Legal Liability--Negligence
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m29
Perhaps the most likely basis of legal liability for clergy acting in the course of their ministry is negligence. Negligence has been defined as “the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.”1
Stated simply, negligence is conduct which creates an unreasonable risk of harm to another's person or property, and which does in fact result in injury or damage. Negligent conduct need not be and usually is not intentional. It may consist either of a specific act or failure to act.
Although negligence can arise in many ways, it is most often associated with carelessness in the operation of an automobile. But a minister may create unreasonable risks of harm to another's person or property in countless other ways, such as entrusting a dangerous article to one who, because of inexperience or immaturity, cannot safely handle it; authorizing a children's activity or retreat without adequate adult supervision; knowing of a dangerous condition on the church property but failing to warn members and visitors; failing to take reasonable action to have ice and snow removed from the church's sidewalks and parking lot; or failing to have an excessively slippery floor made safe.
Even if a minister's conduct or failure to act creates an unreasonable risk of harm to others, and harm does in fact result, the minister may assert various defenses which may insulate him or her from liability. One such defense is “contributory negligence.” Contributory negligence is simply negligence on the part of the injured party that contributes to the injury. Obviously, if the victim is negligent, and except for his or her negligence the accident would not have occurred, the party whose negligence directly caused the accident cannot be fully accountable for the injury.
Traditionally, contributory negligence on the part of a victim was a complete defense to liability. Such a rule proved to be inequitable, however, for it entirely insulated from legal liability the party whose negligence directly caused the injury. To remedy this situation, most states have adopted “comparative negligence” laws. These laws seek to apportion damages and liability on the basis of the relative fault of the parties involved. Under the doctrine of comparative negligence, negligence victims who were themselves contributorily negligent will not necessarily be denied recovery. Instead, their recovery will be reduced in proportion to their fault. Comparative negligence laws vary widely. Some states have adopted “pure” comparative negligence. Such laws allow a proportionate recovery to all negligence victims, including those whose own contributory negligence was equal to or greater than the negligence of the person directly causing the injury. Other states have adopted a “fifty percent” rule, under which victims may recover proportionate damages only if their contributory negligence was less than fifty percent of the combined negligence resulting in their injuries.
Another defense to negligence is the doctrine of “assumption of risk.” Under this doctrine, persons who voluntarily expose themselves to a known and appreciated danger created by the negligence of another will not be allowed to recover damages for resulting injuries. Assumption of risk is distinct from contributory negligence and ordinarily is not affected by comparative negligence laws.
Finally, ministers whose negligence results in injury to another's person or property may defend themselves on the basis of “imputed negligence.” Under certain circumstances the law permits the negligence of one party to be imputed to another, even though the other was not negligent. The most common example involves the negligence of employees committed in the course of employment. It is well--settled that the negligence of employees acting in the course of their employment is imputed to their employers. Courts and attorneys refer to this as the “respondeat superior” doctrine (i.e., the “superior responds” for the damages its employees cause). The reason for such a rule has been stated as follows:
The losses caused by the negligence of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon the enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the [negligence] of employees, and sought to profit by it, it is just that he, rather than the injured plaintiff, should bear them; and because he is better able to absorb them and to distribute them, through prices, rates or liability insurance, to society, to the community at large.2
If a minister is an employee of the church for which he or she works, the minister's negligence may be imputed to the church. The potential legal liability of churches (and denominations) for the negligence of clergy is discussed fully in chapter 12 Negligence as a Basis for Liability and Denominational Liability. For now, simply note the following four considerations. First, churches may be legally responsible for the negligence of their ministers committed within the scope of employment. Second, the fact that a minister reports his or her federal income taxes as self--employed (rather than as an employee of the church) probably would be of little value in persuading a civil court that the minister was not an employee for purposes of imputing his or her negligence to the church. This is because most clergy who report their income taxes as self--employed probably would be considered employees by the IRS and the courts.3 However, the negligence of those clergy who clearly qualify as self--employed for income tax purposes should not be imputed to the employing church.
Third, the justification for imputing an employee's negligence to an employer (discussed above) does not apply as forcefully to a church, which, unlike many business corporations, is not necessarily “better able to absorb [legal judgments] and to distribute them, through prices, rates or liability insurance, to society, to the community at large.” It is perhaps reasonable to require businesses to “pass along” the cost of their employees' negligence to consumers through price adjustments. But how does a church “pass along” such costs to the public? Fourth, the fact that a minister's negligence may be imputed to his or her employing church does not necessarily shield the minister from personal liability. Negligent ministers ordinarily are personally liable for their negligence and can be sued directly by their “victims.” Thus, it is common for the victim of a minister's negligence to sue both the minister individually and the minister's employing church. The fact that the church may be liable in no way shields the minister from personal liability for his or her own negligence. And, if for any reason the suit against the church is dismissed, the minister may be solely liable. Further, in some states a church could require a minister to indemnify or reimburse it for damages paid as a result of imputed negligence.
For related information on this topic see the following articles: