PRESENT:   All the Justices

THE BYRD THEATRE FOUNDATION
                                           OPINION BY
v.   Record No. 130691           JUSTICE ELIZABETH A. McCLANAHAN
                                        FEBRUARY 27, 2014
DAVID M. BARNETT

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Melvin R. Hughes, Jr., Judge

     In this premises liability action, The Byrd Theatre

Foundation (the Foundation) appeals a final judgment entered

against it in favor of David M. Barnett (Barnett).   The

Foundation argues that the circuit court erred in denying its

plea of charitable immunity and in failing to instruct the jury

on notice to a corporation.    We will affirm the judgment of the

circuit court.

                          I.   BACKGROUND

      The Foundation, a non-profit corporation qualifying as a

tax-exempt organization under 26 U.S.C. § 501(c)(3), owns the

Byrd Theatre, a national historic landmark and motion picture

theater in Richmond that was opened in 1928 and houses a

Wurlitzer theater pipe organ installed the same year.   The

theater is operated by 1928 Limited, Inc. (1928 Limited), a

non-stock for-profit corporation formed by the Foundation

shortly after its purchase of the Byrd Theatre in 2007.

Barnett, a member of the Foundation's organ restoration

subcommittee, was injured in the theater's organ chamber when
he was performing repairs to the organ and a wooden plank he

stepped upon "gave way" causing him to fall four feet to the

floor. 1   Asserting that the wooden plank was not properly

secured, Barnett filed suit against the Foundation and 1928

Limited claiming they failed to maintain the premises in a

reasonably safe condition and warn him of the dangerous

condition of the plank.     Following a jury trial, the jury

rendered a plaintiff’s verdict against the Foundation and a

defense verdict in favor of 1928 Limited.    The circuit court

entered judgment on the jury's verdict after denying various

post-trial motions filed by the Foundation.

                      II.   CHARITABLE IMMUNITY

    Prior to trial, the Foundation filed a plea of charitable

immunity.    Because Barnett stipulated that the Foundation is a

charitable organization operating in accordance with its

charitable purpose, the issue presented to the circuit court

was limited to whether Barnett was a beneficiary of the

Foundation at the time of his accident.



     1
       The organ chamber is located three stories above the
floor level of the auditorium and houses the ranks of pipes and
instruments, and other parts of the organ necessary to power
the organ and relay signals from the organ console to the music
producing parts located in the chamber. Wooden walking planks
are located approximately four feet above the floor of the
chamber to provide access to certain parts of the organ.



                                  2
A.   Evidence and Ruling on Plea

     At the hearing on the plea, the Foundation presented

evidence that, pursuant to its articles of incorporation, the

Foundation was formed "[t]o cultivate, promote, and develop the

public's knowledge, awareness, understanding, and appreciation

of the performing arts."   After its purchase of the Byrd

Theatre, the Foundation, through an amendment to its bylaws,

narrowed its mission to owning and restoring the Byrd Theatre

"as a grand movie palace and community resource."   In

performing this mission, the Foundation's principal activity is

raising funds to be used in its restoration of the theater,

including the organ.   Because the Foundation does not have any

salaried employees, it utilizes independent contractors to

perform any such restoration and repair of the theater and the

organ.

     Barnett is a long-time theater pipe organ enthusiast, who

has held memberships and leadership positions in several organ

enthusiast clubs that are dedicated to the preservation and

appreciation of historic pipe organs.   He purchased a Wurlitzer

theater pipe organ in 1978, and over a two-year period,

dismantled, restored, reassembled, and installed the organ in

his home.   Although Barnett does not play the organ, he is

fascinated with the sound and mechanism of theater organs, and

has received visiting organists to play the organ installed in

                                   3
his home.    He is passionate about the preservation and

restoration of the Byrd Theatre organ and has attended the Byrd

Theatre, over the years, to hear the organ played.

    From 1976 to 1990, Barnett consulted on and performed

restoration and repair work to the Byrd Theatre organ either as

an individual volunteer or with a group of volunteers from the

Virginia Theatre Organ Society.       In 2008, Barnett was asked by

Robert Gulledge, Jr., the house organist for the Byrd Theatre,

to serve on the Foundation's organ subcommittee of the theater

restoration committee. 2   As the "steward" of the organ, the

organ subcommittee arranges for and oversees restoration of the

organ.      Barnett's duties were of an advisory nature and

included making contacts with organ technicians who might enter

into contracts with the Foundation for long-term restoration or

short-term renovations, as well as reviewing the terms and

scope of work included in proposed contracts.

    During a period in which the subcommittee was without an

organ technician under contract, Barnett volunteered to

undertake certain repairs to the organ that were needed to




    2
      Barnett testified that between 1990 and 2008, he did not
perform work on the organ and was not affiliated with the Byrd
Theatre, though he would occasionally bring out-of-town company
to see the theater or its lobby.
                                  4
address sound quality issues. 3   While making repairs to the

organ was not within the scope of his duties as a member of the

organ restoration subcommittee, the work "needed to be done,

and nobody else was available to do it."    Barnett arranged to

perform the repairs with Linwood Lunde, a former house organist

for the Byrd Theatre who was still affiliated with the theater

and obtained a key to the organ chamber from the theater

manager.   When Barnett fell in the organ chamber, Lunde was in

the auditorium working at the organ console.

    Barnett testified that he volunteered to perform the

repairs since he "had a passion to have the organ work properly

as a service to the Byrd Theatre" and "was happy to do that

because, if that organ had not had people take an interest in

it, it would have most likely gone silent."    Barnett further

testified that he "gain[ed] satisfaction from knowing that [he]

was helping the theater" and "getting the work done that needed

to be done."   According to Barnett, he "didn't get any other

satisfaction out of it."

    Based on the evidence presented, the Foundation asserted

that Barnett was a beneficiary of the Foundation's charitable




    3
      Although an organ technician had been under contract, he
was unable to resolve the specific problem being addressed by
Barnett and Lunde, and the Foundation was in the process of
terminating his contract and contracting with a new technician.
                                  5
purpose through the work he performed since "the sound, the

mechanism and the music are all improved, which is something

he's interested in and passionate about."   In permitting him to

perform this work, the Foundation argued, Barnett was given

access to one of the few original installation theater organs

in the country and provided the unique opportunity to work on

the organ, in pursuance of his long-time hobby and passion.

     Rejecting the Foundation's argument, the circuit court

concluded that Barnett was not the Foundation's beneficiary at

the time of his accident.   Specifically, the circuit court

found that "[t]he [Foundation's] accepted charitable charge is

to provide a venue for the performing arts" and "[t]he by-law

provision regarding restoration and preservation is aimed at

facilitating that charge of affording performing arts."   The

circuit court found "no evidence that [the Foundation] was

extending and [Barnett] was receiving services or a charitable

benefit consistent with [the Foundation's] charitable aims."

Thus, according to the circuit court, "[g]iven the

[Foundation's] charitable purpose to provide a facility for the

performing arts and, according to its by-laws, to preserve and

restore the Byrd Theatre, including the organ, it cannot be

said that [Barnett] was the object of the charity's bounty at

the time [of his accident]."

B.   Analysis

                                6
The doctrine of charitable immunity, being firmly embedded in

the law of this Commonwealth, is "grounded in the public policy

that the resources of charitable institutions are better used

to further the institution's charitable purposes, than to pay

tort claims lodged by the charity's beneficiaries."   Ola v.

YMCA of S. Hampton Roads, Inc., 270 Va. 550, 555, 621 S.E.2d

70, 72 (2005).   Consistent with this policy, an entity that is

organized for a recognized charitable purpose and operates in

accord with that purpose is immune from liability based upon

claims of negligence asserted by beneficiaries of the entity's

charitable bounty.   Ola, 270 Va. at 556, 621 S.E.2d at 72-73;

see also University of Va. Health Servs. Found. v. Morris, 275

Va. 319, 331-34, 657 S.E.2d 512, 517-20 (2008); Straley v.

Urbanna Chamber of Commerce, 243 Va. 32, 35-38, 413 S.E.2d 47,

49-51 (1992); Thrasher v. Winand, 239 Va. 338, 340-42, 389

S.E.2d 699, 701-02 (1990).   This is so because "[o]ne who

accepts the benefit either of a public or a private charity

enters into a relation which exempts his benefactor from

liability for the negligence of his servants in administering

the charity; at any rate, if the benefactor has used due care

in selecting those servants."   Weston v. Hospital of St.

Vincent, 131 Va. 587, 604, 107 S.E. 785, 791 (1921) (quoting




                                7
Hospital of St. Vincent v. Thompson, 116 Va. 101, 109, 81 S.E.

13, 16 (1914). 4   Thus, "[c]haritable immunity applies only to

claims of negligence asserted by those who accept the

charitable institution's benefits."    Morris, 275 Va. at 331,

657 S.E.2d at 517.

The dispositive question in this case, therefore, is whether

Barnett was in a "beneficial relationship" with the Foundation

at the time of his accident.    Ola, 270 Va. at 563, 621 S.E.2d

at 77.   As we have explained, "a beneficiary is a person who

receives something of value, which the organization by its

charitable purpose, undertakes to provide."    Id. at 564, 621

S.E.2d at 77 (emphasis added).    Based on the Foundation's

articles of incorporation and amended bylaws, its charitable

aim was to cultivate an appreciation for the performing arts

through restoration and preservation of the Byrd Theatre and

the organ.   The Foundation was neither organized nor operated

for the purpose of providing theater organ enthusiasts an

opportunity to repair or restore the Byrd Theatre organ.      At

the time of Barnett's accident, the Foundation was not

undertaking to provide Barnett with the benefit of an



    4
      A charity is immune from liability for the negligent acts
of its agents and employees provided due care has been
exercised in their selection and retention. However, the
shield of immunity does not extend to acts of willful or gross
negligence. Ola, 270 Va. at 556, 621 S.E.2d at 72.
                                 8
opportunity to repair its organ.    In short, the Foundation's

mission was to restore and preserve the theater, including its

organ; not to provide a venue for individuals, such as Barnett,

to practice their hobby of restoring organs.

To the contrary, the Foundation hired contractors to perform

the organ restoration and repairs.   In contrast to accepting a

service that the Foundation operated to provide, Barnett was

providing a service to the Foundation in furtherance of the

Foundation's own aim of preserving and restoring the organ,

which otherwise would have been performed by a paid contractor.

As Barnett testified, he "had a passion to have the organ work

properly as a service to the Byrd Theatre" and "was happy to do

that because, if that organ had not had people take an interest

in it, it would have most likely gone silent."   According to

Barnett, he gained satisfaction from "knowing that [he] was

helping the theater" and "getting the work done that needed to

be done."   Based on the evidence, therefore, the circuit court

properly found that Barnett was not receiving the bounty of the

Foundation's charitable works at the time of his accident. 5




    5
      The Foundation readily acknowledges that Barnett was
providing a service to the Foundation but argues that this
fact, alone, should not exclude him from the Foundation's class
of beneficiaries. We agree and, therefore, our holding does
not stand for the proposition that all persons who provide a
service or other benefit to the charity cannot be deemed
                                9
We reject the Foundation's position that Barnett's passion for

the preservation and restoration of the Byrd Theatre organ and

receipt of personal satisfaction from contributing to such

restoration established a "beneficial relationship" with the

Foundation.    It could be said that most volunteers receive

gratification through their charitable works and that many

likely provide services consistent with their own hobbies or

interests.    But, the receipt of personal satisfaction or

pleasure gained through the donation of one's services to a

charity does not create a "beneficial relationship" with the

charity for purposes of charitable immunity.

    In sum, we "find the [circuit] court's analysis well

reasoned and amply supported by the evidence."    Ola, 270 Va. at

559, 621 S.E.2d at 74. Therefore, the circuit court did not err

in denying the Foundation's plea of charitable immunity.

                      III.   JURY INSTRUCTIONS

    The Foundation also asserts that the circuit court erred in

refusing to instruct the jury regarding imputed actual notice

from agents to corporations.




beneficiaries thereof. The adoption of any such rule would be
inappropriate because the determination is necessarily driven
by the specific facts of the case, and in particular, the
activity engaged in by the tort claimant at the time of the
accident.
                                 10
    The evidence at trial proved that 1928 Limited, as the

manager of the Byrd Theatre, operated the theater and

maintained its premises, except with regard to the organ, which

was maintained by the Foundation.   Barnett presented evidence

that an employee of 1928 Limited had knowledge of the condition

of the wooden plank on which Barnett was standing when he fell

and argued that such notice should be imputed to 1928 Limited

and the Foundation.   The Foundation took the position that this

knowledge could not be imputed to the Foundation since the 1928

Limited employee learned of the condition of the plank many

years prior to his employment and, in any event, 1928 Limited

was not permitted to work on the organ.

    The Foundation offered the following jury instruction,

which was rejected by the circuit court:

A corporation knows a fact only as its officers and agents
know it. The corporation does not know all that its agents
know, but only what comes to the agents while acting for
the corporation within the scope of their agency, when it
is the agents' duty to report their knowledge to the
general officer or agents of the company.

The Foundation argued that the proposed jury instruction

tracked the language from Rudolph v. Farmers' Supply Co., 131

Va. 305, 310-11, 108 S.E. 638, 639 (1921) and properly

addressed the imputed notice issue raised by Barnett.

According to the Foundation, "[n]otice was a critical issue in

the case, and an instruction on imputed actual notice was


                               11
     necessary for the jury to determine whether [the employee's]

     knowledge from the early 1980's imputed to 1928 [Limited] and

     the Foundation." 6

         It is unnecessary for us to determine whether the circuit

     court erred in refusing the Foundation's proposed jury

     instruction on imputed notice.      The jury found in favor of 1928

     Limited and, therefore, absolved the Foundation from any

     liability arising from 1928 Limited's conduct.      See Virginia

     State Fair Ass'n v. Burton, 182 Va. 365, 372, 28 S.E.2d 716,

     719 (1944) (verdict in favor of agent and against principal

     necessarily exonerated principal of liability arising from

     agent's alleged negligence).   Furthermore, the jury was

     entitled to find the Foundation liable, based on the

     Foundation's independent negligence, without regard to 1928

     Limited's liability or conduct. 7     See Wintergreen Partners, Inc.




         6
           Barnett also offered an instruction on imputed notice that
     was refused by the circuit court.
         7
           In particular, the jury was given the following
     instruction governing premises liability of owners or
     occupants:

         An owner or occupant of premises does not guarantee an
     invitee's safety, but has the duty:
(1) to use ordinary care to have the premises in a reasonably
     safe condition for an invitee's use consistent with the
     invitation unless the invitee knows, or should have known,
     of the unsafe condition; and
(2) to use ordinary care to warn an invitee of any unsafe
     condition about which the owner or occupant knows, or by
                                      12
v. McGuireWoods, LLP, 280 Va. 374, 379, 698 S.E.2d 913, 916

(2010).   Therefore, because the jury rejected a theory of

liability based on 1928 Limited's knowledge of the unsafe

condition of the wooden plank, but rather based its verdict on

the separate negligence of the Foundation, "it is immaterial"

whether notice by 1928 Limited's employee could properly be

imputed to 1928 Limited and the Foundation. 8   Virginia State

Fair Ass'n, 182 Va. at 372, 28 S.E.2d at 719.    Accordingly, any

error by the circuit court in failing to instruct the jury on

imputed notice would be harmless.

                         IV.   CONCLUSION




the use of ordinary care should know, unless the unsafe
condition is open and obvious to a person using ordinary
care for his own safety.
If an owner or occupant fails to perform either or both of
these duties, then it is negligent.


     8
       The Foundation contends that Barnett is precluded from
arguing, on appeal, that the jury could properly find the
Foundation independently negligent based on the premises
liability instruction because the only theory Barnett argued to
the jury was that the Foundation was liable based on knowledge
imputed from 1928 Limited's employee to 1928 Limited and the
Foundation. This contention cannot be sustained because the
Foundation did not object to the premises liability instruction
and has not assigned error related to the sufficiency of the
evidence to support a verdict based on that instruction. See
Wintergreen Partners, 280 Va. at 379, 689 S.E.2d at 916.



                                13
    For the foregoing reasons, we will affirm the judgment of

the circuit court.

                                                       Affirmed.




                              14
