{ "id": 2505607, "name": "JANE DOE and SALLY DOE, by and through their Guardian ad Litem, ANNE CONNOLLY v. FRANK HOLT", "name_abbreviation": "Doe ex rel. Connolly v. Holt", "decision_date": "1992-07-17", "docket_number": "No. 379PA91", "first_page": "90", "last_page": "100", "citations": [ { "type": "official", "cite": "332 N.C. 90" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "405 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": -1 }, { "cite": "103 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521868 ], "year": 1991, "opinion_index": -1, "case_paths": [ "/nc-app/103/0516-01" ] }, { "cite": "6 ALR4th 1066", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "118 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "185 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656989 ], "opinion_index": -1, "case_paths": [ "/nc/185/0577-01" ] }, { "cite": "386 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522640 ], "year": 1989, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0401-01" ] }, { "cite": "181 S.E. 334", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "208 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608274 ], "year": 1935, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc/208/0410-01" ] }, { "cite": "62 S.E. 912", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1908, "opinion_index": 0 }, { "cite": "149 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269974 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/nc/149/0169-01" ] }, { "cite": "120 S.E. 334", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "186 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654473 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/186/0704-01" ] }, { "cite": "182 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566776 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0288-01" ] }, { "cite": "148 S.E. 36", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1929, "pin_cites": [ { "page": "37", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "197 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627884 ], "year": 1929, "pin_cites": [ { "page": "191", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/197/0189-01" ] }, { "cite": "189 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "232" }, { "page": "235" } ], "opinion_index": 0 }, { "cite": "281 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575323 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "480" }, { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0476-01" ] }, { "cite": "461 A.2d 1145", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 6, "year": 1983, "pin_cites": [ { "page": "1147" }, { "page": "1152" }, { "page": "1152" }, { "page": "1152" } ], "opinion_index": 0 }, { "cite": "93 N.J. 533", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 313077 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nj/93/0533-01" ] }, { "cite": "276 Ark. 230", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751490 ], "weight": 7, "year": 1982, "pin_cites": [ { "page": "232" }, { "page": "367" }, { "page": "238" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ark/276/0230-01" ] }, { "cite": "618 P.2d 37", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10443063 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/p2d/618/0037-01" ] }, { "cite": "131 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "7 Ill. 2d 608", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2712058 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill-2d/7/0608-01" ] }, { "cite": "539 So. 2d 264", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7545777 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/so2d/539/0264-01" ] }, { "cite": "70 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626420 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0638-01" ] }, { "cite": "342 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1986, "pin_cites": [ { "page": "884" }, { "page": "885" }, { "page": "886" }, { "page": "884" }, { "page": "884" }, { "page": "884" } ], "opinion_index": 0 }, { "cite": "316 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700149 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "491" }, { "page": "494" }, { "page": "492" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0489-01" ] }, { "cite": "68 N.C.L. Rev. 1317", "category": "journals:journal", "reporter": "N.C. L. Rev.", "opinion_index": 0 }, { "cite": "9 So. 885", "category": "reporters:state_regional", "reporter": "So.", "year": 1891, "opinion_index": 0 }, { "cite": "68 Miss. 703", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 8837821 ], "year": 1891, "opinion_index": 0, "case_paths": [ "/miss/68/0703-01" ] }, { "cite": "405 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "103 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521868 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/103/0516-01" ] }, { "cite": "118 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 4, "pin_cites": [ { "page": "15" }, { "page": "15" } ], "opinion_index": 0 }, { "cite": "185 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656989 ], "weight": 3, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc/185/0577-01" ] }, { "cite": "399 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "327 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497698, 2494955, 2493783 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/327/0644-02", "/nc/327/0644-01", "/nc/327/0644-03" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "opinion_index": 1, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "139 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 1 }, { "cite": "263 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569848 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/nc/263/0317-01" ] }, { "cite": "314 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "310 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2392835 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/310/0669-01" ] }, { "cite": "391 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 1 }, { "cite": "326 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304286 ], "year": 1990, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0586-01" ] }, { "cite": "381 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "94 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527808 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc-app/94/0717-01" ] }, { "cite": "79 P. 788", "category": "reporters:state_regional", "reporter": "P.", "year": 1905, "opinion_index": 1 }, { "cite": "37 Wash. 242", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 5246201 ], "year": 1905, "opinion_index": 1, "case_paths": [ "/wash/37/0242-01" ] }, { "cite": "77 S.W. 664", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1903, "opinion_index": 1 }, { "cite": "111 Tenn. 388", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8536354 ], "year": 1903, "opinion_index": 1, "case_paths": [ "/tenn/111/0388-01" ] }, { "cite": "189 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "231" }, { "page": "231" } ], "opinion_index": 1 }, { "cite": "281 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575323 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "478" } ], "opinion_index": 1, "case_paths": [ "/nc/281/0476-01" ] }, { "cite": "342 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "316 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700149 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc/316/0489-01" ] }, { "cite": "9 So. 885", "category": "reporters:state_regional", "reporter": "So.", "year": 1891, "opinion_index": 1 }, { "cite": "68 Miss. 703", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 8837821 ], "year": 1891, "opinion_index": 1, "case_paths": [ "/miss/68/0703-01" ] }, { "cite": "118 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "pin_cites": [ { "page": "13" } ], "opinion_index": 1 }, { "cite": "185 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656989 ], "opinion_index": 1, "case_paths": [ "/nc/185/0577-01" ] } ], "analysis": { "cardinality": 1095, "char_count": 24623, "ocr_confidence": 0.768, "pagerank": { "raw": 1.1049412806519554e-07, "percentile": 0.5693040405058365 }, "sha256": "2a5576dcba872789b2e95977d8da3d97947f7b93ce7348dbe90f43d0922d380f", "simhash": "1:110af19ac12c21a8", "word_count": 4058 }, "last_updated": "2023-07-14T21:54:56.199642+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JANE DOE and SALLY DOE, by and through their Guardian ad Litem, ANNE CONNOLLY v. FRANK HOLT" ], "opinions": [ { "text": "MITCHELL, Justice.\nThe issue before this Court is whether this suit by two minor plaintiffs against their father for damages allegedly resulting from his having repeatedly raped and sexually molested them is barred by the parent-child immunity doctrine. We conclude that the complaint states a claim upon which relief can be granted and that the parent-child immunity doctrine does not bar this suit.\nIn their complaint, the plaintiffs allege that they are both unemancipated minors. They resided with the defendant, their natural father, from 5 August 1978 until June 1989. Beginning in 1980, when the plaintiffs were five and six years old respectively, the defendant raped and sexually molested both plaintiffs repeatedly; these acts continued until 1989. The defendant pled guilty, in a separate criminal action, to charges of second-degree rape and second-degree sexual offense; those charges and convictions involved some of the same acts against the plaintiffs forming the basis of the tort claims presented in this case. At the time the complaint was filed, the defendant was serving an active prison sentence for those acts.\nThe plaintiffs brought this tort action by and through their guardian ad litem to recover damages for permanent physical, mental and emotional injuries they suffered as a result of being raped and sexually molested by the defendant, their father. The defendant moved to dismiss the plaintiffs\u2019 complaint for failure to state a claim upon which relief could be granted, contending that the parent-child immunity doctrine barred the action. The trial court granted the defendant\u2019s motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) (1990). The plaintiffs appealed to the Court of Appeals.\nThe Court of Appeals concluded that the plaintiffs\u2019 action was not barred by the parent-child immunity doctrine and reversed the order of the trial court. Doe v. Holt, 103 N.C. App. 516, 405 S.E.2d 807 (1991). For the reasons which follow, we affirm the holding of the Court of Appeals.\nThe doctrine of parent-child immunity was first recognized in the case of Hewllette v. George, 68 Miss. 703, 9 So. 885 (1891). In North Carolina, the doctrine was first applied in Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923). In denying a minor child\u2019s action to recover damages against her father for his negligence resulting in an automobile collision, this Court stated:\n[T]he government of a well ordered home is one of the surest bulwarks against the forces that make for social disorder and civic decay. It is the very cradle of civilization, with the future welfare of the commonwealth dependent, in a large measure, upon the efficacy and success of its administration. Under these conditions, the State will not and should not permit the management of the home to be destroyed by the individual members thereof, unless and until the interests of society are threatened.\nId. at 584, 118 S.E. at 15.\nWe are well aware of the fact that some appellate courts and legislatures have abolished or significantly eroded the parent-child immunity doctrine in other jurisdictions. See generally Dean, It\u2019s Time to Abolish North Carolina\u2019s Parent-Child Immunity, But Who\u2019s Going to Do It? 68 N.C.L. Rev. 1317, 1328 n. 123 (1990) (listing states where the doctrine has been abolished or modified); 59 Am. Jur. 2d Parent and Child \u00a7 139 (1987) (same). But since our decision in Small, this Court has consistently applied the rule enunciated in that case; \u201can unemancipated minor child may not maintain an action based on ordinary negligence against his parents.\u201d Lee v. Mowett Sales Co., 316 N.C. 489, 491, 342 S.E.2d 882, 884 (1986). See Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676 (1952). The parent-child immunity doctrine was abrogated in part, however, when the General Assembly enacted a statute making it inapplicable to actions \u201carising out of the operation of a motor vehicle owned or operated by the parent or child.\u201d N.C.G.S. \u00a7 1-539.21 (1991 Cum. Supp.). After the enactment of this statute, we were asked to judicially abolish what remained of the parent-child immunity doctrine. We declined to do so because \u201c[t]o judicially abolish the parent-child immunity after the legislature has considered and retained the doctrine would be to engage in impermissible judicial legislation.\u201d Lee, 316 N.C. at 494, 342 S.E.2d at 885. We stated that \u201c[t]he doctrine will continue to be applied as it now exists in North Carolina until it is abolished or amended by the legislature.\u201d Id. at 495, 342 S.E.2d at 886. We adhere to that statement in this case.\nWe do not deviate from the position we took in Lee, to the effect that the parent-child immunity doctrine as first enunciated in Small continues to apply in North Carolina, except to the extent it has been specifically abolished or amended by the legislature. Id. However, the case before us is not one in which we are asked to modify or abolish the parent-child immunity doctrine. The question before us here is whether the parent-child immunity doctrine, as it has existed in North Carolina since Small, bars tort claims for injuries unemancipated minors have suffered as a result of a parent\u2019s willful and malicious conduct. We conclude that the doctrine does not bar such claims.\nA number of jurisdictions have had an opportunity to address the question presented by this case. See 59 Am. Jur. 2d Parent and Child \u00a7 148 (1987). The modern trend is to allow an unemancipated minor to recover damages against his or her parent for injuries resulting from the parent\u2019s willful misconduct. Id.; see, e.g., Hurst v. Capitell, 539 So. 2d 264 (Ala. 1989); Nudd v. Matsoukas, 7 Ill. 2d 608, 131 N.E.2d 525 (1956); Elkington v. Foust, 618 P.2d 37 (Utah 1980). A review of two such cases is beneficial when considering whether the parent-child immunity doctrine applies to bar claims for injuries resulting from willful and malicious acts of parents against their unemancipated children in North Carolina.\nIn Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), Janice Attwood brought a complaint on behalf of her injured minor son against his father for causing the son injuries. The complaint alleged that the father willfully and intentionally became intoxicated, entered an automobile with his child as a passenger, and drove at a speed greatly in excess of the posted speed limit. As a result, the father\u2019s vehicle left the roadway and overturned, killing him and injuring the minor son. Id. at 232, 633 S.W.2d at 367. The Supreme Court of Arkansas reversed the trial court\u2019s order of summary judgment for the defendant father stating that the complaint alleged conduct which was tantamount to willful and wanton misconduct which was not protected by the parent-child immunity doctrine. Id. at 238, 633 S.W.2d at 370. The Court said that \u201c[t]he fact that willfulness has to be proven should preclude fraud or collusion from being a problem. We think it is clear that a willful tort is beyond the scope of the parental immunity doctrine in Arkansas.\u201d Id.\nIn Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983), an unemancipated minor wandered onto a neighbor\u2019s driveway where she was bitten on the face by the neighbor\u2019s dog. The minor brought suit against the owners of the dog, who in turn sought indemnification from the minor plaintiff\u2019s parents for failure to supervise their child. The parents pled the parent-child immunity doctrine contending that it barred the action against them, and the trial court agreed. Id. at 536, 461 A.2d at 1147. The Supreme Court of New Jersey affirmed the trial court, concluding \u2014 just as this Court con-eluded in Lee \u2014 that the parent-child immunity doctrine was still viable in New Jersey to the extent that it barred actions against a parent for simple negligence in supervision of his or her child. Id. at 545, 461 A.2d at 1152. The Supreme Court of New Jersey reasoned that: \u201cThere are certain areas of activities within the family sphere involving parental discipline, care, and control that should and must remain free from judicial intrusion. Parents should be free to determine how the physical, moral, emotional, and intellectual growth of their children can best be promoted.\u201d Id. However, the Court further explained that such policy considerations would not justify extending immunity under the doctrine to include a parent\u2019s willful misconduct. Id. at 547, 461 A.2d at 1152.\nThe defendant argues in the present case that the parent-child immunity doctrine, as it has been recognized and applied in North Carolina since our decision in Small, operates as a complete bar to all tort suits by unemancipated children against their parents unless specifically authorized by statute. We disagree.\nThe history of the parent-child immunity doctrine in North Carolina reveals that maintenance of family harmony was foremost among the public policies the doctrine was intended to serve. Lee, 316 N.C. at 492, 342 S.E.2d at 884; Skinner v. Whitley, 281 N.C. 476, 480, 189 S.E.2d 230, 232 (1972). It was feared that suits by children against their parents for negligent injury would \u201ctend to destroy parental authority and to undermine the security of the home.\u201d Small, 185 N.C. at 584, 118 S.E. at 15. For such reasons, the doctrine has been applied in North Carolina to bar actions between unemancipated children and their parents based on ordinary negligence. Lee, 316 N.C. at 491, 342 S.E.2d at 884; Skinner, 281 N.C. at 484, 189 S.E.2d at 235.\nThe issue directly presented by this case is whether the parent-child immunity doctrine applies to a claim by an unemancipated minor against a parent for a willful and malicious act resulting in injury to the child. In Skinner, we rejected the plaintiff\u2019s request to abolish the parent-child immunity in \u201cordinary negligence cases\u201d but stated: \u201cOf course, the question raised by an intentional, willful or malicious tort inflicted on a child by a parent or person in loco parentis is not presented on this appeal. We will pass on that question when it arises in a case properly before us.\u201d Id. The present case is just such a case requiring that we address and resolve with finality the issue of whether the parent-child immunity doctrine extends to cases arising from willful and malicious acts against an unemancipated minor by his or her parent.\nIn Lee v. Mowett Sales Co., 316 N.C. 489, 342 S.E.2d 882 (1986), we held that the parent-child immunity doctrine barred a third-party plaintiffs suit against the father of the injured minor seeking contribution for the father\u2019s negligence in causing his minor child\u2019s injuries. In so doing, we stated in obiter dictum: \u201cHowever, the parent-child immunity doctrine does not apply to . . . actions by an unemancipated minor involving willful and malicious acts. . . .\u201d Id. at 492, 342 S.E.2d at 884. Faced as we are here with a case requiring us to decide the issue with finality, we adhere to the view we expressed in Lee; we conclude that the parent-child immunity doctrine in North Carolina has never applied to, and may not be applied to, actions by unemancipated minors to recover for injuries resulting from their parent\u2019s willful and malicious acts.\nIn reviewing the propriety of the trial court\u2019s dismissal of the plaintiff\u2019s complaint for failure to state a claim upon which relief can be granted, we must next resolve the issue of whether the plaintiffs\u2019 complaint alleged \u201cwillful and malicious acts\u201d sufficient to withstand the defendant\u2019s motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. An act is \u201cwillful\u201d \u201cwhen it is done purposely and deliberately in violation of law ... or when it is done knowingly and of set purpose. . . .\u201d Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37 (1929) (citations omitted); see generally Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971); Ballew v. R.R., 186 N.C. 704, 120 S.E. 334 (1923); Bailey v. R.R., 149 N.C. 169, 62 S.E. 912 (1908). \u201cMalice in law\u201d is \u201cpresumed from tortious acts, deliberately done without just cause, excuse or justification, which are reasonably calculated to injure another or others.\u201d Betts v. Jones, 208 N.C. 410, 411, 181 S.E. 334, 335 (1935), quoted in McKeel v. Armstrong, 96 N.C. App. 401, 406, 386 S.E.2d 60, 63 (1989). It is clear in light of such definitions that the plaintiffs\u2019 complaint in the present case alleged conduct against the plaintiffs by their father which was both \u201cwillful\u201d and \u201cmalicious.\u201d\nIt would be unconscionable if children who were injured by heinous acts of their parents such as alleged here should have no avenue by which to recover damages in redress of those wrongs. Where a parent has injured his or her child through a willful and malicious act, any concept of family harmony has been destroyed. Thus, the foremost public purpose supporting the parent-child immunity doctrine is absent, and there is no reason to extend the doctrine\u2019s protection to such acts.\nWe wish to make it clear that no issue involving reasonable chastisement of children by their parents is before us in the present case, and we expressly do not intend to be understood as commenting on situations involving such issues. See generally 3 Lee, North Carolina Family Law \u00a7 249 (4th ed. 1981). Furthermore, our opinion in the present case is not intended to permit interference in the proper scope of discretion parents must utilize in rearing their children. As the Supreme Court of New Jersey recognized in Foldi, there is no universally correct philosophy on how to raise one\u2019s child. Foldi, 93 N.J. at 546, 461 A.2d at 1152. In no way do we intend to indicate that reasonable parental decisions concerning children should be reviewed in the courts of this state. Such decisions make up the essence of parental discretion, discretion which allows parents to shape the views, beliefs and values their children carry with them into adulthood. These decisions are for the parents to make, and will be protected as such. See generally Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923).\nHere, we have addressed a different concern; when a parent steps beyond the bounds of reasonable parental discretion and commits a willful and malicious act which injures his or her child, the parent negates the public policies which led to recognition of the parent-child immunity doctrine in North Carolina, and the doctrine does not shield the parent. In the present case, the defendant\u2019s rapes and sexual abuses of his two minor daughters certainly constituted \u201cwillful and malicious acts\u201d against them. Therefore, the plaintiffs\u2019 complaint alleged a proper claim for relief and should not have been dismissed under Rule 12(b)(6).\nThe decision of the Court of Appeals, reversing the trial court\u2019s order dismissing the plaintiffs\u2019 complaint, is affirmed for the reasons previously set forth in this opinion.\nAffirmed.", "type": "majority", "author": "MITCHELL, Justice." }, { "text": "Justice Meyer\nconcurring in result.\nWhile I concur in the result reached by the majority, I fear that this is one of those cases where bad facts make bad law. The defendant-father repeatedly raped and sexually molested his daughters for almost ten years, beginning when they were five and six years old, respectively. The defendant pled guilty to the charges and received an active prison sentence. The daughters, at the time they filed their verified complaint, were ages fifteen and sixteen. This appears to be an open and shut case, as the facts.alleged in the verified complaint are not contested and indeed the defendant-father pled guilty to the very acts alleged in the daughters\u2019 complaint.\nAs the majority has noted, the facts of this case are so egregious that to deny recovery would border the unconscionable. I believe, however, that this Court should keep faith with its earlier commitment to continue to apply the parent-child immunity doctrine until it is abolished or amended by the legislature. That position evidenced, and would continue to evidence, this Court\u2019s recognition that the legislature is in a far better position than this Court to gauge the wisdom of changing the public policy of the state. The legislature did so when it recently adopted N.C.G.S. \u00a7 1-539.21, making the doctrine inapplicable to actions arising out of the operation of a vehicle owned by the parent or child. We should leave it to that body to recognize an exception for willful and malicious acts of the parent against a child.\n. Since the doctrine\u2019s inception, the bench and bar of the state have understood the doctrine of parent-child immunity to apply to all actions for personal injuries, however they were caused. I believe that the majority errs in concluding that it is not recognizing an exception but simply discovering that the doctrine never applied at all except in cases involving \u201cordinary negligence.\u201d This is made clear to me by the fact that the majority limits its holding to \u201cwillful and malicious\u201d acts of parents. Rather than flatly holding that the doctrine is inapplicable to all acts of negligence beyond \u201cordinary negligence,\u201d it specifically hedges by limiting its holding to \u201cwillful and malicious\u201d acts.\nIn Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923), this Court held that the minor plaintiff could not recover against her father for injuries she had sustained in an automobile accident. Id. at 579, 118 S.E. at 13. Though the facts in Small involved negligently inflicted injuries, the Court\u2019s reasoning and holding show that the doctrine, as adopted in North Carolina, is not nearly so narrow as the majority has concluded. In its opinion, the Small Court cited with approval four cases to justify its adoption of the doctrine of parent-child immunity, three of which involved intentional torts: Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903); Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905). A careful examination of the circumstances underlying these cases establishes that in these cases, each state supreme court denied recovery because of parent-child immunity, despite the intentional acts of the parent. In Hewlett, the plaintiff-child sued her mother for wrongfully committing her to an insane asylum. McKelvey involved a daughter who sued her father and stepmother for \u201ccruel and inhuman treatment\u201d by the stepmother at the father\u2019s instance. In Roller, the father had been convicted of raping his daughter.\nI concede that there is dicta in cases since Small which purport to limit the doctrine to negligently inflicted injuries. See Lee v. Mowett Sales Co., 316 N.C. 489, 342 S.E.2d 882 (1986); Coffey v. Coffey, 94 N.C. App. 717, 381 S.E.2d 467 (1989), disc. rev. improvidently allowed, 326 N.C. 586, 391 S.E.2d 40 (1990) (per curiam). However, in none of those cases was that issue presented. Furthermore, none of them distinguished or overruled Small, and therefore, none is controlling in this case.\nResearch reveals no North Carolina case in which an appellate court has allowed a minor child to bring a claim against a parent for an intentional tort. This result is consistent with Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972), wherein the Court stated that such immunity was reciprocal: So long as the parent could not sue the child, the child could not sue the parent. Id. at 479, 189 S.E.2d at 231; see generally Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984). Speaking for the Court in Skinner, Justice Huskins stated:\nIn North Carolina and the great majority of other states, the rule is that \u201can unemancipated minor child cannot maintain a tort action against his parent for personal injuries, even though the parent\u2019s liability is covered by liability insurance. This rule implements a public policy protecting family unity, domestic serenity, and parental discipline. . . . Upon the same theory, an overwhelming majority of jurisdictions likewise hold that neither a parent nor his personal representative can sue an unemancipated minor child for a personal tort. . . . \u2018The child\u2019s immunity is said to be reciprocal of the parent\u2019s immunity.\u2019 \u201d Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965).\n281 N.C. at 478, 189 S.E.2d at 231.\nThough the majority says otherwise, it is clearly recognizing an exception to the immunity rule, and an exception to the rule by any other name is still an exception. Because of the peculiar nature of these cases, the recognition of an exception would be a far better solution. Some states that have made an exception have limited the exception to cases of sexual abuse, which I believe is all that is called for here.\nWhile I agree with the majority that the plaintiff should recover on the facts alleged here, the same result could be reached with far less damage to existing law. My reticence to join the majority opinion arises not from its result, but from my fear of how the law it announces will be applied in future cases in this particular area, and surely many will be spawned by this case.\nIn addition to limiting our holding in this case to cases of sexual abuse, I would prefer that this Court erect some hurdles that would weed out the truly marginal cases. One method would be to raise the standard of proof required for recovery from a preponderance of the evidence to clear, cogent, and convincing evidence. Such a course of action by this Court would not be without precedent. Only recently in recognizing a cause of action for unintentional infliction of emotional distress, and because of similar concerns, we took the extraordinary step of imposing a high standard of proof of the injury claimed. Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (plaintiff may not recover damages where mere fright or temporary anxiety does not amount to severe emotional distress; \u201csevere emotional distress\u201d means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition that may be generally recognized and diagnosed by professionals trained to do so; factors to be considered on the question of foreseeability include the plaintiff\u2019s proximity to the negligent act, the relationship between the plaintiff and the other person for whose welfare the plaintiff is concerned, and whether the plaintiff personally observed the negligent act), reh\u2019g denied, 327 N.C. 644, 399 S.E.2d 133 (1990).\nFor the foregoing reasons, I concur only in the result reached by the majority.", "type": "concurrence", "author": "Justice Meyer" } ], "attorneys": [ "David F. Tamer for the defendant appellant.", "Theodore M. Molitoris and Robert S. Blair, Jr., for the plaintiffs-appellees.", "Law Office of Elizabeth Kuniholm, by Elizabeth J. Armstrong, for the North Carolina Association of Women Attorneys, and Marjorie Putnam for the North Carolina Academy of Trial Lawyers, amici curiae." ], "corrections": "", "head_matter": "JANE DOE and SALLY DOE, by and through their Guardian ad Litem, ANNE CONNOLLY v. FRANK HOLT\nNo. 379PA91\n(Filed 17 July 1992)\n1. Parent and Child \u00a7 2.1 (NCI3d)\u2014 parent-child immunity \u2014doctrine still applicable\nThe parent-child immunity doctrine as first enunciated in Small v. Morrison, 185 N.C. 577, 118 S.E. 12, continues to apply in North Carolina, except to the extent it has been specifically abolished or amended by the legislature.\nAm Jur 2d, Parent and Child \u00a7\u00a7 138-139.\n2. Parent and Child \u00a7 2.1 (NCI3d)\u2014 parent-child immunity doctrine-inapplicability to willful and malicious act\nThe parent-child immunity doctrine does not apply to a claim by an unemancipated minor against a parent for a willful and malicious act resulting in injury to the child.\nAm Jur 2d, Parent and Child \u00a7 148.\nLiability of parent for injury to unemancipated child caused by parent\u2019s negligence \u2014modern cases. 6 ALR4th 1066.\n3. Parent and Child \u00a7 2.1 (NCI3d)\u2014 parent-child immunity \u2014 inapplicable to repeated rapes and sexual molestations\nA suit by two minor plaintiffs against their father for damages allegedly resulting from his having repeatedly raped and sexually molested them is not barred by the parent-child immunity doctrine because plaintiffs\u2019 complaint alleged conduct by their father which was both \u201cwillful\u201d and \u201cmalicious.\u201d\nAm Jur 2d, Parent and Child \u00a7 148.\nLiability of parent for injury to unemancipated child caused by parent\u2019s negligence \u2014 modern cases. 6 ALR4th 1066.\nJustice MEYER concurring in result.\nOn discretionary review of the decision of the Court of Appeals, 103 N.C. App. 516, 405 S.E.2d 807 (1991), reversing an order entered 27 August 1990, nunc pro tunc 9 August 1990, by Walker, J., in the Superior Court, FORSYTH County. Heard in the Supreme Court on 9 March 1992.\nDavid F. Tamer for the defendant appellant.\nTheodore M. Molitoris and Robert S. Blair, Jr., for the plaintiffs-appellees.\nLaw Office of Elizabeth Kuniholm, by Elizabeth J. Armstrong, for the North Carolina Association of Women Attorneys, and Marjorie Putnam for the North Carolina Academy of Trial Lawyers, amici curiae." }, "file_name": "0090-01", "first_page_order": 118, "last_page_order": 128 }