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Cowan v. Hospice Support Care11/5/2004
In this appeal, we consider whether a plaintiff's claims of gross negligence and willful and wanton negligence against a charity are barred by the doctrine of charitable immunity.
For purposes of this appeal, the facts relevant to this issue of law and question of first impression are not in dispute. On July 9, 2001, the plaintiff, In-grid H. Cowan, placed her mother, Ruth D. Hazelwood (the decedent), in Harbor House, a residential facility that provides temporary care for very ill persons when their primary caregiver seeks respite. Harbor House is operated by the defendant, Hospice Support Care, Inc. (Hospice), "a non-profit, non-medical volunteer hospice support corporation."
The decedent was bedridden and required the assistance of two persons to move her from her bed to a bedside commode. During the decedent's first night at Harbor House, a single volunteer lifted her from the bed. When the decedent's right leg became "caught" in the bed, the volunteer heard a loud "popping-cracking" noise in the leg. That evening, and for the remainder of the decedent's week-long stay at Harbor House, the decedent received morphine for pain in her leg, but she was not provided any other medical treatment.
Cowan returned to Harbor House on July 16, 2001. After she and her mother left the facility, Cowan discovered that the decedent's leg was swollen and that she appeared to be in pain. As a result, Cowan took the decedent to a nearby hospital emergency room. The decedent was diagnosed as having a shattered right femur, which required amputation of her leg above the knee. The decedent died four days later from complications resulting from the surgery.
Cowan filed an amended motion for judgment in the circuit court against Hospice alleging wrongful death of the decedent based on claims of simple negligence, gross negligence, willful and wanton negligence, and negligent hiring and retention. Upon consent of the parties, the circuit court dismissed the simple negligence count. Hospice filed a plea in bar of charitable immunity to the counts of gross negligence and willful and wanton negligence, and a demurrer to the negligent hiring and retention count. The circuit court sustained the plea in bar and demurrer and dismissed these remaining counts with prejudice. Among other things, the circuit court concluded that the charitable immunity doctrine barred recovery for acts or omissions of gross negligence and willful and wanton negligence. Cowan appeals.
On appeal, Cowan argues that this Court has not applied the charitable immunity doctrine to shield a charity from liability for acts of gross negligence or willful and wanton negligence. She asserts that because gross negligence and willful and wanton negligence are different in degree and kind from simple negligence, the charitable immunity doctrine should not be defined as including immunity for those more extreme acts. Cowan also contends that the charitable immunity doctrine should not be applied to acts of gross negligence or willful and wanton negligence because, in instances of such extreme conduct, the public's interest in encouraging charitable activities is outweighed by the need to deter such acts of "reckless and harmful behavior."
In response, Hospice argues that charities should be immune from liability for all degrees of negligence because the absence of such immunity would discourage them from performing their beneficial activities. Hospice asserts that this Court, in its prior decisions, has discussed charitable immunity from liability for negligence without specifically limiting that immunity to claims of simple negligence. Thus, Hospice contends, because gross negligence and willfu
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