## Facts

- A terminally ill, bedridden woman who required two-person assistance for transfers was admitted to a respite-care facility operated by a nonprofit hospice-support organization.
- On the first night, a single volunteer attempted to transfer her from bed to a bedside commode; during the attempt the volunteer heard a loud “popping-cracking” sound when the patient’s right leg became caught.
- The patient remained at the facility for about one week, received morphine for leg pain, and did not receive further medical assessment or treatment of the leg during her stay.
- Upon discharge, the patient’s daughter observed swelling and pain and took her to an emergency room, where she was diagnosed with a shattered femur.
- The patient’s leg was amputated above the knee; she died four days later from surgical complications.
- The daughter, as personal representative, sued the hospice organization alleging gross negligence, willful and wanton negligence, and negligent hiring and retention (simple negligence was later dismissed by consent).

## Issues

1. Whether Virginia’s common-law charitable immunity doctrine bars claims against a charity by its beneficiary for gross negligence and willful and wanton negligence, or only for simple negligence.
2. Whether the complaint stated a legally sufficient claim for negligent hiring and retention to survive demurrer.

## Decision

- The court held charitable immunity does not bar claims for gross negligence or willful and wanton negligence.
- The court reversed the trial court’s ruling sustaining the charity’s plea in bar as to the gross negligence and willful and wanton negligence counts and remanded those claims for further proceedings.
- The court affirmed the dismissal of the negligent hiring and retention count, concluding it was insufficiently pleaded.
- The judgment was affirmed in part, reversed in part, and remanded.

## Legal Principles

- Charitable immunity in Virginia is a limited common-law exception that protects qualifying charities from liability to beneficiaries for simple negligence, but it is strictly construed.
- Gross negligence (indifference and utter disregard of prudence amounting to complete neglect of another’s safety) and willful and wanton negligence (conscious disregard of another’s rights or reckless indifference to consequences with awareness of probable injury) are qualitatively more serious than simple negligence and fall outside charitable immunity.
- Statutes addressing personal liability of charitable volunteers for gross negligence or willful and wanton misconduct do not expand or define the scope of an organization’s charitable immunity.
- A negligent hiring and retention claim must plead facts showing unfitness known or reasonably discoverable by the employer and a causal connection between the hiring/retention and the injury; conclusory allegations are insufficient.

## Conclusion

Virginia’s charitable immunity doctrine shields qualifying charities only from simple-negligence claims by beneficiaries, not from gross negligence or willful and wanton negligence, but negligent hiring and retention claims remain subject to ordinary pleading requirements and may be dismissed when inadequately alleged.


Cowan v. Hospice Support Care, Inc., 268 Va. 482, 603 S.E.2d 916 (Va. 2004)