Vol. 8, No. 2, Pg. 28. Charitable Immunity: Statutory Remnants in South Carolina.

• Author: By Martin C. McWilliams Jr.

South Carolina Lawyer

1996.

Vol. 8, No. 2, Pg. 28.

Charitable Immunity: Statutory Remnants in South Carolina

28CHARITABLE IMMUNITY: STATUTORY REMNANTS IN SOUTH CAROLINABy Martin C. McWilliams Jr.Readers who are as old as the writer of this article will find that the words "charitable immunity" roll off the tongue in a well-worn, familiar way. It is part of what we grew up with, and we continually find ourselves surprised at its demise.

If we root around in the statutes, however, we may find that rumors of the demise of charitable immunity are exaggerated. Indeed, by patching together its statutory remnants, we can cobble up a fair facsimile of the old doctrine.

Traditionally, charitable organizations in South Carolina, like the rest of the country, enjoyed protection from tort liability thanks to the common-law doctrine of charitable immunity; see, for example, the discussion in Lindler v. Columbia Hospital, 98 S.C. 25 (1914). Charitable immunity was based on the view that, by benefiting charities, the public was indirectly benefited and important values were served. Volunteers were encouraged to serve good causes without threat of personal liability.

By mid-century, however, many "charitable" institutions had taken on the trappings of big business. Public perceptions changed. Why should big institutions with huge cash flows, conducting general advertising campaigns, enjoy the subsidy of immunity in addition to the subsidy of tax exemption? Whether this perception was accurate is a matter for debate. Certainly it doesn't apply to most charities.

Accuracy and general applicability aside, however, the courts, responding to changing perceptions, employed their common-law powers to eliminate charitable immunity with decisions such as that of the New York Court of Appeals in Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957). South Carolina's turn came in 1977 in Brown v. Anderson County Hospital Association, 268 S.C. 479, in which the immunity of charity hospitals was modified, and in 1981 in Fitzer v. Greater Greenville South Carolina YMCA, 277 S.C. 1, abolishing altogether what the South Carolina Supreme Court referred to as "this archaic doctrine." This was the end of common-law charitable immunity in South Carolina.

The General Assembly was not entirely satisfied with this state of affairs. In 1977, shortly after the South...