Collopy v. Newark Eye and Ear Infirmary

Decision Date28 April 1958
Docket NumberNo. A--86,A--86
Citation27 N.J. 29,141 A.2d 276
PartiesWilliam Stephen COLLOPY, Plaintiff-Appellant, v. NEWARK EYE AND EAR INFIRMARY, a New Jersey corporation, Defendant-Respondent.
CourtNew Jersey Supreme Court

Leonard Rosenstein, Newark, argued the cause for appellant (George H. Rosenstein, Newark, attorney).

Newton H. Porter, Jr., Montclair, argued the cause for respondent (Porter & Hobart, Montclair, attorneys).

The opinion of the court was delivered by

JACOBS, J.

The plaintiff's complaint alleges that he entered the defendant hospital on March 21, 1957 for the purpose of having surgery performed upon his eyes; that after the surgery was completed he remained at the hospital as a post-operative patient and wore protective bandages over his eyes; that on March 28, 1957 he was, through the negligence of the defendant in failing to provide suitable guardrailings, permitted to fall out of bed with great force and with resulting serious injuries; that the defendant delayed in taking X-rays until March 30, 1957 and then negligently informed him that he had not sustained any injuries from his fall and discharged him from the hospital; and that subsequently he was obliged to undergo further hospitalization for the treatment of the injuries sustained in his fall. Before answering, the defendant moved to dismiss the complaint, asserting that since it is a nonprofit eleemosynary corporation (R.S. 15:1--1 et seq., N.J.S.A.) it possesses an absolute immunity from any responsibility to the plaintiff for injuries resulting from its alleged negligent conduct. The trial court granted the motion and entered summary judgment in favor of the defendant. Thereafter the plaintiff appealed to the Appellate Division and we certified under R.R. 1:10--1(a).

The immunity upon which the defendant relies was first declared in our courts in 1925 as a judicial expression of the State's public policy (D'Amato v. Orange Memorial Hospital, 101 N.J.L. 61, 127 A. 340 (E. & A. 1925)); however, the reasonable demands and expectations of innocent persons who were injured through the fault of others soon brought about a far-reaching exception (Simmons v. Wiley M. E. Church, 112 N.J.L. 129, 170 A. 237 (E. & A. 1934); Kolb v. Monmouth Memorial Hospital, 116 N.J.L. 118, 182 A. 822 (E. & A. 1936)) which has been applied by our courts more and more broadly (Rose v. Raleigh Fitkin-Paul Morgan, &c., Foundation, 136 N.J.L. 553, 57 A.2d 29 (E. & A. 1948); Lindroth v. Christ Hospital, 21 N.J. 588, 123 A.2d 10 (1956)); and in recent years many of our judges have pointedly suggested that sound concepts of right justice and morality require outright rejection of the immunity. See Lindroth v. Christ Hospital, supra; Lokar v. Church of the Sacred Heart, 24 N.J. 549, 555, 133 A.2d 12 (1957); Benton v. Young Men's Christian Ass'n of Westfield, 47 N.J.Super. 372, 136 A.2d 27 (App.Div.1957), certification granted 25 N.J. 498, 137 A.2d 638 (1958); Rafferzeder v. Raleigh, etc., Memorial Hospital, 33 N.J.Super. 19, 109 A.2d 296 (App.Div.1954), certification granted 17 N.J. 557 (1955); Woods v. Overlook Hospital Ass'n, 6 N.J.Super. 47, 69 A.2d 742 (App.Div.1949). In the case before us the single issue presented by the parties is whether the last vestiges of the judicially declared immunity should at this time be erased.

In Heaven v. Pender, (1883) 11 Q.B. 503, 509, the court expressed the general rule of negligence in the following well-known language:

'Whenever one person is placed by circumstances in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.'

This common law duty of due care, with tort liability for its breach, prevails generally throughout the law although it occasionally comes into conflict with immunities which must find independent support for their continued recognition in their own historical and social justifications. Historically the immunity of eleemosynary institutions (such as the defendant) has little basis. In Duncan v. Findlater, 6 Cl. & Fin. 894, 7 Eng.Rep. 934 (1839), and The Feoffees of Heriot's Hospital v. Ross, 12 Cl. & Fin. 507, 8 Eng.Rep. 1508 (1846), there were dicta by Lord Cottenham supporting the immunity, although neither case involved a tort action for personal injuries resulting from the negligent operation of a nongovernmental eleemosynary institution. In Holliday v. St. Leonard, Shoreditch, 11 C.B. (N.S.) 192, 142 Eng.Rep. 769 (1861), the court followed the dictum in the Duncan case and held the vestry of a parish to be immune from tort responsibility, but this holding was quickly overturned (Mersey Docks Trustees v. Gibbs, L.R. 1 H.L. 93, 11 Eng.Rep. 1500 (1866); Foreman v. Mayor of Canterbury, L.R. 6 Q.B. 214 (1871)), and later English cases have given no recognition to the immunity. See Hillyer v. The Governors of St. Bartholomew's Hospital, (1909) 2 K.B. 820, 825 (C.A.); Marshall v. Lindsey County Council, (1935) 1 K.B. 516, affirmed (1937) A.C. 97.

When in McDonald v. Massachusetts General Hospital, 120 Mass. 432 (Sup.Jud.Ct.1876), the issue was first presented in the United States, the court held the hospital to be immune from tort responsibility, but it relied entirely on the Holliday case without recognizing that it had already been overruled. See Goodhart, 'Hospitals and Trained Nurses,' 54 L.Q.Rev. 553, 559 (1938). Other American courts followed McDonald, and it was not until after 1942, when Justice Rutledge delivered his devastating opinion in President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810 (D.C.Cir.1942), that a substantial number of them, now fully aware of the historical error and the lack of current utility or justification for the immunity, rejected it In toto. See Bing v. Thunig (St. John's Episcopal Hospital), 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (Ct.App.1957); Avellone v. St. John's Hospital, 165 Ohio St. 467, 135 N.E.2d 410 (Sup.Ct.1956); Wheat v. Idaho Falls Latter Day Saints Hospital, Idaho, 78 Idaho 60, 297 P.2d 1041 (Sup.Ct.1956); Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934 (Sup.Ct.1954); Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765 (Sup.Ct.1953); St. Lukes Hospital Ass'n v. Long, 125 Colo. 25, 240 P.2d 917, 31 A.L.R.2d 1120 (Sup.Ct.1952); Moats v. Sisters of Charity of Providence, 13 Alaska 546 (Dist.Ct.1952); Durney v. St. Francis Hospital, 7 Terry 350, 46 Del. 350, 83 A.2d 753 (Super.Ct.1951); Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220 (Sup.Ct.1951); Malloy v. Fong, 37 Cal.2d 356, 232 P.2d 241 (Sup.Ct.1951); Haynes v. Presbyterian Hospital Ass'n, 241 Iowa 1269, 45 N.W.2d 151 (Sup.Ct.1950); Foster v. Roman Catholic Diocese of Vermont, 116 Vt. 124, 70 A.2d 230, 25 A.L.R.2d 1 (Sup.Ct.1950); Tavarez v. San Juan Lodge No. 972, B.P.O.E., 68 Puerto Rico 681 (1948); Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525, 23 N.W.2d 247, 166 A.L.R. 99 (Sup.Ct.1946). Cf. Porto Rico Gas & Coke Co. v. Frank Rullan & Associates, 189 F.2d 397 (1 Cir., 1951); Brigham Young University v. Lillywhite, 118 F.2d 836, 137 A.L.R. 598 (10 Cir., 1941), certiorari denied 314 U.S. 638, 62 S.Ct. 73, 86 L.Ed. 512 (1941); Tuengel v. City of Sitka, Alaska, 118 F.Supp. 399 (D.C.D.Alaska 1954); Mississippi Baptist Hospital v. Holmes, 214 Miss. 906, 55 So.2d 142, 56 So.2d 709, 25 A.L.R.2d 12 (Sup.Ct.1951); Nicholson v. Good Samaritan Hospital, 145 Fla. 360, 199 So. 344, 133 A.L.R. 809 (Sup.Ct.1940); Gable v. Salvation Army, 186 Okl. 687, 100 P.2d 244 (Sup.Ct.1940); Welch v. Frisbie Memorial Hospital, 90 N.H. 337, 9 A.2d 761 (Sup.Ct.1939); Mulliner v. Evangelischer Diakonniessenverein, 144 Minn. 392, 175 N.W. 699 (Sup.Ct.1920). See also Roland v. Catholic Archdiocese of Louisville, Ky., 301 S.W.2d 574 (Ct.App.1957); Brown v. Moore, 247 F.2d 711 (3 Cir., 1957), certiorari denied 355 U.S. 882, 78 S.Ct. 148, 2 L.Ed.2d 112 (1957); Wittmer v. Letts, Iowa, 80 N.W.2d 561 (Sup.Ct.1957); Stolp v. Arkansas City, 180 Kan. 197, 303 P.2d 123 (Sup.Ct.1956); Annotation, 'Immunity of nongovernmental charity from liability for damages in tort,' 25 A.L.R.2d 29 (1952).

A highly significant rejection of the immunity was the 1957 decision by the New York Court of Appeals in Bing v. Thunig (St. John's Episcopal Hospital), supra (2 N.Y.2d 656, 163 N.Y.S.2d 11), which held that a hospital was liable for its negligent injury of a patient. The court, after describing the manifold business operations of present-day hospitals, expressed the view that they should fairly 'shoulder the responsibilities borne by everyone else'; it rejected the illogical distinctions which had been made in earlier New York decisions and flatly discarded the immunity as being wholly at variance with the needs of today and with 'concepts of justice and fair dealing.' In 1956 the Supreme Court of Ohio and in 1953 the Supreme Court of Washington had reached similar conclusions in full opinions which pointed out that since liability insurance was available to charitable institutions they were in no position to urge that their subjection to ordinary tort responsibilities for their wrongdoings might endanger the continuance of their highly worthy endeavors. See Pierce v. Yakima Valley Memorial Hospital Ass'n, supra; Avellone v. St. John's Hospital, supra. And in 1950 the Supreme Court of Vermont in Foster v. Roman Catholic Diocese of Vermont, supra (116 Vt. 124, 70 A.2d 236), rejected the immunity in an opinion which stressed (1) the differences between conditions when the immunity was first judicially embraced and present-day conditions, and (2) the idleness of suggestions that donations would 'dry up if the charity is held to respond...

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