Calhoun v. Eagan

HOLLANDER, Judge. This case requires us to examine the doctrine of parent-child immunity, which has been part of the law of Maryland since 1930. See Warren v. Warren, 336 Md. 618, 622-28 , 650 A.2d 252 (1994); Schneider v. Schneider, 160 Md. 18, 21-23 , 152 A. 498 (1930). Generally, it proscribes parents and their unemancipated children from asserting civil claims against one another.

The Court of Appeals has, however, recognized an exception to this doctrine, which allows a child to sue a parent for “cruel and inhuman treatment or for ³⁶⁶ malicious and wanton wrongs.” Mahnke v. Moore, 197 Md. 61, 68 , 77 A.2d 923 (1951). That exception is central to this case. In 1994, James K. Eagan, appellee, the court-appointed guardian of the property of two minor children, Laura M. Calhoun and Kevin J. Calhoun, filed a wrongful death action against John C. Calhoun, appellant, in the Circuit Court for Howard County. He alleged that appellant, the father of Laura and Kevin, deliberately or recklessly killed Gladys E. Calhoun, appellant’s wife and the children’s mother.

Appellant contended that the action was barred by parent-child immunity. The circuit court disagreed, ruling that Calhoun’s conduct fell within the Mahnke exception. Thereafter, a jury found in favor of the children and awarded them $2,360,000 in damages. The jury, however, was unable to reach a verdict on the issue of whether appellant’s actions “were atrocious, showfed] a complete abandonment of the parental relation, were intentional, were willful and were malicious.” Nevertheless, the circuit court determined that this inability was of no consequence and entered judgment in favor of appellee.

Calhoun now appeals and presents two questions for our consideration: I. Did the Court err by not enforcing the parent-child immunity law of the State of Maryland in favor of Appellant and in denying Appellant’s Trial Motion for Summary Judgment and Motions for Directed Verdict?

II

Did the failure of the jury to reach a verdict on question 2 of the verdict sheet substantiate that Appellant’s conduct was within the framework of parent-child immunity? ■ We conclude that it was a question for the jury as to whether appellant’s conduct was cruel and inhuman or wanton and malicious, so as to fit within the Mahnke exception. Therefore, the circuit court erred in ruling upon the issue as a matter of law. Moreover, the jury was unable to reach a verdict on that critical issue. Therefore, we shall reverse the judgment and remand the case for a new trial. ³⁶⁷ FACTUAL SUMMARY 1 John and Gladys Calhoun were married on June 15, 1974.

The couple had two children: Laura, born on October 4, 1980 and Kevin, born on July 23, 1982. The Calhouns both worked for the National Security Agency (“NSA”). They experienced difficulties in the marriage; appellant conceded that he had an extramarital affair with a co-worker at the NSA, which family members knew about and Ms. Calhoun suspected. The events at the center of this case occurred on May 13, 1992.

That afternoon, the Calhouns decided to clean the gutters of their home. Appellant leaned a ladder against the side of the house, and Ms. Calhoun climbed the ladder as her husband held it. While his wife was on the ladder, Calhoun kicked it, causing her to fall to the ground. Appellant did not call 911 or otherwise attempt to summon help.

In addition, although he had been trained in CPR, he did not attempt to help his wife. Instead, he washed, changed his clothes, and then drove to a hardware store to purchase joint compound. He then went to pick up Laura at her school, where he met with a teacher. An hour later, he picked up Kevin at his school.

Thereafter, he drove his children home. After arriving at the house, he maneuvered his children away from the side of the house where their mother’s body was lying. That evening, he took both his children to a softball game in which Laura participated. At approximately 9 p.m. that evening, Laura called her aunt and uncle, Javier and Milagros Santiago.

Mr. Santiago was Gladys Calhoun’s brother. Laura was trying to find her mother and asked the Santiagos whether they knew where she was. Ms. Santiago responded that she did not know. At 10 p.m., Ms. Santiago called appellant and asked whether Ms. Calhoun was in the house.

Calhoun responded that she was not. He also stated that her car was not at the house, but that her pocketbook was in the kitchen. Worried, the Santia ³⁶⁸ gos decided to drive to the Calhoun residence, along with their sons, Yiloiz and Nell. At 10:25 p.m., Calhoun called 911 and reported his wife missing.

At approximately 10:30 p.m., he called Jennifer Calhoun Rydings, a daughter from a prior marriage, and told her he could not find his wife. He asked Rydings to come to the house, which Rydings agreed to do. When the Santiagos arrived at the house at approximately 10:40 p.m., Mr. Santiago began asking questions about his sister’s whereabouts. After seeing her keys, wallet, and driver’s license in the kitchen, Mr. Santiago asked how her car could be gone.

Calhoun responded that the car was “in the shop.” Mr. Santiago asked for a flashlight in order to begin a search. He told Yiloiz, his sixteen-year-old son, to look in the living room and on the porch. When Yiloiz went to the porch, he saw his aunt’s body on the ground. Yiloiz immediately ran to the kitchen and alerted his mother, and then raced to the garage where his father and appellant were standing.

Everyone went to the place where Ms. Calhoun’s body was lying. Mr. Santiago touched Ms. Calhoun’s legs and found them cold. After he checked for a pulse and found none, he directed his wife to call 911. Rydings arrived at the house and encountered Yiloiz as he was running down the driveway to meet the ambulance.

Yiloiz told her that something was “wrong” with Gladys. Still unsure of what was happening, Rydings drove to the house and ran through the front door. Ms. Santiago then led her to Ms. Calhoun’s body. Rydings felt Ms. Calhoun’s neck for a pulse and could not find any.

She also found her body to be “very, very stiff.” Later, Rydings saw her father begin to cry and fall to the ground. Rydings testified at trial that, at that point, “I got very angry because immediately I just knew he had something to do with this. I mean, I don’t know how, I just knew and I was very angry, very angry.” Rydings telephoned her sister, Jacqueline Calhoun, another daughter from appellant’s prior marriage, and told her what ³⁶⁹ had happened. Jacqueline drove to her father’s house and remained there until approximately 4 a.m.

Medical personnel arrived at the scene and pronounced Ms. Calhoun dead. Howard County police were dispatched to the house at 10:54 p.m. Officer T.R. Read examined Ms. Calhoun’s body and observed a significant skull fracture and a large amount of dried blood on Ms. Calhoun’s head and arms. He also saw two large dried blood stains on a blue plastic tarpaulin that was covering a stack of scaffolding behind Ms. Calhoun’s body.

In addition, he noted a small area of blood spatter on the tarpaulin, consistent with an impact area where Ms. Calhoun’s head would have hit the tarpaulin. Homicide detective Frank Dayhoff arrived at 11:39 p.m. and took charge of the investigation. At 12:30 a.m., Detective Dayhoff conducted the first of a series of interviews with appellant. Calhoun initially indicated that he did not know how his wife had died.

He said that he had left his house between 1:30 and 2:00 p.m. to purchase joint compound, then went to pick up his children at school, returned home at approximately 4:30 p.m., and then took his children to dinner and a softball game. He acknowledged that Gladys had suspected him of having an affair with a co-worker, but added that this was not true and Gladys’s suspicions were “nonsense.” He also stated that he and his wife had had a good relationship and had been rebuilding their marriage since March 1992. On May 21, 1992, eight days after his wife’s death, Detective Dayhoff again interviewed appellant. Calhoun provided an account that was consistent with the one that he had first given.

On the night of June 6, 1992, Detective Dayhoff interviewed appellant for a third time. He was accompanied by Lieutenant Sam Bowerman. The detective confronted Calhoun with a note that one of his wife’s co-workers had written. The coworker stated that, about two weeks before her death, Ms. Calhoun had said, “If I die suddenly, it won’t be an accident.

You don’t know what he is capable of doing.” After reading the note, Calhoun became visibly shaken and pale. He then ³⁷⁰ stated: “I kicked the ladder and she fell. It was all over a simple thing.” Appellant also provided Detective Dayhoff with the following information. He stated that he and Gladys were talking as she climbed the ladder; the conversation grew heated.

According to the detective’s testimony at trial, appellant related that his wife made a caustic remark “about something that had happened between them, something he had tried to do in Lancaster, PA a few weeks before.” As this remark “challenged his manhood,” appellant became angry at her because “she was right.” Calhoun then kicked the ladder. An autopsy was performed on Ms. Calhoun by Dr. Dennis Chute, an assistant medical examiner. Dr. Chute concluded that Ms. Calhoun had died from head injuries sustained in a fall from a ladder. He classified the death as a homicide.

In July 1992, appellant was arrested and charged with second degree murder, voluntary manslaughter, and reckless endangerment. On March 11, 1993, pursuant to a plea agreement, appellant pleaded guilty to voluntary manslaughter, pursuant to an agreed Statement of Facts. On June 24, 1993, he was sentenced to five years imprisonment. When the civil trial began on March 13, 1995, appellant was incarcerated at the State correctional facility in Roxbury.

At the civil trial, Rydings testified that her father had informed her of his intention to get a divorce. She also knew her father had contacted a lawyer in order to attempt to arrange an amicable divorce settlement. The reason for this, according to Rydings, was that Calhoun believed that his previous divorce had cost him much financially, for which he was “extremely angry.” Rydings testified: He didn’t want to loose [sic] his money. It really bothered him that he was going to have to [lose] his money because he knew that in a divorce she would get the .kids, the house, the whole thing and he didn’t want to go through that again after he had gone through it with my mother.

Rydings also stated that, according to her father, the lawyer said: “[Y]ou don’t need a lawyer, you need a hit man.” ³⁷¹ Jacqueline Calhoun also testified that her father had spoken to her about a divorce. She stated that the financial circumstances of his previous marriage were “always a sore subject” between her mother and father. She added: “Dad would always say Mom got everything.” Additionally, she testified that her father had “a very, very high temper,” a characteristic that she and her sister regarded as “almost comical.” Additionally, she said that after leaving her father’s house in the early morning hours of May 14, 1992, she proceeded directly to the police station, because she felt the death was not accidental. 2 Detective Dayhoff testified that Ms. Calhoun’s injuries were inconsistent with a fall from a ladder. He particularly relied on the fact that Ms. Calhoun had two head wounds.

He stated: “It is inconceivable that a person could fall and even if they fell directly on the top of their head, could receive two large gaping wounds that fractured the skull in these places from the fall.” Autopsy photographs substantiated that Ms. Calhoun had two head wounds. In addition, Detective Dayhoff testified that Ms. Calhoun’s body lacked “ancillary injuries” that would be consistent with a fall from a ladder. These injuries would include compression fractures and contusions or fractures in her shoulders, elbows, hips, or knees. He reasoned that, when a body falls, it strikes the ground in a number of different places.

In Detec ³⁷² tive Dayhoffs view, Ms. Calhoun “slid” down the ladder, sustaining contusions on her lip and nose when they hit the rungs, and landed in a sitting position. Then, Ms. Calhoun was struck in the head with great force by a blunt object. The force caused her head to strike the tarpaulin, resulting in the blood stains. Dr. Chute testified, however, that Ms. Calhoun’s injuries were consistent with a fall from a ladder, although he conceded that it was “possible” that the two head wounds could have been caused by blows from an object, such as a two-by-four.

He further stated that it was possible that her injuries were caused by an event other than a fall from a ladder or a blow to the head, “because the wounds are not specific of a particular object which the skull or the scalp came in contact with.” Both Laura and Kevin testified briefly at trial. They each stated that they had loved their mother and that they missed • her. In addition, both children have received counseling while residing with Susan and Robert Hereth, who are apparently friends of appellant. Their counselor, Dr. David C. Williams, also testified at trial.

He stated that Laura was fearful of her father, did not trust him, and did not wish to live with him after he was released from prison. Dr. Williams also testified that Kevin was still unable to discuss at length what the loss truly meant to him. Kevin was, however, aware that his father had pleaded guilty to the charges related to his mother’s death. In his testimony, Calhoun insisted that the incident was an accident, and that he did not intend to kill his wife.

Calhoun gave virtually the same account of the occurrence that he had given to the police in his third interview, but with one variation. He stated that he kicked the ladder because he was angry at himself, not Gladys. He explained that the subject of Lancaster, Pennsylvania referred to a shopping trip with his wife to make amends for his extramarital affair. When his wife mentioned Lancaster, appellant became angry and disappointed in himself for what he had done “behind my wife’s ³⁷³ back.” It was then that he kicked the ladder.

The next thing he knew, his wife was lying face down on the ground next to him. Calhoun testified that he realized that she was not breathing and then ran to call 911. Once inside the house, however, he decided that he needed to “get her breathing” again. He walked outside, tried unsuccessfully to turn his wife over, and then “panicked” and left.

Appellant further stated that he wanted to preserve his marriage with Gladys; he ended his affair with the co-worker, adding that it was inexcusable but it was not “a long term relationship.” Calhoun also admitted that he had lied to the police during his initial interviews. Further, Calhoun testified that, after their mother’s death, Laura and Kevin lived with him. Appellant said that, as appellant’s sentencing approached, he made arrangements for the children’s care. On March 30, 1993, he signed an agreement giving temporary legal custody of his children to Robert and Susan Hereth, in the event that appellant were sent to prison.

The arrangement is to terminate upon appellant’s request for the return of his children upon his release from prison. The Hereths subsequently filed in the circuit court a “Complaint for Temporary Custody and Other Relief,” in which Calhoun joined, seeking an order awarding them temporary legal custody of Laura and Kevin “from June 24, 1993 to so long as the said minors should reside with them.” On April 6, 1993, the court signed such an order. In addition, Calhoun joined the Hereths in opposing a later petition filed by the Santiagos, seeking appointment as guardians of the children. On September 24, 1993, the court signed another order naming the Hereths as guardians of the person for Laura and Kevin and naming appellee as guardian of their property.

With respect to the custody issue, appellant offered in evidence various pleadings and other documents, some of which referred to the fact that appellant had pleaded guilty to voluntary manslaughter in connection with the death of his wife. The parties stipulated at trial that appellant wants to be reunited with his children upon his release from custody. ³⁷⁴ Appellant conceded, however, that he has not paid any formal child support to appellee, although he has continued to pay the taxes, mortgage payments, and insurance on the home that he had owned with his wife. At the close of appellee’s evidence, Calhoun made a motion for judgment on the basis of parent-child immunity. The trial court denied the motion, stating that “the Court is of the opinion that the parent/child immunity does not apply in this case.” At the close of all the evidence, appellant made another motion for judgment on the same ground.

In response, appellee contended that the case fits within the exception announced in Mahnke v. Moore. The court agreed with appellee and again denied the motion. 3 The case was then submitted to the jury. The verdict sheet contained three questions. First, the jury was asked: “With respect to Plaintiffs’ claims that the Defendant, John C. Calhoun[,] committed a wrongful act or acts which caused the death of Gladys E. Calhoun, how do you find?” Second, the jury was asked: “With respect to Plaintiffs’ claims that the wrongful act or acts of the Defendant, John C. Calhoun[,] were atrocious, show a complete abandonment of the parental relation, were intentional, were willful and were malicious, how do you find?” Third, the jury was asked, if it found for the plaintiffs on Question 1 or both Questions 1 or 2, what damages it found that the plaintiffs had suffered “as a result of the wrongful act or acts of the Defendant.” Appellant’s counsel objected to the second question, claiming it was “only necessary for punitive damages.” The court overruled the objection, stating, “My interpretation is, it ³⁷⁵ should be in there according to the statute in [Mahnke ].” Thereafter, the jury found in favor of appellee with respect to the first question.

As to the second question, the jury foreman stated that the jury “could not come to a verdict.” It then awarded the children a total of $2,360,000 in damages. 4 Appellee’s counsel requested resubmission of the second question, in the form of five separate questions. He argued that the jury “obviously can’t agree on all of them” and “[pjerhaps they can agree one way or the other on each one of those five items.” Calhoun’s counsel objected, saying: Your Honor, I object to that recommendation. As I understand the wrongful death act, ah ... as far as proof. When you look at the statute, and I’ll have to pull that a little bit ... the statute says the criteria for proof is, number one, determine if there is a wrongful act.

And the statute defines a wrongful act. The statute defines a wrongful act not in terms of what the definition of ... item two does. That’s why I objected to it to begin with. }{{ }j« ÍJÍ sjs ifc ifc [Ojnce you find the wrongful act, ... as I understand the cases, you go into the damages. The jury has ... found the wrongful act, and that’s all they [are] required to do.

In my opinion, and I think I have some law to back that up, I have to dig it up, because I was going over last night____ [Ojnce they’ve found a wrongful act, that ends that part of the burden of proof ah ... of their ... of their obligation as a jury, ... to do anymore. And then they go into the damages. I ... I think the jury has done its job.

I ... they don’t have to do anymore. ³⁷⁶ The trial judge agreed with appellant and declined to resubmit the second question. The following exchange occurred: THE COURT: That’s my understanding too, Mr. Peklo [appellee’s counsel], that once they decide number one, they don’t necessarily have to go into number two to come up with number three. Because the way the statute reads, wrongful act, and they have determined it was a wrongful act. So, okay. [APPELLEE’S COUNSEL]: I understand your position, Your Honor.

We respectfully disagree. THE COURT: You respectfully disagree. But, I don’t ... why do they have to go to number two. [APPELLEE’S COUNSEL]: Well, that’s just our position, Your Honor, I mean. THE COURT: No, I say what’s your reasoning behind going to number two.

Once they make a decision that there was a wrongful act, you’re saying they can’t go into damages until they decide one or the other. [APPELLEE’S COUNSEL]: Oh no. They can, they can. It was suggested that, that be put into help for any ah ... well, I’ll withdraw that. THE COURT: Okay.

Mr. Bailiff you can let them go. They’re free to go. Thereafter, the court entered final judgment in favor of appellee. DISCUSSION I. We begin with a review of the doctrine of parent-child immunity.

In English common law, there was no rule preventing suits between parents and their children. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 904 (5th ed.1984). The doctrine of parent-child immunity first appeared in an 1891 decision by the Mississippi Supreme Court, Hewellette v. George, 68 Miss. 703 , 9 So. 885 (1891), overruled in part in Glaskox v. Glaskox, 614 So.2d 906 ³⁷⁷ (Miss.1992). 5 There, the court refused to permit a suit by a minor against her mother (and then her mother’s executor) in which she alleged that her mother had wrongfully committed her to an insane asylum. The court said, at 9 So. at 887: [S]o long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained.

The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand. Although the court cited no authority to support its broad pronouncement, its holding rapidly spread to many other jurisdictions. See, e.g., McKelvey v. McKelvey, 111 Tenn. 388 , 77 S.W. 664 (1903) (child could not recover for severe injuries inflicted by cruel and inhuman treatment on the part of her father and stepmother), overruled in Broadwell v. Holmes, 871 S.W.2d 471 (Tenn.1994) (parent-child immunity limited to conduct involving the exercise of parental supervision or the provision of parental care and custody); Roller v. Roller, 37 Wash. 242 , 79 P. 788 (1905) (fifteen-year-old raped by her father could not maintain action), overruled in part in Borst v. Borst, 41 Wash.2d 642 , 251 P.2d 149 (1952); Miller v. Pelzer, 159 Minn. 375 , 199 N.W. 97 (1924) (action for deceit not permitted); Smith v. Smith, 81 Ind.App. 566 , 142 N.E. 128 (1924) (action during majority for assault committed during minority not permitted), disapproved in Barnes v. Barnes, 603 N.E.2d 1337 (Ind.1992); Matarese v. Matarese, 47 R.I. 131 , ³⁷⁸ 131 A. 198 (1925) (no recovery for child’s injuries resulting from parent’s negligent operation of automobile), overruled in Silva v. Silva, 446 A.2d 1013 (R.I.1982); Mesite v. Kirchenstein, 109 Conn. 77 , 145 A. 753 (1929).

In 1930, the Court of Appeals joined these jurisdictions in its decision in Schneider v. Schneider, supra, 160 Md. at 19 , 152 A. 498 . There, the Court reversed a judgment in favor of a mother against her unemancipated son for injuries that resulted from the son’s negligent operation of the family automobile. Relying on Hewlett and other cases, the Court stated: “It appears that a majority of courts in which the question has arisen have decided that a minor child cannot maintain such an action against its parent.” Schneider, 160 Md. at 22 , 152 A. 498 . The Court noted the potential conflict of interest that would arise if the parent were placed in the position of being the guardian of the child and simultaneously the child’s adversary.

Id., 160 Md. at 22-23 , 152 A. 498 . But the Court also emphasized the public policy concerns articulated in Hewlett: Maintenance of the suit is inconsistent with the parent’s status or office, and the dependence of the minor upon her, and also with the dependence of the law upon her for the fulfillment of necessary legal and social functions. ❖ * * * # * We need not dwell upon the importance of maintaining the family relation free for other reasons from the antagonisms which such suits imply. “Both natural and politic law, morality, and the precepts of revealed religion alike demand the preservation of this relation in its full strength and purity.” Schouler, Domestic Relations, sec. 223. Id., 160 Md. at 23-24 , 152 A. 498 . In Yost v. Yost, 172 Md. 128 , 190 A. 753 (1937), the Court reaffirmed Schneider , and refused to permit a suit in equity by a minor child against his father for support or an increase in the amount of maintenance.

It held: “[F]or acts of passive negligence incident to the parental relation, there is no liability.” Id., 172 Md. at 134 , 190 A. 753 . It also reiterated the ³⁷⁹ public policy rationale that supported the doctrine, saying: “The doctrine is founded upon public policy, and is designed to preserve the peace and harmony of the home, as well as to recognize the authority of the parent, under normal conditions, responsible for the maintenance of the home.” Id. As the decades have passed the doctrine of parent-child immunity has become increasingly unpopular. Beginning in the early 1960’s, courts steadily began to repudiate it.

See, e.g., Rousey v. Rousey, 528 A.2d 416 (D.C.1987) (declining, over a strong dissent, to adopt the doctrine in the District of Columbia); Gibson v. Gibson, 3 Cal.3d 914 , 92 Cal.Rptr. 288 , 479 P.2d 648 (1971); Goller v. White, 20 Wis.2d 402 , 122 N.W.2d 193 (1963) (seminal case abrogating the doctrine except in cases when the parent’s tort involves “an exercise of parental authority” or “ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care”). Commentators and treatise writers have also generally denounced the doctrine. See Richard J. Gilbert & Paul T. Gilbert, Maryland Tort Law Handbook § 23.4 at 262 (2nd ed. 1992) (“The time has come for Maryland to jettison Hewlett and the Maryland decisions that Hewlett sired.”); Comment, Parent-Child Tort, Immunity: Time for Maryland to Abrogate an Anachronism, 11 U. Balt. L.Rev. 435 (1982); Prosser and Keeton on Torts, supra, § 122 at 907 (calling the abrogation movement a “long-overdue landslide”); Comment, Parent-Child Immunity: The Case for Abolition, 6 San Diego L.Rev. 286, 295-96 (1969); McCurdy, Torts Between Parent and Child, 5 Vill.

L.Rev. 521, 529 (1960); McCurdy, Torts Between Persons in Domestic Relations, 43 Harv. L.Rev. 1030, 1079-80 (1930). Similarly, Section 895G of the Restatement (Second) of Torts (1977) recommends the doctrine’s abrogation. 6 ³⁸⁰ Some courts have questioned the doctrine’s common law roots. See, e.g., Rupert v. Stienne, 90 Nev. 397 , 528 P.2d 1013, 1018 (1974).

Another criticism views the rule as a misguided anachronism that is more likely to increase, rather than decrease, familial hostility, because of an uncompensated loss resulting from the wrong committed by the family member. These critics point out that the family harmony that the rule seeks to preserve is most likely^ damaged by the tort itself, and that a state-created wall of immunity around the wrongdoer hardly tends to promote peace and good feelings. See Silva v. Silva, 446 A.2d 1013, 1015 (R.I.1982); Falco v. Pados, 444 Pa. 372 , 282 A.2d 351, 355 (1971). Some of the strongest criticism of the rule appears in cases involving motor torts, in which the loss will almost always be paid by an insurance company, rather than the defendant-family member.

These critics assert that, at least in cases covered by insurance, the risk of family friction is substantially reduced by the fact that the wrongdoer will not have to pay the judgment out of his or her own pocket. See Montz v. Mendaloff, 40 Md.App. 220, 227-228 , 388 A.2d 568 (1978) (concurring opinion). In this circumstance, the parent-child immunity doctrine does little to improve family harmony, but does much to create a windfall for the negligent party’s insurance carrier. See Heyman v. Gordon, 40 N.J. 52 , 190 A.2d 670, 672 (1963) (Jacobs, J., dissenting).

These considerations have led a large number of courts to carve out an exception to parent-child immunity in motor tort cases. See, e.g., Glaskox v. Glaskox, 614 So.2d 906 (Miss.1992) (overruling Hewlett in part, and allowing suits between parents and children in cases arising out of the negligent operation of an automobile); Sorensen v. Sorensen, 369 Mass. 350 , 339 N.E.2d 907 (1975). See generally Warren v. Warren, supra, 336 Md. at 627 n. 2, 650 A.2d 252 (collecting cases). Nevertheless, there are considerations that support the retention of parent-child immunity.

These considerations have led both this Court and the Court of Appeals to decline to join the great wave of opposition to the doctrine. Indeed, in Warren v. Warren, the Court observed that Maryland is ³⁸¹ one of only eight states that retains the doctrine in its broadest form. Id., 336 Md. at 621 n. 1, 650 A.2d 252 . Among the considerations in favor of the doctrine are concern for stare decisis and recognition of the fact that, to this day, the General Assembly has not abolished or limited the immunity, notwithstanding the decades that have elapsed since its adoption.

As a result, in 1972, we concluded that the immunity was still part of the law of Maryland. See Latz v. Latz, 10 Md.App. 720 , 272 A.2d 435 , cert. denied, 261 Md. 726 (1971). See also Montz v. Mendaloff, supra, 40 Md.App. at 224 , 388 A.2d 568 . There are also public policy considerations to which we alluded earlier.

Parent-child immunity rests on the need to preserve parental authority and to prevent the corrosive effects of litigation on family harmony. In Frye v. Frye, 305 Md. 542 , 505 A.2d 826 (1986), after extensively discussing the doctrine, the Court decided not to abolish it. The Court said, at 305 Md. at 548 , 505 A.2d 826 : A common theme appears in the rationale advanced by the courts which championed the parent-child immunity. The rule is founded upon the relation in which the parent and the unemancipated minor child stand to each other.

The reciprocal dependence and entitlement of that relationship promotes a public policy which the rule reflects. The Court later stated: It is clear that for over half a century this Court has recorded its belief in the importance of keeping the family relationship free and unfettered. Our primary concern with regard to matters involving the parent-child relationship was the protection of family integrity and harmony and the protection of parental discretion in the discipline and care of the child. We have steadfastly recognized the authority of parents and their need to fulfill the functions devolved upon them by that position.

The parental status should he held inviolate so that there be no undue interference with the dependence of the minor unemancipated child on the parents for such judgment and care needed during ³⁸² the child’s minority or with the dependence of the law on the parent for fulfillment of the necessary legal and social functions associated with the office of parent. This Court has declared it to be the public policy that discipline in the family not be impaired and that tranquility of the home be preserved. Matters which tend to disrupt or destroy the peace and harmony of the home are not to be condoned. Id., 305 Md. at 551-52 , 505 A.2d 826 (emphasis supplied).

The Court added: “It is equally clear that this Court has had an abiding belief that the parent-child immunity rule enhances the public policy in that it subserves the repose of families and the best interests of society by preserving the peace and harmony of society and of the families composing society.” Id. at 552, 505 A.2d 826 . Accordingly, the Court concluded that the doctrine is “essential to the maintenance of discipline and to the stability of family harmony.” Id., 305 Md. at 561 , 505 A.2d 826 . Further, the Court declined to create an exception for motor tort cases, notwithstanding the presence of compulsory automobile insurance. It reasoned that such a decision involved important policy issues that are best decided by the Legislature.

Id., 305 Md. at 562-67 , 505 A.2d 826 . In 1994, in Warren v. Warren, supra, 336 Md. 618 , 650 A.2d 252 , the Court reaffirmed the Frye decision. Id., 336 Md. at 622-26 , 650 A.2d 252 . Writing for the Court, Judge Karwacki said, at 336 Md. at 626 , 650 A.2d 252 : [W]e believe that it is still in the best interest of both children and parents to retain parent-child immunity.

Abrogating the immunity would result only in further discord within the family and would interfere with the exercise of parental discretion in raising and disciplining children. We are not willing to open the door to rebellious children and frustrated parents and allow the courts to become the arbitrator of parent-child disputes and overseer of parental decisions. This array of cases makes clear that the doctrine of parent-child immunity remains deeply embedded in the law of ³⁸³ Maryland; it is up to the General Assembly to decide whether it is time to change the law. With this background in mind, we turn to the issues presented.

II

Appellee contends that parent-child immunity does not apply here, because the children’s wrongful death action against their father “derives from” the cause of action that their mother would have had against appellant had she survived. The parties have not cited, nor have we discovered, any reported Maryland decision that has decided the precise issue of whether, since the abrogation of interspousal immunity, a minor child may maintain a wrongful death action against one parent for the death of the other parent, if the decedent would have had a viable claim against the surviving spouse, had the decedent lived. Appellee relies on the language of the Wrongful Death Act, Maryland Code (1974, 1995 RepLVol.), §§ 3-901 et seq. of the Courts and Judicial Proceedings Article (“C.J.”). C.J. § 3-902(a) provides: “An action may be maintained against a person whose wrongful act causes the death of another.” C.J. § 3-901(e), in turn, defines “wrongful act” as “an act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” (Emphasis supplied.) C.J. § 3-904(a) provides: “An action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person.” Appellee asserts that, because Ms. Calhoun, had she survived, would have been able to maintain her own action against appellant, due to the abrogation of interspousal immunity, see Boblitz v. Boblitz, 296 Md. 242 , 462 A.2d 506 (1983), her children, based on C.J. §§ 3-901(e), 3-902(a) and 3-904(a), may pursue their own action against him.

We disagree with appellee’s contention. It is true that a wrongful death action is, in some sense, a “derivative” action. This is because the survivors ³⁸⁴ may not maintain a wrongful death action if the decedent would not have been able to recover against the tortfeasor had the decedent lived. See Smith v. Gross, 319 Md. 138, 144 , 571 A.2d 1219 (1990); C.J. § 3-901(e).

Thus, there exists the general rule that defenses that would have been good against the decedent, had the decedent survived, are also good against the survivors in a wrongful death action. See Smith v. Gross, supra (parent-child immunity); Frazee v. Baltimore Gas & Electric Co., 255 Md. 627 , 258 A.2d 425 (1969) (contributory negligence); Baltimore & Potomac Railroad v. State, Use of Abbott, 75 Md. 152 , 23 A. 310 (1892) (assumption of the risk). Nevertheless, it is also well settled that a wrongful death action is not purely a “derivative” action; the survivors are not suing as a representative of the decedent. Instead, a wrongful death action is primarily a personal claim asserted by the survivors for their own loss resulting from the decedent’s death.

This principle was enunciated in Globe American Casualty Co. v. Chung, 76 Md.App. 524 , 547 A.2d 654 (1988), vacated and appeal dismissed on other grounds, 322 Md. 713 , 589 A.2d 956 (1991), in which we discussed the difference between a wrongful death action and a “survival action”: When a victim dies because of the tortious conduct of someone else, two entirely different types of claim may arise. One is a survival action commenced or continued by the personal representative of the deceased victim, seeking recovery for the injuries suffered by the victim and prosecuted just as if the victim were still alive. It is called a “survival action” in the sense that the claim has survived the death of the claimant. The other is a wrongful death action, brought by the relatives of the victim and seeking recovery for their loss by virtue of the victim’s death.

A deceptive similarity inevitably results from the prominent common denominator fact that the victim has