In Harris v. Norfolk Botanical Garden Society, the Norfolk Circuit Court held that a volunteer weed-puller who was injured while at the Norfolk Botanical Garden could maintain a claim for gross negligence against the charitable group for injuries suffered at the Garden.
The Garden was clearly a charitable institution, and accordingly requested a special plea for charitable immunity against Harris’s claims. But under the principles set forth in Ola v. YMCA of South Hampton Roads, 270 Va. 550 (2005), the charitable immunity doctrine only applies to beneficiaries of the charity. In this case, a beneficiary would be someone who was touring the Garden or participating in a lecture. Here, however, Harris had volunteered to pull weeds at the Garden. Judge John R. Doyle, III accordingly held that Harris was an invitee at the time she was injured, not a beneficiary, and thus the Garden was not entitled to immunity.
The Garden next argued that since Harris was directed how to perform her work and was given compensation in the form of access to local museums and letters of recommendation, she was thus covered under the Virginia Workers’ Compensation Act and could only pursue her remedies therein, pursuant to the exclusivity provision in Va. Code § 65.2-307. The Act does not apply to noncompensated employees of charitable organizations. The Court found that Harris was an employee, but that the benefits given by the Garden did not count as compensation since “her decision to work pulling weeds on the day of her injury was purely gratuitous,” and there was no evidence that Harris used or valued any of the benefits given by the Garden. Thus, Harris was not forced to abandon her claim for gross negligence against the Garden, which allows greater potential compensation than a claim under the Act.
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