1 Mass. App. Ct. 811

March 19, 1973

This is an action of tort brought by Michael C. Gerber, ppa. and his father, Robert J. Gerber against the city of Worcester alleging in one count that the city was negligent in caring for the minor plaintiff while he was a patient in the Worcester City Hospital operated by the defendant and in another count that the father sustained consequential damages as a result of the injury to his son. Demurrers to these two counts were sustained. Other counts against two individual defendants are not before us, because no demurrers have been filed thereto. While both parties argue the question of the application of charitable immunity, the only issue which appears on the face of the declaration is whether governmental immunity protects the city from liability. The plaintiffs neither allege nor argue that the city's activities which gave rise to this action were primarily commercial in nature, nor do they dispute that a municipal hospital was protected by the doctrine, Benton v. Trustees of Boston City Hospital, 140 Mass. 13, Young v. Worcester, 253 Mass. 481,

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but rather they urge that the doctrine of governmental immunity with respect to municipal hospitals be abrogated. Our attention has been directed by the plaintiffs to decisions in other jurisdictions critical of the doctrine of governmental immunity in such cases and repudiating the doctrine. Until such time as the Legislature acts to abolish the doctrine, or the Supreme Judicial Court overrules the Benton and Young cases, we are bound to follow the doctrine.

Exceptions overruled.