Abernathy v. Sisters of St. Mary's (1969)

(Why The Bishops Are Wrong, Part IV)

The more I delve into charitable immunity, the more curious it becomes.

In coming posts we'll visit the great states of Arkansas and Virginia to consider some of the consequences of the charitable immunity doctrine.

When the 85K cap was enacted here, Governor Sargent said that charities, including the churches, were "special" and deserved separate rules. He said that “by their nature and the quality and character of their charitable endeavor” they should be “treated differently” with regard to their legal liability. It's likely that he and other officials never dreamed that the church could be guilty of covering up sexual abuse and other crimes, nor that these egregious actions would instead demand that justice be applied in a neutral, across-the-board manner, whether the corporation was a widget factory, a bank, or a church.

It is beyond question that most states have dumped charitable immunity, and that they have had good reason for doing so. So far, this state, Massachusetts, has not made the jump. People talk, rightly, about the dysfunction of the NY legislature. I hope that Massachusetts lawmakers will rise above and address the issue of charitable immunity - as the judges have begged them to - by reforming 85K once and for all. Failing that, it would be a step in the right direction if they opened a window of justice for the sexual abuse victims who have been shut out of the courtroom.

It's interesting that while the rest of society has been abandoning the charitable immunity doctrine, one of its few champions is a Catholic archbishop. Bishop Paprocki of Chicago has mounted a rear-guard defense of the charitable immunity doctrine. You don't hear much about his reasoning in the popular or church press but on a quiet day I can almost hear the pages of his articles being thumbed in chanceries around the country. We will examine why he feels that charitable immunity must be restored and even broadened. His theories have support from some Catholic academics such as law professor Fr. John Coughlin of Notre Dame. We will also consider those arguments.

But, in this section, I present the gist of the Abernathy decision (Missouri).

I find this one interesting because it lays out in plain language the reasons why charitable immunity is an illogical, unfair doctrine. By this time (1969) the doctrine had been in a slow decline for 25 years. This decision accelerated the decline. Today, Massachusetts is looking more and more isolated as one of the few left to regularly uphold it in a court of law. In fact, the tide is running the other way toward limiting the protection available under the doctrine, as the Picher decision shows. Picher, in Maine, found that the church's protection under charitable immunity did not extend to intentional acts.

This makes the Massachusetts bishops' ringing defense of the doctrine even more curious than it already is.


Abernathy v. Sisters of St. Mary's

Supreme Court of Missouri, 1969
446 S.W.2d 599

Brief Fact Summary
Plaintiff was injured as a result of negligence on the part of the defendant's employee. The defendant claims immunity due to the fact they are a charity.

Rule of Law and Holding
The doctrine of charitable immunity was not well founded. "A nongovernmental charitable institution is liable for its own negligence and the negligence of its agents and employees acting within the scope of their employment."


Opinion by: HENLEY, C.J.

This is an action by a patient against a hospital for $35,000 damages for personal injuries allegedly suffered as a result of negligence of defendant. Defendant moved for summary judgment, alleging that it is, and operates the hospital as, a benevolent, religious, nonprofit corporation and charitable institution and, therefore, is immune from liability for its torts. The motion was sustained, judgment was entered for defendant, and plaintiff appealed.

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Plaintiff's petition alleges, in substance, that while a paying patient in defendant's hospital he was assisted by Marie Taylor, an employee of the hospital and an original defendant in this action, to move from his bed to his bathroom where he was left by the employee unattended; that due to his weakened condition he fell to the bathroom floor and suffered multiple injuries, including a fracture of his right leg; that his injuries were the result of negligence of the hospital in failing (1) to provide handrails for his support in lowering and raising his body to and from the toilet seat; and (2) to furnish a nurse or attendant to remain with and assist him in these necessary body functions. We assume the truth of these allegations of fact and those of the motion for summary judgment.

The doctrine of immunity of charitable institutions from liability for tort was adopted in this state in 1907 by a decision of the Kansas City Court of Appeals in Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453. Plaintiff, Adams, a paying patient, while still under the influence of an anesthetic, suffered postoperation burns from hot water bottles administered by incompetent nurses employed by defendant. Judgment was for plaintiff and the Court of Appeals reversed, holding, in substance, that it is the public policy of this state that a charitable institution is immune from liability for damages for its own negligence in selecting incompetent employees and for the negligence of its employees. In adopting this policy the court reasoned that it is in the best interest of every member of the public, and the state itself, that charitable institutions designed either for the alleviation of human suffering or for the ". . . moral being of mankind . . ." be built up and maintained by the funds of the benevolent and that those institutions be protected from any action which might tend either to close the purses of donors or deplete its funds and thereby prevent the institution from performing its functions. In other words, the court said, in effect, that it is better that the individual suffer injury without compensation from the negligent charitable institution than to risk the judicially assumed probability that the public and state would be deprived of the benefits of the charity; that the interest of the latter is so supreme that the former must be sacrificed to it.

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Plaintiff argues that the general rule is, and always has been, that there must be a remedy for every wrong; that the doctrine of immunity runs directly counter to this basic concept of justice. The Court of Appeals in the Adams case, and this court in subsequent decisions, recognized the rule, but deliberately chose to create an exception to it. There can be no doubt that at the time of its adoption the exception was a rule of expediency justifiable then, and for some time thereafter, to encourage and protect charity as vital to the growth and development of the state, but the reasons for the exception to the rule do not exist today. Today we have a new set of facts, conditions and circumstances. In the period of our history when the doctrine of immunity arose charity operated on a small scale; most persons engaged in the operation of its institutions gave their time, free, as their contribution to society; most gifts to charity were not corporate but private; and the needs of charitable institutions were, for the most part, poorly satisfied. "Today charity is big business. It often is corporate both in the identity of the donor and in the identity of the donee who administers the charity. Tax deductions sometimes make it actually profitable for donors to give to charity. Organized corporate charity takes over large areas of social activity which otherwise would have to be handled by government, or even by private business. Charity today is a large-scale operation with salaries, costs and other expenses similar to business generally. It makes sense to say that this kind of charity should pay its own way, not only as to its office expenses but as to the expense of insurance to pay for torts as well." Parker v. Port Huron Hospital, supra, 105 N.W.2d at 12-13. Today public liability insurance is available to charitable institutions to indemnify them against losses by way of damages for their negligence, and it is common knowledge that most charitable institutions carry such insurance and pay the premiums thereon as a part of their normal cost of operation. In the states where immunity has not been accorded charity, experience has shown that the apprehension expressed here and elsewhere that the purses of donors would be closed and the funds of charity depleted if these institutions were not granted immunity was not well founded. In the quarter century since the doctrine began its decline, there has been no indication in the states which have abolished immunity that its withdrawal has discouraged donations or that the funds of these institutions have been depleted resulting in their demise.


The public is doubtless still interested in the maintenance of charitable institutions and we acknowledge society's debt to them and recognize their right to every benefit and assistance which the law can justly allow. But the day has arrived when these institutions must acknowledge the injustice of denying compensation to a person injured as a result of their negligence or the negligence of their agents or employees; when they must acknowledge that all persons, organizations and corporations stand equal before the law and must be bound or excused alike. They must recognize that ". . . immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution. . .;" that the public has an interest also in the protection of life and limb of the individual as a member of society and must require that those who minister to these needs do so carefully; that to lift the mantle of immunity will tend to promote care and caution.

The theory of "implied waiver," namely, that he who accepts the benefit of charity impliedly agrees he will not assert against the institution any right of recourse for wrong done him is a mere fiction. The fiction is based upon impossibility in many instances. It is impossible to say that a conscious or unconscious grievously injured accident victim carried to the emergency room of a charitable hospital, or an ill person received at such hospital unconscious, or a conscious ill person who enters such hospital by arrangement of others waives his rights by accepting its benefits. To say that an insane person, a minor or babe in arms waives his rights when he receives or there is administered to him the benefits of any charitable institution does violence to the facts; such persons have no legal capacity to will away their rights. The waiver theory obviously cannot be applied alike to all persons and this fact points up the fallacy in relying upon it to support immunity as a rule of public policy.

The "trust fund" theory as support for the doctrine of immunity rests on an illogical, and therefore weak, foundation. The essence of the theory is that the institutions' funds, given and held for charitable purposes, cannot be used to pay judgments resulting from tort claims. Thus, the rationale of the theory is identified solely with the right to satisfaction of a judgment, rather than to the fundamental question of whether an injured person has a right to maintain an action and secure a judgment. If it is reasonable to say, and it is, that the existence of liability insurance does not create liability where none exists, then it is also reasonable to say that the inability to have satisfaction of a judgment does not create or support exemption from liability where exemption does not otherwise exist.

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