Albritton v. Neighborhood Centers Ass'n for Child Development

William B. Brown, J. The issue presented by this case is whether an organization enjoys immunity from liability for damages in tort merely because it is organized for charitable purposes. Because this court can no longer discover any valid, rational reasons for retaining charitable immunity this doctrine is hereby abolished. A preliminary question is raised as to whether NCA is, in fact, a charity and able to raise the defense of charitable immunity at all. Albritton contends — 211 — that NCA is a far different organization than the purely eleemosynary institution envisioned at the time charitable immunity was established. Instead, Albritton maintains NCA is a quasi-governmental organization and subject to liability under this court’s ruling in Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31. In support of this position, Albritton points to the source of NCA’s funds and the agreement to abide by the rules and regulations of various governmental levels. Civ. R. 56(E) provides, in pertinent part: “* * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Thus, a party must establish, by specific facts, that there is a genuine issue for trial in order to avoid summary judgment. State, ex rel. Garfield Heights, v. Nadratowski (1976), 46 Ohio St. 2d 441, 442-443 [75 O.O.2d 497]. Unsupported allegations in opposition to a motion for summary judgment are insufficient to require denial of the motion. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66 [8 O.O.3d 73]; Mathis v. Cleveland Public Library (1984), 9 Ohio St. 3d 199, 202. In the present case, Albritton has never presented any specific facts, beyond the allegations in her pleadings, to challenge NCA’s status. In contrast, NCA has supplied proof that it is a private nonprofit entity, created by incorporation and established as a tax-exempt charitable institution. Absent some factual response, by affidavit or as otherwise provided by Civ. R. 56, there was no issue to determine and the conclusion that NCA is a charity was proper. Albritton failed to make such a response. The only possible factual conclusion is, therefore, that NCA is a charity. The legal conclusion is the same. Receipt of governmental funds alone is insufficient to transform an entity from charity to quasi-governmental agency. NCA had a contract to provide services. Public monies were paid NCA under that contract. Compliance with applicable laws and regulations by NCA was one condition of the contract. Under Albritton’s rationale, any person or entity from church soup kitchen to defense supplier or highway contractor, under contract with any level of government by which public monies are paid and governmentally established standards met, would become a quasi-governmental agency. Obviously this contention reaches too far. Instead, the relevant concern is whether an organization’s day-to-day operations are governmentally supervised, not whether it receives public money and complies with governmental standards and regulations. United States v. Orleans (1976), 425 U.S. 807, 815. Albritton has produced no evidence whatsoever of day-to-day governmental supervision of NCA’s operations. The critical question is whether the doctrine of charitable immunity re — 212 — tains any validity in Ohio today. The origin of the doctrine in the United States is well documented and needs no repetition here. See Avellone v. St. John’s Hospital (1956), 165 Ohio St. 467, 469 [60 O.O. 121], citing President & Directors of Georgetown College v. Hughes (C.A.D.C. 1942), 130 F. 2d 810. Suffice it to say that the rule was originally erroneously adopted in that it derived from dicta in two English cases which had already been overruled. Despite such a tenuous inception, the doctrine of charitable immunity spread until it became a concept firmly embedded in American jurisprudence, although not one universally accepted. However, the “rule” of charitable immunity is, in reality, not a rule at all. In the first place, charitable immunity is an exception to the general principle of liability for tortious conduct. Individuals and entities are ordinarily held responsible for their own legally careless action and for negligent harms inflicted by their agents and employees. The form of legal organization may affect where liability is ultimately placed. But, in general, it does not nullify liability altogether and does not leave the burden of negligent injury to be borne exclusively by the victim. Moreover, the “rule” of charitable immunity has itself been devoured by exceptions. The immunity was first adopted in Ohio in Taylor v. Protestant Hospital Assn. (1911), 85 Ohio St. 90. Subsequent decisions gave additional vitality to that doctrine. Since then, the landscape of charitable immunity has been so pockmarked with exceptions as to be virtually unrecognizable. Immunity for hospitals has been abolished. Avellone v. St. John’s Hospital, supra. There is no charitable immunity where the injured plaintiff is not a beneficiary of the defendant charity or where the plaintiff is harmed as a result of the charity’s negligence in the selection or retention of an employee. Gibbon v. Y.W.C.A. (1960), 170 Ohio St. 280 [10 O.O.2d 334], paragraph one of the syllabus. Likewise, a charity is liable where it operates a business enterprise for profit not directly related to the purpose for which the organization was established. Blankenship v. Alter (1960), 171 Ohio St. 65 [12 O.O.2d 83]. Finally, there is no immunity where the plaintiff pays for services rendered by the charity. Bell v. Salvation Army (1961), 172 Ohio St. 326 [16 O.O.2d 110]. In light of these exceptions it is apparent that the doctrine of charitable immunity is not an ironclad, sacrosanct rule but has been severely limited in its actual application. Indeed, the very existence of these manifold exceptions militates strongly against all of the policy arguments advanced in favor of retention of the doctrine. Furthermore, charitable immunity does not, and has not, existed as a “rule” in the nation as a whole. In other jurisdictions charitable immunity survived only in a welter of conflict founded on a kaleidoscope of result and reasoning. See, generally, President & Directors of Georgetown College v. Hughes, supra, at 817-822. There is, consequently, no compelling precedential reason for retention of this doctrine. — 213 — This court has previously founded its acceptance of charitable immunity on the theory of public policy. Avellone v. St. John’s Hospital, supra, at 473; Gibbon v. Y.W.C.A., supra, at 288. This theory reasons that charities are good and that their purpose, to provide services for intended beneficiaries, should not be defeated by indemnification of tort claimants. As NCA has characterized the rationale, it has been determined that the benefit to society as a whole from protecting charitable organizations outweighs the detriment to any one particular injured individual. As was discussed in Avellone, resolution of such a question involves a balancing of two rights. On the one hand is the right of charitable organizations to any benefit and assistance which society can justly allow them. On the other hand is the right of an individual, injured by the negligence of another, to seek compensation. In Gibbon this court concluded that public policy considerations were not such as to alter' the doctrine of charitable immunity beyond its state at that time. A careful review of the competing policies underlying the present question convinces this court that that conclusion is no longer justified. In the first place, it is certainly true that a personal injury is no less painful, disabling, costly, or damage producing simply because it was inflicted by a charitable institution rather than by any other party or entity. Indeed, it is almost contradictory to hold that an institution organized to dispense charity shall be charitable and give aid to others but shall not compensate or aid those individuals who have been injured by it. Geiger v. Simpson Methodist-Episcopal Church of Minneapolis (1928), 174 Minn. 389, 219 N.W. 463; Fitzer v. Greater Greenville So. Car. Y.M.C.A. (1981), 277 S.C. 1, 282 S.E. 2d 230. As has previously been noted by this court, when an individual is injured or killed through the negligence of a charitable institution there is a strong likelihood that the individual or his or her family will become dependent upon outside support unless recovery may be had. Avellone, supra, at 476. Such support may be met by governmental assistance or may have to be assumed by another charity. In addition, a policy exempting a charitable organization from having to compensate for harm caused by it is equivalent to requiring an injured individual to make an unwilling contribution to that organization in the amount of the compensation which would be due him had he been injured by a non-charitable entity. Malloy v. Fong (1951), 37 Cal. 2d 356, 232 P. 2d 241. Such coerced donations are inimical to the whole concept of charitable donation and service. They are, to say the least, distinctly uncharitable. At its heart, the whole policy behind charitable immunity rests upon the idea that we do not want to discourage charitable activities or force charities out of business by subjecting them to tort liability. However, as was aptly stated in Flagiello v. Pennsylvania Hospital (1965), 417 Pa. 486, 503, 208 A. 2d 193, 201: — 214 — “If havoc and financial chaos were inevitably to follow the abrogation of the immunity doctrine, as the advocates for its retention insist, this would certainly have become apparent in the states where that doctrine is no longer a defense.” As Dean Prosser has indicated, this argument appears to have been concocted in some defense counsel’s imagination rather than having been based on experience. Prosser, Law of Torts (4 Ed. 1971) 994, Section 133. Nowhere is there the slightest evidence that the role of charities has been repressed in the overwhelming majority of jurisdictions which have abolished the rule as opposed to the handful which retain some form of immunity. This reality is independent of the existence of liability insurance. In short, charities continue to operate with very little regard as to whether they are immune from tort liability or not. In 1956, in Avellone, this court observed that the law on charitable immunity was unsettled. In 1984, that is no longer the case. Since Judge Rutledge’s opinion in President & Directors of Georgetown College v. Hughes, supra, the course of the law has changed dramatically. His demolition of the arguments in favor of charitable immunity has been followed by a deluge of decisions in the same vein. See Annotation (1983), 25 A.L.R. 4th 517 et seq. and the cases cited therein. Jurisdictions which have totally abolished charitable immunity now number well over thirty. Apparently, no state continues to grant absolute immunity to charities. Opinion among legal scholars is virtually unanimous that charitable immunity no longer has any valid reason for existence and must go. See 15 American Jurisprudence 2d (1976) 232, Charities, Section 190. The Restatement of the Law, Torts 2d (1979) 420, Section 895E would have the law be that “[o]ne engaged in a charitable, educational, religious or benevolent enterprise or activity is not for that reason immune from tort liability.” Prosser saw the immunity in full retreat and predicted, with his approval, its rapid disappearance from American law. Thus, to continue to hold in favor of charitable immunity is out of step not just with the trend but with the reality of the law in this country. Lastly, NCA contends that if charitable immunity is to be abolished it should be done by the General Assembly and not by the courts. This argument has repeatedly been demolished in other contexts. There is no doubt that charitable immunity was judicially created in Ohio. As was expressed in Enghauser Mfg. Co. v. Eriksson Engineering Ltd., supra, at 33, this court not only has the power but the duty and responsibility to evaluate an immunity doctrine in light of reason, logic and the actions and functions of the relevant entities in the twentieth century. It is, therefore, the proper province of this court to correct judicially created doctrines if they are no longer grounded in good morals and sound law. Harris v. Y.W.C.A. (1968), 250 Ind. 491, 237 N.E. 2d 242. For these reasons, this court now concludes that the doctrine of charitable immunity is hereby abolished. A charitable organization is subject to liability in tort to the same extent as individuals and corporations. The — 215 — judgment of the court of appeals is reversed and the cause remanded to the trial court for further proceedings. Judgment reversed and cause remanded. Celebrezze, C.J., Sweeney, C. Brown and J. P. CelebIiezze, JJ., concur. Locher and Holmes, JJ., dissent.