How Automobile Accidents Stalled the Development of Interspousal Liability

46 Pages Posted: 1 Oct 2013

See all articles by Elizabeth D. Katz

Elizabeth D. Katz

University of Florida Levin College of Law

Date Written: September 2008


This Note analyzes the development of interspousal tort liability for personal harms following the enactment of the married women's property acts. The case law is broken down into three periods (1) the 1860s through 1913, when all courts hearing interspousal torts barred them; (2) 1914 through 1920, when a trend permitting the claims developed; and (3) 1921 through 1940, a period in which the seemingly inevitable evolution toward allowing the suits stalled. The existing literature characterizes the law as illustrating a continuing judicial desire to impose patriarchal restrictions on women's rights and blames the third-period reversal on the stagnation of the women's movement following ratification of the Nineteenth Amendment. In contrast, this Note removes the case law from the realms of conventional feminist analysis and women's history. The women's movement had no direct influence over judicial construction of the married women's acts, and the alleged post-suffrage stagnation is itself questionable. Instead, this Note suggests that the trend allowing interspousal torts was complicated by the emergence of a new fact pattern: negligent automobile accidents. Following decades of willful tort suits, automobile negligence suits brought the risk of insurance fraud and collusion, which consequently halted judicial willingness to allow them. Because willful and negligent torts were legally indistinguishable based on the text of the statutes, judicial refusal to allow negligent torts translated into a complete bar on interspousal liability.

Keywords: tort, interspousal, family law, legal history, automobile accidents, guest statutes, married women's acts, married women's property acts, automobile insurance

Suggested Citation

Katz, Elizabeth, How Automobile Accidents Stalled the Development of Interspousal Liability (September 2008). Virginia Law Review, Vol. 94, No. 5, 2008, Available at SSRN:

Elizabeth Katz (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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