Torts II, Pages 673–676

Abernathy v. Sisters of St. Mary's

Supreme Court of Missouri, 1969


Plaintiff sued the charity hospital that he was a patient of for failing to assist him when moving from his bed to the bathroom. In doing so he fell and sustained multiple injuries.

Defendant's Argument:

Defendant is a nonprofit corporation and a charitable institution and therefore is immune from liability for its torts.

Procedural History:

Defendant's motion for summary judgment sustained.


Was defendant shielded by being a nonprofit hospital?

(Old) Rule:

Charities are immune from being sued for torts. There are two bases for this:

  1. Implied waiver theory
    • One who accepts the benefit of charity impliedly agrees not to assert any right of recourse against the charity.
  2. Trust fund theory
    • Charities' funds are for charitable purposes and thus cannot be used to pay judgments for tort claims.


Modern charities are often large corporations and often end up profitable for both the donor and donee. Most charities pay for liability insurance. While it is said that donations would cease if charities immunity would end, donations have not gone down since the doctrines decline. All persons must be treated equally by the law. Immunity fosters neglect and irresponsibility.

Both theories of immunity are illogical and unreasonable. It is not realistic to wait on the legislature to change this law, so the court system must.


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[A] nongovernmental charitable institution is liable for its own negligence and for the negligence of its agents and employees acting within the scope of their employment.


Reversed and remanded.


This is the position of a substantial majority.

  • Virginia is not part of this majority. In Virginia, a charity is immune as long as it exercised due care in hiring and retaining agents.