Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
Some state legislatures have barred such insurance exclusions with respect to mandatory
automobile insurance. See, e.g., Ohio Rev. Code § 3937.46 (2017); Rupert v. Stienne, 528 P.2d
1013, 1016-17 (Nev. 1974). Some defend the illegality of such exclusions on the ground that they
are an impermissible end-run around the conscious policy change of the courts to allow
intrafamilial suits. But note that requiring insurers to offer insurance against intrafamilial torts
may effectively require families that are safe for children to subsidize the insurance of families
that are dangerous for children. One alternative for insurers would be to develop intrusive
mechanisms for monitoring the parenting of their insureds, which would allow them to terminate
policies for families with children at risk, or to charge higher premiums. Does the pervasiveness
of the exclusion in liability policies (other than vehicular liability policies) suggest that tort law is
only a mechanism for governing intrafamilial conduct in wealthy families?
2. Charitable Immunity
American courts long embraced a doctrine of charitable immunity. See, e.g., McDonald v.
Mass. Gen. Hosp., 120 Mass. 432 (1876). This was a distinctively American rule; English courts
allowed tort suits against charitable enterprises. American courts reasoned that subjecting
charities to liability would redirect their resources, preventing them from conducting their
charitable activities in accordance with the public good. Courts often rationalized the immunity
on the theory that the charity’s funds had been entrusted to the organization by donors for specific
purposes that did not include paying damages to tort victims. They sometimes contended that the
usual respondeat superior doctrines were inapplicable outside the for-profit context. When the
plaintiff was a beneficiary of the charitable enterprise, courts cited a doctrine of implied waiver.
See Dille v. St. Luke’s Hospital, 355 Mo. 436 (1946).
Over time, states created exceptions to the doctrine of charitable immunity, for example,
by recognizing a cause of action for strangers while continuing to bar suits by beneficiaries. See,
e.g., Byrd Theatre Foundation v. Barnett, 754 S.E.2d 299 (Va. 2014); Alabama Baptist Hosp. Bd.
v. Carter, 226 Ala. 109 (1932). Today, most states have abrogated the immunity altogether. See,
e.g., President and Directors of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir. 1942).
The Second Restatement, for example, discourages any such immunity. RESTATEMENT (SECOND)
OF TORTS § 895E (1979). Some states preserve the immunity, e.g., George v. Jefferson Hosp.
Ass’n, 987 S.W.2d 710 (Ark. 1999). In other states, legislatures restored a weakened immunity,
such as caps on damage awards against charities, see, e.g., Mass. Gen. L. Ch. 231, § 85 ($20,000),
or a restriction of liability to cases of gross negligence, see, e.g., Crowley v. Bob Jones University,
234 S.E.2d 879 (S.C. 1977), or a restriction of liability to strangers rather than beneficiaries, see,
e.g., N.J. Stat. Ann. 2A:53A-7 (2017).
3. Employers’ Immunity
As you will recall from Chapter 5, the common law of employers’ liability famously set
out a formidable panoply of employer defenses, including assumption of the risk and contributory
negligence, which made it difficult for many employees to recover for injuries arising out of the
negligence of their employers. Since the enactment of workers’ compensation laws beginning a
century ago, most employers have had to pay administrative compensation for workplace injuries.
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