dissenting. In 1996, Jefferson Hospital Association, Inc., d/b/a Jefferson Regional Medical Center (“JRMC”), had a positive five-year surplus in excess of $5 million. It paid its chief executive officer a quarter of a million dollars in salary plus a bonus based on job performance. It owned outright or invested in several for-profit businesses, including a collection agency and management agency for physicians known as Jefferson Management Services, a managed care organization known as Arkansas Preferred Provider Organization, a diagnostic imaging center named Jefferson Health Affiliates, and a business for selling, leasing, and managing office space for physicians named Jefferson Regional Medical Development. It carried liability insurance for potential medical malpractice with St. Paul Fire & Marine Insurance Company. It did not have established guidelines for free care until two years after the negligence alleged by Gina George occurred. Based on the above, JRJV1C failed to satisfy several of the eight factors relied upon by the majority to determine charitable immunity. At the very least, there were fact questions raised by Gina George’s economist, Dr. Charles Venus, who filed an affidavit in this case in opposition to summary judgment. He questioned the amount of profit earned by JRMC and charitable care offered, both of which go to the very heart of whether charitable immunity should be afforded.
We are one of a distinct minority of states that still cling to the defense of charitable immunity, even though the original justification for charitable immunity —• protection of funds given to the charity from judgments — has long since become outmoded. See Restatement of Torts Second § 895E, p. 420; “The Quality of Mercy: ‘Charitable Torts’ and their Continuing Immunity.” 100 Harvard Law Review 1382 (1987). In retaining the defense, we have made it clear, as the majority states, that we will give the doctrine a very narrow construction. See Williams v. Jefferson Hospital Association, Inc., 246 Ark. 1231, 442 S.W.2d 243 (1969).
The majority, however, does not follow its own admonishment and instead gives the charitable-immunity defense in this case a very broad application. It concludes that there are no factual issues raised in a case fraught with factual questions, including what is the extent of the profit realized by JRMC and what is the extent of its charitable care? A corollary fact question is whether JRMC provides that write-offs for the difference between Medicaid benefits and the actual cost of care and write-offs for bad debt qualify as charity? Does the investment of JRMC in its for-profit subsidiaries affect its charitable status? What about the fact that 94% of its revenue comes from patient pay with only 5% or 6% derived from public or private gifts?
When there are factual issues involved in a charitable immunity defense, this court has held that the matter is for the jury to resolve. See Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953). In Croswell, the Crossett Health Center was sued because one of its doctors allegedly left a small piece of suture wire in the plaintiff s intestine. We concluded: “But in the case at bar there are factors sufficient for the jury to find that the medical center was not a trust involving dedication of its property to the public.” 221 Ark. at 883, 256 S.W.2d at 552. The relevant factors for determining charitable immunity may have changed since Croswell, but when factual issues are entwined within the pertinent factors, the jury should decide the matter.
The majority appears to decide the issue based on the fact that JRMC issues no capital stock and pays no dividends. But what about bonuses to its officers for job performance? That certainly is profit or gain to its principals of a different sort. Moreover, if issuing capital stock and paying dividends decide the issue, why have the other factors to consider?
I would reverse the summary judgment and remand for trial.