Present: All the Justices
DAVID E. MOORE, ADMINISTRATOR, ETC.
v. Record No. 942157 OPINION BY JUSTICE ELIZABETH B. LACY
November 3, 1995
WILLIAM R. WARREN
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
In this appeal, we consider whether a person performing
the work of a charity as a volunteer is entitled to the
protection of the charitable immunity doctrine.
William R. Warren was driving Mary A. Moore to a medical
facility for routine medical care when the vehicle was involved
in a collision with another vehicle. Moore was injured in the
accident. Moore later died from natural causes unrelated to
the accident.
David E. Moore, administrator of her estate, filed a
motion for judgment against Warren alleging that he negligently
operated the vehicle and that his negligence proximately caused
Moore's injuries. Warren filed a plea of charitable immunity
asserting that, at the time of the accident, he was driving a
car owned by the American Red Cross and that he was serving as
an unpaid volunteer for the Red Cross. Under these
circumstances, Warren asserted, he was "cloaked with the
immunity of the charity." The trial court sustained Warren's
plea. We awarded Moore an appeal and will affirm the judgment
of the trial court.
This is a case of first impression in this Commonwealth.
The doctrine of charitable immunity adopted in Virginia
precludes a charity's beneficiaries from recovering damages
from the charity for the negligent acts of its servants or
agents if due care was exercised in the hiring and retention of
those agents and servants. Straley v. Urbanna Chamber of
Commerce, 243 Va. 32, 35, 413 S.E.2d 47, 49 (1992). Moore's
primary argument is simply that cloaking Warren with charitable
immunity would encourage charitable activities at the expense
of compensating an injured victim. We struck this balance in
favor of charitable institutions when the doctrine of
charitable immunity was adopted and applied in Virginia years
ago. Weston's Adm'x v. Hospital of St. Vincent, 131 Va. 587,
602, 107 S.E. 785, 790 (1921). In making this choice, the
Court expressed the belief that it is in the public interest to
encourage charitable institutions in their "good work." Id.
Resolution of this case, therefore, must be consistent with
that choice.
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. If
the charity's servants and agents are not under the umbrella of
immunity given the institution itself and they are exposed to
negligence actions by the charity's beneficiaries, the "good
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work" of the charity will be adversely impacted. That result
is inconsistent with the Commonwealth's policy underlying the
doctrine of charitable immunity.
Moore, nevertheless, suggests that, as a case of first
impression, actions taken in other jurisdictions are
instructive and provide persuasive authority for his position.
However, we are aware of only one case which directly
considered the immunity of a charity's volunteer, Wood v.
Abell, 300 A.2d 665 (Md. 1973).
Wood is not persuasive here because the holding relied on
a trust fund theory of charitable immunity. Id. at 679. That
theory bases the charitable immunity doctrine on the rationale
that the funds of the charity should not be subject to
dissipation by negligence suits against the charity. Because
charitable funds would not be affected by the personal
liability of a charity's volunteer, the Supreme Court of
Maryland held that the rationale for the doctrine in Maryland
did not support applying the immunity to the charity's
volunteer. Id.
The trust fund doctrine, however, was considered and
specifically rejected as the rationale for adopting charitable
immunity in Virginia. Instead, public policy considerations
are the rationale for charitable immunity in this jurisdiction.
Hospital of St. Vincent v. Thompson, 116 Va. 101, 107, 81 S.E.
13, 15 (1914). Because the status of charitable immunity and
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the theories upon which it is based vary greatly from
jurisdiction to jurisdiction, we do not find cases from other
jurisdictions instructive or persuasive here. See generally
Note, The Quality of Mercy: "Charitable Torts" and Their
Continuing Immunity, 100 Harv. L. Rev. 1382, 1392-93 & n.71
(1987); Janet Fairchild, Annotation, Tort Immunity of
Nongovernmental Charities -- Modern Status, 25 A.L.R. 4th 517
(1983 & Supp. 1995).
In resolving the issue before us, we also reject Moore's
contention that including volunteers within a charity's cloak
of immunity is an expansion of the doctrine and that we have
previously stated such a task should be left to the
legislature. First, our previous statements regarding
preference for legislative rather than judicial action in this
area have been limited to actions which would "abolish or
relax" the doctrine. Roanoke Hosp. Ass'n v. Hayes, 204 Va.
703, 709, 133 S.E.2d 559, 563 (1963); Hill v. Leigh Memorial
Hosp., Inc., 204 Va. 501, 504, 132 S.E.2d 411, 414-15 (1963);
Memorial Hosp., Inc. v. Oakes, 200 Va. 878, 889, 108 S.E.2d
388, 396 (1959). In Oakes, the Court enunciated its rationale
for avoiding judicial restriction or abrogation of the
doctrine:
If it be considered desirable to abolish such
immunity, it would be more appropriate for the
General Assembly to act, for the effect would be to
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operate prospectively. Abandonment of the rule by
judicial decision would be retroactive and give life
to tort claims not barred by the statute of
limitations at the time of rendition of this opinion.
200 Va. at 889, 108 S.E.2d at 396.
Thus, this Court's stated preference for legislative action is
limited in scope and is based on a need to avoid the
potentially detrimental results that would flow from judicial
abrogation or limitation of the doctrine.
More importantly, our resolution of the present issue is
not an expansion of the charitable immunity doctrine but
involves only another instance of defining its contours. See,
e.g., Weston's Adm'x, 131 Va. at 610, 105 S.E. at 792 (one who
pays for services of a charity can be a beneficiary of the
charity); Hill, 204 Va. 501, 132 S.E.2d 411 (1963) (charity is
not liable for corporate negligence other than negligent hiring
and retention of its servants); Straley, 243 Va. at 37, 413
S.E.2d at 50-51 and Thrasher v. Winand, 239 Va. 338, 341, 389
S.E.2d 699, 701 (1990) (member of community only generally
served by a charity is not beneficiary).
For the reasons stated, we conclude that under the
doctrine of charitable immunity, a volunteer of a charity is
immune from liability to the charity's beneficiaries for
negligence while the volunteer was engaged in the charity's
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work. * Accordingly, we will affirm the judgment of the trial
court.
Affirmed.
JUSTICE HASSELL, dissenting.
Contrary to its assertion, the majority has certainly
expanded the doctrine of charitable immunity. We have not
heretofore held that a volunteer of a charitable organization
is immune from tort liability. Indeed, I am unaware of any
other court in the United States which has granted such tort
immunity to a volunteer of a charitable organization.
We have consistently held that if the bar of charitable
immunity is to be either expanded or abolished, the General
Assembly should do so, and not this Court, which is the branch
of government least suited to make public policy decisions.
For example, we stated in Hospital Association v. Hayes, 204
Va. 703, 709, 133 S.E.2d 559, 563 (1963):
The defendant urges us to broaden the immunity
extended to a charitable institution. We have
heretofore said that the wisdom of exempting a
charitable institution from liability in tort even to
its beneficiaries was not entirely free from doubt;
but we felt that it would be more appropriate for the
General Assembly of Virginia to abolish or relax the
rule than for this Court to undertake to do so. Hill
v. Memorial Hospital, Inc., [204 Va. 501, 506, 132
*
We decline to adopt Moore's suggestion that the test
applied to sovereign immunity cases for determining employee
immunity be employed in charitable immunity cases. While the
doctrines may appear to be similar, their jurisprudence and
statutory development are different. We see no reason to
transport standards developed in the context of sovereign
immunity to charitable immunity.
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S.E.2d 411, 414-15 (1963)]; Memorial Hospital v.
Oakes, Adm'x, [200 Va. 878, 889, 108 S.E.2d 388, 396
(1959)]. We decline to accept defendant's request.
Even a cursory review of the majority's opinion reveals that
the majority's decision to expand the bar of charitable
immunity is based solely upon public policy considerations
rather than legal precedent. I would reverse the judgment of
the trial court and remand this case for a trial on the merits.
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