Cherry, H. Wendell

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University of Kentucky

Kentucky Law JournalVolume 46 | Issue 2 Article 81957Torts--Charitable Immunity From Tort Liability inKentuckyH. Wendell CherryUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Torts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationCherry, H. Wendell (1957) "Torts--Charitable Immunity From Tort Liability in Kentucky," Kentucky Law Journal: Vol. 46 : Iss. 2 ,Article 8.Available at: https://uknowledge.uky.edu/klj/vol46/iss2/8REcENT CAsESTORTS-CHA=rABLE Imnmrry FRoM ToRT LIHBmrm iN K TuC-Plaintiff was a third floor tenant in an apartment building that hadbeen devised jointly to the defendant charitable corporation to beused for its charitable purposes. The building was rented for com-mercial purposes, and the income from the property was devoted todefendant charity. Plaintiff sustained serious injury in the course of afire that swept the building and instituted suit to recover for personalinjuries allegedly caused by defendant's negligence in failing to pro-vide adequate and safe exit ways and fire escapes as required by aLouisville ordinance and a state statute. Summary judgment wasrendered for defendant on the basis of its affidavit alleging that theproperty was held in trust, that the income was devoted to the de-fendant's charitable endeavor, and invoking its immunity from liabilityfor torts. Held: reversed and remanded for a trial on the facts. Dueto a combination of three major factors, namely: (1) corporate negli-gence in failing to perform a statutory duty, (2) merely income pro-ducing property, and (3) injuries to a stranger to the charities, theplea of immunity is not available to the defendant. Roland v. CatholicArchdiocese of Louisville, 301 S.W. 2d 574 (Ky. 1957).Charitable immunity was first adopted in this country by Massachu-setts,' though to establish the doctrine the court relied on Englishprecedents2 which had already been repudiated in that country.3Later, a great majority of courts in this country accepted and adoptedthe doctrine of charitable immunity, and for many years it sailed alongon a sea of various reasons for its existence and application.4 Basically,the reasons flowed from the courts' determination of public policy: thatpublic policy demanded charities be clothed in immunity from tortsto prevent dissipation of their funds-the so-called trust fund theory5-and to foster their operations to the benefit of society.In recent years, however, the increasing attack by writers and thecourts on charitable immunity has resulted in a modem trend of de-cision to reject the immunity or limit its scope.6 In doing this, the1 McDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876); Mary-land also adopted the doctrine in an early case, Perry v. The House of Refuge, 63Md. 20 (1885); evidently neither court realized that the authorities they relied onhad been repudiated.2 See Feoffees of Heriot's Hospital v. Ross, 12 Clark & F. 507, 513, 8 Eng.Rep. 1508, 1510 (1846), in which the "trust fund theory" was expounded; "Togive damages out of a trust fund would not be to apply it to those objects whomthe author of the fund had in view, but would be to divert it to a completely dif-ferent purpose." (dictum). See also, Holliday v. St. Leonard, Shoreditch, 11 C.B.(N.S.) 192, 142 Eng. Rep. 769 (1861).See Mersey Docks v. Gibbs, 11 H.L. Cas. 686, 720, 782-734 (1866).4 Annot., 25 A.L.R. 2d 29 (1952).5 See note 2 supra.62 Harper and James, Torts see. 29.17 (1956 ed.); Prosser, Torts 784-788(2d ed. 1955); 25 A.L.R. 2d 43-44 (1952).1958]KENTUCKY LAW JOUNA.courts have either rejected 7 and overruled the doctrine completely, orcreated various exceptions to its application, thereby limiting its scope.Some of the more important exceptions where liability has been im-posed are: (1) if the injured party is a stranger to the charities, or(2) if the activity engaged in by the charity is commercial in character,or (3) if the negligence charged is a breach of statutory duties, or (4)if the charity was guilty of administrative negligence as opposed to thenegligence of one of its employees. 8 Courts which have rejected thedoctrine completely or have created exceptions to limit its scope gen-erally say that the original policy reasons for the doctrine have dis-appeared. Although charities were weak in their infancy, they havenow blossomed into big businesses capable of insuring themselvesagainst liability and thereby spreading the risk, rather than allowingthe damages to fall on the innocent parties who were injured.The Kentucky Court recognized charitable immunity in an earlycase,9 relying specifically on a Maryland case' ° which had based itsdecision on repudiated English precedents. Kentucky, in a line ofcases'1 through Forrest v. Red Cross Hospital,12 has been listed amongthose states allowing "complete immunity." 3 The reasons for im-munity asserted by the court were: (1) public policy, (2) preventionof dissipation of the trust funds of the charity, and (3) implied waiverof negligence or assumption of risk by the injured party. In the RedCross Hospital case, the court in a four to three opinion denied re-covery to a paying patient at a charitable hospital for the negligenceof an employee. In that case judge Sims, speaking for the majority,14listed the previous reasons for immunity and vigorously asserted that7 President and Directors of Georgetown College v. Hughes, 130 F. 2d 810(D.C. Cir. 1942). The devastating opinion of judge Rutledge gave impetus to themodem trend of decision to reject charitable immunity.8 Annot., 25 A.L.R. 2d 112-138 (1952).9 Williamson v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S.W.1065 (1894).10 Perry v. The House of Refuge, 63 Md. 20 (1885).11 Averback v. Y.M.C.A. of Covington, 250 Ky. 34, 61 S.W. 2d 1066 (1933);Williams' Adm'x v. Church Home for Females and Infirmary for Sick, 223 Ky. 355,3 S.W. 2d 753, 62 A.L.R. 721 (1928) (recovery denied for death of a payingresident even though the defendant had insurance coverage); Emery v. JewishHospital Ass'n, 193 Ky. 400, 236 S.W. 577 (1921) (recovery deniedto an em-ployee); Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, 202 S.W. 874(1918) (recovery denied to a paying patient). See also Pikeville Methodist Hos-pital v. Donahoo, 221 Ky. 538, 299 S.W. 159 (1927); Illinois Central R. Co. v.Buchanan, 126 Ky. 288, 103 S.W. 272, 11 L.R.A. (N.S.) 711 (1907); Universityof Louisville v. Hammock, 127 Ky. 564, 106 S.W. 219, 14 L.R.A. (N.S.) 784(1907).12265 S.W. 2d 80 (Ky. 1954); Cammack, Moremen and Combs, JJ., dis-senting.13 See Annot., 25 A.L.R. 2d 158 (1952).14 Sims, Milliken and Stewart, JJ., who were in the majority and are membersof the present court, joined in the unanimous decision in the Roland case.[V_). 46,REcENT CASESto take away the immunity of charitable institutions from tort actionswould saddle them with ruinous insurance premiums. A substantialminority of the court dissented without opinion. Whether the minoritythought the time had come to overrule the doctrine or to limit its scopein some way, perhaps by classifying a paying patient as a stranger tothe charities, does not appear.Then came the Roland case, where the Court in a unanimousopinion imposed liability on the defendant charity. The opinion, byCommissioner Stanley, emphasized the concurrence of three majorfactors in the case, each of which has been made the sole basis forexceptions to the application of charitable immunity in some otherjurisdictions.' 5 These factors or exceptions were: (1) the allegationswere of corporate negligence in violating a statutory duty, (2) theproperty concerning which there was negligence was commercialproperty, the income from which was devoted to the charities, and (3)the injured person was a stranger to the charities. Also, in the courseof the opinion the Court pointed to the availability of liability insur-ance to protect such institutions from liability for negligence, andrecognized that in the beginning charities were of limited means, butnow bad grown to have large funds with which to carry on theiractivities. It is evident that in the Roland case the Court agreed that thetime had come for a re-evaluation of charitable immunity. Such re-evaluation could either call for the complete reversal of the wholedoctrine, or for the creation of exceptions limiting the scope of its ap-plication. Obviously, the Court utilized the latter approach by recog-nizing three exceptions and imposing liability on the charity where allthree were present.In a recent case,16 the Kansas court found itself in a similar situationto that of the Kentucky Court in the Roland case. Previously Kansashad been characterized as a "complete immunity" jurisdiction,lT butin holding a charitable hospital liable for the negligence of its employeein causing the death of a patient, that court for all practical purposescompletely overruled the doctrine of charitable immunity. In so doingthe court suggested liability insurance and, like the Kentucky Court inthe Roland case, recognized that charities now have grown into bigbusinesses capable of insuring themselves and thereby protectingtheir funds.What then, is the effect of the recognition of exceptions to the ap-plication of the doctrine of charitable immunity and the reasoning in15 See note 8 supra.16 Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934 (1954).17 See Annot., 25 A.L.R. 2d 157, 158 (1952).KENTUCKY LAW JouRNAL.the Roland case, upon the reasons for immunity the Court has assertedin previous cases? It appears that the reasons for the immunity havebecome hollow in the face of the exceptions to its application the courtrecognized in the Roland case. The Court had previously assertedimmunity to protect the trust funds of a charity, but allowing astranger to the charities to recover is just as much a dissipation of thetrust funds as allowing a charity patient to recover. 8 In the past, theCourt has denied recovery to a paying patient and even an employeeof the charity on the grounds that this constitutes a dissipation of thetrust funds.19 It seems that an employee of a charity or a payingpatient is, in most respects, as much a stranger to the charities as theplaintiff in the Roland case. Insurance coverage, suggested by theCourt itself, will constitute a dissipation of the trust funds due to thepayment of premiums. To allow a plaintiff to recover on the groundsthat the activity engaged in by the charity is commercial in character,is nonetheless a dissipation of the trust funds.The fact that the Court pointed to the availability of liability insur-ance and recognized that charitable institutions now have large fundswith which to carry on their activities, also tends to show that are-evaluation of the public policy behind charitable immunity has beenmade since the decision in Forrest v. Red Cross Hospital, where theCourt rejected the idea of insurance on the grounds that it wouldsaddle charitable institutions with ruinous premiums. Also, it cannotbe assumed that the Court, on the facts of the Roland case alone, wassuggesting liability insurance as a means to cover the liability imposed.Lastly, had the policy of protecting the trust funds of a charityhad any vitality at the time of the Roland case, it could have been re-affirmed by holding that the plaintiff impliedly waived the negligenceof the charity; this being a reason for immunity the Court had assertedin previous cases. Therefore, it seems that the exceptions to the ap-plication of immunity and the reasoning of the Court in the Rolandcase have for all practical purposes eviscerated the reasons asserted forapplying charitable immunity.In conclusion, the result and reasoning in the Roland case is morein line with the modem trend of decision to either overrule the doctrineof charitable immunity or, by creating exceptions, to limit the scopeof its application. The reasoning in the case tends to show that a re-evaluation of the public policy behind the whole doctrine of immunityhas been made, and that in the future more liability will be imposed18 Cf. Mississippi Baptist Hospital v. Holmes, 55 So. 2d 142, 153 (1951).19 Emery v. Jewish Hospital Ass'n, 193 Ky. 400, 236 S.W. 577 1921);Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, 202 S.W. 874 (1918).[Vol. 46,1958] CEcr CASES 297on charitable institutions in Kentucky. So far as the decision placesKentucky among those states which adhere to some sort of partialliability, the result will create confusion as to what the law will be inthe future, plus expensive litigation. Therefore, it appears that thereasons the Court has asserted for immunity have been repudiated bythe exceptions to its application, and the better approach would seemto be a clear reversal of the doctrine of charitable immunity in Ken-tucky.H. Wendell Cherry

Torts--Charitable Immunity From Tort Liability in Kentucky

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Torts--Charitable Immunity From Tort Liability in Kentucky

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