Byrd Theatre Foundation v. Barnett

PRESENT: All the Justices
THE BYRD THEATRE FOUNDATION
OPINION BY
v. Record No. 130691 JUSTICE ELIZABETH A. McCLANAHAN
FEBRUARY 27, 2014
DAVID M. BARNETT
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this premises liability action, The Byrd Theatre
Foundation (the Foundation) appeals a final judgment entered
against it in favor of David M. Barnett (Barnett). The
Foundation argues that the circuit court erred in denying its
plea of charitable immunity and in failing to instruct the jury
on notice to a corporation. We will affirm the judgment of the
circuit court.
I. BACKGROUND
The Foundation, a non-profit corporation qualifying as a
tax-exempt organization under 26 U.S.C. § 501(c)(3), owns the
Byrd Theatre, a national historic landmark and motion picture
theater in Richmond that was opened in 1928 and houses a
Wurlitzer theater pipe organ installed the same year. The
theater is operated by 1928 Limited, Inc. (1928 Limited), a
non-stock for-profit corporation formed by the Foundation
shortly after its purchase of the Byrd Theatre in 2007.
Barnett, a member of the Foundation's organ restoration
subcommittee, was injured in the theater's organ chamber when
he was performing repairs to the organ and a wooden plank he
stepped upon "gave way" causing him to fall four feet to the
floor. 1 Asserting that the wooden plank was not properly
secured, Barnett filed suit against the Foundation and 1928
Limited claiming they failed to maintain the premises in a
reasonably safe condition and warn him of the dangerous
condition of the plank. Following a jury trial, the jury
rendered a plaintiff’s verdict against the Foundation and a
defense verdict in favor of 1928 Limited. The circuit court
entered judgment on the jury's verdict after denying various
post-trial motions filed by the Foundation.
II. CHARITABLE IMMUNITY
Prior to trial, the Foundation filed a plea of charitable
immunity. Because Barnett stipulated that the Foundation is a
charitable organization operating in accordance with its
charitable purpose, the issue presented to the circuit court
was limited to whether Barnett was a beneficiary of the
Foundation at the time of his accident.
1
The organ chamber is located three stories above the
floor level of the auditorium and houses the ranks of pipes and
instruments, and other parts of the organ necessary to power
the organ and relay signals from the organ console to the music
producing parts located in the chamber. Wooden walking planks
are located approximately four feet above the floor of the
chamber to provide access to certain parts of the organ.
2
A. Evidence and Ruling on Plea
At the hearing on the plea, the Foundation presented
evidence that, pursuant to its articles of incorporation, the
Foundation was formed "[t]o cultivate, promote, and develop the
public's knowledge, awareness, understanding, and appreciation
of the performing arts." After its purchase of the Byrd
Theatre, the Foundation, through an amendment to its bylaws,
narrowed its mission to owning and restoring the Byrd Theatre
"as a grand movie palace and community resource." In
performing this mission, the Foundation's principal activity is
raising funds to be used in its restoration of the theater,
including the organ. Because the Foundation does not have any
salaried employees, it utilizes independent contractors to
perform any such restoration and repair of the theater and the
organ.
Barnett is a long-time theater pipe organ enthusiast, who
has held memberships and leadership positions in several organ
enthusiast clubs that are dedicated to the preservation and
appreciation of historic pipe organs. He purchased a Wurlitzer
theater pipe organ in 1978, and over a two-year period,
dismantled, restored, reassembled, and installed the organ in
his home. Although Barnett does not play the organ, he is
fascinated with the sound and mechanism of theater organs, and
has received visiting organists to play the organ installed in
3
his home. He is passionate about the preservation and
restoration of the Byrd Theatre organ and has attended the Byrd
Theatre, over the years, to hear the organ played.
From 1976 to 1990, Barnett consulted on and performed
restoration and repair work to the Byrd Theatre organ either as
an individual volunteer or with a group of volunteers from the
Virginia Theatre Organ Society. In 2008, Barnett was asked by
Robert Gulledge, Jr., the house organist for the Byrd Theatre,
to serve on the Foundation's organ subcommittee of the theater
restoration committee. 2 As the "steward" of the organ, the
organ subcommittee arranges for and oversees restoration of the
organ. Barnett's duties were of an advisory nature and
included making contacts with organ technicians who might enter
into contracts with the Foundation for long-term restoration or
short-term renovations, as well as reviewing the terms and
scope of work included in proposed contracts.
During a period in which the subcommittee was without an
organ technician under contract, Barnett volunteered to
undertake certain repairs to the organ that were needed to
2
Barnett testified that between 1990 and 2008, he did not
perform work on the organ and was not affiliated with the Byrd
Theatre, though he would occasionally bring out-of-town company
to see the theater or its lobby.
4
address sound quality issues. 3 While making repairs to the
organ was not within the scope of his duties as a member of the
organ restoration subcommittee, the work "needed to be done,
and nobody else was available to do it." Barnett arranged to
perform the repairs with Linwood Lunde, a former house organist
for the Byrd Theatre who was still affiliated with the theater
and obtained a key to the organ chamber from the theater
manager. When Barnett fell in the organ chamber, Lunde was in
the auditorium working at the organ console.
Barnett testified that he volunteered to perform the
repairs since he "had a passion to have the organ work properly
as a service to the Byrd Theatre" and "was happy to do that
because, if that organ had not had people take an interest in
it, it would have most likely gone silent." Barnett further
testified that he "gain[ed] satisfaction from knowing that [he]
was helping the theater" and "getting the work done that needed
to be done." According to Barnett, he "didn't get any other
satisfaction out of it."
Based on the evidence presented, the Foundation asserted
that Barnett was a beneficiary of the Foundation's charitable
3
Although an organ technician had been under contract, he
was unable to resolve the specific problem being addressed by
Barnett and Lunde, and the Foundation was in the process of
terminating his contract and contracting with a new technician.
5
purpose through the work he performed since "the sound, the
mechanism and the music are all improved, which is something
he's interested in and passionate about." In permitting him to
perform this work, the Foundation argued, Barnett was given
access to one of the few original installation theater organs
in the country and provided the unique opportunity to work on
the organ, in pursuance of his long-time hobby and passion.
Rejecting the Foundation's argument, the circuit court
concluded that Barnett was not the Foundation's beneficiary at
the time of his accident. Specifically, the circuit court
found that "[t]he [Foundation's] accepted charitable charge is
to provide a venue for the performing arts" and "[t]he by-law
provision regarding restoration and preservation is aimed at
facilitating that charge of affording performing arts." The
circuit court found "no evidence that [the Foundation] was
extending and [Barnett] was receiving services or a charitable
benefit consistent with [the Foundation's] charitable aims."
Thus, according to the circuit court, "[g]iven the
[Foundation's] charitable purpose to provide a facility for the
performing arts and, according to its by-laws, to preserve and
restore the Byrd Theatre, including the organ, it cannot be
said that [Barnett] was the object of the charity's bounty at
the time [of his accident]."
B. Analysis
6
The doctrine of charitable immunity, being firmly embedded in
the law of this Commonwealth, is "grounded in the public policy
that the resources of charitable institutions are better used
to further the institution's charitable purposes, than to pay
tort claims lodged by the charity's beneficiaries." Ola v.
YMCA of S. Hampton Roads, Inc., 270 Va. 550, 555, 621 S.E.2d
70, 72 (2005). Consistent with this policy, an entity that is
organized for a recognized charitable purpose and operates in
accord with that purpose is immune from liability based upon
claims of negligence asserted by beneficiaries of the entity's
charitable bounty. Ola, 270 Va. at 556, 621 S.E.2d at 72-73;
see also University of Va. Health Servs. Found. v. Morris, 275
Va. 319, 331-34, 657 S.E.2d 512, 517-20 (2008); Straley v.
Urbanna Chamber of Commerce, 243 Va. 32, 35-38, 413 S.E.2d 47,
49-51 (1992); Thrasher v. Winand, 239 Va. 338, 340-42, 389
S.E.2d 699, 701-02 (1990). This is so because "[o]ne who
accepts the benefit either of a public or a private charity
enters into a relation which exempts his benefactor from
liability for the negligence of his servants in administering
the charity; at any rate, if the benefactor has used due care
in selecting those servants." Weston v. Hospital of St.
Vincent, 131 Va. 587, 604, 107 S.E. 785, 791 (1921) (quoting
7
Hospital of St. Vincent v. Thompson, 116 Va. 101, 109, 81 S.E.
13, 16 (1914). 4 Thus, "[c]haritable immunity applies only to
claims of negligence asserted by those who accept the
charitable institution's benefits." Morris, 275 Va. at 331,
657 S.E.2d at 517.
The dispositive question in this case, therefore, is whether
Barnett was in a "beneficial relationship" with the Foundation
at the time of his accident. Ola, 270 Va. at 563, 621 S.E.2d
at 77. As we have explained, "a beneficiary is a person who
receives something of value, which the organization by its
charitable purpose, undertakes to provide." Id. at 564, 621
S.E.2d at 77 (emphasis added). Based on the Foundation's
articles of incorporation and amended bylaws, its charitable
aim was to cultivate an appreciation for the performing arts
through restoration and preservation of the Byrd Theatre and
the organ. The Foundation was neither organized nor operated
for the purpose of providing theater organ enthusiasts an
opportunity to repair or restore the Byrd Theatre organ. At
the time of Barnett's accident, the Foundation was not
undertaking to provide Barnett with the benefit of an
4
A charity is immune from liability for the negligent acts
of its agents and employees provided due care has been
exercised in their selection and retention. However, the
shield of immunity does not extend to acts of willful or gross
negligence. Ola, 270 Va. at 556, 621 S.E.2d at 72.
8
opportunity to repair its organ. In short, the Foundation's
mission was to restore and preserve the theater, including its
organ; not to provide a venue for individuals, such as Barnett,
to practice their hobby of restoring organs.
To the contrary, the Foundation hired contractors to perform
the organ restoration and repairs. In contrast to accepting a
service that the Foundation operated to provide, Barnett was
providing a service to the Foundation in furtherance of the
Foundation's own aim of preserving and restoring the organ,
which otherwise would have been performed by a paid contractor.
As Barnett testified, he "had a passion to have the organ work
properly as a service to the Byrd Theatre" and "was happy to do
that because, if that organ had not had people take an interest
in it, it would have most likely gone silent." According to
Barnett, he gained satisfaction from "knowing that [he] was
helping the theater" and "getting the work done that needed to
be done." Based on the evidence, therefore, the circuit court
properly found that Barnett was not receiving the bounty of the
Foundation's charitable works at the time of his accident. 5
5
The Foundation readily acknowledges that Barnett was
providing a service to the Foundation but argues that this
fact, alone, should not exclude him from the Foundation's class
of beneficiaries. We agree and, therefore, our holding does
not stand for the proposition that all persons who provide a
service or other benefit to the charity cannot be deemed
9
We reject the Foundation's position that Barnett's passion for
the preservation and restoration of the Byrd Theatre organ and
receipt of personal satisfaction from contributing to such
restoration established a "beneficial relationship" with the
Foundation. It could be said that most volunteers receive
gratification through their charitable works and that many
likely provide services consistent with their own hobbies or
interests. But, the receipt of personal satisfaction or
pleasure gained through the donation of one's services to a
charity does not create a "beneficial relationship" with the
charity for purposes of charitable immunity.
In sum, we "find the [circuit] court's analysis well
reasoned and amply supported by the evidence." Ola, 270 Va. at
559, 621 S.E.2d at 74. Therefore, the circuit court did not err
in denying the Foundation's plea of charitable immunity.
III. JURY INSTRUCTIONS
The Foundation also asserts that the circuit court erred in
refusing to instruct the jury regarding imputed actual notice
from agents to corporations.
beneficiaries thereof. The adoption of any such rule would be
inappropriate because the determination is necessarily driven
by the specific facts of the case, and in particular, the
activity engaged in by the tort claimant at the time of the
accident.
10
The evidence at trial proved that 1928 Limited, as the
manager of the Byrd Theatre, operated the theater and
maintained its premises, except with regard to the organ, which
was maintained by the Foundation. Barnett presented evidence
that an employee of 1928 Limited had knowledge of the condition
of the wooden plank on which Barnett was standing when he fell
and argued that such notice should be imputed to 1928 Limited
and the Foundation. The Foundation took the position that this
knowledge could not be imputed to the Foundation since the 1928
Limited employee learned of the condition of the plank many
years prior to his employment and, in any event, 1928 Limited
was not permitted to work on the organ.
The Foundation offered the following jury instruction,
which was rejected by the circuit court:
A corporation knows a fact only as its officers and agents
know it. The corporation does not know all that its agents
know, but only what comes to the agents while acting for
the corporation within the scope of their agency, when it
is the agents' duty to report their knowledge to the
general officer or agents of the company.
The Foundation argued that the proposed jury instruction
tracked the language from Rudolph v. Farmers' Supply Co., 131
Va. 305, 310-11, 108 S.E. 638, 639 (1921) and properly
addressed the imputed notice issue raised by Barnett.
According to the Foundation, "[n]otice was a critical issue in
the case, and an instruction on imputed actual notice was
11
necessary for the jury to determine whether [the employee's]
knowledge from the early 1980's imputed to 1928 [Limited] and
the Foundation." 6
It is unnecessary for us to determine whether the circuit
court erred in refusing the Foundation's proposed jury
instruction on imputed notice. The jury found in favor of 1928
Limited and, therefore, absolved the Foundation from any
liability arising from 1928 Limited's conduct. See Virginia
State Fair Ass'n v. Burton, 182 Va. 365, 372, 28 S.E.2d 716,
719 (1944) (verdict in favor of agent and against principal
necessarily exonerated principal of liability arising from
agent's alleged negligence). Furthermore, the jury was
entitled to find the Foundation liable, based on the
Foundation's independent negligence, without regard to 1928
Limited's liability or conduct. 7 See Wintergreen Partners, Inc.
6
Barnett also offered an instruction on imputed notice that
was refused by the circuit court.
7
In particular, the jury was given the following
instruction governing premises liability of owners or
occupants:
An owner or occupant of premises does not guarantee an
invitee's safety, but has the duty:
(1) to use ordinary care to have the premises in a reasonably
safe condition for an invitee's use consistent with the
invitation unless the invitee knows, or should have known,
of the unsafe condition; and
(2) to use ordinary care to warn an invitee of any unsafe
condition about which the owner or occupant knows, or by
12
v. McGuireWoods, LLP, 280 Va. 374, 379, 698 S.E.2d 913, 916
(2010). Therefore, because the jury rejected a theory of
liability based on 1928 Limited's knowledge of the unsafe
condition of the wooden plank, but rather based its verdict on
the separate negligence of the Foundation, "it is immaterial"
whether notice by 1928 Limited's employee could properly be
imputed to 1928 Limited and the Foundation. 8 Virginia State
Fair Ass'n, 182 Va. at 372, 28 S.E.2d at 719. Accordingly, any
error by the circuit court in failing to instruct the jury on
imputed notice would be harmless.
IV. CONCLUSION
the use of ordinary care should know, unless the unsafe
condition is open and obvious to a person using ordinary
care for his own safety.
If an owner or occupant fails to perform either or both of
these duties, then it is negligent.
8
The Foundation contends that Barnett is precluded from
arguing, on appeal, that the jury could properly find the
Foundation independently negligent based on the premises
liability instruction because the only theory Barnett argued to
the jury was that the Foundation was liable based on knowledge
imputed from 1928 Limited's employee to 1928 Limited and the
Foundation. This contention cannot be sustained because the
Foundation did not object to the premises liability instruction
and has not assigned error related to the sufficiency of the
evidence to support a verdict based on that instruction. See
Wintergreen Partners, 280 Va. at 379, 689 S.E.2d at 916.
13
For the foregoing reasons, we will affirm the judgment of
the circuit court.
Affirmed.
14