An Overview of Charitable Immunity in Tort Claims

By Elijah R. White* & Alistair D. Edwards

Litigants who wish to bring tort claims against charitable institutions may be surprised to discover that the doctrine of charitable immunity is alive and well in Virginia. With origins in the 19th century, the doctrine has become a part of the general public policy of the Commonwealth. It is grounded in the rationale that charities’ assets, held in trust for their charitable purposes, are better used to further the institution’s charitable purposes rather than to pay tort claims.

In the words of Justice Carrico:

“It cannot be debated that the care of the sick and injured is a public purpose, a matter of public concern. When a portion of the responsibility therefor is borne by the gifts of the philanthropic-minded, so much of the burden is removed from the public. If a portion of those gifts is diverted to the payment of tort claims, without restriction, the spirit and intent of the gifts are, at once, nullified and that much of the burden is again cast upon the public.”

Hill v. Leigh Mem’l Hosp. Inc., 204 Va. 501, 507, 132 S.E.2d 411, 415 (1963).

Scope of Charitable Immunity

Virginia’s charitable immunity is a doctrine of limited scope. Charities and their agents are immune only for acts of simple negligence, and do not receive such immunity for intentional torts, gross negligence, and willful or wanton negligence. Cowan v. Hospice Support Care, Inc., 268 Va. 482, 488, 603 S.E.2d 916, 919 (2004). Further, charitable entities are not immune from claims brought by persons who have no beneficial relationship to the charity but are merely invitees or strangers. Id. at 486, 603 S.E.2d at 918.

More, the General Assembly has restricted the doctrine of charitable immunity in the context of healthcare. Hospitals are generally not immune from liability for negligence on charitable grounds unless either the “hospital renders exclusively charitable medical services for which no bill for service is rendered” or the plaintiff “was accepted as a patient . . . under an express written agreement . . . providing that all medical services furnished . . . are to be supplied on a charitable basis without financial liability.” Va. Code § 8.01-38.

Test for Charitable Immunity

“To establish charitable immunity as a bar to tort liability, an entity must prove at least two distinct elements. The absence of either element makes the bar of charitable immunity inapplicable.” Ola v. YMCA of S. Hampton Rds., Inc., 270 Va. 550, 556, 621 S.E.2d 70, 72 (2005). “First, the entity must show it is organized with a recognized charitable purpose and that it operates in fact in accord with that purpose.” Id. “Second, assuming the entity has met the foregoing test, it must then establish that the tort claimant was a beneficiary of the charitable institution at the time of the alleged injury.” Id. at 556, 621 S.E.2d at 73.

A brief analysis of each of those two steps is set forth below.

Step 1: Is the Entity Truly a Charity?

Virginia courts have adopted a two-part test to assess the first element of the charitable immunity analysis: “examining (1) whether the organization’s articles of incorporation have a charitable or eleemosynary purpose and (2) whether the organization is in fact operated consistent with that purpose.” Ola, 270 Va. at 556, 621 S.E.2d at 72-73 (citation omitted).

To begin this analysis, courts look to “the powers and purposes set forth in an entity’s charter.” Ola, 270 Va. at 556-57, 621 S.E.2d at 73. “If an organization’s charter sets forth a charitable or eleemosynary purpose, there is a rebuttable presumption it operates as a charitable institution in accordance with that purpose.” Id. at 557, 621 S.E.2d at 73.

In practice, courts find a wide range of purported purposes set forth in an entity’s articles of incorporation to be charitable, the aim may be to promote community, culture, education, values, or religion. In many cases, the organization’s articles of incorporation, charter, constitution, or other governing documentation will explicitly state the entity’s charitable purpose. See, e.g., Ola, 270 Va. at 559-60, 621 S.E.2d at 74-75 (the YMCA’s articles of incorporation expressly stated its purpose as putting “Judeo-Christian principles into practice through programs that build a healthy body, mind and spirit for all”; the YMCA’s charter expressly stated that it could not “carry on any activities not permitted to be carried on by a corporation exempt from Federal income tax” and that its property was so dedicated even upon dissolution); Byrd Theater Found. v. Barnett, 287 Va. 291, 297, 754 S.E.2d 299, 302 (2014) (“Based on the Foundation’s articles of incorporation and amended bylaws, its charitable aim was to cultivate an appreciation for the performing arts through restoration and preservation of the Byrd Theatre and the organ.”); Conway v. Mount Lebanon Missionary Baptist Church, 80 Va. Cir. 148, 155 (Chesapeake 2010) (although the church did not have a charter or articles of incorporation, its constitution stated that it provides services to the community by way of “social, economic, political, and educational welfares of the community as a living testimony to Christ,” which was held to be a charitable purpose).

Once the court has determined that a given entity is charitable, it proceeds to the second step in its analysis: whether the organization operates in fact with its purported charitable purpose. The Virginia Supreme Court has articulated a number of factors for this inquiry:

(1) Does the entity’s charter limit the entity to a charitable or eleemosynary purpose?
(2) Does the entity’s charter contain a not for profit limitation?
(3) Is the entity’s financial purpose to break even or earn a profit?
(4) Does the entity in fact earn a profit, and if so, how often does that occur?
(5) If the entity earns a profit (a surplus beyond expenses) must that be used for a charitable purpose?
(6) Does the entity depend on contributions and donations for a substantial portion of its existence?
(7) Is the entity exempt from federal income tax and/or local real estate tax?
(8) Does the entity’s provision of services take into consideration a person’s ability to pay for such services?
(9) Does the entity have stockholders or others with an equity stake in its capital?
(10) Are the directors and officers of the entity compensated and if so, on what basis?

Ola, 270 Va. at 557 n.1, 621 S.E.2d at 73 n.1 (internal citations omitted).

Notably, “[t]hese factors are not exclusive and the presence or absence of any particular factor is not determinative.” Ola, 270 Va. at 557, 621 S.E.2d at 73. Furthermore, whether an organization is “charitable” under this test “turns on the facts of each case and not on the particular type of institution.” Id. Compare Ettlinger v. Trustees of Randolph-Macon Coll., 31 F.2d 869 (4th Cir. 1929) (holding the college was entitled to charitable immunity) with Radosevic v. Virginia Intermont Coll., 633 F. Supp. 1084 (W.D. Va. 1986) (holding the college was not entitled to charitable immunity).

Step 2: Is the Tort Claimant a Beneficiary of the Organization?

Assuming an entity has met the foregoing test, it must then establish that the tort claimant was a beneficiary of the charitable institution at the time of the alleged injury. In this context, “an individual need not receive financial assistance from a charitable entity to be a beneficiary of that organization. Instead a beneficiary is a person who receives something of value, which the organization by its charitable purpose, undertakes to provide.” Ola, 270 Va. at 564, 621 S.E.2d at 77; e.g., Egerton v. R.E. Lee Mem’l Church, 395 F.2d 381, 384 (4th Cir. 1968) (tourist entering historic church to view stained glass is a beneficiary).

Moreover, “a person who pays the full price for services is still a beneficiary of the charitable work of the charitable organization because that entity could not provide those services without charitable contributions[.]” Ola, 270 Va. at 564, 621 S.E.2d at 77; e.g., id. at 565, 621 S.E.2d at 77-78 (“Ola clearly was a beneficiary of the YMCA’s charity, not because she received membership at a reduced fee, but because she was participating in the YMCA swimming program at the time of her injury.”); City of Richmond v. Richmond Mem’l Hosp., 202 Va. 86, 94, 116 S.E.2d 79, 84 (1960) (“[W]e hold that hospitals not operated for profit, which devote all of their funds exclusively to the maintenance of the institutions, are charities, and this is so irrespective of the fact that a majority of their patients are required to pay for services rendered.”).

However, “mere membership in a class eligible to receive future benefits, conditioned upon circumstances which might never occur, is too remote and speculative to be considered.” Thrasher v. Winand, 239 Va. 338, 342, 389 S.E.2d 699, 701 (1990); e.g., id. (“Mountain Magic’s pursuit of its corporate purpose to ‘create a greater awareness and visibility of the community of Buchanan’ confers indirect benefits which are too remote to give rise to the defense of charitable immunity” to members of other organizations who paid for the privilege of participating in Mountain Magic’s festival; “The beneficiaries of Mountain Magic’s charity were only those to whom its board of directors donated the proceeds of its fundraising activities, a category to which Thrasher did not belong. Accordingly, the defense of charitable immunity may not be asserted against him.”).

*Law Clerk at Marks & Harrison, Summer of 2026.  J.D. expected May 2027, University of Richmond School of Law.

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