Tomlinson v. Trustees of University of Pennsylvania (164 F. Supp. 353, 1958)

VAN DUSEN, District Judge.

The plaintiff, administrator of the estate of Glenn R. Wenrich, deceased, brought this suit against several defendants, alleging negligence resulting in the death of Glenn R. Wenrich. One of these defendants, the Trustees of the University of Pennsylvania, a duly incorporated non-profit corporation, organized under the laws of the State of Pennsylvania (hereinafter called “University”), moved for a judgment on the pleadings (Document No. 8 in Clerk’s file) and plaintiff moved by petition to strike the University’s motion (Document No. 33 in Clerk’s file). Plaintiff does not deny that University is a charitable and eleemosynary institution operating a hospital under its corporate powers.

The plaintiff’s decedent, an electrician and employee of John F. McCarthy, Inc., was killed while installing an intercommunication system in the radiology department of University’s hospital, located in Philadelphia, Pa. Paragraph 6 of the complaint alleges that plaintiff’s decedent “was in the crawl space, or above the false ceiling, in the radiology department, when he suffered a severe electric shock from the high voltage lines contained, concealed, and not marked, in the aforesaid ‘crawl space.’ ” Paragraph 11 of the complaint alleges: “As a result of the aforesaid severe electric shock, deceased suffered multiple burns which caused him great pain and suffering and resulted in his death on March 16, 1956.”

The parties agree that the law of Pennsylvania is applicable. In Pennsylvania, an eleemosynary institution is immune from tort liability. Knecht v. St. Mary’s Hospital, 1958, 392 Pa. 75, 140 A.2d 30; Bond v. Pittsburgh, 1951, 368 Pa. 404, 84 A.2d 328; Siidekum v. Animal Rescue League, 1946, 353 Pa. 408, 45 A.2d 59; Gable v. Sisters of St. Francis, 1910, 227 Pa. 254, 75 A. 1087.

In the recent case of Knecht v. St. Mary’s Hospital, supra, the Pennsylvania Supreme Court refused to change the existing rule concerning immunity of charitable institutions and specifically stated that it was not the province of the judicial branch of the government to abrogate that rule. It is significant that neither this decision nor any other Pennsylvania appellate decision makes a distinction between corporate and other negligence. Considering the rationale of the rule, the argument that a corporation’s negligence, as opposed to the negligence of its servants, should not fall within the rule cannot be sustained.

In all the Pennsylvania cases dealing with charitable immunity, the only one found which raises the question of corporate negligence, as opposed to negligence of a servant, held there was no distinction. Ginty v. Y. W. C. A., 1930, 32 Lack Jur. 29. The recent statement in Knecht v. St. Mary’s Hospital, supra {392 Pa. 75, 140 A.2d 31], that “the immunity of an eleemosynary institution from tort liability has long been the established rule in Pennsylvania” and the reasons for that rule prevent this court from accepting, under the facts of this case, plaintiff’s contention that there is a distinction between corporate negligence and negligence of a servant of a charitable corporation.

Paragraph 10 of the complaint alleges that “the defendants, jointly and severally, maintained and operated said radiology department and the crawl space above, in such a way as to be an ultra-hazardous activity, or a nuisance, to the damage of plaintiff’s decedent.” In the absence of any Pennsylvania authority stating that the maintenance of an electric wire leading to X-ray equipment is an ultra-hazardous activity, the case of Knecht v. St. Mary’s Hospital, supra, and the Pennsylvania cases holding that an electric company must exercise the highest degree of care, but is not subject to absolute liability, preclude any basis for imposition of liability