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WILLIAM GOLDMAN 9/20/2011

For Educational Use Only

TORT LITIGATION BETWEEN SPOUSES: LET’S MEET..., 15 Harv. Negot. L....








15 Harv. Negot. L. Rev. 195

Harvard Negotiation Law Review

Spring 2010

Article

TORT LITIGATION BETWEEN SPOUSES: LET’S MEET SOMEWHERE IN THE MIDDLE

Benjamin Shmuelia1

Copyright (c) 2010 Harvard Negotiation Law Review; Benjamin Shmueli

Abstract

In the past, and, to a certain extent, even at present, immunities existed in common law against tort litigation within the family. Is it appropriate today to block such claims, or should they be considered in the same way as any other tort suit? The present essay will address this question by examining the possibility of establishing a delicate balance between the individualistic approach, which focuses on realizing the autonomy of the individual to sue for harm done to him, and the family-collectivist approach, which attempts to determine what is best for the family as a whole and is concerned that legal intervention in the family’s affairs may be more detrimental than beneficial.

Although this essay explores a claim under tort law, rather than under family law, and although the claim at issue may be consistent with the goals of tort law, one cannot ignore the fact that this is not a suit involving two strangers. Moreover, since these are particularly charged, emotional claims, the real remedy desired may at times not *196 be financial compensation at all, but some other remedy: an emotional one, which the laws cannot provide, but which might be provided specifically through extrajudicial proceedings. Nonetheless, requiring the parties to take part in such a proceeding under the auspices of the court (e.g., mandatory mediation) is itself problematic, since such a proceeding is supposed to be voluntary.

I propose a model that balances the individualistic approach and the family approach. This model will present a theoretical and practical framework for hearing such claims, applicable to the different stages of tort proceedings in the courts, while also making use, in the framework of such proceedings, of quasi-mandatory extrajudicial processes.

Contents






I. Introduction

197

II.

To Recognize or to Block? Considerations for and Against Recognition of Tort Litigation Between Spouses

199




A. The Individualistic Approach vs. the Family Approach

199




B. The Individualistic Approach: Considerations in Favor of In-Principle Recognition

201




1. The Individualistic Approach: Introduction

201




2. The Goals of Tort Law in the Eyes of the Individualistic Approach

202




a. Compensation

202




b. Corrective Justice

203




c. Distributive Justice

206




d. Deterrence

208




3. Additional Support for the Individualistic Approach

210




C. The Family Approach: Considerations Against In-Principle Recognition

211




1. The Family Approach: Introduction

211




2. Family Harmony as an Argument for Blocking Intrafamilial Claims

218




3. Fear of Insurance Fraud

221




4. The Floodgates Argument and the Slippery Slope

222




5. The Goals of Tort Law in the Eyes of the Family Approach

223




a. Compensation

223




b. Corrective Justice

223




c. Distributive Justice

226




d. Deterrence

226

III.

The Desirable Situation: Theory and Practice

227




A. The Proposal: An Intermediate Approach Combining Individualistic and Family Approaches

227




B. The Preliminary Stage: Recognition of Tort Claims That Pose No Risk to Family Harmony

231




C. Dispute Resolution: Mandatory Participation in Mediation

232




1. Handling of Familial Torts

232




2. Why Mediation is Appropriate for Intrafamilial Claims

234




3. The Court’s Ability to Mandate Mediation

236




4. Mandatory Mediation in Intrafamilial Claims

240




5. Mediation and the Goals of Tort Law

245




6. The Intermediate Proposal and Mediation

246




D. The Trial Phase

250




1. Emotional Remedies

251




2. Expanded Interpretation of the De Minimis Defense

251




3. The Use of Aggravated and Punitive Damages in Cases of Intentional and Severe Torts

255

IV.

Conclusion

257

*197 I. Introduction

Tort litigation against a family member is an instrument that exists in various countries for various causes of action. For example, children may sue their parents for neglect, physical assault, or sexual assault. Spouses may file tort claims against each other for abuse, assault, defamation, property damage, breach of promise to marry, breach of visitation rights, and even damages when one spouse kidnaps the children while both spouses have shared custody.

Such suits are tort claims rather than family law claims, and in general they have no connection with family law--they do not interact with it, critique it, or attempt to change it. Nevertheless, despite their label as purely tort claims, these suits differ from the typical *198 tort claim in a significant respect: there are members of the same family on both sides of the lawsuit.

This essay does not set out to analyze various justifications for specific torts, nor will it delve into the multitude of torts that one spouse may commit against the other. The main purpose of this essay is to discuss an initial framework that is both theoretical and practical as to whether tort litigation against a family member should be permitted. The essay will deal with the following questions, in keeping with modern tort law: Should there be special treatment for tort litigation against a spouse? Should such litigation be restricted? Or should such cases be heard in the same manner as tort litigation between two strangers?1

The debate over the fate of tort litigation between family members has historically been waged between two distinct ideologies: the individualistic approach and the family-collectivist approach. I would like to offer a nuanced treatment of the issue by examining the possibility of establishing a delicate balance between these two ideologies. The individualistic approach focuses on realizing the autonomy of the individual to sue for harm done to him. This approach recognizes tort law as an appropriate mechanism for realizing the rights of an individual who has been harmed by his or her spouse. This approach also views tort law as an important tool for the empowerment of the victim, since without a remedy the power gap between the victim and the tortfeasor is perpetuated. The family approach, on the other hand, attempts to determine what is best for the family as a whole. It posits that an intrafamilial claim cannot be treated like any other claim, and that procedural and fundamental adjustments need to be made in light of the family relationship.

This essay presents an intermediate approach between the two competing ideologies, an approach that grants that intrafamilial litigation is generally tortious in nature (and not part of family law) but that also reflects special sensitivity to the reality that there are spouses on both sides of the case. The essay will try to explain why an intermediate approach would be appropriate to serve the needs of tort litigation between family members. In turn, it will attempt to *199 balance a worldview that sees the family as a collection of individuals--whose disputes should be resolved as part of private law--and a worldview that sees the family as a unique sphere, in which legal intervention may at times be more detrimental than beneficial. The aim of this essay is to provide an initial framework for the question of whether family tort litigation should be blocked from or heard by the courts.

Part II of this essay will analyze factors both in favor of and against accepting tort litigation between spouses. Part II will also demonstrate the need for progress toward a more balanced, intermediate model. Part III will discuss the intermediate approach as a desirable model to entertain tort litigation between family members. It will present a compromise solution between the individualistic approach and the family approach in which spousal tort litigation is permitted but faces stringent restrictions at various stages in the ligitation. Part III will also make clear that although the intermediate approach places more weight on considerations in favor of allowing intrafamilial claims, it emphasizes that such claims should be hear only in limited cases; permitting some intrafamilial tort claims does not amount to blanket recognition for all such claims.

Part IV will attempt to outline a legal policy that can later serve as the basis for a more extensive discussion of the specific elements and defenses of torts (negligence, assault and battery, defamation, etc.) that one spouse may commit against the other.

II. To Recognize or to Block? Considerations for and Against Recognition of Tort Litigation Between Spouses

A. The Individualistic Approach vs. the Family Approach

Tort litigation against a spouse does not exist in a vacuum. Numerous factors must be taken into account when determining whether to permit such litigation, including whether the court is the appropriate institution for making a determination in intrafamilial torts or whether it would be more appropriate to leave this area outside the realm of legal intervention.

The issue of justiciability usually hinges on which one of the two sometimes contradictory approaches--the individualistic approach *200 and the family approach (which derives from the collectivist approach)--predominates within legal institutions.2 The individualistic approach treats the individual as autonomous and separate from the group to which he belongs. The goal of this approach is to allow the individual to realize his autonomy.3 It is based on the worldview that the individual has a unique independence and that although the individual may belong to several groups simultaneously (family, community, population sector, tribe, etc.), no group defines his complete identity or his behavior. This approach dispenses with society’s traditional perception of the family as a whole unit; instead, each member of the family unit is perceived as an individual. In turn, if an individual is harmed through a tort, the individualist approach would allow him to sue the tortfeasor even if the latter is a close relative.

The family approach, on the other hand, focuses on the collective--in the case at stake, the family unit--and attempts to determine in a paternalistic way what is best for the family as a whole.4 This approach espouses the idea of acknowledging the dynamic that exists within the family unit, in order to allow it to conduct itself in a natural and free manner. The family approach’s main concern is that legal intervention may harm the family’s affairs, autonomy, and privacy.5 This approach sees the restoration of sanctity, privacy, and *201 harmony to the family unit as a supreme value that legal intervention may harm or impair. It is based on the worldview that the family unit constitutes an important unit--perhaps the most important unit--within society.6 According to this approach, the family unit is a separate, unique sphere, in whose affairs one ought not to intervene, even if the rights of the individual harmed by a tort must be set aside for the benefit of the family as a whole.7

The justiciability of intrafamilial torts depends on the implications and variations of these two approaches. Should intrafamilial torts follow the goals of regular tort law as an expression of the individualistic approach, which seeks to re-establish the status quo ante by requiring that the tortfeasor repair the damage done to the injured party through compensation? Or should the court, using the family approach, attempt to bring the litigating couple back to a state of domestic harmony, even at the expense of the rights of the injured party? To answer these questions, the following paragraphs will analyze the justifications for the use of the individualistic approach and the family approach to grant or restrict judicial access for familial torts.

B. The Individualistic Approach: Considerations in Favor of In-Principle Recognition

1. The Individualistic Approach: Introduction

From the individualistic standpoint, every individual has rights of his own; these rights are personal and separate from those of his spouse or other family members. Therefore, a person is entitled to realize his right to sue any person, including his spouse, for harm he *202 has suffered. The individualistic perspective is inconsistent with restricting a spouse’s right to sue on the ground that a suit could be contrary to the best interests of the other spouse or the family unit. This approach rejects the view that negative externalities for the rest of the family unit should be a basis for restricting judicial access for familial torts. Indeed, the approach embodies the view that even if some legal claims affect others who are not direct parties to the dispute, society would still generally protect the individual’s right to sue.

For proponents of the individualistic approach, a person who was the victim of a tort should not be in a worse position simply because the tortfeasor is his spouse. On the contrary, in such a case, the proponents of the approach would not only prefer that the law not block such claims, but they would also prefer that the law encourage the claims, or at least not stand in their way. If one spouse injures the other spouse, the tortfeasor should be held accountable for his actions in the civil sphere, as the tortfeasor has violated the victimized spouse’s right to autonomy and has breached a unique duty of trust.8

2. The Goals of Tort Law in the Eyes of the Individualistic Approach

In-principle recognition of tort claims by one spouse against the other is also consistent with the general goals of tort law: compensation, corrective justice, distributive justice, and deterrence.9

a. Compensation

The goal of compensation is to ensure that the tortfeasor pays the monetary equivalent of the injury suffered by the victim. If one spouse has carried out a tort against the other, then the tortfeasor must provide full compensation to the victim as an expression of the
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