Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Carrico, S.J.
INGRID H. COWAN
v. Record No. 032758 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 5, 2004
HOSPICE SUPPORT CARE, INC.
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
In this appeal, we consider whether a plaintiff's claims of
gross negligence and willful and wanton negligence against a
charity are barred by the doctrine of charitable immunity.
For purposes of this appeal, the facts relevant to this
issue of law and question of first impression are not in
dispute. On July 9, 2001, the plaintiff, Ingrid H. Cowan,
placed her mother, Ruth D. Hazelwood (the decedent), in Harbor
House, a residential facility that provides temporary care for
very ill persons when their primary caregiver seeks respite.
Harbor House is operated by the defendant, Hospice Support Care,
Inc. (Hospice), “a non-profit, non-medical volunteer hospice
support corporation.”
The decedent was bedridden and required the assistance of
two persons to move her from her bed to a bedside commode.
During the decedent’s first night at Harbor House, a single
volunteer lifted her from the bed. When the decedent’s right
leg became “caught” in the bed, the volunteer heard a loud
“popping-cracking” noise in the leg. That evening, and for the
remainder of the decedent’s week-long stay at Harbor House, the
decedent received morphine for pain in her leg, but she was not
provided any other medical treatment.
Cowan returned to Harbor House on July 16, 2001. After she
and her mother left the facility, Cowan discovered that the
decedent’s leg was swollen and that she appeared to be in pain.
As a result, Cowan took the decedent to a nearby hospital
emergency room. The decedent was diagnosed as having a
shattered right femur, which required amputation of her leg
above the knee. The decedent died four days later from
complications resulting from the surgery.
Cowan filed an amended motion for judgment in the circuit
court against Hospice alleging wrongful death of the decedent
based on claims of simple negligence, gross negligence, willful
and wanton negligence, and negligent hiring and retention. Upon
consent of the parties, the circuit court dismissed the simple
negligence count. Hospice filed a plea in bar of charitable
immunity to the counts of gross negligence and willful and
wanton negligence, and a demurrer to the negligent hiring and
retention count. The circuit court sustained the plea in bar
and demurrer and dismissed these remaining counts with
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prejudice1. Among other things, the circuit court concluded that
the charitable immunity doctrine barred recovery for acts or
omissions of gross negligence and willful and wanton negligence.
Cowan appeals.
On appeal, Cowan argues that this Court has not applied the
charitable immunity doctrine to shield a charity from liability
for acts of gross negligence or willful and wanton negligence.
She asserts that because gross negligence and willful and wanton
negligence are different in degree and kind from simple
negligence, the charitable immunity doctrine should not be
defined as including immunity for those more extreme acts.
Cowan also contends that the charitable immunity doctrine should
not be applied to acts of gross negligence or willful and wanton
negligence because, in instances of such extreme conduct, the
public’s interest in encouraging charitable activities is
outweighed by the need to deter such acts of “reckless and
harmful behavior.”
In response, Hospice argues that charities should be immune
from liability for all degrees of negligence because the absence
of such immunity would discourage them from performing their
beneficial activities. Hospice asserts that this Court, in its
prior decisions, has discussed charitable immunity from
1
Cowan did not assign error to the trial court's decision
sustaining the demurrer to the negligent hiring and retention
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liability for negligence without specifically limiting that
immunity to claims of simple negligence. Thus, Hospice
contends, because gross negligence and willful and wanton
negligence are simply different degrees of negligence,
charitable immunity extends to shield charities from liability
for those categories of negligent conduct as well.
Hospice also asserts that Code § 8.01-226.4, which
effectively subjects hospice volunteers to liability for acts of
gross negligence and willful and wanton negligence, is evidence
of the General Assembly’s intent to shield charities from
similar liability by providing a remedy against the individuals
who actually commit such acts.2 We disagree with Hospice’s
arguments.
Under the doctrine of limited immunity applied to charities
in this Commonwealth, a charitable institution is immune from
liability to its beneficiaries for negligence caused by acts or
omissions of its servants and agents, provided that the charity
has exercised due care in their selection and retention.
Straley v. Urbanna Chamber of Commerce, 243 Va. 32, 35, 413
claim.
2
Hospice additionally argues that even if it can be sued
for gross negligence or willful and wanton negligence, Cowan has
failed to plead sufficient facts to state a claim for either.
However, we do not consider this argument because the circuit
court did not rule on the sufficiency of the facts pleaded in
the amended motion for judgment. Thus, the issue is not before
us in this appeal.
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S.E.2d 47, 49 (1992); Thrasher v. Winand, 239 Va. 338, 340, 389
S.E.2d 699, 701 (1990). While this immunity shields a charity
from claims made by its beneficiaries, the immunity does not
extend to protect the charity from claims made by persons who
have no beneficial relationship to the charity but are merely
invitees or strangers. Straley, 243 Va. at 36-37, 413 S.E.2d at
49; Thrasher, 239 Va. at 340-41, 389 S.E.2d at 701.
We adopted this doctrine of limited charitable immunity
based on public policy considerations. Moore v. Warren, 250 Va.
421, 424, 463 S.E.2d 459, 460 (1995); Hill v. Leigh Mem'l Hosp.,
204 Va. 501, 504-05, 132 S.E.2d 411, 414 (1963); Weston v.
Hospital of St. Vincent, 131 Va. 587, 609-10, 107 S.E. 785, 792
(1921). These considerations rest on the premise that the
services charities extend to their beneficiaries also benefit
the public by alleviating a public burden. See Hill, 204 Va. at
507, 132 S.E.2d at 415. When charities are required to expend
funds to litigate negligence claims, the charities’ ability to
perform services for their beneficiaries is restricted. See
Moore, 250 Va. at 423, 463 S.E.2d at 460; Hill, 204 Va. at 507,
132 S.E.2d at 415; see also Egerton v. R.E. Lee Mem'l Church,
395 F.2d 381, 382 (4th Cir. 1968).
These public policy considerations provide the framework
for resolving the issue before us. In deciding this question,
we focus on the nature of the conduct involved in the differing
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degrees of negligence and the extent to which each type of
conduct deviates from the role of charities and their
contribution to the public welfare.
As our decisions have recognized, there are three levels of
negligence. The first level, simple negligence, involves the
failure to use the degree of care that an ordinarily prudent
person would exercise under similar circumstances to avoid
injury to another. Gossett v. Jackson, 249 Va. 549, 554, 457
S.E.2d 97, 100 (1995); Griffin v. Shively, 227 Va. 317, 321, 315
S.E.2d 210, 212-13 (1984). The second level, gross negligence,
is a degree of negligence showing indifference to another and an
utter disregard of prudence that amounts to a complete neglect
of the safety of such other person. This requires a degree of
negligence that would shock fair-minded persons, although
demonstrating something less than willful recklessness. Koffman
v. Garnett, 265 Va. 12, 15, 574 S.E.2d 258, 260 (2003); Griffin,
227 Va. at 321, 315 S.E.2d at 213; Ferguson v. Ferguson, 212 Va.
86, 92, 181 S.E.2d 648, 653 (1971).
The third level of negligent conduct is willful and wanton
negligence. This conduct is defined as “acting consciously in
disregard of another person’s rights or acting with reckless
indifference to the consequences, with the defendant aware, from
his knowledge of existing circumstances and conditions, that his
conduct probably would cause injury to another.” Etherton v.
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Doe, 268 Va. 209, 213-14, 597 S.E.2d 87, 90 (2004)(quoting
Griffin, 227 Va. at 321, 315 S.E.2d at 213); see also Alfonso v.
Robinson, 257 Va. 540, 545, 514 S.E.2d 615, 618 (1999).
As these definitions illustrate, there are fundamental
distinctions separating acts or omissions of simple negligence
from those of gross negligence and willful and wanton
negligence. When we consider these distinctions in the context
of the charitable immunity doctrine, their differing
applications to the doctrine become apparent.
Acts or omissions of simple negligence may occur routinely
in the performance of the activities of any charitable
organization. Employees or volunteers, in carrying out their
duties, may fail to understand or to adequately follow
instructions of a supervisor, may exercise poor judgment, or may
have a lapse in attention to an assigned task. While serious
consequences may result from these deficiencies in performance,
they ordinarily do not involve an extreme departure from the
charity’s routine actions in conducting its activities.
In contrast, gross negligence involves conduct that “shocks
fair-minded people,” and willful and wanton negligence involves
such recklessness that the actor is aware that his conduct
probably would cause injury to another. Etherton, 268 Va. at
213-14, 597 S.E.2d at 90; Wilby v. Gostel, 265 Va. 437, 446, 578
S.E.2d 796, 801 (2003); Griffin, 227 Va. at 321, 315 S.E.2d at
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213. Thus, unlike simple negligence, these two levels of
negligence are characterized by conduct that represents an
unusual and marked departure from the routine performance of a
charity’s activities.
As a practical matter, a charity’s performance of its
mission may be thwarted by litigation directed at the charity’s
failure to perform its activities in accordance with standards
of ordinary care. For this reason, our Commonwealth’s public
policy in favor of promoting the activities of charitable
organizations has been employed to shield charities from
liability for their acts of simple negligence.
This rationale, however, is inapplicable to conduct
involving gross negligence and willful and wanton negligence.
Unlike acts or omissions giving rise to claims of simple
negligence, such conduct can never be characterized as an
attempt, albeit ineffectual, to carry out the mission of the
charity to serve its beneficiaries. Therefore, we conclude that
the public policy rationale that shields a charity from
liability for acts of simple negligence does not extend to acts
of gross negligence and willful and wanton negligence.
This conclusion does not represent a departure from our
often-stated preference for legislative rather than judicial
action to “abolish or relax” the charitable immunity doctrine.
See, e.g., Moore, 250 Va. at 424, 463 S.E.2d at 460; Roanoke
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Hosp. Ass’n v. Hayes, 204 Va. 703, 709, 133 S.E.2d 559, 563
(1963); Hill, 204 Va. at 504, 133 S.E.2d at 563. Instead, our
present holding, like several of our earlier decisions, serves
to define the contours of the doctrine with regard to a subject
we have not previously addressed. See, e.g., Moore, 250 Va. at
424, 463 S.E.2d at 460-61 (volunteer of charity is immune from
liability to charity’s beneficiaries while engaged in
performance of charity’s work); Straley, 243 Va. at 37, 413
S.E.2d at 50-51 (community member only generally served by
charity is not beneficiary); Weston, 131 Va. at 610, 105 S.E. at
792 (one who pays for charity’s services can be beneficiary of
charity).
We also observe that our holding today is consistent with
the General Assembly’s enactment of Code § 8.01-226.4. That
statute provides civil immunity for the acts or omissions of
hospice volunteers who render care to terminally ill patients,
provided that the volunteers act in good faith and in the
absence of gross negligence or willful misconduct. In enacting
this section, the General Assembly has expressed a clear
preference for excluding from the protection of charitable
immunity acts or omissions of gross negligence and willful
misconduct.
For these reasons, we conclude that the circuit court erred
in sustaining the defendant’s plea of charitable immunity to
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Counts II and III of Cowan’s amended motion for judgment. We
will reverse the circuit court’s judgment and remand the case
for further proceedings consistent with the principles expressed
in this opinion.
Reversed and remanded.
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