Foster v. Roman Catholic Diocese of Vt.

• Decision Date: 03 January 1950
• Docket Number: No. 1004,1004
• Citation: 116 Vt. 124,70 A.2d 230,25 A.L.R.2d 1
• Parties: , 25 A.L.R.2d 1 FOSTER v. ROMAN CATHOLIC DIOCESE OF VERMONT.
• Court: Vermont Supreme Court

Page 230

70 A.2d 230

116 Vt. 124, 25 A.L.R.2d 1

FOSTER v. ROMAN CATHOLIC DIOCESE OF VERMONT.

No. 1004.

Supreme Court of Vermont.

Jan. 3, 1950.

Vernon J. Loveland, Rutland, Donald H. Hackel, Rutland, for plaintiff.

Ryan, Smith & Carbine, Rutland, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

ADAMS, Justice.

This is an action of tort in which the plaintiff, Mary Foster, seeks to recover damages from the defendant, the Roman Catholic Diocese of Vermont, resulting from a fall on ice that occurred on December 12th, 1947.

The plaintiff alleges in substance: That the defendant owns a church building and premises in the City of Rutland, known as St. Peter's Church; that it constructed and maintained on the premises a cement driveway with a cement gutter leading into it; that the driveway extended from the premises across a public sidewalk to a public street; that from time to time, when rain fell or snow melted, water from the roofs, gutter, driveway and adjacent area flowed down the driveway across the sidewalk into the street; that in freezing whether ice constantly formed in lumps and irregular ridges to a considerable depth on the sidewalk where the driveway crossed it to the danger and detriment of persons using it; that the defendant knew or should have known of such condition by reason of its long continued existence, accidents to pedestrians at the place, complaints made to it of such conditions and notices given to it thereof; that the defendant on the day in question carelessly and negligently permitted water to flow on and over the sidewalk and ice formed therefrom; that the plaintiff on the day while walking on the sidewalk and while in the exercise of due care slipped and fell on the ice sustaining personal injuries due to the negligence of the defendant and because of the construction and maintenance by it of a public nuisance.

The defendant filed an answer in two counts; the first of which neither admits nor denies the allegations in the plaintiff's declaration, but alleges, in substance, in defense that the defendant is a Vermont private corporation organized solely for charitable and religious purposes; that St. Peter's Church and the premises are used solely as a place of religious worship; that the plaintiff at the time in question was a member of that parish and was returning home after having participated in religious worship at the church and that the defendant used and exercised due care in the selection of its agents and servants for the construction, maintenance and care of the building and premises.

The plaintiff demurred to this count of the answer on the grounds that it and the matters contained therein are not sufficient in law to constitute a defense to the action. The demurrer was overruled, the answer adjudged sufficient, the plaintiff allowed exceptions and the court in its discretion passed the cause to this Court before final judgment for a determination of exceptions to the order overruling the demurrer.

The defendant may be classified as a privately conducted charitable institution. In fact it is conceded in the briefs and was in oral argument that the law pertaining to such institutions applies to the defendant.

From our study of the law and after reading many decisions from other jurisdictions pertaining to the subject matter involved in this case, we are convinced that we should decide this case upon the broad question, namely: Is or is not a privately conducted charitable institution liable for injury caused by negligence? We are satisfied if we should not do so, we would start this Court along a highway that would soon be shrouded in a fog of doubt from which it would be difficult to emerge into the sunlight of legal certainty.

The liability of private charities for injuries has never, to our knowledge, been passed upon by this Court and we have no statute in regard to it. Counsel concede that it is an open question in this state. This leaves us free to act without constraint of any rule of stare decisis and in accordance with what we deem to be the law.

The question presented is one of great interest and much has been written about it in recent years. It is one upon which there has been and is not only much conflict of decisions among the courts and among the members of the various courts, for many decisions have been far from unamimous but there is great diversity of opinion among courts that reach the same ultimate decision, as to the correct reason, or ground for so deciding. Every reason advanced and ground used has been vulnerable to attack and criticism and there has been no lack of it. When we look to decisions in other jurisdictions for enlightenment we are confronted with an irreconcilable conflict of reasoning and result.

The court said in Cohen v. General Hospital Society, 113 Conn. 188, 194, 154 A. 435, 437: 'Whether or not, and to what extent, a charitable corporation is liable in tort for its negligence, or that of its servants and agents, is a question that has been frequently before the courts. It has been said that 'the cases on this subject present an almost hopelessly tangled mass of reason and unreason such as it not often encountered in the law,' Zollman, American Law of Charities, § 813.'

Another court in Gable v. Salvation Army, 186 Okl. 687, 100 P.2d 244, 245, said: 'When the English doctrine, that charitable organizations were immune from tort liability, was repudiated in this country in the case of Glavin v. Rhode Island Hospital, 1879, 12 R.I. 411, 34 Am.Rep. 675, there was precipitated a continuing controversy, remarkable not only for the widely divergent opinions as to the extent to which this immunity should extend, but also because of the irreconcilable reasons advanced as grounds for granting any immunity whatever.'

The cases may be generally classified into three groups, which, for our purposes we may call, 1st, The nonliability cases, that is, those that deny any liability whatever. 2nd, The total liability cases, that is, those that apply the regular negligence rules. 3rd, The partial liability cases, that is, those that grant liability for the benefit of certain classes of plaintiffs but not for others or against the defendant for negligence in some ways but not in others. It may be said generally that the weight of authority numerically as to jurisdictions between the nonliability and total liability doctrine lies with the nonliability jurisdictions. The trend of the more recent cases, however, is towards total liability. As between the nonliability jurisdictions and the partial liability ones, the weight of authority lies with the partial liability jurisdictions.

We will not attempt to cite and classify the numerous cases in each group of classify and attempt to analyze them under the different theories by which the decisions have been reached. Such a treatment of them would cause this opinion to be of undue length. Most, if not all of them, except some recent ones, will be found cited and in many instances commented upon in annotations in 14 A.L.R. 572; 23 A.L.R. 923; 30 A.L.R. 455; 33 A.L.R. 1369; 42 A.L.R. 971; 62 A.L.R. 724; 86 A.L.R. 491; 109 A.L.R. 1199; 133 A.L.R. 821; also in 10 Am.Jur.Charities, secs. 140-154; 14 C.J.S.Charities, § 75. See also Freezer, The Tort Liability of Charities, 77 U.Pa.L.Rev. 191; Prosser, Torts, 1080; Zollman, Damage Liability of Charitable Institutions, 19 Mich. L.Rev. 395. There are also many opinions in which the whole subject has been discussed and the cases extensively analyzed, some of which will be cited and mentioned in this opinion. The subject is, as we have said, an open question in this jurisdiction and as we have had the benefit of excellent briefs and oral argument we think we should review the matter quite fully. Even in so doing and confining ourselves to a brief review of specific cases and different theories advanced, this opinion will be longer than we would otherwise desire.

The nonliability cases are generally founded on what is called the 'trust fund' theory. This is based upon the reasoning that the assets of the institution created by the founders thereof constitute a trust for particular charitable purposes and if it should be diverted to the payment of judgments that might be obtained in suits against the institution, the purpose of the charity as well as that of its donors would be frustrated and the charity perhaps destroyed. This theory was first introduced in an 1848 English case of Heriot's Hospital v. Ross, 12 C. & F. 507. Its essence seems to be that the preservation of the charitable trust funds is more desirable than the right to compensation from the funds for an injury inflicted by the operation of the charity. It was repudiated in England in 1866 in the case of Mersey Docks v. Gibbs, 11 H.L. 686. Both England and Canada now hold a charity to the universal standard of care. Hillyer v. St. Bartholomew Hospital, 2 K.B. 820, (1909); Donaldson v. General Public Hospital, 30 N.B. 279, (1890); Lavere v. Smith's Falls Hospital, 35 Ont.L.Rep. 98.

This 'trust fund doctrine' has been upheld in several jurisdictions in this country and when first adopted it was mainly on the basis of dicta of several of the Lord Justices in the so-called Heriot Hospital case, supra. What was said by the court in Andrews v. Young Men's Christian Ass'n, 226 Iowa 374, 284 N.W. 186, 189, is pertinent: 'The first court in this country to proclaim its adherence to the trust fund doctrine was the Supreme Court of Massachusetts in 1876, McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am.Rep. 529. It gave the early English cases as its authority, apparently oblivious of the fact that the same court which had given the doctrine life, had put a quietus on it ten years before. Following the lead of Massachusetts, other courts in this country adopted the same rule. Some of them, however, fearful of a rule which practically...