Williams v. First United Church of Christ

• Citation: 40 Ohio App.2d 187,318 N.E.2d 562
• Parties: , 69 O.O.2d 183 WILLAMS et al., Appellants, v. FIRST UNITED CHURCH OF CHRIST et al., Appellees. *
• Decision Date: 09 April 1973
• Court: Ohio Court of Appeals

Page 187

40 Ohio App.2d 187

318 N.E.2d 562, 69 O.O.2d 183

WILLAMS et al., Appellants, v. FIRST UNITED CHURCH OF CHRIST et al., Appellees. ^*

Court of Appeals of Ohio, First District, Hamilton County.

April 9, 1973.

Syllabus by the Court

Where allegations in a complaint indicate that a tortious injury occurred due to the negligence of one employed by a charitable institution, it is error for a court to render a summary judgment for the defendant, even though the injured party was a beneficiary of the institution and the injury occurred during the operation of a business enterprise conducted for profit, which operation was unrelated to the purpose constituting the basis for the institution's organization.

Cohen, Todd, Kite & Spiegel and Marshall C. Hunt, Jr., Cincinnati, of counsel, for appellants.

McIntosh, McIntosh & Knabe, Cincinnati, for appellees.

SHANNON, Judge.

This is an appeal from a final order of the Court of Common Pleas of Hamilton County granting summary judgment in favor of defendant First United Church of Christ, one appellee herein.

Dorothy williams filed a petition in which she stated a claim for damages for personal injuries against the First United Church of Christ and the Dan Beard Council, Boy Scouts of America. Stephen Williams, the husband of Dorothy Williams, filed a petition in which he sought damages for loss of consortium. Ultimately, the two causes of action were consolidated and summary judgment for the defendant Dan Beard Council, Boy Scouts of America, the other appellee, was rendered.

First United Church of Christ moved for a summary judgment in its favor as to the consolidated claims on the ground that the church was immune froth liability for negligence by virtue of its being a charitable and religious organization. This appeal stems from the order granting the motion.

In her petition, Dorothy Williams avers that on November 9, 1966, the church was engaged in operating a bazaar or social for profit upon premises of the church at which the general public was expressly invited. She claims that she attended the function and, while seated in the social room maintained by the church, she was injured when struck on the neck and shoulders by a coat rack which fell upon her. She alleged that the church was negligent in not maintaining the coat rack so as to prevent it from falling and in failing to provide her with a reasonably safe place to sit.

In its answer, the church stated that it is a corporation not for profit operating a church and conducting religious services, and that on November 9, 1966, it operated a bazaar or social as part of its church functions. It denied all other allegations of the plaintiff. Further, the church asserted a second defense setting forth its claim of immunity from tort liability because of its status as an eleemosynary institution.

Incident to its motion for summary judgment, the church presented parts of a deposition given by Dorothy Williams to establish that on November 9, 1966, Mrs. Williams was a member of the church; that she was working at the bazaar, without pay; that she was serving in the dining room; that she paid for her own dinner; and that the purpose of the function was to raise money to augment other funds to operate the church.

Upon the state of the record before us, it would be possible for this court to dispose of this appeal upon the narrow question of whether there exists a genuine issue of material fact which would obviate the rendition of a summary judgment; that is, must a trier of the facts determine whether the bazaar or social was operated for a profit? We have determined, however to decide the case on a broader ground because a remand for trial without a determination of the salient issue of the circumstances under which a church is immune from liability as a religious organization would be relatively ineffectual.

Beyond cavil, a charitable institution, including a religious organization, which is not a hospital, has under Ohio law some immunity from liability for negligence.

Avellone v. St. John's Hospital, 165 Ohio St. 467, 135 N.E.2d 410, decided July 18, 1956, involved an action to recover damages for personal injuries sustained while the plaintiff was a patient in the hospital. The defendant hospital pleaded, as a separate defense, that as a corporation not for profit it operated a charitable hospital at a loss, the deficit being made up by gifts, and prayed that the petition be dismissed. Plaintiff demurred to the separate defense 'on the ground that on its face it is insufficient in law.' The Court of Common Pleas overruled the demurrer, the plaintiff pleaded no further, the action was dismissed and, thereafter, the Court of Appeals affirmed that judgment of the trial court.

The Supreme Court reversed the judgment of the Court of Appeals, declaring in paragraph one of the syllabus:

'1. A corporation not for profit, which has as its purpose the maintenance and operation of a hospital, is, under the doctrine of respondeat superior, liable for the torts of its servants. * * *'

The majority opinion examines in detail the law on immunity of organizations not for profit which maintain and operate hospitals, tracing it from its foundation in America upon the 'dictum of Lord Cottenham in The Feoffees of Heriot's Hospital v. Ross, 1846, 12 Clark & Fin., 507, 513, 8 Eng. Reprint, 1508' to the then recent decision in Newman, a Minor v. Cleveland Museum of Natural History (1944), 143 Ohio St. 369, 55 N.E.2d 575.

In disposing of Avellone, supra, the court referred frequently to the case of President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, and remarked, at page 476 of its opinion, 135 N.E.2d at page 416:

'We cannot state our general position on this question (the rule of immunity) more clearly than did Judge Rutledge state his as follows:

"The law's emphasis ordinarily is on liability, not immunity, for wrongdoing. Respondeat superior has widened it in an institutionally, and to a large extent corporately, organized community. Charity is generally no defense." (Emphasis ours.)

Judge Putnam, in his dissent in Avellone, supra at 478, 135 N.E.2d at 417, stated flatly:

'I am not in favor of changing the Ohio rule of limited liability of charities for the torts of their employees.' Then, referring to the decision reached by the majority, that is, that set forth in paragraph one of the syllabus, Judge Putnam declared, at page 479, 135 N.E.2d at page 418, that the new rule 'cannot logically be circumscribed to be applicable to hospitals alone.'

In January, 1960, the Ohio Supreme Court decided Gibbon v. Y. W. C. A., 170 Ohio St. 280, 164 N.E.2d 563, and declared in paragraph one of the syllabus:

'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, a Minor v. Young Women's Christian Assn. (1938), 133 Ohio St. 601, 15 N.E.2d 140, approved and followed.)'

The court differentiated its decision in Gibbon, supra, from that in Avellone, supra. After asserting that the rule of immunity is founded on public policy in Ohio (page 288 of the opinion, 164 N.E.2d page 569), the majority queried 'whether changes in public policy in this field should be judicially or legislatively...