Council v. Damascus Volunteer Fire Department, Inc.

Filing 18

OPINION and ORDER denying 14 Motion for Summary Judgment. Signed by Judge James P. Jones on 6/1/15. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
WANDA COUNCILL,
Plaintiff,
v.
DAMASCUS VOLUNTEER FIRE
DEPARTMENT, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 1:15CV00005
OPINION AND ORDER
By: James P. Jones
United States District Judge

Robert T. Copeland, Copeland Law Firm, P.C., Abingdon, Virginia, and
Michael A. Bragg, Bragg Law, Abingdon, Virginia, for Plaintiff; Cameron S. Bell,
Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendant.
In this personal injury diversity case, the defendant, the Damascus Volunteer
Fire Department, Inc. (the “Fire Department”) has filed a Motion for Summary
Judgment on the ground that it is entitled to charitable immunity from suit under
Virginia law. Because I find that the plaintiff was not a beneficiary of the Fire
Department’s charitable purposes at the time of her injury, the defendant is not
entitled to charitable immunity, and the motion will be denied.
The relevant facts surrounding this issue are undisputed.

The Fire

Department is a 501(c)(3) tax exempt non-profit entity that offers fire fighting and
rescue services to the Damascus, Virginia, community. Charitable contributions

make up a substantial portion of the Fire Department’s revenues, and services are
provided to all regardless of inability to pay.
In order to raise further funds, the Fire Department owns and operates a
bingo hall in Damascus, which is run solely by volunteers. The bingo hall is
operated pursuant to a Charitable Gaming Permit from the Commonwealth, and all
proceeds of the bingo games are used for the Fire Department’s charitable
purposes of firefighting and rescue services. On July 13, 2012, the plaintiff,
Wanda Councill, travelled from her home in Vilas, North Carolina, 32 miles away,
to participate in the bingo game. She paid a fee of $50 to enter the game, and
ended up winning a prize of $500. After her good fortune, Councill experienced
an unfortunate turn of events outside of the building, where she tripped and was
injured. She claims that her injuries are attributable to the Fire Department’s
negligence.
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
The Fire Department contends that it is entitled to charitable immunity from
suit. Since jurisdiction rests on diversity of citizenship, resolution of this question
is governed by Virginia law. Egerton v. R.E. Lee Mem’l Church, 395 F.2d 381,
382 (4th Cir. 1968). In Virginia, “the doctrine of charitable immunity ‘is firmly
-2-

embedded in the law of this Commonwealth and has become a part of the general
public policy of the State.’” Ola v. YMCA of S. Hampton Roads, Inc., 621 S.E.2d
70, 72 (Va. 2005) (quoting Mem’l Hosp., Inc. v. Oakes, 108 S.E.2d 388, 396 (Va.
1959)).1 To establish charitable immunity, the defendant entity must prove two
distinct elements: “First, the entity must show it is organized with a recognized
charitable purpose and that it operates in fact in accord with that purpose.” Ola,
612 S.E.2d at 72. This inquiry involves a two-part test, examining whether the
organization’s articles of incorporation show “a charitable or eleemosynary
purpose” and whether the organization has in fact operated consistently with that
purpose. Id. at 73 (internal quotation marks and citation omitted). Second, the
entity must show that the plaintiff “was a beneficiary of the charitable institution at
the time of the alleged injury.” Id.
There is no question as to the first element. The Fire Department is a
501(c)(3) tax exempt entity, and its Articles of Incorporation clearly express that it
is “organized exclusively for charitable, religious, educational, and scientific
purposes.” (Barlow Decl. Ex. B, ECF No. 15-3.) Further, there is no dispute that
the Fire Department operates consistently with those purposes, providing fire

1

Charitable immunity appears to be against the trend in other states. See, e.g.,
Fitzer v. Greater Greenville S.C. YMCA, 282 S.E.2d 230, 231 (S.C. 1981) (“The doctrine
of charitable immunity has no place in today’s society.”); 15 Am. Jur. 2d Charities § 177.
-3-

fighting and rescue services to the Damascus community, regardless of financial
means.
The more difficult question is whether the plaintiff, as a bingo player, was a
“beneficiary” of the Fire Department at the time of her alleged injury. In Virginia,
a person is a beneficiary of a charitable organization if she has a “beneficial
relationship” to the organization. Ola, 621 S.E.2d at 77. The individual need not
receive financial assistance from a charity in order to be a beneficiary of that
organization, and even a person who pays the full price for services is still a
beneficiary if the charity could not have provided those services without charitable
contributions. Id. Rather, “[a]n individual is ‘a beneficiary of [charitable] bounty’
if that individual’s interaction with the entity ‘is related to the charitable purpose of
the [organization].’” Id. (quoting Egerton, 395 F.2d at 384).
The Fire Department contends that it operates the bingo hall in order to raise
money for its charitable purpose of providing firefighting and rescue services, and
that the bingo hall is thus integral to its charitable purposes. The plaintiff paid an
entry fee, participated in bingo games, and even won a substantial prize — all
purported evidence that she reaped the benefits of the Fire Department’s charitable
activities.

Further, the Fire Department argues that, under Virginia law, a

plaintiff’s mere presence on the premises of the charitable institution qualifies the
plaintiff as a beneficiary of the charity. See, e.g., Egerton, 395 F.2d at 383-84
-4-

(holding that plaintiff was beneficiary of church when she visited premises to view
stained glass windows, despite not being a member of the congregation);
Bodenheimer v. Confederate Mem’l Assoc., 68 F.2d 507, 509 (4th Cir. 1934)
(holding that visitor to Confederate memorial was beneficiary of charity when she
fell on sidewalk while viewing memorial).
Subsequent to these Fourth Circuit cases, however, the Virginia Supreme
Court has made clear that the definition of “beneficiary” is not so broad as the Fire
Department suggests.2

Specifically, the court has held that, although “charitable

institutions are immune from liability based upon claims of negligence asserted by
those who accept their charitable benefits,” that immunity does not extend “to
invitees or strangers having no beneficial relationship to the charitable institution.”
Thrasher v. Winand, 389 S.E.2d 699, 701 (Va. 1990). In Thrasher, the plaintiff
worked as a food vendor at a community festival, and was allegedly injured by the
negligence of the festival, operated by a non-profit corporation whose articles of

2

Further, the cases cited by the Fire Department are factually distinguishable. The
charities involved, a historic church and a memorial, were specifically open to serve the
public, and any visitors on the premises were thus beneficiaries of that charitable
purpose. By contrast, the Fire Department exists to provide firefighting and rescue
services to the community of Damascus, and its charitable purposes are therefore more
targeted than that of a historic site intended to serve the public at large.
In its reply brief, the Fire Department cites several Virginia trial court opinions
that are similarly distinguishable, as the plaintiffs in those cases were engaged in
activities directly related to the organizations’ charitable purposes at the time they were
injured.
-5-

incorporation stated that its purpose was “to create a greater awareness and
visibility of the community of Buchanan, Virginia and to organize, promote,
finance and supervise an annual Spring Festival.” Id. The court acknowledged the
defendant’s charitable purpose, but held that none of the vendors at the fair,
including the plaintiff, were beneficiaries of that charitable purpose. The court
reasoned that the vendors were encouraged to set up booths in order to sell their
wares to the public, and that they contracted with the defendant and paid
consideration in exchange for the right to participate. Id. Additionally, the court
noted that the defendant could not rely on the possibility that the plaintiff might
receive future charitable benefits, as “mere membership in a class eligible to
receive future benefits, conditioned upon circumstances which might never occur,
is too remote and speculative to be considered.” Id. In short, the court concluded
that the defendant’s beneficiaries “were only those to whom its board of directors
donated the proceeds of its fund-raising activities, a category to which [the
plaintiff] did not belong.” Id.
Similarly, in Straley v. Urbanna Chamber of Commerce, 413 S.E.2d 47 (Va.
1992), the court held that an attendee of an Oyster Festival who was struck in the
eye by a piece of candy during a parade was not a beneficiary of the festival
organizers, because she received “no pecuniary benefits from the funds generated
by the festival or contributed . . . to any of [the defendant’s] charities.” Id. at 51.
-6-

Further, the plaintiff was not a resident of the community, and “[t]he relationship
between the [defendant] and the plaintiff, a member of the public attending the
festival, is too attenuated and indirect to classify her as a beneficiary.” Id.
The facts of Thrasher and Straley are highly analogous. Like the food
vendor in Thrasher, Councill did not receive any direct charitable benefits from the
Fire Department in the form of firefighting or rescue services. Rather, she paid a
fee in exchange for the right to participate in the Fire Department’s bingo games.
Because Councill was not a beneficiary of the Fire Department’s charitable
services, she “did not become a vicarious beneficiary” merely by participating in
the Fire Department’s fund raising activities.

Thrasher, 389 S.E.2d at 701.

Further, Councill was not a resident of Damascus at the time of the incident and
the prospect that she would receive the Fire Department’s charitable benefits in the
future “is too remote and speculative to be considered.” Id.; see also Straley, 413
S.E.2d at 50-51.
Because the plaintiff was not a beneficiary of the Fire Department’s
charitable purposes, but instead a “mere invitee to whom the defendant[] owed the
duty of reasonable care,” Straley, 413 S.E.2d at 51, the defendant is not entitled to
charitable immunity. Therefore, it is ORDERED that the defendant’s Motion for
Summary Judgment (ECF No. 14) is DENIED.

-7-

ENTER: June 1, 2015
/s/ James P. Jones
United States District Judge

-8-