Burnette v. Wahl
588 P.2d 1105, 284 Or. 705 (1978)
Rule of Law:
In Oregon, children cannot bring a tort action for purely emotional and psychological injuries against their parents for alleged failure to provide care, support, and nurturing, as the legislature has established a comprehensive scheme of protective services and criminal sanctions without creating such a civil cause of action, and courts should exercise restraint in creating new torts in areas of extensive legislative social regulation.
Facts:
- Five minor children, aged two to eight, were in the custody of the Children's Services Division of the Department of Human Resources of the State of Oregon and were wards of Klamath County Juvenile Court.
- The children's mothers allegedly intentionally, willfully, maliciously, and with cruel disregard of the consequences, failed to provide them with care, custody, parental nurturance, affection, comfort, companionship, support, regular contact, and visitation.
- The mothers purportedly violated Oregon statutes including ORS 109.010 (duty of support), ORS 163.535 (abandonment of a child), ORS 163.545 (child neglect), and ORS 163.555 (criminal nonsupport).
- The mothers also allegedly engaged in common law abandonment, desertion, and alienation of affections.
- The injuries claimed by the children were solely emotional and psychological.
Procedural Posture:
- Plaintiffs, minor children, through their guardian, brought actions against their mothers in trial court.
- Defendants filed demurrers to the complaints, arguing that no legal cause of action was stated.
- The trial court sustained the demurrers, finding the complaints legally insufficient.
- Plaintiffs refused to plead further after the demurrers were sustained.
- The trial court entered orders of dismissal of the plaintiffs' complaints.
- Plaintiffs appealed these orders of dismissal to the Supreme Court of Oregon, which consolidated three identical cases for appeal.
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Issue:
May minor children bring a civil tort action for purely emotional and psychological damages against their parents for alleged failure to provide care, support, and nurturing, including abandonment and desertion, when the legislature has enacted a comprehensive statutory scheme addressing child welfare but has not explicitly created such a right to recover damages?
Opinions:
Majority - Holman, J.
No, minor children may not bring a civil tort action for purely emotional and psychological damages against their parents for alleged failure to provide care, support, and nurturing. The court reasoned that while the legislature has enacted a comprehensive array of laws to protect children's rights to parental nurturing, support, and physical care, it has never established a cause of action for emotional injury caused by a parent's refusal to provide these services. The court emphasized that it must exercise restraint in creating new tort liabilities, particularly in fields where the legislature has undertaken comprehensive social regulation. Creating such a tort might interfere with existing legislative policies, such as the policy of reuniting abandoned children with their parents. The court noted that existing statutory schemes provide for procedures like termination of parental rights when reunification is impossible, and tort actions could disrupt the plans of social agencies and juvenile courts. Furthermore, the court found juries and trial courts ill-equipped for 'social engineering' in the emotional relationship between mother and child, and that such relationships are not proper fodder for tort litigation. It also rejected claims for intentional infliction of emotional distress, noting that the parents were not alleged to have acted for the purpose of inflicting emotional harm, and found the rationale inapplicable between parents and children. Claims based on alienation of affections were also rejected as the legislature had abolished that tort.
Dissenting - Linde, J.
Yes, a young child who allegedly suffered severe mental and emotional injuries from being maliciously, intentionally, and cruelly abandoned by a parent (conduct the legislature made a crime) should be able to hold the parent responsible in damages. Justice Linde argued that awarding civil damages for violations of prohibitory laws is not uncommon, especially when the plaintiff belongs to the class for whose special protection the statute was enacted and a civil remedy would further the legislative object. He contended that ORS 163.535, which criminalizes intentional child abandonment, represents a legislative recognition and reinforcement of a parent's private obligation to the child, and it is incongruous to provide for felony prosecution but deny a civil remedy that would benefit the child. He criticized the majority's reliance on family preservation, stating that if parents have already maliciously abandoned their children, the family unit is effectively dissolved. He also pointed out that the majority's premise would logically extend to bar recovery for physical abuse, a position inconsistent with Oregon's abandonment of intrafamily tort immunity for intentional torts.
Concurring - Tongue, J.
Although I agree with much of the dissent's reasoning and disagree with much of the majority's reasoning, I concur in the result that the children cannot sue for these injuries. Justice Tongue acknowledged that Oregon had previously abandoned the doctrine of intrafamily tort immunity for intentional torts resulting in physical injuries. However, he stated that it does not automatically follow that this doctrine should also be abandoned with respect to intrafamily torts resulting in purely 'mental and emotional injuries,' for the reasons the majority outlined, even if not framed within the context of intrafamily tort immunity.
Concurring-in-part-and-dissenting-in-part - Lent, J.
I agree with the majority that the claims for alienation of affections and 'outrageous conduct' (due to pleading deficiencies) should fail. However, I join Justice Linde's dissent, asserting that a civil cause of action for damages for intentional child abandonment causing emotional harm should exist. Justice Lent argued that the existing comprehensive legislative scheme is insufficient to address the profound harm caused by parental abandonment. He emphasized the staggering direct and indirect costs to the community—monetary, social (delinquency, economic dependency, crime), and, most importantly, the immeasurable loss in human potential—of caring for dependent children, whom he termed 'orphans of the living.' He cited extensive research detailing the severe psychological and emotional damage (separation trauma, ambiguous relationships, personality disturbances) suffered by abandoned children due to prolonged foster care instability. He concluded that parents who deliberately mistreat their children in a manner criminalized by statute and have assets should financially bear the burden for the resulting emotional harm, arguing that the distinction between physical and psychological well-being is artificial and both are equally important.
Analysis:
This case underscores a fundamental tension in tort law regarding judicial versus legislative roles in establishing new causes of action, particularly in sensitive areas like family relations. The majority's deference to legislative inaction and its concern about judicial intrusion into comprehensive statutory schemes sets a high bar for courts to create novel torts based on policy considerations. This decision reinforces the principle that where a legislature has extensively regulated a field, its silence on a specific civil remedy can be interpreted as an intentional omission. It also highlights the court's hesitancy to allow litigation into the intricate emotional dynamics of family life, suggesting that such matters are better addressed by social services and legislative frameworks rather than traditional tort remedies for monetary damages.
