Terry v. Boy Scouts of America, Inc.

• Citation: 471 F. Supp. 28
• Decision Date: 21 February 1978
• Docket Number: Civ. A. No. 76-495.
• Parties: Claude TERRY and Connie Terry, Plaintiffs, v. BOY SCOUTS OF AMERICA, INC., a corporation, Defendant.
• Court: U.S. District Court — District of South Carolina

471 F. Supp. 28

Claude TERRY and Connie Terry, Plaintiffs, v. BOY SCOUTS OF AMERICA, INC., a corporation, Defendant.

Civ. A. No. 76-495.

United States District Court, D. South Carolina, Columbia Division.

February 21, 1978.

Francis T. Draine, Columbia, S. C., for plaintiffs.

R. Davis Howser, Donald V. Richardson, Lawrence B. Orr, Columbia, S. C., for defendant.

ORDER

CHAPMAN, District Judge.

This matter is before the Court on the motion of defendant, Boy Scouts of America, Inc., for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The basis for defendant's motion is its claim that the Boy Scouts of America is an eleemosynary corporation created for benevolent and charitable purposes and thus is immune from liability under the doctrine of charitable immunity.

This action was commenced by the parents of a minor who was seriously burned in a tent fire which occurred while the plaintiffs' son, Anthony Terry, was attending a Boy Scout Camporee near Holly Hill, South Carolina, on or about April 9, 1972. At that time, Anthony Terry was a member of a Boy Scout troop and attended the camporee with other boys from his troop. His burns occurred when an alleged "non-flame retardant tent" caught fire. In their complaint, plaintiffs allege, inter alia, that defendant is guilty of one or more acts or omissions described by plaintiffs as "careless, negligent, reckless, willful and wanton." Those acts or omissions are allegedly that defendant:

(a) Failed to provide any adult supervision.

(b) Failed to prove adequate supervision.

(c) Failed to advise the parents of Boy Scouts, and in particular, the Plaintiffs, of the availability of the Defendant's flame retardant tents.

(d) Failed to advise Boy Scouts and, in particular, the Plaintiffs' son of the flame retardant tents.

(e) Failed to warn the Plaintiffs of the hazards of a non-flame retardant tent.

(f) Failed to warn the Plaintiffs' son of the hazards of non-flame retardant tents.

(g) Failed to warn the Plaintiffs of the Defendant's knowledge of at least eight (8) tent fires sustained by Boy Scouts prior to April 9, 1972.

(h) Failed to publish any program for tent fire hazards in training young boys for a camping environment.

(i) Failed to establish any training program for tent hazards for the rank of "Tenderfoot" in the Boy Scouts.

(j) Failed to provide at the "Camporee" any fire fighting equipment.

(k) Failed to provide any night watch or night safety patrol at the "Camporee".

(l) Failed to prove any medical attention and treatment for the Plaintiffs' son.

(m) Failed to enforce known safety standards for camping by authorizing and permitting cooking and heating appliances fired by highly combustible fuels.

(n) Failed to train and instruct Scout Leaders in the hazards of non-flame retardant tents.

(o) Carelessly and negligently selected adult leaders for the Plaintiffs' son.

(p) Carelessly and negligently permitted the Boy Scouts at the "Camporee" the use of matches, candles, combustible fuels, and explosives.

(q) The Defendant did willfully withhold its knowledge of the extreme hazards of non-flame retardant tents and of its knowledge of tent fires involving Boy Scouts with the intention of avoiding any adverse publicity for the Defendant's Scouting Program.

As a result of the above alleged acts or omissions, plaintiffs seek damages for past and future medical expenses, loss of their son's services and support, mental and physical injury and anguish, and costs.

Defendant interposed several defenses by way of answer, including the defense of charitable immunity, the validity of which is the real issue before this Court on defendant's motion for summary judgment. It goes without saying that defendant's motion must be granted if there is no genuine issue of any material fact and defendant is entitled to judgment as a matter of law.

In Brown v. Anderson County Hospital Association, 268 S.C. 479, 234 S.E.2d 873 (1977), the South Carolina Supreme Court traced the development of the doctrine of charitable immunity in South Carolina:

The decisions of this Court indicate that the present state of the law in South Carolina with respect to charitable immunity is the following: It is contrary to public policy to hold a charitable institution responsible for the negligence of its servants selected without due care, Lindler v. Columbia Hospital, 98 S.C. 25, 81 S.E. 512 (1914), or for servants, agents, employees, or superior officers selected without due care. Vermillion v. Woman's College of Due West, 104 S.C. 197, 88 S.E. 649 (1916). The fact that a patient in a charitable hospital pays for a room and attendance does not render the hospitable liable for injuries to the patient caused by the negligence of its servants. Lindler v. Columbia Hospital, supra. The relation of the injured person to the charity is of no importance so that it is immaterial whether the injured person is an employee or invitee of the institution. Vermillion v. Woman's College of Due West, supra. A charitable institution, however, is not exempt from liability for trespass and nuisance arising out of its activities as a lessee. Peden v. Furman University, 155 S.C. 1, 151 S.E. 907 (1930). Nor does immunity extend to a situation where the activity out of which the liability arises is primarily commercial in character and wholly unconnected with the charitable purpose for which the corporation was organized. Eiserhardt v. State Ag. and Mech. Soc. of S. C., 235 S.C. 305, 111 S.E.2d 568 (1959). Churches have also been exempted from liability for negligence, Decker v. Bishop of Charleston, 247 S.C. 317, 147 S.E.2d 264 (1966), holding additionally that procurement of liability insurance by the charity does not create liability to the person injured where the charity is otherwise immune from liability. Finally, where the charity commits an intentional tort, it may not interpose the defense of charitable immunity. Jeffcoat v. Caine, 261 S.C. 75, 198 S.E.2d 258 (1973).2

2 The Court in Jeffcoat stated that "The foregoing are the prior decisions of this Court . . .. There can be no doubt that the decisions in Lindler, Vermillion, and Decker contain broad general expressions to the effect that charitable institutions are exempt from all tort liability. However, the broad statement of a rule of complete exemption from tort liability was unnecessary to a decision in those cases, and the rule of charitable immunity has never been extended by our decisions beyond the facts in Lindler, Vermillion, and Decker . ." 234 S.E.2d at pp. 874-875.

One additional aspect of the doctrine of charitable immunity, not mentioned in the survey by the Supreme Court in Brown, is found in the holding of Vermillion:

The rule of total exemption is, perhaps, without exception, based upon grounds of public policy. That is the principle upon which liability was denied by the court en banc in the Lindler Case, and, as has been shown, its logical application requires exemption of public charities for the torts of their superior officers and agents as well as for those of their servants or employÈs, whether these be selected with or without due care. 88 S.E. at p. 650 emphasis added.

The Supreme Court in Brown effectively modified the doctrine of charitable immunity as it exists in South Carolina as follows:

The arguments advanced in favor of abolition of the doctrine of charitable immunity are not persuasive. Total abrogation of the doctrine would result in the failure to balance competing yet equally important interests of hospitals and of those persons who are the objects of the hospitals' torts. We, therefore, adopt an intermediate ground and hold that anyone injured through tortious acts of commission or omission of the agents, servants, employees or officers of a charitable hospital in this State may recover damages against such hospital, if the aggrieved party can establish that the injuries occurred because of the hospital's heedlessness and reckless disregard of the plaintiff's rights. This standard of proof is one which is higher than that of simple negligence. It parallels that standard of proof required under S.C. Code ß 46-801 (1962), known popularly as the Automobile Guest Statute. Immunity fosters neglect and irresponsibility, while liability encourages the exercise of due care. This basic cornerstone of our common law system of jurisprudence is frustrated by total immunity.

We emphasize that our holding is applicable only to hospitals, including this defendant. We do not extend it so as to abrogate or modify the defense of charitable immunity as to churches, rescue missions, orphanages, colleges, and other institutions which are charitable in nature, purpose and operation. The previous decisions of this Court inconsistent with the holding set forth herein are overruled. 234 S.E.2d at pp. 876-877.

By way of further restriction on its modification of charitable immunity, the Court in Brown pronounced that its holding was to apply only to that case and to those causes of action arising after the date of filing of Brown, May 10, 1977. It is obvious from the explicit holding of Brown, despite the quotation in footnote 2 of Brown from Jeffcoat, that charitable immunity remains a valid defense for the unintentional torts of charitable institutions other than hospitals. The question for this Court to decide is whether or not the Boy Scouts of America in the present case can avoid liability under that doctrine for the acts and omissions enumerated in plaintiffs' complaint. For purposes of the instant motion, those allegations will be deemed true.

The threshold question for determination is whether or not the Boy Scouts of America qualifies as a charitable institution. The true nature of a corporation may be shown from the manner in which it conducts its business, as well as from its articles of incorporation. Eisenhardt, supra. To demonstrate the true nature of the Boy Scouts of America and the manner...