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Copyright (c) 1972 Tennessee Law Review Association, Inc.
Tennessee Law Review

COMMENT: Charitable Immunity--A Reappraisal

Winter, 1972

39 Tenn. L. Rev. 289


James W. Zirkle



Although the law governing liability of non-governmental charitable institutions for torts is undergoing a re-examination in a number of jurisdictions and is in a state of flux, the basic reasoning underlying the charitable purposes doctrine is well known. 1 In view, however, of the increasing number of jurisdictions which have rejected the doctrine and its underlying philosophy as an anachronism causing more harm than good, 2 and its almost universal condemnation by scholars, 3 it would appear that a current survey of the matter would be useful. This survey will include a restatement of the current law of Tennessee in this controversial area.

The doctrine of charitable immunity involves exemption of charitable institutions from the application of general tort rules which, apart from the immunity, would lead to liability. 4 The doctrine first appeared in the United States in an 1876 Massachusetts decision 5 which adopted the reasoning of an English decision, 6 which was thought to reflect the state of the law as it then existed in England. In reality, the English decisions favoring such an immunity were a legal aberration which had already been specifically overruled at the time of the Massachusetts decision. 7 But the seed was planted and the Massachusetts decision was soon followed by the Maryland courts, 8 thereby resurrecting in the United States a rule already dead in England. But with what was perhaps dramatic foreshadowing of the conflict which was to appear in future decisions regarding the charitable purposes doctrine, ...
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