THE OUTMODED CONCEPT OF CHARITABLE AND NONPROFIT ORGANIZATIONAL IMMUNITY
By: Arthur Licata, P.C.
Charitable immunity is an outmoded legal concept. Its existence shields from accountability such organizations and those persons in their employ who cause tortuous harm to others.
The controlling statute in Massachusetts is M.G.L. Chapter 231, section 85K, which caps damages at twenty thousand dollars. It states:
It shall not constitute a defense to any cause of action based on tort brought against a corporation, trustees of a trust, or members of an association that said corporation, trust, or association is or at the time the cause of action arose was a charity; provided, that if the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation, trust, or association, liability in any such cause of action shall not exceed the sum of twenty thousand dollars exclusive of interest and costs. Notwithstanding any other provision of this section, the liability of charitable corporations, the trustees of trusts, and the members of charitable associations shall not be subject to the limitations set forth in this section if the tort was committed in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes.
Immunity in Massachusetts extends far beyond the parameters of charitable institutions. A charity is merely a subset of the larger class of nonprofit organizations that have limited tort immunity under M.G.L., Chapter 231 section 85K. A nonprofit organization is one organized for purposes other than generating profit. No part of the organization’s income is distributed to its members, directors, or officers. Nonprofit corporations are often termed “non-stock corporations.” They can take the form of a corporation, an individual enterprise, an unincorporated association, partnership, foundation or even a condominium. Examples of nonprofit organizations are churches, public schools, public charities, public clinics and hospitals, political organizations, legal aide societies, volunteer services
organizations, labor unions, professional associations, research institutes, museums and some governmental agencies.
Massachusetts’ law gives immunity to a narrow group of individuals who operate nonprofit organizations. M.G.L., Chapter 231: section 85W states:
“…no person who serves without compensation, other than reimbursement for actual expenses, as an officer, director or trustee of any nonprofit charitable organization including those corporations qualified under 26USC section 501 (c)(3) shall be liable for any civil damages as a result of any acts or omissions relating solely to the performance of his duties as an officer, director or trustee; provided, however, that the immunity conferred by this section shall not apply to any acts or omissions intentionally designed to harm or to any grossly negligent acts or omissions which result in harm to the person. Nothing in this section shall be construed as affecting or modifying any existing legal basis for determining the liability, or any defense thereto, of any person not covered by the immunity conferred by this section.
Nothing in this section shall be construed as affecting or modifying the liability of any person subject to this section for acts or omissions which are committed in the course of activities primarily commercial in nature even though carried on to obtain revenue to be used for charitable purposes, nor for any cause of action arising out of such person’s operation of an automobile.
Arthur Licata is a personal injury lawyer practicing in Boston, MA he can be contacted at 617-523-9977
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