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MOORING v. VA WESLEYAN COLLEGE, et al.


MOORING

v.

VA WESLEYAN COLLEGE, et al.


April 16, 1999
Record No. 981270

ANTONIO MOORING, A MINOR WHO SUES BY HIS MOTHER
AND NEXT FRIEND, PATRICIA MOORING, ET AL.

v.

VIRGINIA WESLEYAN COLLEGE, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY


Antonio Mooring, a minor, suffered a traumatic
amputation of his right thumb when John Braley closed a door
while Mooring had his hand on the portal of the doorway. The
incident occurred at the Boys and Girls Club of Hampton Roads
(the Club). Mooring, through his next friend, sued Braley and his
employer, Virginia Wesleyan College. The trial court dismissed
Mooring’s motion for judgment finding that Braley was a volunteer
at the Club and entitled to charitable immunity as a result of
the Club’s status as a charity. Because we find that Braley was
not engaged in the charity’s work at the time of the alleged
negligence, we conclude that the trial court erred in dismissing
Mooring’s motion for judgment.

Braley is a professor at Virginia Wesleyan
College, teaching in a recreation and leisure studies program.
The Club contacted Braley seeking volunteers to work in its
programs. In response, Braley established a program with the Club
in which students in Braley’s recreation programming class were
required to spend six hours observing the children and
volunteering at the Club. The students were required to return to
the classroom, design recreation programs for the children they
observed, and then implement those programs at the Club. Braley
would go to the Club to observe the students conducting the
programs and would "help the students out" when they
needed it. The students were not graded directly on the basis of
their work at the Club, but on the basis of a report they
submitted to Braley describing their learning experience.

On the day Mooring was injured, one of Braley’s
students was conducting a wellness and body-conditioning program
for thirteen to eighteen-year-olds in the Club’s weight room. The
student was giving a talk to the participants and Braley was
observing her. At the student’s request, Braley went to the door
to keep younger children not involved in the student’s program
out of the room. While Braley was tending the door, Mooring was
injured.

The trial court held an evidentiary hearing on
the defendants’ joint motion to dismiss. The parties stipulated
that the Club was a charity entitled to charitable immunity and
that Mooring was a beneficiary of the charity. The trial court
held that because Braley received no extra compensation from the
Club or Virginia Wesleyan College for the services he rendered,
and because Braley’s role at the Club was both supervising his
students and "helping the Club perform its good work,"
he was "a volunteer at the Club" and thus entitled to
charitable immunity under Moore v. Warren, 250 Va. 421,
463 S.E.2d 459 (1995).
[1]

In Moore, an American Red Cross
volunteer was sued for negligence allegedly committed while
transporting the injured party to a routine medical visit in a
car owned by the Red Cross. Providing transportation for such
medical visits was a service of the Red Cross. The driver
contended that he was "’cloaked with the immunity of the
charity’" and that charitable immunity was not limited to
the charity itself. Id. at 422, 463 S.E.2d at 459. In
resolving this issue of first impression, we stated:

Like any organization, a charity
performs its work only through the actions of its
servants and agents. Without a charity’s agents and
servants, such as the volunteer here, no service could be
provided to beneficiaries. Denying these servants and
agents the charity’s immunity for their acts effectively
would deny the charity immunity for its acts.

Id. at 423, 463 S.E.2d at 460. Based on
this rationale, we included the driver in the immunity of the
charity and held that he was immune from liability to the
charity’s beneficiaries for negligence while he was "engaged
in the charity’s work." Id. at 425, 463 S.E.2d at
461. Thus, Moore requires an individual seeking the cloak
of a charity’s immunity to establish that he was an agent or
servant of the charity at the time of the alleged negligence and
that the alleged negligence for which he seeks immunity occurred
while he was actually doing the charity’s work.

Assuming, without deciding, that the
"role" Braley had at the Club identified by the trial
court satisfied the requirement that Braley be an agent or
servant of the Club, Braley qualifies for protection under the
Club’s charitable immunity only if the alleged negligence
occurred while he was doing the charity’s work. Mooring contends
that at the time of the injury Braley’s "presence did not
directly benefit the Club," and that Braley presented no
evidence that "he was doing anything in particular for the
Club at the time of the incident." We agree.

While Braley testified that he "helped
out" at the Club whenever he could, the record shows that at
the time of his alleged negligence, Braley was at the Club to
observe the activities of his student. He was not there to
directly perform any of the Club’s work; rather he was carrying
out his duties as a professor at Virginia Wesleyan College. He
was observing his student and acting as "doorkeeper" at
the student’s request to allow his student to properly conduct
the wellness class. Under these facts, we conclude that Braley
was not entitled to charitable immunity because he was not
engaged in the work of the charity at the time of his alleged
negligence.

Accordingly, we will reverse the judgment of
the trial court and remand the case for further proceedings.

Reversed and remanded.

 

 

FOOTNOTES:

[1] In dismissing the motion for judgment
against both defendants, the trial court did not specifically
address whether Virginia Wesleyan College was entitled to
charitable immunity, and this issue is not before us on appeal.

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