Opinion
Case No.: CL16-8314
04-07-2017
KENNETH R. HARLAN, Plaintiff, v. NORFOLK FESTEVENTS, LTD., Defendant
ORDER ON SPECIAL PLEAS OF CHARITABLE IMMUNITY AND STATUTORY IMMUNITY
The parties appeared before the Court on March 7, 2017, for a hearing (the "Hearing") on the Special Pleas of Charitable and Statutory Immunity filed by Defendant Norfolk Festevents, Ltd. ("Festevents") in response to the Complaint filed by Plaintiff Kenneth R. Harlan ("Harlan"), proper notice having been given to all parties. The Court subsequently granted the parties leave to submit post-Hearing briefs. Having considered the pleadings, the evidence and oral argument presented at the Hearing, and applicable authorities, the Court DENIES Defendant's Special Plea of Charitable Immunity and DENIES Defendant's Special Plea of Statutory Immunity. The bases for the Court's rulings follow.
Background
This suit arises out of an injury Harlan alleges he incurred on July 7, 2015, at Harborfest—an annual festival at Norfolk's Town Point Park that is open to the public at no charge—during the scope of his employment for the City of Norfolk (the "City") Fire Department's bomb squad. (Compl. ¶ 4.) Harlan alleges that he sustained injuries to his left leg and ankle when a pedestrian tripped over a power cord, which was laying across a pathway leading to Harborfest, and knocked Harlan to the ground. (Id. ¶ 7.) Harlan claims that the power cord was improperly safeguarded by a rubber mat and was situated such that pedestrians could not see it. (Id. ¶¶ 8-9.) Harlan further asserts that other pedestrians previously had tripped over the cord. (Id. ¶ 10.)
Harlan alleges that Festevents—the City's non-profit marketing agency, which organized and promoted Harborfest—was negligent and grossly negligent, and it prays for damages in the amount of $2,000,000. (See generally id.) Festevents subsequently filed special pleas of charitable immunity and statutory immunity.
Positions of the Parties
Festevents argues that it is entitled to assert charitable immunity because its purpose—as stated in its Articles of Incorporation and on its website—is unquestionably charitable. (Br. in Supp. of Special Pleas of Statutory and Charitable Immunity ("Br. in Supp.") 2-3.) Festevents also notes that this Court, in Philpotts v. City of Norfolk, previously found it to be a charitable institution. (Id. at 5 (citing 18 Va. Cir. 19, 19 (Norfolk, Apr. 11, 1988).) Festevents claims that Harlan is a beneficiary of the organization's eleemosynary purpose in two respects. (Id. at 7.) First, as a resident of the Tidewater region (specifically, of Chesapeake), Harlan benefits from Festevents's mission to promote the "education, benefit and social welfare of the citizens of Tidewater." (Id.) Second, Festevents argues that Harlan receives a "direct pecuniary benefit" from Festevents's contribution to the "economic vitality of Norfolk," upon which it asserts Harlan's job is dependent. (Id.)
Festevents's argument with regard to statutory immunity focuses on the second provision of Virginia's Recreational Land Use Statue ("RLUS"), Section 29.1-509(B) of the Code of Virginia. (Br. in Supp. 8.) The first provision of Part B abrogates landowners' duty of care toward those entering or using their land for sundry recreational purposes. (Id.) Festevents asserts that the next provision—abrogating landowners' duty of care toward those using their property "for ingress and egress over such premises to permit passage to other property used for recreational purposes"—shields it from ordinary negligence claims, even if Harlan himself was not on the land for a recreational purpose. (Id. at 10.)
Harlan cites numerous cases in support of the proposition that any benefit he receives from Festevents as an employee of the City is too remote to qualify him as a beneficiary for purposes of charitable immunity. (Suppl. Br. in Opp. to Special Pleas of Statutory and Charitable Immunity ("Suppl. Br. in Opp.") 9-11.) Harlan also contends that he is not a beneficiary of any of the charitable organizations that raise money through participation in Harborfest. (Br. in Opp. to Special Pleas of Statutory and Charitable Immunity 5-7.)
Harlan argues that RLUS immunity is available only where a plaintiff is using the land in question for a recreational purpose—and that others' use of the land, even for a recreational purpose, is insufficient to trigger the statute's immunity. (Id. at 9-10.) Harlan further claims that the second provision of Part B—addressing land used for ingress and egress "to other property"—applies only where there is a second property, and that here Festevents controlled all of the land at issue. (Suppl. Br. in Opp. 7.)
Legal Standard
"[A] plea in bar is a defensive pleading that reduces the litigation to a single issue," Kroger Co. v. Appalachian Power Co., 244 Va. 560, 562, 422 S.E.2d 757, 758 (1992), and "which, if proven, creates a bar to the plaintiff's right of recovery," Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882, 884 (1996). "As the moving party, the defendant[] bear[s] the burden of proving those issues of fact." Whitley v. Commonwealth, 260 Va. 482, 493, 538 S.E.2d 296, 302 (2000).
"It is a well-settled rule in Virginia that charitable institutions are immune from liability based upon claims of negligence asserted by those who accept their charitable benefits." Thrasher v. Winand, 239 Va. 338, 340, 389 S.E.2d 699, 701 (1990). "That immunity does not extend, however, to invitees or strangers having no beneficial relationship to the charitable institution." Id. at 340-41, 389 S.E.2d at 701.
Section 29.1-509 of the Code of Virginia provides that "[a] landowner shall owe no duty of care to keep land or premises safe for entry or use by others for hunting, fishing, trapping, camping, participation in water sports, boating, hiking, rock climbing, sightseeing, hang gliding, skydiving, horseback riding, foxhunting, racing, bicycle riding or collecting, gathering, cutting or removing firewood, for any other recreational use, [or] for ingress and egress over such premises to permit passage to other property used for recreational purposes." Va. Code § 29.1-509(B) (2016 Repl. Vol.). The statute defines a landowner as "the legal title holder, any easement holder, lessee, occupant or any other person in control of land or premises, including railroad rights-of-way." Id.
The statute also relieves a landowner of a duty of care for use of an easement under certain circumstances, although that provision is not relevant to the instant case. Va. Code § 29.1-509(B).
Discussion
Charitable Immunity
To successfully assert charitable immunity, Festevents must establish that (1) it is a charitable or eleemosynary institution and (2) Harlan was a beneficiary of its charitable purpose. Thrasher v. Winand, 239 Va. 338, 340-41, 389 S.E.2d 699, 701 (1990). Based upon the pleadings and the evidence presented at the Hearing, the Court sees no reason justifying a departure from its earlier finding in Philpotts v. City of Norfolk that Festevents qualifies as a charitable institution. 18 Va. Cir. 19, 19 (Norfolk, Apr. 11, 1988).
Festevents's plea of charitable immunity as to Harlan nevertheless fails because any benefit Festevents arguably provided to Harlan is too attenuated to satisfy the second prong of the charitable immunity test. The Virginia Supreme Court's ruling in Thrasher v. Winand is apposite to the case at bar. The Thrasher court held that a plaintiff's membership in a club that raised money as a food vendor during a festival organized by the defendant-charity was insufficient to qualify the plaintiff as a beneficiary for purposes of charitable immunity. 239 Va. 338, 341-42, 389 S.E.2d 699, 701 (1990). Although the court held that the club, as a vendor, certainly "benefitted"—in the colloquial sense—from the defendant's organization and promotion of a festival in which the club chose to participate to further "its own purposes," the court found that neither the club nor any of its members could be characterized as beneficiaries of the defendant's charitable activities. Id.
In attempting to distinguish Thrasher, Festevents points out that the club to which the Thrasher plaintiff belonged paid money to the defendant-charity, whereas here the City—which employs Harlan—receives money from Festevents. Festevents also argues that there are factual dissimilarities between the instant case and a number of other cases cited by Harlan. The Court does not find these differences to be material, however. Festevents fails to convincingly explain why the supposed benefit Harlan receives is not "only a remote or attenuated benefit." Carroll v. Goodwill Indus. of Hampton Roads, Inc., 57 Va. Cir. 411, 412 (Norfolk 2002) (citing Straley v. Urbanna Chamber of Commerce, 243 Va. 32, 37, 413 S.E.2d 47, 51 (1992)).
This Court, in Ola v. YMCA of S. Hampton Rds., Inc., explained that "[t]o be considered a charitable beneficiary for the purpose of charitable immunity, a person must be a direct beneficiary through the receipt of money, goods, or services and not merely someone who indirectly receives charitable benefits." 65 Va. Cir. 456, 465 (Norfolk Sept. 10, 2004) (emphasis added) (quoting Barbara Ann Williams, Charitable Immunity: What Price Hath Charity?, 28 U. Rich. L. Rev. 953, 956 (1994)), aff'd 270 Va. 550, 621 S.E.2d 70 (2005).
The benefit Harlan claims to receive by virtue of Festevents's contribution to the economic vitality of Norfolk is the quintessential example of an indirect benefit that fails to cloak its grantor with charitable immunity. This is especially clear in light of Festevents's admission at the Hearing that Harlan was not paid any extra bonus or overtime pay for his work at Harborfest and the agency's failure to produce any evidence that Harlan would lack employment were in not for Festevents's charitable endeavors.
Festevents alternatively claims that because it promotes the "education, benefit and social welfare of the citizens of Tidewater, Virginia," Harlan is a beneficiary as a resident of Chesapeake, a city within the Tidewater region. A similarly broad charitable purpose was at play in Thrasher: "to create a greater awareness and visibility of the community of Buchanan." 239 Va. at 342, 389 S.E.2d at 701. The Virginia Supreme Court held that such a benefit was "too remote to give rise to the defense of charitable immunity." Id.
The Court, relying on Thrasher—and recognizing that Festevents's logic would make it remarkably easy to render all citizens of an entire region charitable "beneficiaries"—finds that Harlan's Chesapeake residency is insufficient to qualify him as a beneficiary for charitable immunity purposes. The Court therefore finds that Festevents is not entitled to charitable immunity.
1. Statutory Immunity
Like almost every other state, Virginia has adopted a recreational land use statute. Such statutes are designed in large measure to encourage landowners to open up their lands for recreational use by limiting landowner liability. See, e.g., M.M. v. Fargo Pub. Sch. Dist. No. 1, 783 N.W.2d 806, 812-13 (N.D. 2010).
Virginia's RLUS reads, in pertinent part:
A landowner shall owe no duty of care to keep land or premises safe for entry or use by others for hunting, fishing, trapping, camping, participation in water sports, boating, hiking, rock climbing, sightseeing, hang gliding, skydiving, horseback riding, foxhunting, racing, bicycle riding or collecting, gathering, cutting or removing firewood, for any other recreational use, for ingress and egress over such premises to permit passage to other property used for recreational purposes or for use of an easement granted to the Commonwealth or any agency thereof or any not-for-profit organization granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code to permit public passage across such land for access to a public park,
historic site, or other public recreational area. No landowner shall be required to give any warning of hazardous conditions or uses of, structures on, or activities on such land or premises to any person entering on the land or premises for such purposes, except as provided in subsection D. The provisions of this subsection apply without regard to whether the landowner has given permission to a person to use their land for recreational purposes.Va. Code § 29.1-509(B) (2016 Repl. Vol.).
Section 29.1-509 limits the liability, under certain conditions, of three distinct classes of landowners. The first class consists of landowners whose own lands are used for recreational purposes, abrogating their duty of care—on their land—with regard to "entry or use by others" for such purposes (the "Entry and Use Provision"). The Entry and Use Provision only applies where the plaintiff has entered the land for a recreational purpose. See, e.g., Hamilton v. United States, 371 F. Supp. 230, 234 (E.D. Va. 1974) (stating that a prerequisite for an older, but substantially similar, version of the Virginia RLUS is that "[t]he person must come upon the land" for a recreational purpose); Lufti v. United States, 527 Fed. Appx. 236 (2013) (focusing on the plaintiff's purpose for being on the land used for recreational purposes by others); Leet v. City of Minot, 721 N.W.2d 398 (N.D. 2006) (holding that, under a similarly worded RLUS, immunity did not apply where "a person [was] present on the property for purposes of the person's employment").
Harlan does not challenge that Festevents qualifies as a "landowner" for purposes of the statute.
Festevents focuses specifically on the second class of landowners, whose duty of care is abrogated "for ingress and egress over such premises to permit passage to other property used for recreational purposes" (the "Ingress/Egress Provision"). Festevents argues that the protection this provision affords landowners "is pegged to the nature of the land and its use, not to whether the plaintiff is using it for recreational purposes." (Br. in Supp. 10 (emphasis added).)
Festevents notably does not support this proposition with case law. Moreover, its argument disregards a key phrase of the statute. Festevents claims that Harlan has "pleaded himself into the applicability of the statute" because "his injury occurred at 'a place of ingress and egress to and from Harborfest.'" (Id. (quoting Compl. ¶ 7)) Festevents misreads the Ingress/Egress Provision, which covers landowners whose land is used "to permit passage to other property used for recreational purposes." Va. Code § 29.1-509(B) (emphasis added).
As Harlan correctly points out, the Ingress/Egress Provision contemplates only situations where two landowners—and two pieces of land—are involved: one landowner whose land is used "for recreational purposes" and a second landowner whose land is traversed to gain access "to other property used for such purposes." Id. (emphasis added). The Court declines to treat the phrase "to other property" as mere statutory surplusage. See King v. Empire Collieries Co., 148 Va. 585, 589, 139 S.E. 478, 479 (1927) (holding that giving effect to all parts of a statute where possible "is an elementary canon of construction of statutes"). Where only one landowner is involved, "entry" onto the land in question is expressly covered not by the Ingress/Egress Provision but rather by the Entry and Use Provision. The evidence adduced at the Hearing indicates that the injury at issue was sustained on land controlled by Festevents as part of Harborfest. There was no evidence presented that Harlan was traversing one piece of land to gain access "to other property."
Festevents also claims that Section 29.1-509 applies because the Ingress/Egress Provision is included in the phrase "such uses" in the second sentence of Part B, which delineates the duties abrogated for qualifying landowners. This undoubtedly is the case, but it is not clear how this helps Festevents. That sentence merely spells out in greater detail the duties from which a qualified landowner is exempt. It does not support Festevents's argument because the Ingress/Egress Provision, for reasons stated supra, does not apply at all to the facts present here.
Even if the Ingress/Egress Provision did apply, the Court sees no reason why—as Festevents argues—the Plaintiff would not be required to be engaged in a recreational purpose to trigger immunity, as is the case for the Entry and Use Provision. As Harlan points out, it would be strange indeed to effectively provide broader protections to landowners whose land is being used only as a gateway than to landowners whose actual land is used for the recreational purposes encouraged by the statute.
Festevents is unquestionably not among the third class of landowner covered by the statute, who are relieved of a duty of care for use of an easement under certain circumstances.
Specifically, the third provision of the statute shields landowners from liability with regard to "use of an easement granted to the Commonwealth or any agency thereof or any not-for-profit organization granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code to permit public passage across such land for access to a public park, historic site, or other public recreational area." Va. Code § 29.1-509(B) (2016 Repl. Vol.). --------
Based on the foregoing, Festevents is not entitled to statutory immunity under the Virginia Recreational Land Use Statute.
Conclusion
For the foregoing reasons, the Court DENIES Defendant's Special Plea of Charitable Immunity and DENIES Defendant's Special Plea of Statutory Immunity. Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13 of the Rules of Supreme Court of Virginia. The Clerk shall mail (or email) copies of this Order to all counsel of record.
IT IS SO ORDERED this 7th day of April, 2017.
/s/_________
David W. Lannetti
Circuit Court Judge