Flagiello v. Pennsylvania Hospital

*516 Concurring Opinion by

Mr. Justice Roberts:

As one who was not on the Court when a majority last reaffirmed its adherence to the doctrine of charitable immunity, I welcome today’s opportunity to express some views on the issue.

I concur in what the Court does today for the fundamental reason that, no matter how viewed, the doctrine of charitable immunity cannot withstand unimpassioned analysis. Briefly put, there is really no supportable rationale upon which this judicially-created exception to the ordinary rules of liability can be predicated. The various theories advanced in favor of the doctrine seem to me, at root, as ethereal as the nonexistent English precedent upon which the doctrine was first founded. It would serve little purpose to parade in this opinion the vast number of cases or authorities or to discuss in any detail the weaknesses of the theories which have sustained the doctrine long beyond its day. The abundance of judicial authority and scholarly writings make that a needless exercise. 1

Our result is strengthened by two facts. In recent' years, where the issue of charitable immunity has come before a court as a matter of first impression, the doctrine has been consistently rejected. 2 Moreover, while the unquestioned trend has been to abandon charitable *517 immunity, 3 not a single jurisdiction that recognizes full liability has overruled prior authority and adopted charitable immunity. 4 In other words, judicial opinion has tended to go from immunity to liability, but in no instance has it gone from liability to immunity.

I do not believe that we must in any way “penalize” charities for their mistakes. What I do believe is that, in the proven absence of persuasiveness in any of the arguments advanced for maintaining a rule of law which makes negligent injury suffered at the hands of *518 charitable institutions noncompensable, such institutions should be held to the same responsibility as any other entity. Charities are, of course, to be encouraged, not penalized. But that is not to say that they should be relieved of the responsibility of compensating those injured through the charities’ fault. Under the immunity doctrine, in the rush to somehow “safeguard” charitable assets, the injured individual and his loss seem to have been regrettably forgotten. Personal injury is no less painful, disabling, costly or damage-producing simply because negligent harm is inflicted in! or by a charitable institution rather than a non-charitable one. It should be no more protected by law.

One of the most vigorously advanced arguments for adhering to charitable immunity is predicated on stare decisis. But “judicial consistency loses its virtue when it is degraded by the vice of injustice.” 5 The principle of stare decisis is more a stabilizing anchor than a permanent deadweight. Unwise rules need not be perpetuated forever. Mr. Justice Brandéis was fond of saying that no case was ever settled until it was settled correctly. There is no more arrogance involved in rectifying a mistake than in making it in the original instance. I cannot believe that the common law tradition, which has served us so well because of its illuminating ability to adapt and re-examine itself, demands a policy of unyielding adherence to a thoroughly discredited principle. 6

The outstanding judicial authority is President & Directors of Georgetown College v. Hughes, 130 F. 2d 810 (D.C. Cir. 1942). Other writings are practically limitless. See, e.g., Prosser, Torts §127 (3d ed. 1964) ; 2 Harper & James, Torts 1667 (1956) ; Appleman, “The Tort Liability of Charitable Institutions,” 22 A.B.A.J. 48 (1936) ; Fisch, “Charitable Liability For Tort,” 10 Vill. L. Rey. 71 (1964).

See Moats v. Sisters of Charity of Providence, 13 Alaska 546 (1952) ; Durney v. St. Francis Hospital, 46 Del. 350 , 83 A. 2d 753 (1951) ; Foster v. Roman Catholic Diocese of Vermont, 116 Vt. 124 , 70 A. 2d 230 (1950) ; Nicholson v. Good Samaritan Hospital, 145 Fla. 360 , 199 So. 344 (1940). See also Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525 , 23 N.W. 2d 247 (1946).

E.g., Ray v. Tucson Medical Center, 72 Ariz. 22 , 230 P. 2d 220 (1951) ; Malloy v. Fong, 37 Cal. 2d 356 , 232 P. 2d 241 (1951) ; Wheat v. Idaho Falls Latter Day Saints Hospital, 78 Idaho 60 , 297 P. 2d 1041 (1956) ; Haynes v. Presbyterian Hospital Ass’n, 241 Iowa 1269 , 45 N.W. 2d 151 (1950) ; Noel v. Menninger Foundation, 175 Kan. 751 , 267 P. 2d 934 (1954) ; Mullikin v. Jewish Hospital Ass’n of Louisville, 348 S.W. 2d 930 (Ky. Ct. App. 1961) ; Parker v. Port Huron Hospital, 361 Mich. 1 , 105 N.W. 2d 1 (1960) ; Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29 , 141 A. 2d 276 (1958) ; Bing v. Thunig, 2 N.Y. 2d 656 , 143 N.E. 2d 3 , 163 N.Y.S. 2d 3 (1957) ; Avellone v. St. John’s Hospital, 165 Ohio St. 467 , 135 N.E. 410 (1956) ; Hungerford v. Portland Sanitarium & Benevolent Ass’n, 235 Ore. 412 , 384 P. 2d 1009 (1963) ; Kojis v. Doctors Hospital, 12 Wis. 2d 367 , 107 N.W. 2d 131 (1961) ; Pierce v. Yakima Valley Memorial Hosp. Ass’n, 43 Wash. 2d 162 , 260 P. 2d 765 (1953).

The following judicial decisions refused to recognize immunity in the first instance: Moats v. Sisters of Charity of Providence, 13 Alaska 546 (1952) ; Durney v. St. Francis Hospital, 45 Del. 350 , 83 A. 2d 753 (1951) ; President & Directors of Georgetown College v. Hughes, 130 F. 2d 810 (D.C. Cir. 1942) ; Nicholson v. Good Samaritan Hospital, 145 Fla. 360 , 199 So. 344 (1940) ; Mulliner v. Evangelischer Diakoniessenverein, 144 Minn. 392 , 175 N.W. 699 (1920) ; Mississippi Baptist Hospital v. Holmes, 214 Miss. 906 , 55 So. 2d 142 (1951) ; Howard v. Sisters of Charity of Leavenworth, 193 F. Supp. 191 (D. Mont. 1961) ; Welch v. Frisbie Memorial Hospital, 90 N.H. 337 , 9 A. 2d 761 (1939) ; Sisters of Sorrowful Mother v. Zeidler, 183 Okla. 454 , 82 P. 2d 996 (1938) ; Sessions v. Thomas D. Dee Memorial Hospital Ass’n, 94 Utah 460 , 78 P. 2d 645 (1938) ; Foster v. Roman Catholic Diocese of Vermont, 116 Vt. 124 , 70 A. 2d 230 (1950).

Hargrove v. Town of Cocoa Beach, 96 So. 2d 130, 133 (Fla. 1957).

Recently, in Griffith v. United Air Lines, Inc., 416 Pa. 1 , 203 A. 2d 796 (1964), this Court had occasion to discuss the applicability of the principle of stare decisis. The pertinent observation is cited in the majority opinion.