ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lee C. Christie Nana Quay-Smith
Indianapolis, IN Karl L. Mulvaney
Theodore J. Blanford
SUPREME COURT OF INDIANA
MARTA HANSON, ) ) Appellant (Plaintiff Below ), ) ) v. ) 49S02-9804-CV-228 ) in the Supreme Court SAINT LUKE'S UNITED METHODIST ) CHURCH and UNITED METHODIST SOUTH ) 49A02-9609-CV-597 INDIANA CONFERENCE, INC., ) in the Court of Appeals ) Appellees (Defendants Below ). )
SHEPARD, Chief Justice.
function. Over the course of the evening, some amount of snow and
ice accumulated in the parking lot of the church.
After spending about two hours inside, Hanson left the church
and walked toward her automobile. As she neared her car, Hanson
slipped and fell. Associate Pastor Steve Miller witnessed Hanson's
fall and immediately drove her to the hospital, where she received
treatment for a broken arm. Miller later commented to St. Luke's
business manager that the parking lot had been slick on his way
into the church earlier that evening and was still slippery on his
way out when he saw Hanson fall.
Hanson sued St. Luke's and its trustees for her personal injuries, alleging negligence for failure to properly maintain the parking lot, failure to inspect the parking lot for dangerous conditions, failure to remove the snow and ice from the parking lot, and failure to warn her of the dangerous conditions. The trial court granted summary judgment in favor of all the defendants,See footnote 2 applying the common law rule that a member of an unincorporated association cannot sue the association for the negligence of another member. Hanson appealed that judgment.
On appeal, the Court of Appeals reversed the summary judgment
with regard to St. Luke's, and affirmed the summary judgment with
regard to the trustees. Hanson v. Saint Luke's United Methodist
Church, 682 N.E.2d 1314 (Ind. Ct. App. 1997). In ruling that
Hanson may maintain a personal injury lawsuit against the church,
the court applied an exception to the common law rule, an exception
that this Court has never formally adopted.See footnote
We granted St. Luke's
petition for transfer.
damages through the tortious conduct of another member of
the association may not recover from the association for
such damage. It would be akin to the person suing
himself as each member becomes both a principal and an
agent as to all other members for the actions of the
Id. at 374-75.
The imputed liability doctrine requires that the association's
membership is engaged in a joint enterprise. 65A C.J.S. Negligence
§ 158 (1966).
The requirement that the members of an
unincorporated association be engaged in a joint enterprise does
not mean, however, that at the time of the accident at issue the
members must be engaged in some specific "group activity," such as
repairing the church's roof. Biereichel, 693 N.E.2d at 637.
requirement is generally satisfied in the church congregation
setting in that the congregation's members are thought to be
engaged in the joint enterprise of worship and/or maintaining a
premises for worshiping. See Claudia G. Catalano, Annotation,
Liability for Personal Injury or Death Allegedly Caused by Defect
in Church Premises, 8 A.L.R.5th 1, 31-35 (1992) (citing cases
involving church member-plaintiffs "engaged in the joint enterprise
of maintaining the building in which they worshipped," and "engaged
in the joint enterprise of worshipping God in fellowship
Applying the common law rule, we held in Calvary that a church member who had been injured when he fell off a ladder while repairing the church's roof could not sue the church in its own
522 N.E.2d at 372. The plaintiff in Calvary argued that the
common law doctrine, which insulated unincorporated associations
from suit by their members, was based on the historical and
obsolete idea that such associations were not legal entities, and
that the passage of Indiana Trial Rules 17(B) and (E) permitted
suits such as his.See footnote
Id. The Court rejected this argument, noting
that Rules 17(B) and (E) "were directed to the suability of
unincorporated associations as parties" and did not change the
substantive rule of nonliability of unincorporated associations to
their members.See footnote
Id. at 373.
such as some labor unions. In that instance, the
member and the union are distinct, with the union representing the
common or group interests of its members, as distinguished from
their personal or private interest.
"Structurally and functionally, a labor union is an institution which involves more than the private or personal interests of its members. It represents organized, institutional activity as contrasted with wholly individual activity." . . . The union engages in a multitude of business and other official concerted activities, none of which can be said to be the private undertakings of its members.
Id. at 989 (quoting United States v. White, 322 U.S. 694, 701-02
(1944)). The court concluded that the common law rule barring
suits by members against their associations should not apply when:
1) the unincorporated association has a legal existence separate
from its members; and 2) the members do not exercise control over
the operations of the association. See id. at 990-91.
While the Marshall decision limited its holding to the case of labor unions, id. at 991 n.1, the court later extended the application of the exception to different types of unincorporated
associations that satisfy the Marshall criteria. White v. Cox, 17
Cal.App.3d 824 (1971).
In the present case, the Court of Appeals found that Hanson's
relation to St. Luke's warranted the application of the Marshall
exception. After examining facts such as the size of the church's
congregation, the hierarchy of the church's government, and the
existence of a set of by-laws guiding the church's decisionmaking,
the court concluded:
that the reasons supporting the general rule, including the prevention of collusive lawsuits and the avoidance of suits by a member against herself, do not apply in this case. Thus, we believe that the time is ripe to apply an exception to the general rule and to permit Hanson to maintain her claim against St. Luke's. Hanson, 682 N.E.2d at 1320.
sections, which the court said allowed unincorporated associations
to be held liable for injuries sustained by a member-plaintiff
while performing voluntary labor, and caused by the negligence of
fellow members. See Crocker, 409 S.E.2d at 370-71.
considered important the fact that the statute separated the
liability of the church from that of the membership, as well as the
belief that the doctrine of imputed negligence would discourage
volunteerism by potentially barring suits by volunteers against
Id. at 371. The court posed the rhetorical
question: "Why should a . . . member be precluded from suing an
association in tort when a paid workman would be allowed to
maintain an action for the very same injury?" Id.
Other states have also relied upon a statutory scheme abolishing the common law rule to allow these suits. In Furek v. University of Delaware, 594 A.2d 506 (Del. 1991), the Supreme Court of Delaware allowed a suit by a fraternity pledge against a fraternity, based on a state statute authorizing suits against unincorporated associations and judgments against association property. In Buteas v. Raritan Lodge No. 61, 591 A.2d 623 (N.J.
Super. 1991), a New Jersey court relied on a state statute which
modified the common law to allow a suit by a lodge member against
the association. The court stated: "[T]he imputed negligence
doctrine barring suit by a member against the association itself is
based upon an obsolete legal fiction whose time has long since
passed." Buteas, 591 A.2d at 628. Finally, in Tanner v. Columbus
Lodge No. 11, Loyal Order of Moose, 337 N.E.2d 625 (Ohio 1975), the
Supreme Court of Ohio held that a state statute overruled previous
cases which applied the common law rule.
In at least one jurisdiction, a court abrogated the common law
rule without a statutory directive. In Cox v. Thee Evergreen
Church, 836 S.W.2d 167 (Tex. 1992), the Supreme Court of Texas
addressed this issue in the context of a church member's suit
against the church for injuries sustained in a slip and fall. The
court acknowledged that the Texas rule of procedure which allowed
unincorporated associations to sue and be sued as legal entities,
the counterpart to our Trial Rules 17(B) and (E), did not alter the
substantive common law rule of nonliability towards members. Id.
at 171. The court then examined the erosion of the common law
So what remains of the early common law rules regarding unincorporated associations and the imputed negligence doctrine? Apparently, very little. . . . We allow nonmembers to bring suits, including those for negligence, against unincorporated associations. We allow members to sue unincorporated associations for acts committed that are strictly adverse to the member's interests. . . . Nevertheless, one vestige of the common law survives--our obedience to an ancient precept automatically imputing the negligence of an
unincorporated association to an injured member. . . .
[W]e perceive no compelling reason for retaining this
remnant of the original common law rules.
Id. at 173 (citations omitted). The court then held that the
member's tort action against the association would be allowed. Id.
We think the facts in this case and the arguments of the
parties are sufficiently persuasive to warrant abandonment of the
common law rule of imputed negligence. We hold that members shall
be allowed to bring tort actions against the unincorporated
associations of which they are part and overrule Calvary. As
Justice Boehm recently pointed out:
The notion of imputed negligence has been aptly described as having "a very bad name of its own" leading to "a group of quite unreasonable and rather senseless rules." W. [Page] Keeton [et al.], Prosser and Keeton on the Law of Torts [§ 74, at] 529 (5th ed. 1984). Although many states have seen fit to abolish the doctrine by legislation, the reasons for overruling Calvary Baptist are no less persuasive in the absence of a statute. These include: (1) it is inherently unfair to require an injured member, who is one of a number of equally faultless members, to bear a loss incurred as a result of the association's activities; (2) there is no reason to limit the availability of the insurance that associations can, and presumably often do, obtain to avoid unexpected liabilities of the members as a result of exposure to third party claims; and (3) contribution is available to avoid unjust allocation of any loss as among the members.
Benevolent and Protective Order of Elks, Local 291 v. Mooney, 673 N.E.2d 766, 767 (Boehm, J., dissenting from denial of transfer).
We find merit in Justice Boehm's conclusion.See footnote
In addition to the foregoing policy considerations, we believe the change in the common law may also be justified by Indiana's shift from a system of contributory negligence to one of comparative fault. Under a system of contributory negligence, the common law doctrine of imputed negligence necessarily barred these suits, assuming no exceptions applied. The logic went thusly: if a member and an association are engaged in a joint enterprise, then by alleging that the association is at fault, a plaintiff is alleging he himself is at least partially at fault, and under contributory negligence principles, if the plaintiff is at fault at all, he may not recover. Comparative fault principles, such as those embodied in Indiana's Comparative Fault Act, Ind. Code § 34- 4-33-1 through -12, change the dynamic of this logic in a way that
changes the outcome.
Under a comparative fault system, "[t]he relevant issue is not
whether the injured party is a member of the association but rather
whether his own degree of actual causative negligence, if any, is
greater or lesser than that of which he complains." Buteas, 591
A.2d at 628-29. Now, a small degree of negligence on the part of
the plaintiff, whether actual or assumed through a joint
enterprise, no longer constitutes a complete bar to recovery. The
plaintiff's negligence can be weighed against others' in computing
her recovery. As stated by the New Jersey court:
[A] plaintiff can [now] be held chargeable to the extent his own conduct has contributed to the harm he has suffered. These rules are fully applicable in an action by a member against a voluntary association when the member's negligence, based on his participation in any form in the creation of this risk, may have contributed to his injuries. That participation may result in the reduction of his recovery. It may even preclude recovery if the finder of fact concludes that the plaintiff's negligence is greater than 50%. But the mere potential for assessment of a degree of culpability against him cannot bar the action any more than a contributory negligence claim in any other context could.
Id. at 629. We agree.
The member's right to bring suit is, of course, not without limitation. Such a suit is subject to the limits already in place in our Trial Rules. While Rule 17 did not change the substantive common law rule, see Calvary, 522 N.E.2d at 374, it did set forth general limitations on suits against unincorporated associations. Until now, those limitations applied only to suits by non-members against the associations. Having extended the right of action to
members, we conclude that Rule 17 still governs the limits of such
Trial Rule 17(E) states in part that:
A judgment by or against the partnership or unincorporated association shall bind the organization as if it were an entity. A money judgment against the partnership or unincorporated association shall not bind an individual partner or member unless he is named as a party or is bound as a member of a class in an appropriate action . . . .
As a result, while a member may now sue an unincorporated association in tort, she may only reach the association's assets. If she wishes to reach the assets of any individual, she must name that individual as a party and prove that individual's fault, as always. As a result, individual members, including officers and trustees, may not be held vicariously liable for a judgment against the association. Other jurisdictions that have abandoned the common law rule have also stressed the separation of association and member assets for satisfaction of judgments. See, e.g., Cox, 836 S.W.2d at 174 (Cook, J., concurring) ("The implicit holding of today's opinion is that the individual liability of a member will be based on [his] actual participation in the tort or ratification of the actions which cause injury. . . . The injured member must look to those members who were actively negligent . . . or the unincorporated association itself."); Crocker, 409 S.E.2d at 370 (citing precedent interpreting a state statute that authorized suits for the proposition that "no liability arises against any member unless judgment is entered against such member by
plaintiffs"); Tanner, 337 N.E.2d at 626 (noting that the relevant
state statute provided "that money judgments against
[unincorporated associations] be enforced only as to the
association as an entity, and not against the property of an
individual member"). Justice Boehm explained the recovery
limitation in his Elks Local 291 dissent:
Since 1970 the trial rules of this state have permitted unincorporated associations to be sued in their own name. Any such suit exposes the assets of the association, not the members, unless the members are individually joined. Ind.Trial Rule 17(E). In bringing such a suit, the member is not "suing himself" at all. Rather the member seeks recovery from the assets of the association, just as does any third party. If the plaintiff chooses to seek recovery from other members, that too, is permitted procedurally.
673 N.E.2d at 767. Providing this limitation on recovery
appropriately advances the goals of tort law, "which include
deterring negligent conduct and compensating the victims of those
who act unreasonably." Hanson, 682 N.E.2d at 1319 n.3.
is hereby reversed and the case remanded to the trial court to
proceed in accordance with this opinion.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
(B) Capacity to sue or be sued. The capacity of a party to sue
or be sued shall be determined by the law of this state, including
its conflicts rules, except that a partnership or unincorporated
association may sue or be sued in its common name.
(E) Partnerships and unincorporated associations. A partnership or an unincorporated association may sue or be sued in its common name. A judgment by or against the partnership or unincorporated association shall bind the organization as if it were an entity. A money judgment against the partnership or unincorporated association shall not bind an individual partner or member unless he is named as a party or is bound as a member of a class in an appropriate action (Rules 23 and 23.2).
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