Landgraver v. Emanuel Lutheran Charity Board, Inc.

LUSK, J.

(specially concurring).

I concur in the judgment of affirmance but solely on the ground that the plaintiff was a patient in the hospital operated by the defendant. I find no legislation in this state touching the subject. The immunity is purely court made and is said to be a part of the public policy of Oregon. But public policy “is a very unruly horse, and when you once get astride it you never know where it will carry you. ’ ’ Burrough, J., in Richardson v. Mellish, 2 Bing 229, 252. The opinion of the court in the case at bar expresses a policy of total immunity for charitable corporations from tort liability. I think that this is wrong and that the dissenting opinion of Mr. Justice Brand demonstrates that it is wrong. I am unwilling to be carried so far as to concur in a *495 holding, for example, that a person injured on a public thoroughfare as the result of the negligent operation of an ambulance by the employee of a charitable corporation operating a hospital is without redress against the corporation. That, of course, is not this case. But the language of the opinion could be invoked to support such a ruling. We have held that a patient in a hospital cannot recover against the institution for a tortious injury suffered at the hands of its employees. That is as far, in my judgment, as the public policy goes. That, likewise, is the extent of the immunity (where immunity prevails) under the weight of authority in this country. 3 Scott on Trusts 2151; ALI Restatement, Trusts, p. 1240. I would limit the decision strictly to the issue presented by the pleadings in this case.