 316 N.C. at 492, 342 S.E. 2d at 884 (listing five policy reasons supporting parent-child immunity doctrine). We disagree.\nThe right to sue must exist at the time of the injury and the subsequent emancipation or majority of the minor is of no consequence. See 67A C.J.S. Parent and Child Sec. 128 at 505 (1978). Similarly, an emancipated minor or a person obtaining their majority cannot maintain a personal tort action against their parents for a tort \u201c \u2018committed before emancipation if at the time of the wrong the action was not maintainable.\u2019 \u201d Lee v. Comer, 159 W.Va. 585, 587-88, 224 S.E. 2d 721, 722 (1976) (quoting from 59 Am. Jur. 2d Parent and Child Sec. 145 at 277); see also Foster v. Foster, 264 N.C. 694, 697, 142 S.E. 2d 638, 640 (1965) (action cannot be maintained against mother for personal injuries inflicted by mother during minority \u201ceven after [child] has attained her majority\u201d); 3 R. Lee, North Carolina Family Law Sec. 248 at 304 (4th ed. 1981); Annotation, Liability of Parent for Injury to Unemancipated Child Caused by Parent\u2019s Negligence \u2014 Modern Cases 6 A.L.R. 4th, Sec. 5 at 1092 (\u201cnotwithstanding that the child was either emancipated or had attained his majority at the time of commencement of the action,\u201d parental tort immunity doctrine constitutes bar to action by child against parent). The effect of a holding such as the one plaintiff advocates would be to allow a parent to sue her child if the filing of the complaint could be delayed until the uneman-cipated minor either becomes emancipated or attains majority. Such a purposeful delay would itself contravene domestic tranquility, one of the policy reasons supporting immunity. See Lee, 316 N.C. at 492, 342 S.E. 2d at 884 (listing five policy reasons supporting parent-child immunity). \u201cThe family relationship would be disturbed during the time the parent waited for the child to become of age.\u201d Nahas v. Noble, 77 N.M. 139, 142, 420 P. 2d 127, 129 (1966). Finally, the facts and holding in Allen are entirely consistent with our holding. 76 N.C. App. 504, 333 S.E. 2d 530. In Allen, the parent-plaintiff sued her son for his alleged negligent conduct. Id. at 505, 333 S.E. 2d at 531. At the time of the alleged negligent conduct, the defendant-son was sixteen years old and at the time the complaint was filed the defendant was at least eighteen years old. Id. The Allen court while not specifically addressing the fact that the defendant had attained majority at the time the lawsuit had been filed held the defendant was immune from suit by his mother for conduct occurring when he was an unemancipated minor. Id. at 507, 333 S.E. 2d at 533. Accordingly, the trial court committed no error in dismissing the plaintiff-parent\u2019s action against her defendant-son for injuries she sustained arising from defendant\u2019s operation of the automobile.\nWe note that the general rule of parent-child immunity has been criticized and authors have suggested that the immunity \u201cshould not bar an action by a child or parent when such action does not arise out of the exercise of parental authority or discretion and, alternatively, where there is available liability insurance coverage for the personal injuries sustained.\u201d Wyatt, The Last Pangs of Parent-Child Immunity in North Carolina: Lee v. Mowett Sales Co. and Allen v. Allen, 22 Wake Forest L. Rev. 607, 628 (1987). However, our Supreme Court has determined that if the doctrine is to be abolished, \u201cit should be done by legislation and not by the Court.\u201d Lee, 316 N.C. at 494, 342 S.E. 2d at 885.\nII\nThe plaintiff next argues the trial court erred in denying her request to add the defendant\u2019s father as a party defendant under the family purpose doctrine. We agree.\nWhere the essence of a Rule 15(a) motion to amend a pleading is to add a party to the lawsuit, consideration of North Carolina Rules of Civil Procedure 20 and 21 is required. N.C.G.S. Sec. 1A-1, Rule 15(a) (1983); N.C.G.S. Sec. 1A-1, Rule 20 (1983); N.C.G.S. Sec. 1A-1, Rule 21 (1983); see 3 J. Moore, Moore\u2019s Federal Practice Sec. 15.08[5] at 15-84, 15-85 (2d ed. 1989); 3A J. Moore, Moore\u2019s Federal Practice Sec. 21.05[1] at 21-26 (2d ed. 1989); Pask v. Corbitt, 28 N.C. App. 100, 102, 220 S.E. 2d 378, 380 (1975). Rule 20(a) allows permissive joinder of defendants \u201cif there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all parties will arise in the action.\u201d N.C.G.S. Sec. 1A-1, Rule 20(a). As the plaintiff was seeking recovery against both her son and the son\u2019s father for injuries she sustained in an automobile accident occurring on 17 August 1985, plaintiff was seeking the liability of both defendants for injuries \u201carising out of the same transaction\u201d and consequently common questions of law and fact arise in the action. N.C.G.S. Sec. 1A-1, Rule 20(a); see Shuping v. Barber, 89 N.C. App. 242, 249, 365 S.E. 2d 712, 716 (1988) (\u201cAlthough defendants may not be held jointly liable, plaintiff is not precluded from pursuing his claims against both defendants in the same civil action\u201d). Accordingly, the amendment joining the defendant\u2019s father as a party defendant was permissible under Rule 20.\nUnder Rule 21, which concerns the procedure upon nonjoinder of parties, by order of the court and on \u201csuch terms as are just parties may be dropped or added.\u201d N.C.G.S. Sec. 1A-1, Rule 21. Furthermore, a requirement of notice to the existing parties \u201chas been read into Rule 21\u201d and such notice is a condition precedent to entry of an order adding or dropping a party. Pask, 28 N.C. App. at 102-3, 220 S.E. 2d at 381. Plaintiff complied with the notice requirement of Rule 21. She served a notice of hearing on defendant Michael Coffey along with a copy of the proposed amendment notifying defendant that she would appear in court on a certain day to request an order allowing the amendment.\nUnder Rule 15(a), as the defendant had filed an answer, the plaintiff was allowed to amend her pleadings \u201conly by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\u201d N.C.G.S. Sec. 1A-1, Rule 15(a). While the grant or denial of an opportunity to amend pleadings is within the discretion of the trial court, Kinnard v. Mecklenburg Fair, 46 N.C. App. 725, 727, 266 S.E. 2d 14, 16, aff\u2019d, 301 N.C. 522, 271 S.E. 2d 909 (1980), the \u201coutright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion.\u201d Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed. 2d 222, 226 (1962). It is \u201can abuse of discretion to deny leave to amend if the denial is not based on a valid ground.\u201d 3 J. Moore, Moore\u2019s Federal Practice Sec. 15.08[4] at 15-65, 15-66.\n\u201cAbsent any declared reason for denial of leave to amend, the appellate court may examine any apparent reasons for such denial.\u201d Banner v. Banner, 86 N.C. App. 397, 400, 358 S.E. 2d 110, 111, disc. rev. denied, 320 N.C. 790, 361 S.E. 2d 70 (1987). The trial court failed to \u201cdeclare\u201d or state any reason for refusing to sign the order of amendment tendered by the plaintiff. The defendant, who had the burden of establishing prejudice, Vernon v. Crist, 291 N.C. 646, 654, 231 S.E. 2d 591, 596 (1977), has shown no \u201capparent\u201d justification for denying the amendment. \u201cApparent\u201d or \u201cdeclared\u201d reasons approved by our courts include: undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice and futility of the amendment. See Foman, 371 U.S. at 182, 83 S.Ct. at 230, 9 L.Ed. 2d at 226.\nThe action by the mother against the father under the family purpose doctrine based on the son\u2019s negligence is not futile. Arguably, the son\u2019s immunity from a suit against him by his mother would be extended to the father to protect the father from the mother\u2019s cause of action based on the son\u2019s negligence. However, our Supreme Court has rejected such transference of immunity from the son to the father and has specifically held that one parent is entitled to maintain a suit against another parent under the family purpose doctrine for the negligence of their son. Cox v. Shaw, 263 N.C. 361, 367, 139 S.E. 2d 676, 680 (1965); N.C.G.S. Sec. 52-5 (1984) (common law immunity from suits between husband and wife abolished). Furthermore, we reject defendant\u2019s argument that the amendment would prejudice him or cause undue delay. The fact that additional discovery may be required or that additional counsel may be required to represent the new defendant does not amount to prejudice or make the delay \u201cundue.\u201d\nAccordingly, the trial court erred in not allowing the plaintiff to amend her complaint to add the defendant-father as a party defendant and the cause is remanded.\nAffirmed in part, reversed in part and remanded.\nJudge ARNOLD concurs.\nJudge LEWIS dissents in part.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge LEWIS\ndissenting in part.\nI would affirm the trial judge in all respects, therefore I dissent as to reversing the denial of the motion to amend the complaint.\nOur Rules of Evidence do not require the trial judge to declare or state reasons for denying a motion to amend. Some cases seem to say there should be \u201capparent\u201d or \u201cdeclared\u201d reasons. Here, we are substituting the discretion of the appellate court to determine what is \u201capparent,\u201d what constitutes an \u201cundue\u201d delay, what is \u201cdilatory\u201d and what constitutes \u201cundue prejudice.\u201d\nThere is no doubt the complaint was filed 27 January 1988; the existence of the father and his position as well as all other aspects of the case were then well known. Undoubtedly there was a delay from then till 19 May 1988. The majority opinion will put us in the position of legislating how much time constitutes undue delay. The trial judge is in the better position to exercise discretion in this matter. Otherwise, the statute will be judicially changed to mean \u201camendments must be allowed unless the trial judge declares adequate reasons why not.\u201d", "type": "dissent", "author": "Judge LEWIS" } ], "attorneys": [ "Joel C. Harbinson for plaintiff-appellant.", "James T. Patrick for defendant-appellee." ], "corrections": "", "head_matter": "ELVERA A. COFFEY v. MICHAEL COFFEY\nNo. 8822SC968\n(Filed 1 August 1989)\n1. Parent and Child \u00a7 2\u2014 automobile accident \u2014 mother\u2019s suit against son \u2014 dismissed\nThe trial court did not err in dismissing plaintiff parent\u2019s action against her defendant son for injuries sustained from defendant\u2019s operation of an automobile. The general rule is that an unemancipated minor child cannot maintain a tort action against his parent for personal injuries; as the child\u2019s immunity is considered the reciprocal of the parents\u2019 immunity, a parent likewise cannot sue an unemancipated minor child for a personal tort. The right to sue must exist at the time of the injury and the subsequent emancipation or majority of the minor is of no consequence.\n2. Rules of Civil Procedure \u00a7 15.1\u2014 auto accident \u2014 mother\u2019s action against son \u2014 amendment to add father as defendant\nThe trial court erred in an action by plaintiff mother against her son arising from an automobile accident by denying plaintiff\u2019s request to amend the complaint to add the father as a defendant under the family purpose doctrine. The amendment was permissible under N.C.G.S. \u00a7 1A-1, Rule 20(a) because plaintiff was seeking recovery against both her son and the son\u2019s father for injuries sustained in an automobile accident, so that the injuries arose from the same transaction and consequently common questions of law and fact arise; plaintiff complied with the notice requirement of N.C.G.S. \u00a7 1A-1, Rule 21; as defendant had filed an answer, plaintiff was allowed under N.C.G.S. \u00a7 1A-1, Rule 15(a) to amend her pleadings only by leave of the court; as the trial court failed to declare or state any reason for refusing to sign the order of amendment, the appellate court may examine any apparent reasons for such denial; defendant has shown no apparent justification for denying the amendment; the action by the mother against the father under the family purpose doctrine based on the son\u2019s negligence is not futile; and the fact that additional discovery may be required or that additional counsel may be required to represent the new defendant does not amount to prejudice or make the delay undue.\nJudge Lewis dissents in part.\nAPPEAL by plaintiff from Collier (Robert A.), Judge. Judgment entered 12 July 1988 in Superior Court, ALEXANDER County. Heard in the Court of Appeals 23 March 1989.\nJoel C. Harbinson for plaintiff-appellant.\nJames T. Patrick for defendant-appellee." }, "file_name": "0717-01", "first_page_order": 747, "last_page_order": 753 }