Interspousal tort immunity has a lengthy, rich, and interesting history. But since 1970, courts and legislatures have been increasingly willing to abolish immunity, transforming it into a minority rule which appears destined for widespread elimination by the year 2000. Montana's recent experience is typical. In 1979, the Legislature abolished the rule for intentional torts. However, the Montana Supreme Court has retained the doctrine in the negligence context. The court has recently agreed to reconsider negligence immunity and, should it refuse to change the rule, the Legislature may well address the issue. Thus, it is now appropriate to analyze whether Montana should eliminate interspousal tort immunity in negligence actions.
This essay first surveys immunity's history. Because the question of tort immunity has essentially become a debate over the public policy reasons for the doctrine's abolition or continued application, the paper then examines those rationales. This assessment yields the conclusions that the arguments for elimination are more persuasive than those favoring retention and that continued application of the rule serves virtually no useful purpose. Therefore, abolition of negligence immunity is warranted. Finally, the essay explores significant implications of abolition.
Carl Tobias, Interspousal Tort Immunity in Montana, 47 Mont. L. Rev. 23 (1986)