Albritton v. Neighborhood Centers Ass'n for Child Development

Locher, J.,

dissenting. The issue set forth by the majority in today’s decision is not in accord with the reality of charitable immunity in Ohio. Accordingly, I feel compelled to dissent to what I feel is an overbroad position adopted by my brethren.

Ohio does not recognize complete charitable immunity. Instead, over the years this court has wisely adopted a case by case formula for retaining or abrogating charitable immunity based upon the policy dictates of the individual factual circumstances. Thus, as the majority correctly points out, charitable immunity has been previously abolished where the defendant charity is a hospital, where the injured plaintiff is not a beneficiary of the charity, where the plaintiff is harmed as a result of the charity’s negligence in the selection or retention of an employee, where the plaintiff pays for services rendered by the charity, and where the charity operates a business enterprise for products not directly related to the purpose for which the organization was established. Immunity has been previously retained, however, for those many charities ministering to the needy, including those other smaller charities balanced precariously on the edge of financial abyss. As government support has continued to diminish, the ranks of the needy have swelled in response. Until today’s opinion this court had recognized, as a matter of public policy, that not all charitable organizations could shoulder their burdens and still pay insurance premiums and legal fees in the face of potential negligence liability.

The many exceptions presented by the majority, contrary to their “exception devouring the rule” characterization, are the result of many decades of thoughtful, patient policy analysis by this court. Exceptions have not gobbled the rule; instead, the rule has adapted to the times and to the needs of charities. Now, in a single stroke, the majority has chosen to abolish all charitable immunity based on a narrow factual pattern concerning a govern-mentally funded charitable organization. This position is squarely against this court’s previous posture of judicial restraint.

A similar abrogation of judicial restraint was effected in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26. In Haverlack, and in a series of subsequent cases, dicta was bootstrapped into the law of this state in the abolition of sovereign immunity. As a practical matter the entire issue of sovereign immunity was resolved prior to the time individual parties could *216present their justifications for retaining the policy. In the case sub judice a variation on the Haverlaok theme has been promulgated. A narrow factual circumstance, in this case a governmentally subsidized program run by a charity, is used as a basis for a sweeping syllabus that eliminates all charitable immunity. This result need not and should not be mandated by these facts.

A better approach has been utilized in the area of intrafamilial and interspousal immunities where each case is scrutinized on its facts and resolved on policy adequately articulated by the parties. See, e.g., Mauk v. Mauk (1984), 12 Ohio St. 3d 156; Bonkowsky v. Bonkowsky (1982), 69 Ohio St. 2d 152 [23 O.O.3d 188]. Until now, this was the same approach successfully applied in the area of charitable immunity. By rejecting this approach the majority indulges in legislation. Unlike legislative procedure, however, the parties before us could not present their complete arguments justifying an all-encompassing rule. We cannot issue broad pronunciamentos since we are institutionally limited by the facts before us. Today’s decision impacts on a wide range of charities not financed by governmental entities and therefore not represented by the parties in interest. Moreover, with less and less governmental support of charities, the facts upon which the majority predicates its new position are more likely to be the exception rather than the rule.

To the degree that volunteerism is suffocated and discouraged by the stunting of the spirit and balm of love, compassion and understanding promulgated through charitable works, today’s result can only create an expensive bureaucratic tangle. Volunteerism will be chilled and assistance to the hungry and dispossessed will diminish, in exact degree, to sweeten the coffers of the John Street insurance empires. In this tangle the small but sturdy charity which gives aid to the small towns and communities in this state is engulfed and slowly strangled while the few large, structured, and financially viable charities of the larger cities will survive. The committed and dedicated men and women from all walks of life who give service to charity gain in fraternity and spirit by coming to the aid of those in need. Thus not only will the indigent and downtrodden pay the price for today’s decision, but the ethical and moral fiber of what gives worth to the lives of so many citizens, and makes this country great, will be diminished.

The majority offers a number of reasons for abolishing charitable immunity. None justifies the ultimate result.

The first reason presented is the hypothesis that the exceptions to the rule have “devoured” it. As articulated previously this argument is the opposite of judicial restraint and the institutional mandate that courts should make decisions based on the facts before them.

The second argument presented by the majority presupposes that charitable immunity should be abolished because that is “the trend.” This type of argument, while superficially plausible, neglects our ruling as an individual court and suggests we should rule based on national consensus and *217the mathematics of the majority. Today’s trend, however, may become tomorrow’s tyranny. History and common sense dictate that a trend may be a good tool in evaluating a policy, but should not take on a life of its own as a justification bereft of a context. What is good for one state may not be good for another.

The third reason offered by the majority examines the underlying policy behind charitable immunity. No one would argue that personal injury is diminished because it is inflicted by a charitable institution. This court, however, has never promulgated such a rule nor do we support it here.

The majority justifies its decision by a balancing test — the right of the injured individual against the right of the charitable organization. Yet, our prior cases, now overruled en masse, have taken that identical approach in allowing a modified charitable immunity to exist. Under this court’s prior approach we might very well reach the decision adopted today to the extent the evidence demonstrates a governmentally funded charity can support the pecuniary burdens of potential negligence liability. No such evidence was presented by the parties in interest, however, and the majority is not content with limiting the effect of this decision to the proper parties. Thus an injured foot has become the means to stamp out all immunity for charities. No distinction is made, nor was even presented, to distinguish between large governmentally funded charities and those many small charities barely able to purchase the potatoes for soup kitchens, let alone the premiums for.insurance protection.

The sociological studies which might provide an empirical basis for today’s sweeping opinion were never presented, never briefed, and never considered because the charity in question was never perceived to be all charities. Although the majority relies heavily on the chill, academic conjecture of learned commentators, no mention is made of empirical studies which dispassionately review actual statistics from jurisdictions where immunity has been abolished Such studies tell a story different than the speculation relied upon by the majority and suggest that when abolition of immunity occurs it is the public which must pay a substantial cost. See, e.g., Canon & Jaros, The Impact of Changes in Judicial Doctrine: The Abrogation of Charitable Immunity (1979), 13 Law and Soc. Rev. 969. It is submitted that the majority forgets that the policy it so desperately seeks to destroy was established in the same sweeping manner. If we grant, as the majority seems to conclude, that it is a bad way to make law, then it is no better to eliminate law in as sweeping a manner. Law made in a moment and overturned in another moment can just as easily be reestablished in the future by justices equally impatient to impose their own sociological agenda on our state.

I must dissent today not against my fellow justices nor their lofty intentions to aid people injured by charities, but rather against their belief that “bad” law should be broadly and sweepingly eliminated at the expense of charities which never knew such a broad case was before us and never had the opportunity to rebut the presumptions of the majority. A victory under *218these circumstances can only be Pyrrhic at the cost of the judicial restraint which is the basis for this court’s legitimacy.

Therefore, I dissent.