Duquesne Law Review


In the face of an overwhelming trend to eliminate the charitable immunity doctrine, the Pennsylvania Supreme Court has consistently refused to abolish the doctrine it created back in 1888. The purpose of this paper is to forecast the future of the charitable immunity doctrine in Pennsylvania by analyzing cases in other areas where the policy arguments advanced were much the same as those raised for the doctrine of charitable immunity. Professor William L. Prosser notes that courts are in full retreat on the charitable immunity doctrine, and predicts its possible extinction within two decades. The doctrine as established in this state and in this country was based upon judicial error because reliance was placed upon overruled authority in England. The charitable immunity doctrine has nevertheless remained law in Pennsylvania until the present time. The Pennsylvania Supreme Court last faced the doctrine in 1961 in Michael v. Hahnemann Medical College and Hospital. At that time the court held, If the doctrine of charitable immunity is . . . no longer suited to the times and should be dispensed with, the proper way to accomplish that end is prospectively by legislation and not retroactively by judicial ukase. ... it is the legislature that can completely declare and promulgate public policy and not the courts. It is to be hoped... the attempts to eliminate the doctrine of charitable immunity ".... will assume a state of quiescence so far as further insistent court action is concerned. Perhaps that is too much to hope for." In order to fortify the crumbling walls of the charitable immunity doctrine, which sister states are deserting, the Pennsylvania Supreme Court laid its second emphasis upon stare decisis. Citing McDowell v. Oyer, the Court held that stare decisis is absolutely necessary to any system of jurisprudence, It is this law which we are bound to execute, and not any 'higher law', manufactured for each special occasion out of our own private feelings and opinions. If it be wrong, the government has a department whose duty it is to amend it, and the responsibility is not in any wise thrown upon the judiciary.

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