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Law School Case Brief

Counts v. Counts - 221 Va. 151, 266 S.E.2d 895 (1980)

Rule:

An action for wrongful death may be maintained, predicated upon injuries to one spouse during marriage arising out of a wrongful act by the other spouse, when such an act results in the termination of the marriage by death, and when the deceased spouse is survived by no living child or grandchild.

Facts:

Plaintiff husband filed an action against defendant wife for intentionally inflicted injuries arising out of her role in an aborted murder-for-hire scheme. The trial court ruled in favor of the wife and sustained the plea of interspousal immunity. The husband sought review.

Issue:

Is the wife is immune from liability in tort for personal injuries intentionally inflicted upon the husband at her direction during the marriage, when the parties are divorced from the bond of matrimony at the time the action is instituted?

Answer:

Yes.

Conclusion:

The court rejected husband's requests to abolish the doctrine of interspousal immunity in its entirety or to substantially modify it because although the incident in question occurred during the parties' marriage, they were no longer married at the time that suit was brought. The court was not persuaded that permitting a living spouse to sue for torts committed by one on the other, except in automobile accident litigation, would have done otherwise than contribute to the destruction of their marriage.

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