Roland v. Catholic Archdiocese of Louisville

• Decision Date: 25 January 1957
• Citation: 301 S.W.2d 574
• Parties: Clifford ROLAND, Appellant, v. CATHOLIC ARCHDIOCESE OF LOUISVILLE, a Corporation, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 574

301 S.W.2d 574

Clifford ROLAND, Appellant, v. CATHOLIC ARCHDIOCESE OF LOUISVILLE, a Corporation, et al Appellees.

Court of Appeals of Kentucky.

Jan. 25, 1957.

Rehearing Denied May 24, 1957.

Ephraim K. Lawrence, Jr., Theodore Wurmser, Lawrence & Duvall, Edward L. Phillips, Lousiville, and Williams & Williams, Asheville, N. C., for appellant.

Robert T. Burke, Louisville, for appellees.

STANLEY, Commissioner.

The case calls for a consideration of the exemption of eleemosynary or charitable organizations from liability for torts. The reappraisal of the doctrine and of our broad statements of absolute exemption is confined to the unusual combination of facts of this case.

In an action for damaes for personal injuries the circuit court rendered a summary judgment under the decisions of this court that no right of action may be maintained as a matter of law in such cases. The plaintiff appeals.

The appellees are the Rt. Rev. John A. Floersh, Roman Catholic Bishop of Louisville, and the Home for the Aged of the Little Sisters of the Poor, and The Sisters of the Good Shepherd of Eighth Street. The first party is corporation sole, created by a special legislative act many years ago, and as such is engaged in many religous, educational and charitable activities. The other two parties are also Kentucky corporations maintaining and operating homes for destiture men and women and for orphaned colored children, as well as other benevolent enterprises. The three parties jointly owned and maintained property at Broadway and Preston Street in Louisville, which had been devised to them for their charitable purposes. The building was three stories in height. The first or street floor was rented to commercial enterprises and the upper floors were rented as living apartments. Five tenants occupied the third floor, one of whom, Clifford Roland, is the plaintiff in this action. His complaint charges that in violation of the statute, KRS 101.700, and certain sections of the Louisville ordinances, and otherwise, the defendants 'with gross negligence and wanton and willful recklessness failed to provide proper, adequate and safe exit ways and fire escapes for this plaintiff from his apartment to the outside of the building in the event of fire.' The statute cited (in effect at the time of the fire) read:

'Every tenement house over two stories and a basement in height shall be equipped with such fire escapes for each floor as are deemed adequate by the building department. The owner shall keep all the fire escapes in good order and repair. No person shall place any incumbrance before or upon any fire escape. Every tenement house over three stories and a basement in height shall be of fireproof construction.'

A penalty of a fine was imposed for violation.

The city ordinances had like requirements.

The complaint alleges that on February 22, 1954, the described building caught fire; the stairway and place of exit were enveloped in flames and the plaintiff's exit from the building was cut off, and he was compelled to climb out a window to escape the fire. He clung to a coping until the flames burned his fingers, and then he fell to the pavement below. The plaintiff suffered serious injuries of sever burns and multiple fractures. He is apparently completely and permanently disabled. He asked judgment for a large sum for special and general damages.

The defendants traversed the allegations of negligence and damages, pleaded contributory negligence and their immunity from liability by reason of their charitable status. The basis of the latter pleading was specifically set forth in an affidavit supporting the defendants' motion for a summary judgment, which, as stated, was sustained. They particularly stated that the property involved was held in trust and the income therefrom devoted to the objects of public charities. It is obvious that with the legal question of immunity or non-liability eliminated, there were issues of material facts to be tried, and the summary judgment would not have been rendered. Civil Rule 56.03. We address ourselves to the determinative question.

This court has consistently affirmed (although not always with unanimity) that a charitable institution is not liable for torts of its agents and employees. St. Walburg Monastery, etc. v. Feltner's Adm'r, Ky., 275 S.W.2d 784. The conclusion of immunity, as stated in Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, 202 S.W. 874, L.R.A.1918E, 647, and Forrest v. Red Cross Hospital, Ky., 265 S.W.2d 80, rests on the grounds of (1) public policy, (2) security from dissipation or diversion of trust funds, and (3) implied waiver of negligence or assumption of risk of injury in accepting benefactions of the charity. These are the generally stated grounds, but all of them have been assailed by many courts as being unsound. The Red Cross Hospital case takes note of the sharp division of opinion among other courts and refers to the exemplification of this diversity in the exhaustive annotations entitled, 'Immunity of nongovernmental charity from liability for damages for tort,' 25 A.L.R.2d 29, et seq.

The opinions which have placed this court among those declaring complete exemption from liability do not show that the conception of partial or limited liability has been hitherto considered, or, indeed, that there has ever been any need for such consideration in relation to circumstances like any of the conditions in the case now before us. Therefore, our decision in this case is in a material degree unfettered by the rule of stare decisis notwithstanding the apparent commitment to the complete immunity from any legal liability. We note the cases.

In Robinson v. Second Presbyterian Church, 191 Ky. 288, 230 S.W. 51, the church had rented property as a private residence without having complied with an ordinance which required fire escapes. The building, while being used as a boarding house, burned and a boarder was injured when he was compelled to jump from a window. The court had directed a verdict for the defendant. We affirmed but it was on the sole ground of an absence of proof that the church management knew the building was being used as a lodging house.

In Williams v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S.W. 1065, 23 L.R.A. 200, and University of Louisville v. Hammock, 127 Ky. 564, 106 S.W. 219, 14 L.R.A.,N.S., 784, the institutions were in part governmental agencies. Pikeville Methodist Hospital v. Donahoo, 221 Ky. 538, 299 S.W. 159, Forrest v. Red Cross Hospital, Ky., 265 S.W.2d 80, and St. Walburg Monastery of Benedictine Sisters of Covington, Kentucky, v. Feltner's Adm'r, Ky., 275 S.W.2d 784, were cases involving charitable hospitals in which patients suffered injuries through negligence of attendants and nurses. In Averback v. Y. M. C. A. of Covington, 250 Ky. 34, 61 S.W.2d 1066, a patron of a Y. M. C. A. was injured, as alleged, by a defect in a swimming pool. In Williams' Adm'x v. Church Home for Females and Inf. for Sick, 223 Ky. 355, 3 S.W.2d 753, 62 A.L.R. 721, a paying inmate in a church home and hospital was killed through the negligence of an employed elevator operator. In Emery v. Jewish Hospital Ass'n, 193 Ky. 400, 236 S.W. 577, a hospital employee hired in violation of the child labor statute was injured in operating an elevator. In our leading case of Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, 202 S.W. 874, L.R.A.1918E, 647, the action by a patient of a hospital was based upon negligence of nurses and attendants, and we specifically avoided expressing an opinion on the question of liability of such institutions for tortious conduct affecting members of the public who are strangers to the charity. In Illinois Cent. R. Co. v. Buchanan, 126 Ky. 288, 103 S.W. 272, 11 L.R.A.,N.S., 711, the court held that a hospital organization maintained by a railroad company and its employees for their benefit, and regarded as charitable, was not liable for injuries resulting from malpractice of surgeons whom the railroad company had employed; but if it had failed to select and employ skillful surgeons and attendants, the company would be liable.

In Emery v. Jewish Hosp. Ass'n, 193 Ky. 400, 236 S.W. 577, there is a shadowy distinction in one respect and complete distinction in others. A boy operating an elevator in a hospital was injured. He had been employed in violation of the Child Labor Law. By a divided court, in holding there was immunity from liability, we pointed out that the Child Labor Law only imposed a penalty and merely deprived the employer of the defenses of contributory negligence and assumption of risk and did not have the effect of making the employer liable for negligence; therefore, the court concluded the charity could not be held liable. (It is the minority view of courts generally that a charity is not liable for negligent injury of a servant. Notes 14 A.L.R. 581; 23 A.L.R. 923; 86 A.L.R. 494; 21 A.L.R.2d 89. It may be also interpolated that we have held that an employer of a child in violation of the law is in effect the insurer of the child's safety. Louisville Woolen Mills v. Kindgen, 191 Ky. 568, 569, 231 S.W. 202.) But there is a clear distinction in the conditions in the instant case. The relation between the parties was that of ordinary landlord and tenant; and since the requirement of the statute and ordinances that certain kinds of buildings be equipped with fire escapes is mandatory, a failure to comply therewith is wrongful as well as negligent. Mullins v. Nordlow, 170 Ky. 169, 185 S.W. 825. And we have held that an occupant of such building whose escape down a stairway was cut off so she was compelled to jump from a window could recover damages of the owner of the building. Robenson v. Turner, 199 Ky. 642, 645, 251 S.W. 857.

Differentiating circumstances in the case at bar are three-fold, namely:

(1) The allegations are of corporate or administrative negligence in...