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Burnette v. Wahl

Citation. Burnette v. Wahl, 284 Ore. 705, 588 P.2d 1105
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Brief Fact Summary.

Minor children brought an action against their mother for emotional and psychological injury.

Synopsis of Rule of Law.

The law does not provide any cause of action for children claiming emotional and psychological injury resulting from the actions of a parent failing to carry out his or her duties.


Plaintiffs are five minor children, aged two through eight who, through their guardian, are bringing actions against their mothers (Defendants) for emotional and psychological injury, caused by the failure of Defendants to perform their parental duties. Plaintiffs appeal from orders of dismissal.


Whether children, claiming emotional and psychological injury, resulting from a parent failing to carry out parental duties, have an action under tort law?


(Justice Holman). No. Children do not have an action under tort law for emotional and psychological injury resulting from a parent failing to carry out his or her parental duties. These tort actions may impede the social agencies’ abilities to carry out plans for these children. These agencies are designated by statute to aid children, for whom there is no hope of reestablishing a relationship with their respective families. Therefore, this is not a proper case for tort litigation. Allowing these tort actions, do not solve the social problem in the manner in which the legislature intended it to be resolved. The judgment of the trial court is affirmed.


The dissenting opinions are as follows:
* (Justice Lent). The community should conclude that the emotional harm, which Plaintiffs suffered is monetarily compensable.
* (Justice Linde). The Plaintiffs have stated a claim of injury because they suffered severe mental and emotional injuries as a result of being deserted and abandoned by a parent that acted maliciously, intentionally, and with cruel disregard of the consequences. This is conduct, which the legislature has declared to be a crime, and may upon proper proof hold the parent responsible in damages for these severe mental and emotional injuries.
Concurrence. The concurring opinions are as follows:
* (Justice Tongue). In cases involving physical injuries, the doctrine of intra-family tort immunity has been abandoned by this court. However, this does not mean that the doctrine should be abandoned when mental and emotional injuries are alleged.
* (Justice Lent). Plaintiff has failed to state a claim for outrageous conduct.


The court seems to suggest that for a child to be successful in a claim for emotional and psychological injuries, he or she must also provide some sort of physical injury as well.

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