Burnette v. Wahl

Supreme Court of Oregon · 1978 · Torts

588 P.2d 1105 (1978)

Updated July 23, 2026

Tortsparent-child tort liabilityemotional distressstatutory tortsparental dutiesemotional injurypsychological injurychild abandonment

Facts

The consolidated cases were brought by five children between ages two and eight who were in the custody of the Children's Services Division and were wards of the Klamath County Juvenile Court. The complaints alleged that the defendant mothers intentionally and maliciously failed to provide care, custody, nurturance, affection, companionship, support, regular contact, and visitation, and also alleged abandonment, neglect, and nonsupport, including alleged violations of Oregon statutes. Although the complaints referred to lack of support and physical care, the court read the complaints and plaintiffs' brief as claiming only emotional and psychological injuries. The complaints did not allege that proceedings had been brought to terminate the defendants' parental rights.

Issue

May minor children maintain a tort action for money damages against their mothers for solely emotional or psychological injuries allegedly caused by the mothers' failure to provide parental support, nurturance, care, contact, and affection, including alleged statutory abandonment, neglect, and nonsupport? Relatedly, should the court recognize such a claim under existing tort theories or create a new tort of parental desertion?

Rule

When neither statute nor common law authorizes a civil action, and the legislature has enacted a comprehensive regulatory and remedial scheme in the field without creating a damages remedy, a court should exercise restraint and decline to create a new tort if doing so might interfere with the legislative plan. In this context, Oregon law does not recognize a damages action by children against their parents for solely emotional or psychological harm resulting from parental failure to support, nurture, and care for them, whether framed as a statutory tort, intentional infliction of emotional distress, alienation of affections, or a new tort of parental desertion.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Eugene, 12-year-old Lila Moreno, through a guardian, sues her father for money damages. The complaint alleges he intentionally stopped all contact, affection, and financial support for three years, cites Oregon criminal nonsupport and abandonment statutes, and claims Lila developed severe anxiety and depression but no physical injury.

Should the court recognize Lila's damages action based on the cited statutes?

Explanation. The majority held that Oregon courts should not recognize a civil damages action for solely emotional or psychological injury caused by a parent's failure to support, nurture, or care for a child where the legislature has already enacted an extensive regulatory and remedial scheme but did not create such a damages remedy. Statutory violation does not automatically create a private action, and the decision was not based on blanket parental immunity.