Cowan v. Hospice Support Care, Inc.

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Carrico, S.J.

INGRID H. COWAN

v.   Record No. 032758  OPINION BY JUSTICE BARBARA MILANO KEENAN
                                   November 5, 2004
HOSPICE SUPPORT CARE, INC.


       FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                     John W. Scott, Jr., Judge

      In this appeal, we consider whether a plaintiff's claims of

gross negligence and willful and wanton negligence against a

charity are barred by the doctrine of charitable immunity.

      For purposes of this appeal, the facts relevant to this

issue of law and question of first impression are not in

dispute.   On July 9, 2001, the plaintiff, Ingrid H. Cowan,

placed her mother, Ruth D. Hazelwood (the decedent), in Harbor

House, a residential facility that provides temporary care for

very ill persons when their primary caregiver seeks respite.

Harbor House is operated by the defendant, Hospice Support Care,

Inc. (Hospice), “a non-profit, non-medical volunteer hospice

support corporation.”

      The decedent was bedridden and required the assistance of

two persons to move her from her bed to a bedside commode.

During the decedent’s first night at Harbor House, a single

volunteer lifted her from the bed.   When the decedent’s right

leg became “caught” in the bed, the volunteer heard a loud
“popping-cracking” noise in the leg.    That evening, and for the

remainder of the decedent’s week-long stay at Harbor House, the

decedent received morphine for pain in her leg, but she was not

provided any other medical treatment.

     Cowan returned to Harbor House on July 16, 2001.       After she

and her mother left the facility, Cowan discovered that the

decedent’s leg was swollen and that she appeared to be in pain.

As a result, Cowan took the decedent to a nearby hospital

emergency room.    The decedent was diagnosed as having a

shattered right femur, which required amputation of her leg

above the knee.    The decedent died four days later from

complications resulting from the surgery.

     Cowan filed an amended motion for judgment in the circuit

court against Hospice alleging wrongful death of the decedent

based on claims of simple negligence, gross negligence, willful

and wanton negligence, and negligent hiring and retention.      Upon

consent of the parties, the circuit court dismissed the simple

negligence count.   Hospice filed a plea in bar of charitable

immunity to the counts of gross negligence and willful and

wanton negligence, and a demurrer to the negligent hiring and

retention count.    The circuit court sustained the plea in bar

and demurrer and dismissed these remaining counts with




                                  2
prejudice1.   Among other things, the circuit court concluded that

the charitable immunity doctrine barred recovery for acts or

omissions of gross negligence and willful and wanton negligence.

Cowan appeals.

     On appeal, Cowan argues that this Court has not applied the

charitable immunity doctrine to shield a charity from liability

for acts of gross negligence or willful and wanton negligence.

She asserts that because gross negligence and willful and wanton

negligence are different in degree and kind from simple

negligence, the charitable immunity doctrine should not be

defined as including immunity for those more extreme acts.

Cowan also contends that the charitable immunity doctrine should

not be applied to acts of gross negligence or willful and wanton

negligence because, in instances of such extreme conduct, the

public’s interest in encouraging charitable activities is

outweighed by the need to deter such acts of “reckless and

harmful behavior.”

     In response, Hospice argues that charities should be immune

from liability for all degrees of negligence because the absence

of such immunity would discourage them from performing their

beneficial activities.   Hospice asserts that this Court, in its

prior decisions, has discussed charitable immunity from

     1
       Cowan did not assign error to the trial court's decision
sustaining the demurrer to the negligent hiring and retention


                                 3
liability for negligence without specifically limiting that

immunity to claims of simple negligence.   Thus, Hospice

contends, because gross negligence and willful and wanton

negligence are simply different degrees of negligence,

charitable immunity extends to shield charities from liability

for those categories of negligent conduct as well.

     Hospice also asserts that Code § 8.01-226.4, which

effectively subjects hospice volunteers to liability for acts of

gross negligence and willful and wanton negligence, is evidence

of the General Assembly’s intent to shield charities from

similar liability by providing a remedy against the individuals

who actually commit such acts.2   We disagree with Hospice’s

arguments.

     Under the doctrine of limited immunity applied to charities

in this Commonwealth, a charitable institution is immune from

liability to its beneficiaries for negligence caused by acts or

omissions of its servants and agents, provided that the charity

has exercised due care in their selection and retention.

Straley v. Urbanna Chamber of Commerce, 243 Va. 32, 35, 413



claim.
     2
       Hospice additionally argues that even if it can be sued
for gross negligence or willful and wanton negligence, Cowan has
failed to plead sufficient facts to state a claim for either.
However, we do not consider this argument because the circuit
court did not rule on the sufficiency of the facts pleaded in
the amended motion for judgment. Thus, the issue is not before
us in this appeal.

                                  4
S.E.2d 47, 49 (1992); Thrasher v. Winand, 239 Va. 338, 340, 389

S.E.2d 699, 701 (1990).   While this immunity shields a charity

from claims made by its beneficiaries, the immunity does not

extend to protect the charity from claims made by persons who

have no beneficial relationship to the charity but are merely

invitees or strangers.    Straley, 243 Va. at 36-37, 413 S.E.2d at

49; Thrasher, 239 Va. at 340-41, 389 S.E.2d at 701.

     We adopted this doctrine of limited charitable immunity

based on public policy considerations.   Moore v. Warren, 250 Va.

421, 424, 463 S.E.2d 459, 460 (1995); Hill v. Leigh Mem'l Hosp.,

204 Va. 501, 504-05, 132 S.E.2d 411, 414 (1963); Weston v.

Hospital of St. Vincent, 131 Va. 587, 609-10, 107 S.E. 785, 792

(1921).   These considerations rest on the premise that the

services charities extend to their beneficiaries also benefit

the public by alleviating a public burden.   See Hill, 204 Va. at

507, 132 S.E.2d at 415.   When charities are required to expend

funds to litigate negligence claims, the charities’ ability to

perform services for their beneficiaries is restricted.   See

Moore, 250 Va. at 423, 463 S.E.2d at 460; Hill, 204 Va. at 507,

132 S.E.2d at 415; see also Egerton v. R.E. Lee Mem'l Church,

395 F.2d 381, 382 (4th Cir. 1968).

     These public policy considerations provide the framework

for resolving the issue before us.    In deciding this question,

we focus on the nature of the conduct involved in the differing


                                  5
degrees of negligence and the extent to which each type of

conduct deviates from the role of charities and their

contribution to the public welfare.

     As our decisions have recognized, there are three levels of

negligence.   The first level, simple negligence, involves the

failure to use the degree of care that an ordinarily prudent

person would exercise under similar circumstances to avoid

injury to another.   Gossett v. Jackson, 249 Va. 549, 554, 457

S.E.2d 97, 100 (1995); Griffin v. Shively, 227 Va. 317, 321, 315

S.E.2d 210, 212-13 (1984).   The second level, gross negligence,

is a degree of negligence showing indifference to another and an

utter disregard of prudence that amounts to a complete neglect

of the safety of such other person.   This requires a degree of

negligence that would shock fair-minded persons, although

demonstrating something less than willful recklessness.   Koffman

v. Garnett, 265 Va. 12, 15, 574 S.E.2d 258, 260 (2003); Griffin,

227 Va. at 321, 315 S.E.2d at 213; Ferguson v. Ferguson, 212 Va.

86, 92, 181 S.E.2d 648, 653 (1971).

     The third level of negligent conduct is willful and wanton

negligence.   This conduct is defined as “acting consciously in

disregard of another person’s rights or acting with reckless

indifference to the consequences, with the defendant aware, from

his knowledge of existing circumstances and conditions, that his

conduct probably would cause injury to another.”   Etherton v.


                                 6
Doe, 268 Va. 209, 213-14, 597 S.E.2d 87, 90 (2004)(quoting

Griffin, 227 Va. at 321, 315 S.E.2d at 213); see also Alfonso v.

Robinson, 257 Va. 540, 545, 514 S.E.2d 615, 618 (1999).

     As these definitions illustrate, there are fundamental

distinctions separating acts or omissions of simple negligence

from those of gross negligence and willful and wanton

negligence.   When we consider these distinctions in the context

of the charitable immunity doctrine, their differing

applications to the doctrine become apparent.

     Acts or omissions of simple negligence may occur routinely

in the performance of the activities of any charitable

organization.   Employees or volunteers, in carrying out their

duties, may fail to understand or to adequately follow

instructions of a supervisor, may exercise poor judgment, or may

have a lapse in attention to an assigned task.   While serious

consequences may result from these deficiencies in performance,

they ordinarily do not involve an extreme departure from the

charity’s routine actions in conducting its activities.

     In contrast, gross negligence involves conduct that “shocks

fair-minded people,” and willful and wanton negligence involves

such recklessness that the actor is aware that his conduct

probably would cause injury to another.   Etherton, 268 Va. at

213-14, 597 S.E.2d at 90; Wilby v. Gostel, 265 Va. 437, 446, 578

S.E.2d 796, 801 (2003); Griffin, 227 Va. at 321, 315 S.E.2d at


                                 7
213.   Thus, unlike simple negligence, these two levels of

negligence are characterized by conduct that represents an

unusual and marked departure from the routine performance of a

charity’s activities.

       As a practical matter, a charity’s performance of its

mission may be thwarted by litigation directed at the charity’s

failure to perform its activities in accordance with standards

of ordinary care.   For this reason, our Commonwealth’s public

policy in favor of promoting the activities of charitable

organizations has been employed to shield charities from

liability for their acts of simple negligence.

       This rationale, however, is inapplicable to conduct

involving gross negligence and willful and wanton negligence.

Unlike acts or omissions giving rise to claims of simple

negligence, such conduct can never be characterized as an

attempt, albeit ineffectual, to carry out the mission of the

charity to serve its beneficiaries.   Therefore, we conclude that

the public policy rationale that shields a charity from

liability for acts of simple negligence does not extend to acts

of gross negligence and willful and wanton negligence.

       This conclusion does not represent a departure from our

often-stated preference for legislative rather than judicial

action to “abolish or relax” the charitable immunity doctrine.

See, e.g., Moore, 250 Va. at 424, 463 S.E.2d at 460; Roanoke


                                  8
Hosp. Ass’n v. Hayes, 204 Va. 703, 709, 133 S.E.2d 559, 563

(1963); Hill, 204 Va. at 504, 133 S.E.2d at 563.     Instead, our

present holding, like several of our earlier decisions, serves

to define the contours of the doctrine with regard to a subject

we have not previously addressed.   See, e.g., Moore, 250 Va. at

424, 463 S.E.2d at 460-61 (volunteer of charity is immune from

liability to charity’s beneficiaries while engaged in

performance of charity’s work); Straley, 243 Va. at 37, 413

S.E.2d at 50-51 (community member only generally served by

charity is not beneficiary); Weston, 131 Va. at 610, 105 S.E. at

792 (one who pays for charity’s services can be beneficiary of

charity).

     We also observe that our holding today is consistent with

the General Assembly’s enactment of Code § 8.01-226.4.    That

statute provides civil immunity for the acts or omissions of

hospice volunteers who render care to terminally ill patients,

provided that the volunteers act in good faith and in the

absence of gross negligence or willful misconduct.    In enacting

this section, the General Assembly has expressed a clear

preference for excluding from the protection of charitable

immunity acts or omissions of gross negligence and willful

misconduct.

     For these reasons, we conclude that the circuit court erred

in sustaining the defendant’s plea of charitable immunity to


                                9
Counts II and III of Cowan’s amended motion for judgment.   We

will reverse the circuit court’s judgment and remand the case

for further proceedings consistent with the principles expressed

in this opinion.

                                           Reversed and remanded.




                               10