Reed, John A.

English

Duke Law Scholarship Repository

IMMUNITY OF CHARITABLE INSTITUTIONS TOTORT LIABILITY: AN ERODING DEFENSETHE DOCTRINE WHICH EXEMPTs charitable institutions from tort lia-bility1 met with new rebuff in the recent case of Noel v. MenningerFoundation2 There, the plaintiff, seeking damages for allegedly negli-gently caused injury, had been stymied in the trial court by a demurrerwhich had been sustained on the ground that the defendant, as a chari-table institution, was immune from such suits. The Kansas SupremeCourt, however, overruling a long line of precedent,3, reversed, holdingthat the policy reasons justifying this immunity no longer obtained and,further, that it contravened the Kansas Bill of Rights.The history of this doctrine of immunity is a checkered one. Firstenunciated in England in 1846,' it was shortly thereafter repudiated,6only to be adopted in Massachusetts in 1 876,' whence it spread rapidlythroughout this country." Its growth was nurtured by feelings of ju-dicial solicitude for financially weak but vitally needed charitable or-ganizations whose operations, it was feared, might otherwise be seri-ously impeded. Valid though this concern may then have been, how-ever, it would appear to be less compelling today when many charitableinstitutions have grown into enormous businesses, owning vast amountsof property,' much of it tax free, and when liability insurance has'See generally PROSSER, TORTS, § io8 (i4i) ; Appleman, Tort Liability of Char-itable Institutions, 22 A.B.A.J. 4.8 (i936) ; Scott, Tort Liability of Hospitals, 17 TENN.L. REv'. 838 (1943); Note, 30 N.C.L. REv. 67 (1951).2 175 Kan. 751, 267 P.2d 934 (i954).'Nicholson v. Atchison, Topeka and Santa Fe Hospital Ass'n, 97 Kan. 480, 155Pac. 920 (1916) ; Davin v. Kansas Medical, Missionary and Benevolent Ass'n, 103 Kan.48, 172 Pac. ioo2 (i918) ; Webb v. Vought, 127 Kan. 799, 275 Pac. 170 (1929) ; Rat-lifte v. Wesley Hospital, 135 Kan. 3o6, 1o P.2d 859 (1932); Leeper v. SalvationArmy, z58 Kan. 396, 147 P.2d 702 (1944).' "All persons, for injuries suffered in person, . . . shall have remedy by duecourse of law.., without delay." KANSAS BILL OF RIoHTS § 18.'Feoffees of Heriot's Hospital v. Ross, 12 Cl. & F. 507, 8 Eng. Rep. i5o8 (H.L.1846).'Mersey Docks Trustees v. Gibbs, it H.L. Cas. 686, ix Eng. Rep. 15oo (x866).7 McDonald v. Massachusetts General Hospital, 12o Mass. 432 (1876).' See Note, 25 A.L.R.2d 29, 142 et seq. (1952).0 See, e.g., Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934, 939(1954).10 See, e.g., Silvia v. Providence Hospital, 14. Cal.2d 762, 97 P.2d 798 (939)wherein there are detailed the assets of defendant hospital which was only one ofseveral charitable institutions run by a central organization.DUKE BAR JOURNALbecome so readily procurable. Nevertheless, the doctrine of immunityhas, to a large extent, lingered on. 1Apart from policy, various legal theories have been adduced in sup-port of this doctrine. It has been urged, for example, that the conceptof respondeat superior should not render a charitable institution liablefor the torts of its employees since it derives no profit from their serv-ices." This would seem to be quite irrelevant, however, as the availa-bility of respondeat superior as the basis of an employer's tort liabilityhas traditionally depended on other factors. 3 A "trust fund" theory hasalso been invented, under which it has been argued that the diversion offunds held in trust by a charitable institution to the payment of a judg-ment for negligence would thwart the donor's intent where no provisionfor such payment appears in the indenture. 4 It should be noted, how-ever, that the relationship of a corporation, whether charitable or not,to its property is not precisely that of a legal trustee to his trust funds; 1 'and even in this latter relationship, the trust fund has no ultimate im-munity from a tort judgment, but a mere technical immunity becauseof the legal estate of the trustee therein.' Similarly specious are theassertions that a person who avails himself of charitable services con-structively waives his right of action for, and assumes the risk of,negligence;' 7 or that charitable institutions, because of their intimateassociation with the state in performing public welfare functions, sharethe immunity of the state and its agencies.' 8 These fictions do not ac-cord with common experience and beliefs, and have not widely been" See, e.g., note z2 and accompanying text infra.12 E.g., Hearns v. Waterbury Hospital, 66 Conn. 98, 33 At. 595 (1895) , Farriganv. Pevear, 293 Mass. 147, 78 N.E. 855 (29o6).13See MECHEM, OUTLINES OF THE LAW OF AGENCY §§ 349-63 (4 th ed. 1952).The author points out that respondeat superior has been justified on the ground thatthe principal has the power of control over the agent as well as on the ground thatthe principal derives profit from the acts of the agent; moreover, he suggests that theinevitability of harm arising from doing business with agents is the most importantfactor giving vitality to the doctrine. See also Ray v. Tucson Medical Center, 72Ariz. 22, 230 P.2d 22o (2952); Session v. Thomas D. Dee Memorial Hospital Ass'n,94 Utah 460, 78 P.zd 645 (2938)."E.g., Parks v. Northwestern University, 2z8 Il. 381, 75 N.E. 99z (1905);Cook v. John N. Norton Memorial Infirmary, 1So Ky. 331, 202 S.W. 874 (298).223 ScoTr, TRUSTS § 348.x (939).162 id., §§ 264, 271A (1939).'7E.g., Wilcox v. Idaho Falls Latter Day Saints Hospital, 59 Idaho 35o, 82 P.2d849 (938); Cook v. John N. Norton Memorial Infirmary, x8o Ky. 332, 202 S.W.874 (2918)."E.g., Fordyce v. Woman's Christian National Library Ass'n, 79 Ark. 550, 96S.W. 255 (x9o6); University of Louisville v. Hammock, 127 Ky. 564, xo6 S.W.219 (1907).[Vol. 5: 5 1entertained by the courts.' 9 Finally, it has been observed that a policyso firmly entrenched should be altered only by legislative action.2" Butthere would appear to be no sound reason in law or logic why a doctrineoriginally promulgated by the courts2' should not, with equal validity,be cast aside by them in favor of a more salutary public policy.The theories upon which the doctrine has been rested are thus asintellectually unsatisfying as the results of its application. And althoughthe doctrine is still embraced uncritically in a number of jurisdictions, 22dissatisfaction with its operation is reflected in the modifications of itsapplication in many jurisdictions.By way of modification, some states have permitted charitable in-stitutions but a limited immunity by excluding non-trust property fromthe execution of a tort judgment.23 And frequently immunity has beenmade to depend on the status of the plaintiff-it being held not to ex-tend to torts committed against a servant24 or a stranger, ix., one nota recipient of benefit from the institutionY 5 Further, a few courts, al-"'E.g., Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.zd 220 (1951) (re-jecting the doctrine of implied waiver and assumption of risk; Lichty v. Carbon CountyAgr. Ass'n, 31 F. Supp. 809 (M.D. Pa. 1940) rejecting the doctrine of immunity be-cause of close association with the state). See also Note, 25 A.IL.R.zd 29, 67-68 (-95-).'0 E.g., Foley v. Wesson Memorial Hospital, 246 Mass. 363, 141 N.E. 113 (1923)DeGroot v. Edison Institute, 306 Mich. 339, 1o N.W.zd 907 (1943).21 See notes 5-8 and accompanying text supra.22 Ten jurisdictions accord charitable institutions complete immunity from tortliability. Michael v. St. Paul Mercury Indemnity Co., 9z F. Supp. 14o (W.D.Ark. 195o ) 5 Williams' Adm'x v. Church Home for Females, 223 Ky. 355, 3 S.W.zd753 (x978)5 Jensen v. Maine Eye and Ear Infirmary, 107 Me. 408, 78 At. 898(igo) 5 Howard v. South Baltimore General Hospital, 19r Md. 617, 62 A.±d 574(948) ; Bearse v. New England Deaconess Hospital, 321 Mass. 750, 7z N.E.2d 743(1947); Dille v. St. Luke's Hospital, 355 Mo. 436, 196 S.W.Zd 61S (1946); Greg-ory v. Salem General Hospital, 175 Ore. 464, 153 P.2d 837 (1944)5 Bond v. Pitts-burgh, 368 Pa. 404, 84 A.±d 328 (295i) ; Byrd v. Blue Ridge Rural Electric Co-operative, Inc., xi8 F. Supp. 868 (W.D.S.C. 1954)5 Schau v. Morgan, 41 Wis. 334,6 N.W.zd 212 (194±)."Moore v. Moyle, 405 Ill. 555, 9z N.E.2d 81 (195o)5 McLeod v. St. ThomasHospital, 17o Tenn. 423, 95 S.W.2d 917 (1936) St. Luke's Hospital Ass'n v. Long,125 Colo. 25, 24o P.2d 917 (1952); Robertson v. Executive Committee of BaptistConvention, 55 Ga.App. 469, 19o S.E. 432 (-937).2' Hordern v. Salvation Army, 199 N.Y. 233, 9z N.E. 626 (92o); Cowanov. North Carolina Baptist Hospitals, 297 N.C. 41, 147 S.E. 672 (29z9); Gable v.Salvation Army, x86 Okla. 687, oo P.±d 244 (294o); Medical and Surgical Me-morial Hospital v. Cauthorn, z29 S.W.zd 93z (Tex. Civ. App. 1949).2' Alabama Baptist Hospital Board v. Carter, z26 Ala. 109, 145 SO. 443 (-93-) 5Cohen v. General Hospital Soc., 123 Conn. 188, 54 Atl. 435 (1931 ) ; Winona Tech-nical Institute v. Stolte, 173 Ind. 39, 89 N.E. 393 (19o9); Jewell v. St. Peter'sParish, io N.J. Super. 2±9, 76 A.2d 927 (195o) 5 Walker v. Memorial Hospital,187 Va. 5, 45 S.E.2d 898 (1948). On the other hand, most of these jurisdictions19s5] NOTESDUKE BAR JOURNALthough denying recovery against a charitable institution in tort, willallow it on a breach of contract theory,26 or permit negligent service tobe set up as a defense to an action for the value of the services ren-dered." Other courts have granted recovery when the tort is committedin the course of non-charitable or commercial activities even though theactivities are carried on to obtain revenue to be used for charitable pur-poses. 28 Two states, moreover, have passed statutes which give a negli-gently injured party a direct action against the institution's insurancecompany and prohibit the company from raising the defense of charita-ble immunity. 29 Another ameliorative technique employed by somecourts has been to distinguish between corporate negligence-neglecton the part of officers and managers-and negligence on the part of sub-ordinate employees, allowing recovery for the former.30The Noel case and other recent decisions,' on the other hand, sug-gest a trend beyond mere amelioration towards complete rejection ofthe immunity doctrine. And where the courts have been unfettered bycontrary precedent, this proclivity has been even more marked. 2 Thiswould seem to reflect the growing recognition of the obsolescence of thehave conferred immunity with respect to torts committed against a beneficiary, andwhere a hospital is the tort-feaser the mere fact that the injured patient paid in wholeor in part for his services will not necessarily remove him from the status of beneficiary.See, e.g., Powers v. Massachusetts Homeopathic Hospital, xo9 Fed. 294 (st Cir.go1), cert. denied, 183 U.S. 695 (go). But cf. Nicholson v. Good Samaritan Hospi-tal, 145 Fla. 36o, 199 So. 344 (1940) where the court distinguished between payingand non-paying patients and allowed recovery to former."0 E.g., Tucker v. Mobile Infirmary Ass'n, 191 Ala. 57z, 68 So. 4 (1g1S); Parrishv. Clark, 107 Fla. 598, 145 So. 848 (1933).'Beverly Hospital v. Early, 292 Mass. 2ox, 197 N.E. 641 (935).28McKay v. Morgan Memorial Co-op. Industries and Stores, Inc., .72 Mass.12s, 172 N.E. 68 (1930) (operated a series of stores), School Dist. v. Philadelphia,367 Pa. x8o, 79 A.ad 433 (x95i) (engaged in mining); Pearlstein v. A. M.McGregor Home, 79 Ohio App. 526, 73 N.E.ad io6 (1947) (operated apartmenthouse); Rhodes v. Millsaps College, 179 Miss. 596, 176 So. 253 (1937) (rented partof a building as office space).0 ARK. STAT. § 66-517 (947); MD. ANN. CODE art. 48A, § 82 (z947).20 Evans v. Lawrence and Memorial Associated Hospitals, 133 Conn. 311, 50A.ad 443 (x946) ; Medical and Surgical Memorial Hospital v. Cauthorn, 229 S.W.2d932 (Tex. Civ. App. 1949).31Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.ad 220 (1951); Haynesv. Presbyterian Hospital Ass'n, 241 Iowa 1269, 45 N.W.ad 1sz (1950); St. PaulMercury Indemnity Co. v. St. Joseph's Hospital, 212 Minn. 558, 4 N.W.ad 637(942) ; Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525, 23 N.W.ad 247 (1946)Brigham Young University v. Lillywhite, zi8 F.ad 836 (xoth Cir. 1941).32Durney v. St. Frances Hospital, 83 A.ad 753 (Del. Super. 195); Foster v.Roman Catholic Diocese, 116 Vt. 124, 7o A.ad 230 (195o); Malloy v. Fong, 37Cal.ad 356, 232 P.2d 241 (195Y)i President and Directors of Georgetown Collegev. Hughes, 13o F.ad 8zo, (D.C. Cir. 1942).[Vol. 5: 5z1955] NOTES 55doctrine and its adverse social consequences, and echo the sentiments ofJustice Rutledge who, after reviewing the history of the doctrine, re-marked that even though it may have been validly conceived, the doc-trine of immunity "should go and the object of the charity be placedon a par with all others.133JOHN A. REED"President and Directors of Georgetown College v. Hughes, 13o F.2d 810, 827(D.C. Cir. 3942).

Immunity of Charitable Institutions to Tort Liability: An Eroding Defense

bepress Legal Repository

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1609&amp;context=dlj

Immunity of Charitable Institutions to Tort Liability: An Eroding Defense

Abstract

Similar works

Full text

Available Versions

Duke Law Scholarship Repository

bepress Legal Repository