# Rabon v. Rowan Memorial Hospital Incorporated > Supreme Court of North Carolina · January 20, 1967 · 269 N.C. 1 URL: https://www.frixlaw.com/law-library/cases/9850556 ## Case - **Full name:** Homer D. Rabon v. Rowan Memorial Hospital, Incorporated - **Court:** Supreme Court of North Carolina - **Decided:** January 20, 1967 - **Citations:** 269 N.C. 1; 152 S.E.2d 485; 1967 N.C. LEXIS 1023 - **Precedential status:** Published - **Opinion:** Dissent by Parker - **Judges:** Shaep, Lake - **Cited by:** 57 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9850556 ## Opinion text *22 PARKER, C.J., dissenting: It has been settled law in this jurisdiction by a uniform line of decisions for more than fifty-five years that a charitable institution may not be held liable to a beneficiary of the charity for the negligence of its servants or employees if it has exercised due care in their selection and retention. Williams v. Hospital, 237 N.C. 387 , 75 S.E. 2d 303 ; Williams v. Hospital Asso., 234 N.C. 536 , 67 S.E. 2d 662 ; Smith v. Duke University, 219 N.C. 628 , 14 S.E. 2d 643 ; Herndon v. Massey, 217 N.C. 610 , 8 S.E. 2d 914 ; Cowans v. Hospitals, 197 N.C. 41 , 147 S.E. 672 ; Johnson v. Hospital, 196 N.C. 610 , 146 S.E. 573 ; Hoke v. Glenn, 167 N.C. 594 , 83 S.E. 807 ; Barden v. R. R., 152 N.C. 318 , 67 S.E. 971 , 49 L.R.A. N.S. 801; Anno: 109 A.L.R. 1199 . Today, by a divided vote of four to three this Court abolishes the doctrine of charitable immunity. There are strong arguments in favor of the retention of the doctrine of charitable immunity; there are also strong arguments in favor of its extinction. See Dickinson Law Review, Vol. 66-67, 1961-63, p. 226 et seq. Justice Sharp in the majority opinion has very forcibly set forth arguments in favor of the extinction of the doctrine of charitable immunity. In Flagiello v. Pennsylvania Hospital, 417 Pa. 486 , 208 A. 2d 193 (1965), the Supreme Court of Pennsylvania, by a vote of five to two, abolished the doctrine of charitable immunity in Pennsylvania. Chief Justice Bell in his dissenting opinion set forth strong arguments in favor of the retention of the doctrine of charitable immunity. He said: “(1) Hospitals and public charities are, next to the Church, the greatest benefactors known to mankind. They are in reality a Trust for Humanity. The majority Opinion would bring so much harm to nonprofit hospitals and so greatly increase hospital expenses, and likewise the already colossal cost to patients, as to (a) harm all patients for the benefit of an injured few, and (b) jeopardize the existence of a number of hospitals, or (c) require them to reduce or greatly curtail or eliminate a number of their essential services and their functions, facilities, research and other activities and benevolences. Most hospitals in metropolitan areas operate in the red when their costs and expenses include depreciation, amortization and interest. For the benefit of a few really injured and many imaginatively-injured people . . . the lame, the halt and the blind, the poor, the sick, the ill, the needy, and the general public will be deprived of the best services which a hospital can and should provide. Moreover, new buildings, modern equipment, more and *23 better qualified personnel and increased wages will become more and more difficult if not impossible for most charities. “(2) By eliminating charitable immunity for nonprofit, charitable hospitals, the majority Opinion likewise abolishes it for Churches, schools and universities, homes for the blind, homes for the aged, homes for crippled or retarded or homeless children, Catholic Home Shelter and five other Catholic childcare institutions in Philadelphia, convents, religious organizations of many denominations, the Salvation Army, the Y.M.C.A., and in short for every other charity — small as well as large — and will undoubtedly jeopardize, especially in small communities, the very existence of many of them which today, in spite of State and City aid and large charitable gifts, are barely able to make both ends meet. “(3) The majority Opinion places the interests of a few individuals above the vital interests of the needy and ill public. “(4) The majority Opinion changes, without any legal or even social justification and with tremendous resulting harm to the public, the public policy of this Commonwealth which has existed for three-quarters of a century and which has been repeatedly and recently reiterated by our Courts.” The majority opinion in this case cites with approval the majority opinion in the Flagiello case. It may well be that the time has come to re-examine the reasons which caused the creation of the doctrine of charitable immunity, and to determine, under present day conditions, whether this doctrine should be retained or abolished. Mr. Justice Jones said in a dissenting opinion in the Flagiello case: “However, although fully cognizant that this doctrine is ‘judge made’ law created by judicial, not legislative, fiat, in my opinion, this doctrine has become part of the public policy of this Commonwealth, a public policy which, if it is to be changed, should be effected by legislative action.” I agree with that statement. I do not agree with the statement in the majority opinion that the trial court’s conclusion of law that Rowan Memorial Hospital, Inc., is a charitable institution is not supported by the stipulations nor the facts found. The majority opinion states in effect that the tide of judicial decisions is in favor of the extinction of charitable immunity. In some of the courts extinguishing the doctrine of charitable immunity it seems to me that the tide is also flowing in favor of the extinction in a large measure of the doctrine of stare decisis. Chief Justice Bell, in his dissenting opinion in the Flagiello case, *24 states in effect that it would appear in Pennsylvania that the principle of stare decisis “is not dying, but dead.” Public policy considerations will necessarily come to bear on the ultimate fate of charitable immunity. There is no class of institutions more favored and encouraged by our people as a whole than those devoted to religious or charitable causes. Quoting again from Chief Justice Bell’s dissenting opinion: “Public-minded benefactors are not likely to have their generous impulses encouraged if advised that some janitor, watchman or other employe of a charitable organization who carelessly fails to note the displacement of a brick or stone in a pavement may thereby bring about the loss of all the property and funds which the donors had sought to devote to the common good.” It may be that the extinction of the charitable immunity doctrine may affect adversely and seriously all hospitals and charitable institutions throughout the State, and the impact of such extinction is a matter of grave concern. This article from the Associated Press was carried in some of the daily papers of the State on Sunday, 7 October 1966. “ChaRlotte (AP) • — The North Carolina Hospital Association will ask the 1967 General Assembly to pay hospitals the full cost of caring for charity patients, association officials said Friday. “But the request will not result in any dramatic increase in the State’s bill for charity hospitalization, insisted John Ketner, the association’s assistant executive director. “Because Medicare is paying the hospital bills of more than half the State’s charity patients, the association figures that increased costs under the plan will total $483,881 for the two-year period, Ketner said. “If the increase is approved, Ketner said it would eliminate the need for county supplements to help hospitals meet the costs of caring for charity patients.” The General Assembly is the ultimate tribunal to determine public policy. Members of the General Assembly coming from all parts of the State are in a better position than we are to hear evidence and to determine what effect the extinction of charitable immunity would have upon the charitable institutions of this State, and to decide whether charitable immunity should be retained or abolished, than a bare majority of this Court. I believe that the General Assembly and not this Court should determine whether the doctrine of charitable immunity should be retained or extinguished. The majority opinion states: “The rule of liability herein an *25 nounced applies only to this case and to those causes of action arising after January 20, 1967, the filing date of this opinion.” In my opinion, this prospective judicial action is outright legislation by the Court. Mr. Justice Frankfurter, in his concurring opinion in Green v. United States, 356 U.S. 165, 192 (1958) said: “To be sure, it is never too late for this Court to correct a misconception in an occasional decision, even on a rare occasion to change a rule of law that may have long persisted but also have long been questioned and only fluctuatingly applied. To say that everybody on the Court has been wrong for 150 years and that that which has been deemed part of the bone and sinew of the law should now be extirpated is quite another thing. . . . The admonition of Mr. Justice Brandéis that we are not a third branch of the Legislature should never be disregarded.” (Italics mine.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9850556. Public record. Not legal advice.