The Arkansas Supreme Court, in a 4-3 split, reversed a Jefferson County finding that a nursing home was not entitled to immunity from lawsuit as a charity.

The Court of Appeals had earlier reversed a finding that Davis Life Care Center qualified for immunity. In an opinion written by Chief Justice Dan Kemp the Supreme Court said a jury shouldn’t have subsequently been given the power to determine immunity, as had happened. He was joined by Justices Rhonda Wood, Shawn Womack and Courtney Goodson. Dissenters were Justices Jo Hart, Karen Baker and Robin Wynne.

The estate of Johnny Newborn had alleged negligence in his care, including multiple bedsores and improper catheter care that led to other conditions. The suit sought compensatory and punitive damages and attorney fees.

Davis Lifecare said that because it was incorporated as a nonprofit — as are a number of nursing homes  — it was immune from lawsuit under the charitable immunity law. A trial judge had granted that motion, but the Court of Appeals reversed and ordered a hearing. After receiving instructions, a jury decided the nursing home wasn’t entitled to charitable immunity.

The Supreme Court said the determination of charitable immunity was a matter of law, to decided by the court, not a jury. That determination can turn on facts that a jury MAY consider. Having determined that the jury shouldn’t have made the decision, the Supreme Court didn’t reach the nursing home’sother arguments, including that a judgment was contrary to evidence.

The dissenters said the order appealed here was not a final order and thus shouldn’t have been subject to appeal.

In short, it appears that a hot bubbling issue in legal circles — whether nursing homes can set up as nonprofits to avoid liability lawsuits — isn’t finally decided, but there are hints of how that may play out. Justice Rhonda Wood, for example, said in concurring that charitable immunity means immunity from “lawsuit,” not just liability.

Our law inexplicably provides that if there are disputed material facts involving a defendant’s charitable immunity status, one must submit those as interrogatories to a jury. Consequently, a substantial portion of the defendant’s immunity from suit is lost by this process, regardless of the outcome.