Present: All the Justices
ANTONIO MOORING, A MINOR WHO SUES
BY HIS MOTHER AND NEXT FRIEND,
PATRICIA MOORING, ET AL.
v. Record No. 981270 OPINION BY JUSTICE ELIZABETH B. LACY
April 16, 1999
VIRGINIA WESLEYAN COLLEGE, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
Antonio Mooring, a minor, suffered a traumatic amputation
of his right thumb when John Braley closed a door while
Mooring had his hand on the portal of the doorway. The
incident occurred at the Boys and Girls Club of Hampton Roads
(the Club). Mooring, through his next friend, sued Braley and
his employer, Virginia Wesleyan College. The trial court
dismissed Mooring's motion for judgment finding that Braley
was a volunteer at the Club and entitled to charitable
immunity as a result of the Club's status as a charity.
Because we find that Braley was not engaged in the charity's
work at the time of the alleged negligence, we conclude that
the trial court erred in dismissing Mooring's motion for
judgment.
Braley is a professor at Virginia Wesleyan College,
teaching in a recreation and leisure studies program. The
Club contacted Braley seeking volunteers to work in its
programs. In response, Braley established a program with the
Club in which students in Braley's recreation programming
class were required to spend six hours observing the children
and volunteering at the Club. The students were required to
return to the classroom, design recreation programs for the
children they observed, and then implement those programs at
the Club. Braley would go to the Club to observe the students
conducting the programs and would "help the students out" when
they needed it. The students were not graded directly on the
basis of their work at the Club, but on the basis of a report
they submitted to Braley describing their learning experience.
On the day Mooring was injured, one of Braley's students
was conducting a wellness and body-conditioning program for
thirteen to eighteen-year-olds in the Club's weight room. The
student was giving a talk to the participants and Braley was
observing her. At the student's request, Braley went to the
door to keep younger children not involved in the student's
program out of the room. While Braley was tending the door,
Mooring was injured.
The trial court held an evidentiary hearing on the
defendants' joint motion to dismiss. The parties stipulated
that the Club was a charity entitled to charitable immunity
and that Mooring was a beneficiary of the charity. The trial
court held that because Braley received no extra compensation
from the Club or Virginia Wesleyan College for the services he
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rendered, and because Braley's role at the Club was both
supervising his students and "helping the Club perform its
good work," he was "a volunteer at the Club" and thus entitled
to charitable immunity under Moore v. Warren, 250 Va. 421, 463
S.E.2d 459 (1995). *
In Moore, an American Red Cross volunteer was sued for
negligence allegedly committed while transporting the injured
party to a routine medical visit in a car owned by the Red
Cross. Providing transportation for such medical visits was a
service of the Red Cross. The driver contended that he was
"'cloaked with the immunity of the charity'" and that
charitable immunity was not limited to the charity itself.
Id. at 422, 463 S.E.2d at 459. In resolving this issue of
first impression, we stated:
Like any organization, a charity performs its work
only through the actions of its servants and agents.
Without a charity's agents and servants, such as the
volunteer here, no service could be provided to
beneficiaries. Denying these servants and agents
the charity's immunity for their acts effectively
would deny the charity immunity for its acts.
Id. at 423, 463 S.E.2d at 460. Based on this rationale, we
included the driver in the immunity of the charity and held
that he was immune from liability to the charity's
*
In dismissing the motion for judgment against both
defendants, the trial court did not specifically address
whether Virginia Wesleyan College was entitled to charitable
immunity, and this issue is not before us on appeal.
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beneficiaries for negligence while he was "engaged in the
charity's work." Id. at 425, 463 S.E.2d at 461. Thus, Moore
requires an individual seeking the cloak of a charity's
immunity to establish that he was an agent or servant of the
charity at the time of the alleged negligence and that the
alleged negligence for which he seeks immunity occurred while
he was actually doing the charity's work.
Assuming, without deciding, that the "role" Braley had at
the Club identified by the trial court satisfied the
requirement that Braley be an agent or servant of the Club,
Braley qualifies for protection under the Club's charitable
immunity only if the alleged negligence occurred while he was
doing the charity's work. Mooring contends that at the time
of the injury Braley's "presence did not directly benefit the
Club," and that Braley presented no evidence that "he was
doing anything in particular for the Club at the time of the
incident." We agree.
While Braley testified that he "helped out" at the Club
whenever he could, the record shows that at the time of his
alleged negligence, Braley was at the Club to observe the
activities of his student. He was not there to directly
perform any of the Club's work; rather he was carrying out his
duties as a professor at Virginia Wesleyan College. He was
observing his student and acting as "doorkeeper" at the
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student's request to allow his student to properly conduct the
wellness class. Under these facts, we conclude that Braley
was not entitled to charitable immunity because he was not
engaged in the work of the charity at the time of his alleged
negligence.
Accordingly, we will reverse the judgment of the trial
court and remand the case for further proceedings.
Reversed and remanded.
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