Personal Injury Charitable Immunity
Brien Roche
Charitable immunity is alive and well in Virginia. The lead case on that issue is UVA v. Morris, 275 Va. 319 (2008). A charity is immune from liability to beneficiaries for acts of ordinary negligence. However the charity may be liable for fault in the selection or retention of employees. In addition the fact that the charity receives compensation from the beneficiary does not strip it of its charitable status. Ola v YMCA 270 Va. 550 (2005)
To analyze the issue of immunity you need to look at the ten (10) factors set out in Ola. The fact that an entity is a non-profit does not mean that it is charitable. However to be charitable, it must be non-profit. Likewise the fact that it has a 501(c)3 designation does not mean that it is charitable for purposes of tort immunity.
Look at Source of Funds
The real question frequently is whose funds or resources are being used to benefit the plaintiff. If the funds are coming almost exclusively from revenue as opposed to donations, then that would suggest that the entity is not charitable. Therefore one of the most important factors to look at is what percentage of the operating costs are coming from donations and what percentage are simply coming from general operating revenue. In Ola the court found that 30% to 33% coming from donations was sufficient to make it a charity. Another factor to look at is the aggressiveness of debt collection. The mere fact that an entity is aggressive in debt collection doesn’t mean that it’s not a charity. In an unreported case in Charlottesville Circuit Court of Q.A.P. v. Miller School, CL20-506, the trial court wrote a very well-reasoned opinion and concluded that because only 10% of the entity’s operating expenses came from charitable donations, that therefore it was not a charity for purposes of tort immunity.
The immunity applies for claims brought against the charity by a beneficiary. An employee of the organization is not a beneficiary. Byrd Theatre Foundation v. Barnett, 287 Va. 291 (2014)
Personal Injury Charitable Immunity-Gross Negligence
To get around the issue of immunity, the plaintiff typically has to plead gross negligence on the part of the organization. Under the case of Elliot v. Carter, 292 Va. 618 (2016), the facts necessary to prove gross negligence are demanding. In that case a scout leader was ruled to have exercised some degree of care in supervising a child who drowned in the Rappahannock River. That measurement of “some degree of care” was sufficient to defeat the gross negligence claim. However that’s a difficult standard to meet.
Personal Injury Charitable Immunity-Punitive Damages
Attempting to prove punitive damages in most instances is even more difficult. The standard however in general for punitive damages is that there has to be a conscious disregard of the rights of others. That conscious disregard may be seen in instances where there is actual malice. It may be seen where there is recklessness. Call or contact us for a free consult.
Take the general example of property maintenance. If a charity, through its board of directors, makes a conscious decision not to maintain a stairway in violation of the Code, that might be a conscious disregard of the rights of others. To prove that conscious disregard, you would probably have to get the minutes of the Board of Directors meeting. If the issue of repairing the stairway or placing a handrail on a stairway that is required by Code was addressed by the board, that is significant.
If the board made a conscious decision not to replace or repair a handrail for financial reasons, that likewise is significant. Is that a conscious disregard of the rights of others? I think it may be in the sense that the Code requirement is designed to protect the public. If the organization knows that there is no handrail and knows that is a Code violation and makes a conscious decision not to replace the handrail purely for financial reasons, that could be a basis for a punitive damage award. That may be a way to get around the immunity issue.
Corporate Officers
Another factor to consider is the immunity of volunteers who may be on the board.
In the world of business there is the so-called “business judgment rule”. There is another posting on this site entitled Corporate Officer Liability that deals with that issue. The board of directors of a charity may be immune based upon that rule. However the officers are not necessarily immune based on that rule. If there is a way to join the board or a corporate officer as defendants in the lawsuit, that tends to get the attention of the decision-makers.
In making any decision to join such people, you need to also consider U.S. Code Section 42 U.S.C. 14501 which bestows immunity upon volunteers working for a non-profit organization. However if the volunteer was acting within the scope of the volunteer’s responsibilities for the non-profit and if the harm was not caused by any willful or criminal misconduct or gross negligence then the volunteer may be immune. See 42 U.S.C., sect. 14503. There may also be immunity for non-economic losses. See 42 U.S.C., sect., 14504.
Other Employees
Other employees of the charity may be immune provided they are acting as an agent or servant of the charity at the time of the act and the alleged fault for which the employee seeks immunity occurred while the employee was doing the charity’s work. Bhatia v. Mehek, Inc., 262 Va. 544 (2001)
Call or contact us for a free consult. Also for more info on charity immunity see the Wikipedia pages. Also see the post on this site dealing with corporate officer liability.