Previously in American jurisprudence, families (especially spouses) were unable to bring lawsuits against each other. In more modern times, in many states, most of those restrictions were lifted. Laws differ in states so it is best to seek the advice of a local attorney for further guidance. In Illinois, a limited form of parental immunity is the only form of intra-family tort immunity left. This immunity extends to natural and legal parents as well as those acting in loco parentis (in place of the parent). Other family members have never had immunity rights in Illinois unless it could be established that they were either legal parents or acting in loco parentis.
Illinois law on parental immunity extends only to unintentional acts by parents that cause injury to their children. Intentional and reckless acts are not covered under the law. The immunity extends to tasks that fundamentally relate to the parent-child relationship, like the maintenance and care of the child, supervision, and medical treatment. Note that non-fundamental activities like driving a car are not covered under the immunity.
The designation of in loco parentis extends to those beyond the family. This status means that a person has taken on some of the fundamental roles in a child’s life that could include emotional or financial support, supervision, and any other burdens assumed in the parental relationship. In some cases teachers have been granted such status for their emotional support and supervision responsibilities over a child.
One surprise to grandparents is that they are not automatically granted in loco parentis status by courts. Generally, grandparents are not considered a part of the family unit, and since they only provide affection and care without assuming the financial burdens of parenthood, some courts have been hesitant to apply this status to grandparents. Courts have also clarified what is meant by financial burden. Although some parents are unable to financially provide for their children, they are still under the burden as parents to support the children financially. A grandparent that gives a child money is not considered financially supporting that child because ultimately the burden of support does not lie with them.
With regard to spousal immunity in tort, the Illinois legislature abolished this immunity when it amended the Married Women Act of 1874 (now Married Persons Act (1988)). Essentially, a married woman has the same rights as an unmarried woman when it comes to suing and being sued. Additionally, spouses can sue each other for tort. Note that the rationale for the amendment of the Act was the expansion of rights for married persons. Some have argued that family exclusions on insurance policies violate the law. Courts have held that they do not since the primary purpose behind the exclusion in the insurance context was to properly compensate parties.
This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases. Consult an attorney in your area for further guidance. If you were injured by a family member please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.