United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
one claim remains unresolved in this case-Count Six of the
complaint, alleging negligence against defendants Laura
Regan, Mike and Winona Powers, Brent and Missy ' Rudolph,
and the Henry & William Evans Home for Children, Inc.
("Evans Home"). This negligence claim arises out of
an ankle injury allegedly sustained by plaintiff Justis
Funkhouser while he was in foster care at the Evans
Home in 2012. Because the doctrine of charitable immunity
bars this state law claim, defendants' motion for summary
judgment will be GRANTED and this case DISMISSED.
action filed July 24, 2014, plaintiffs contend two children
were unconstitutionally removed from the home of their
parents and placed at the Evans Home, where they received
improper medical treatment and were subject to physical and
emotional abuse and neglect. The court dismissed with
prejudice the vast majority of the claims raised in
plaintiffs' complaint by Memorandum Opinion and Order
entered April 28, 2015. The sole remaining claim, Count Six,
a state law tort claim concerning an ankle injury of one of
the children, was scheduled for trial. On the eve of the
discovery deadline, plaintiff Justis Funkhouser moved for a
voluntary dismissal of Count Six, without prejudice, pursuant
to Rule 41(a)(2) of the Federal Rules of Civil Procedure. By
agreed Order, the court granted that motion on November 24,
thereafter appealed the dismissal of Counts One through Five
of the complaint. On June 6, 2017, the Fourth Circuit Court
of Appeals dismissed the appeal for lack of jurisdiction and
remanded the case for completion as to Count Six, finding no
appealable final decision had been issued since Count Six was
dismissed without prejudice pursuant to Rule 41. Back before
this court, plaintiffs moved to amend the complaint to add a
seventh count, alleging intentional infliction of emotional
distress. The court denied that motion by Memorandum Opinion
and Order entered October 27, 2017. This matter is now before
the court on defendants' motion for summary judgment as
to Count Six.
to Federal Rule of Civil Procedure 56(a), the court must
"grant summary judgment 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."
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett. 477
U.S. 317, 322 (1986); Glynn v. EDO Corp.. 710 F.3d
209, 213 (4th Cir. 2013). When making this determination, the
court should consider "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with . . . [any] affidavits" filed by the parties.
Celotex. 477 U.S. at 322. Whether a fact is material
depends on the relevant substantive law. Anderson v.
Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986).
"Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted."
(citation omitted). The moving party bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex. 477 U.S. at 323. If that burden has
been met, the non-moving party must then come forward and
establish the specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp.. 475 U.S. 574, 586-87 (1986).
determining whether a genuine issue of material fact exists,
the court views the facts and draws all reasonable inferences
in the light most favorable to the non-moving party.
Glynn. 710 F.3d at 213 (citing Bonds v.
Leavitt. 629 F.3d 369, 380 (4th Cir. 2011)). Indeed,
"[i]t is an 'axiom that in ruling on a motion for
summary judgment, the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.'" McAirlaids. Inc. v. Kimberly-Clark
Corp.. No. 13-2044, 2014 WL 2871492, at *1 (4th Cir.
June 25, 2014) (internal alteration omitted) (citing
Tolan v. Cotton. 134 S.Ct. 1861, 1863 (2014) (per
curiam)). Moreover, "[credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge . ..." Anderson, 477 U.S. at 255.
However, the non-moving party "must set forth specific
facts that go beyond the 'mere existence of a scintilla
of evidence.'" Glynn. 710 F.3d at 213
(quoting Anderson, 477 U.S. at 252). Instead, the
non-moving party must show that "there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party." Res. Bankshares Corp. v.
St. Paul Mercury Ins. Co.. 407 F.3d 631, 635 (4th Cir.
2005) (quoting Anderson. 477 U.S. at 249). "In
other words, to grant summary judgment the [c]ourt must
determine that no reasonable jury could find for the
nonmoving party on the evidence before it." Moss v.
Parks Corp.. 985 F.2d 736, 738 (4th Cir. 1993) (citing
Perini Corp. v. Perini Const. Inc.. 915 F.2d 121,
124 (4th Cir. 1990)).
Count Six of the complaint, alleging negligence, Justis
Funkhouser claims that he suffered an ankle injury but was
not allowed to see a doctor, and defendants breached their
duty of care to provide proper medical treatment to foster
children. As a result, Funkhouser claims he "suffered
with a fractured ankle and lack of medical treatment for at
least three weeks, and great mental and emotional anguish,
pain and suffering resulting therefrom." Compl, ECF No. 1, at ¶ 112.
Defendants argue that because the Evans Home is a charitable
organization, Funkhouser's negligence claim is barred by
the doctrine of charitable immunity. The court agrees.
doctrine of charitable immunity "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).
Indeed, as the Virginia Supreme Court has recognized,
"it is manifestly desirable that they should be
encouraged to do their good work, and to this end protected
so far as it is consistent with public safety and the public
good from pecuniary liability to those who accept their
benefits." Weston's Adm'x v. Hosp. of St.
Vincent of Paul. 131 Va. 587, 107 S.E. 7785 (1921),
abrogated on other grounds. McDonald v.
Hampton Training Sch. for Nurses. 254 Va. 79, 486 S.E.2d
favors a limited form of charitable immunity, exempting
charitable organizations from some, but not all, tort
liability. Ola, 270 Va. at 555, 621 S.E.2d at 72
(citing Weston's Adm'x v. 131 Va. at 610,
107 S.E. at 792-93). Immunity precludes a charity's
beneficiaries from recovering damages for the negligent acts
of its servants or agents, so long as due care was exercised
in their hiring and retention. Id., at 556, 621
S.E.2d at 72. An agent or servant of a charity shares the
charity's immunity from liability while engaged in the
charity's work and acting directly for the benefit of the
charity. See Bhatia v. Mehak. Inc.. 262 Va. 544, 551
S.E.2d 358 (2001); Moore v. Warren. 250 Va. 421,
425, 463 S.E.2d 459, 461 (1995). Immunity does not extend to
invitees or strangers having no beneficial relationship to
the charitable institution, however. Ola, 270 Va. at
555, 621 S.E.2d at 72. Nor does it extend to liability for
acts of gross or willful and wanton negligence. Id.
cloak itself in charitable tort immunity, an organization
must establish that it is 'charitable' for purposes
of the tort immunity doctrine, and that the plaintiff was a
beneficiary of the organization's charitable activities
at time of the allegedly tortious conduct." Davidson
v. Colonial Williamsburg Found., 817 F.Supp. 611, 613
(E.D. Va. 1993); accord Ola, 270 Va. at 555, 621
S.E.2d at 72. Courts employ a two-part test to determine
whether an organization is "charitable" and thus
qualified to assert immunity under this doctrine. First, the
"charter is examined for the stated purpose, " and
second, "the character of the actual operation of an
institution is analyzed." Radosevic v. Va. Intermont
College. 633 F.Supp. 1084, 1087 (WD. Va. 1986). "If
an organization's charter sets forth a charitable or
eleemosynary purpose, there is a rebuttable presumption it
operates as a charitable institution in accordance with that
purpose. However, if the manner in which the organization
actually conducts its affairs is not in accord with the
charitable purpose, then the presumption may be rebutted and
the bar of charitable immunity does hot apply."
Ola, 270 Va. at 557, 621 S.E.2d at 73 (internal
the evidence establishes that the Evans Home was incorporated
in 1952 as a nonprofit, charitable organization that
qualifies as a 501(c)(3) entity for tax purposes and is
classified as a public charity under the Internal Revenue
Code. See Jaccard Aff, ECF No. 118-1, at ¶¶ 2, 4;
Ex. A & B to Jaccard Aff, ECF No. 118-2, 118-3. It has
operated as a nonprofit, charitable organization since its
Inception, Jacard Aff, ECF No. 118-1, at ¶ 6, is funded
primarily through private donations, Id. at ¶
10, and is governed by a volunteer board of directors,
Id. at ¶ 14. The Evans Home's purpose is to
provide care and a home-free of charge-to children placed in