Pierce v. Yakima Valley Memorial Hospital Ass'n ( 1953 )

Donworth, J.

(dissenting) — For sixty years this court has consistently followed the policy of encouraging the operations of charitable, nonprofit corporations by limiting their liability for negligence to their patrons to situations where they had direct control over the instrumentality which caused the injury.- In other words, they have been held liable only for administrative negligence and for negligence in the selection or retention of incompetent employees.

This court on five separate occasions during the past thirty years has consistently refused to change its policy of holding that such corporations are not liable to patrons for the negligence of those employees over whose conduct the management has only remote control.

It has been thought that this policy encouraged the organization and operation of charitable enterprises by limiting their liability for the negligence of their employees in this manner.

Casting aside the doctrine of stare decisis, the majority in the present case now inform us not only that there is no longer any reason for .the policy declared in our decisions of the past sixty years, but that there never was any sound basis for the rule in the first place. We have, apparently, during all this time piled error upon error because we did not realize that Lord Cottenham’s dictum in 1861 had been repudiated by later English decisions.

But regardless of the origin of the error, the majority opinion bases its present determination to abandon our long-established policy upon the proposition that private charity has been displaced by a paternalistic government which will furnish free charitable services (as long as the taxpayers are financially able), and that hospitals, Y. M. C. A.’s, Boy Scouts, Red Cross chapters, and other similar organizations do not any longer need encouragement. In my opinion, this proposition is without any factual support in this state at the present time.

Parenthetically, the new rule adopted in the majority opinion applies only to a paying patient (a term which is not defined therein), and I assume that the original rule still will remain operative as to free patrons of charitable institutions and those who are financially able to pay only part of the prevailing rate for the service rendered.

With respect to paying patients, these institutions will have to recognize that, under the new declaration of policy adopted by this court, they will either have to increase their rates or solicit larger charitable subscriptions in order to provide funds with which to pay the heavy insurance premiums which will be made necessary thereby. The principal beneficiaries of this change of policy will be the insurers.

I cannot yield my assent to the theory that charity is a relic of the horse-and-buggy days, and that presently these charitable institutions are no longer in need of encouragement because they have been supplanted by various governmental agencies of the welfare state. While public hospitals render a valuable and necessary service, they cannot take care of even a small fraction of all persons who need physical or mental care in this state. They were not intended to take the place of charitable hospitals, whose continued operation has always been, and should continue to be, encouraged.

In my opinion, nothing has happened in the last ten years (since our decision in Weiss v. Swedish Hospital, 16 Wn. (2d) 446, 133 P. (2d) 978) which justifies our abandoning our consistent policy of the last sixty years. Charity is still a virtue and is entitled to the same encouragement that it has always received at the hands of this court.

If the people of this state desire any change in this policy, it can be and should be accomplished through the legislature as suggested in Judge Hill’s dissenting opinion in this case. The majority opinion provides an excellent example of the inability of any court to intelligently function on a matter of public policy in a case of this kind because of its lack of facilities for ascertaining the necessary factual background. In this case, we have before us only the allegations of the complaint and matters of which we may take judicial notice. There is no allegation of fact nor matter within judicial notice that even remotely indicates that any factual change has taken place which, would warrant the change of policy now approved in the majority opinion. On the contrary, I think that the major premise of the majority opinion is founded upon an erroneously assumed state of facts which is directly contrary to the actual situation presently existing in this state.

As for the decisions of other appellate courts upon this subject, which are thoroughly and ably reviewed in the majority opinion, it appears that in at least half of the states some form of immunity is still recognized in this type of litigation. While the recent trend has been toward denying immunity, I see no cogent reason for our following it.

In the absence of any factual basis for changing our long-established rule, it seems to me that the following statement from Weiss v. Swedish Hospital, supra, is still applicable and should be applied in this case:

“When we consider the great diversity of variant rules which might be adopted, and at the same time remember that the rule with which we are dealing does not apply to hospitals alone but to churches, educational institutions, Y. M. C. A.’s, social welfare organizations, and, in general, to the various organizations engaged in philanthropic, benevolent, and charitable work, it is at once manifest that a change in the rule, particularly its complete abandonment, would have far-reaching and, perhaps, unimagined and unintended consequences.

“The court has heard the instant case En Banc, and, after a careful consideration of the matter, it concludes that it should not abandon, or modify, the limited liability rule which it has so long held applicable in cases of this character.”

Unless and until the legislature takes action in this matter (presumably after hearing all persons and institutions affected by a proposed change), this court should continue to adhere to the policy which has been found to have been satisfactory for more than sixty years.'

I would affirm the judgment.