Gibbon v. Young Women's Christian Ass'n of Hamilton

• Decision Date: 27 January 1960
• Docket Number: No. 36109,36109
• Citation: 170 Ohio St. 280,10 O.O.2d 334,164 N.E.2d 563
• Parties: , 10 O.O.2d 334 GIBBON, Adm'r, Appellee, v. YOUNG WOMEN'S CHRISTIAN ASS'N OF HAMILTON, Ohio, Appellant.
• Court: Ohio Supreme Court

Page 280

170 Ohio St. 280

164 N.E.2d 563, 10 O.O.2d 334

GIBBON, Adm'r, Appellee, v. YOUNG WOMEN'S CHRISTIAN ASS'N OF HAMILTON, Ohio, Appellant.

No. 36109.

Supreme Court of Ohio.

Jan. 27, 1960.

Syllabus by the Court.

1. A charitable or eleemosynary institution, other than one which has as its purpose the maintenance and operation of a hospital, is, as a matter of public policy, not liable for tortious injury except (1) when the injured person is not a beneficiary of the institution, and (2) when a beneficiary suffers harm as a result of failure of the institution to exercise due care in the selection or retention of an employee. (Cullen v. Schmit, 1942, 139 Ohio St. 194, 39 N.E.2d 146, and Waddell v. Young Women's Christian Ass'n, 1938, 133 Ohio St. 601, 15 N.E.2d 140, approved and followed.)

2. In an action by an administrator to recover damages under the wrongful death statute for the loss occasioned by the drowning of the decedent in a swimming pool maintained and operated by the defendant, Young Women's Christian Association, a charitable or eleemosynary institution, and allegedly caused by the negligence of an employee of the association, a demurrer to the petition filed by the association was sustained, and final judgment was entered by the Court of Common Pleas for the defendant, which judgment was reversed by the Court of Appeals.

Held:

In the absence of facts establishing reasons for not applying a long-declared public policy, the doctrine of stare decisis should be applied and followed in order to avoid retroactive imposition of liability on such charitable institution which would result from the declaration of a different public policy. Legislative policy in this matter is committed to the General Assembly of Ohio which, under Section 28, Article II of the Ohio Constitution, may not enact retroactive laws or laws impairing the obligation of contracts.

This cause was originated in the Court of Common Pleas of Butler County as an action for wrongful death allegedly caused by the negligence of defendant's employee. Plaintiff is the administrator de bonis non of the estate of his deceased minor daughter. The defendant is a corporation not for profit organized under the laws of Ohio.

The petition alleges that 'on the 13th day of April, 1957, the decedent, Jane Ann Gibbon, having gone to said association's place of business for the purpose of using said association's swimming pool, paid the association 35 cents for this purpose and then proceeded to enter said swimming pool [time not stated]'; 'that said swimming pool was under the direct control and supervision of an agent-employee, a lifeguard, of the defendant'; and that 'at approximately 2:50 p. m., the decedent, Jane Ann Gibbon, was brought out of the swimming pool in a state of suffocation from having been immersed in the water of said pool and as a proximate result of said suffocation from immersion in the water of said swimming pool, died within minutes thereafter.'

These are the only facts alleged as to the circumstances of the drowning.

The petition then alleges that 'the immersion, suffocation and death by drowning of the decedent was due directly and proximately to the negligence of the defendant in the following respects:

'(1) The defendant, acting through its agent-employee failed to ascertain whether or not the decedent, Jane Ann Gibbon, was able to swim;

'(2) The defendant, acting through its agent-employee, who was a life-guard at said defendant's swimming pool, failed to use reasonable and ordinary care to safeguard the decedent, Jane Ann Gibbon, so as to prevent her drowning;

'(3) The defendant, acting through its agent-employee, failed to keep a proper lookout for users of the pool who might be in distress, and in particular, the decedent herein;

'(4) The defendant, acting through its agent-employee, failed to use ordinary and reasonable care so as to discover the peril of the decedent herein timely and thus to prevent her drowning;

'(5) The defendant, acting through its agent-employee, said lifeguard, failed to render assistance to the decedent, Jane Ann Gibbon, within a reasonable period of time to prevent her drowning;

'(6) The defendant failed to provide sufficient lifeguards on this day hereinbefore referred to so as to make this swimming pool safe for users thereof and, in particular, the instant decedent.'

The defendant demurred to the petition for the reason that 'said petition does not state the facts sufficient to constitute a cause of action.' On hearing of the general demurrer, the plaintiff having stipulated that 'defendant is a religious and charitable institution although not so identified in the plaintiff's petition,' the Court of Common Pleas found the demurrer to have been well taken, and, the plaintiff electing not to plead further, final judgment was entered for the defendant.

An appeal was taken to the Court of Appeals, which court reversed the judgment of the Court of Common Pleas and remanded the cause with instructions to overrule the demurrer and for further proceedings according to law.

Finding that its judgment in this case 'is in conflict with the judgment pronounced on the same question by the Court of Appeals of the Eighth Judicial District of Ohio, in the case of Helen Tomasello, plaintiff-appellant, v. St. Cecilia's Church et al., defendants-appellees, being cause No. 24673 in the Court of Appeals of Cuyahoga County,' the record in this case was certified by the Court of Appeals to this court for the review and final determination.

Simpson, Droder & Harris, Cincinnati, for appellee.

Fitton, Pierce & Black, Hamilton, for appellant.

HERBERT, Judge.

Although on the meager facts stated in the petition, none of which bear on or support the six specifications of alleged negligence, the writer of this opinion would have sustained the demurrer for plaintiff's failure to comply with Section 2309.04(A), Revised Code, requiring that the petition must contain 'a statement of facts constituting a cause of action in ordinary and concise language,' it is apparent from the opinion of the trial court that its decision was based solely on determination of the question, 'Can a religious and charitable organization be held liable on a tort action on the theory of 'respondeat superior." The Court of Appeals in reversing that judgment based its decision on the case of Avellone v. St. John's Hospital, 1956, 165 Ohio St. 467, 135 N.E.2d 410 in which it was held that a corporation not for profit operating a hospital is liable under the doctrine of respondeat superior for the torts of its servants. The Court of Appeals went on to say that 'we fail to see any legal distinction between such a corporation and a corporation not for profit having the purposes of a Young Women's Christian Association.'

In the Tomasello case, the Court of Appeals for Cuyahoga County wrote no opinion. The opinion of the trial judge in the Common Pleas Court of Cuyahoga County, where that case was first tried, as reported however, Tomasella v. Hoban, 155 N.E.2d 82, in which opinion the court takes the position that the charitable immunity doctrine (as termed therein) which has prevailed in Ohio for many years has not been changed by the Avellone decision except as to nonprofit hospitals. We assume for the purpose of this case, therefore that the appellate court judgment affirming the judgment of the trial court there was based on the same position. It is unfortunate that such an important issue should be presented to this court on such a factually meager petition, but the conflict between those two appellate decisions is clear, and, accordingly, we approach the broader question on which those decisions turned.

Prior to 1956, the decisions of this court have held as a matter of public policy that a charitable or eleemosynary institution is not liable for tortious injury except (1) when the injured person is not a beneficiary of the institution, and (2) when the institution fails to exercise due care in the selection or retention of a negligent employee. Cullen v. Schmit, 1942, 139 Ohio St. 194, 39 N.E.2d 146; Taylor v. Flower Deaconess Home and Hospital, 1922, 104 Ohio St. 61, 135 N.E. 287, 23 A.L.R. 900; Rudy v. Lakeside Hospital, 1926, 115 Ohio St. 539, 155 N.E. 126; Sisters of Charity of Cincinnati v. Duvelius, 1930, 123 Ohio St. 52, 173 N.E. 737; Waddell v. Young Women's Christian Ass'n, 1938, 133 Ohio St. 601, 15 N.E.2d 140; and paragraph two of the syllabus in Newman v. Cleveland Museum of Natural History, 1944, 143 Ohio St. 369, 55 N.E.2d 575. See, also, 9 Ohio Jurisprudence 2d 132, Section 49.

In 1956 in the Avellone case, this rule was re-examined and consideration was given to recent decisions in other states involving the question of immunity from liability of charitable institutions to their beneficiaries for torts committed by employees. The trend of those cited decisions marks a very considerable change in recent years in the course of the law in this field over the United States, ranging from the rule of complete immunity to the rule of complete liability. This court at that time greatly changed the above-stated Ohio rule so far as nonprofit hospitals were concerned and removed their previous immunity from liability to paying patients.

The doctrine of the Avellone case, to which this court is now firmly committed, was declared in Pierce v. Yakima Valley Memorial Hospital Ass'n, 1953, 43 Wash.2d 162, 260 P.2d 765, and has been supported in recent cases in other jurisdictions as, for example, Bing v. Thunig, 1957, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3; Wheat v. Idaho Falls Latter Day Saints Hospital, 1956, 78 Idaho 60, 297 P.2d 1041; and Collopy v. Newark Eye and Ear Infirmary, 1958, 27 N.J. 29, 141 A.2d 276.

The defendant in this case, however, aptly poses the question of law presented in these words:

'What is the present rule of public policy of Ohio with reference to respondeat superior tort liability...