Heimbuch v. President and Directors of Georgetown Col.

• Decision Date: 10 March 1966
• Docket Number: 1041-63.,Civ. A. No. 2211-61
• Parties: Richard F. HEIMBUCH, Plaintiff, v. PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, a corporation, Defendant. Richard F. HEIMBUCH, Plaintiff, v. Emmett F. BYRNE, Jr., Defendant.
• Court: U.S. District Court — District of Columbia

251 F. Supp. 614

Richard F. HEIMBUCH, Plaintiff, v. PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, a corporation, Defendant.

Richard F. HEIMBUCH, Plaintiff, v. Emmett F. BYRNE, Jr., Defendant.

Civ. A. Nos. 2211-61, 1041-63.

United States District Court District of Columbia.

March 10, 1966.

Marshall E. Miller, of Danzansky & Dickey, Washington, D. C., for plaintiff.

Albert F. Beasley, Washington, D. C., for defendant, President and Directors of Georgetown College, a corporation.

J. Roy Thompson, Washington, D. C., for defendant, Emmett F. Byrne, Jr.

MATTHEWS, District Judge.

The sole question before the court is whether the corporate defendant as a charitable institution is immune from liability in a tort action brought by plaintiff, who was seriously injured in a hazing activity while a freshman at Georgetown University. The University is one of the charitable activities conducted by the corporation. The corporate defendant will be referred to herein as Georgetown.

In addition to the action against Georgetown, plaintiff has filed an action against Emmett F. Byrne, Jr., a sophomore participant in the hazing activity in which plaintiff was injured. The two actions have been consolidated.

The plaintiff alleges that Georgetown negligently arranged or knowingly permitted a dangerous and hazardous physical activity known as hazing of freshman students by members of the sophomore class, including a sophomore hazing committee; that Georgetown failed to supervise or improperly supervised such hazing activity; that pursuant to this activity plaintiff was a member of a group of freshmen who were directed or compelled by members of the sophomore hazing committee to leave their dormitory and move in a long line in an awkward and ungainly posture known as the "elephant march" over various portions of Georgetown's campus toward the athletic field where they were to be subjected to a "mud bath"; that during the course of the "elephant march" the line of freshmen students broke formation and thereupon plaintiff was forcibly tackled or struck from the rear by defendant Byrne, and was caused to fall violently to the ground, and to suffer serious and permanent injuries, among them an oblique fracture of the shaft of the left femur, a flexion deformity in the left hip and a conspicuous atrophy of the left thigh.

Georgetown asserts that it was operating the University in its capacity as an eleemosynary corporation; that plaintiff as a student enrolled at the University was a beneficiary of Georgetown, that therefore Georgetown "is exempt from any liability or legal responsibility to plaintiff." The defendant Byrne also relies on the defense of charitable immunity to such extent as plaintiff alleges that Byrne was acting as Georgetown's agent at the time plaintiff was injured.

Due to plaintiff's challenge of the applicability in the District of Columbia of the defense of charitable immunity, the court (Chief Judge McGuire) entered an order requiring that prior to trial on the merits a hearing be held for the sole purpose of determining whether the doctrine of charitable immunity from tort liability is available in the District of Columbia. Pursuant to that order this court has held such a hearing at which evidence was adduced, followed by argument of counsel. Accordingly the immunity issue is now before the court for determination.

At the time of the occurrence complained of plaintiff was paying the usual charges made to freshman students for board, tuition and incidentals. With an additional charge for making payment in three installments per semester, these charges amounted to $1808 for the 1956-1957 academic year; and were increased from year to year during plaintiff's attendance as a student at Georgetown to $2015 for the 1959-1960 academic year. The Auditor for Georgetown and the certified public accountant who audited Georgetown's books and records testified that these charges did not fully compensate Georgetown for the expense of the facilities and services furnished by it to plaintiff as a student. Also, Georgetown put on proof of overall operating expenses and operating income, and showed that such expenses exceeded such income. This showing included a specific showing of the operating results of the College of Arts and Sciences, which plaintiff attended as a freshman at the time of the occurrence complained of herein. These figures show an "Operating Deficit" for each of the years in which plaintiff attended Georgetown, and that such deficit was substantially offset by gifts from alumni and others and earnings on endowment and general reserve funds. But the showing made by Georgetown did not include the "per student" cost or expense, nor the number of students attending the College of Arts and Sciences from which the per student cost or expense might be ascertained; and the showing made does not define what is included within the terms "Operating Income" and "Operating Expenses". The evidence indicates that fees to members of the clergy were waived and scholarships granted, without any indication as to how they might be reflected in operating expenses; and there was evidence that Georgetown owns and maintains property not presently utilized in its charitable activities, without any indication as to whether rents from, and repair and maintenance of, such properties are included within "operating" income and expenses. By reason of these uncertainties, the Court is not satisfied that Georgetown has shown that the sums paid by plaintiff did not adequately compensate Georgetown for the facilities and accommodations furnished to him.

Georgetown carried a policy or policies of liability insurance at the time plaintiff was injured. The premiums paid thereon were approximately $30,000 to $40,000 per year.

The leading case if not the pioneer case in the United States for the doctrine of charitable immunity is McDonald v. Massachusetts General Hospital, 120 Mass. 432, decided in 1876, hereinafter referred to as McDonald. In that case a corporation, established for the maintenance of a public charitable hospital, was sued by a workman—a charity patient —who claimed that his fractured thigh bone was negligently and improperly set. The sole authority relied upon by the court for its decision...