Negligence as a Basis for Liability

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: m58 m86

Negligence is conduct that creates an unreasonable risk of foreseeable harm to another's person or property, and that in fact results in the foreseeable harm. The important point to recognize is that negligence need not be intentional. For example, negligence may include conduct that is simply careless, heedless, or inadvertent. Churches can be liable on the basis of negligence in two ways. First, they can be liable for their own negligence. Examples here include the negligent selection of church workers, or the negligent supervision of church activities. To illustrate, a church may be guilty of negligent selection if it hires a convicted child molester or uses a bus driver with numerous traffic violations. A church may be guilty of negligent supervision if it uses an inadequate number of qualified adults to supervise a church youth activity. Second, churches can be liable for the negligence of employees and volunteers occurring within the scope of their work. It is a well--established principle of law that an employer is responsible for the negligence of an employee (or volunteer) occurring during the course of his or her employment. This vicarious or imputed liability of an employer for the negligence of an employee is known as respondeat superior (the “employer responds”). All of these forms of negligence are considered in more detail below.

This logic has little application to churches and other nonprofit organizations. A few courts have recognized this significant fact.

Under the doctrine of respondeat superior, an employer is responsible for the injuries caused by its employees only if (1) an employer--employee relationship existed at the time of the injury, (2) the injury was caused by an employee's negligence, and (3) the employee was acting in the course of his or her employment at the time of the injury. These three elements will be considered individually.

a. An Employee

Whether or not a particular minister is an “employee” is a matter that must be determined in each case on the basis of the same criteria the courts use to determine the status of other kinds of workers. This was the approach taken by the Supreme Court of California in the leading case of Malloy v. Fong.² The case involved a 12--year--old boy who lost a leg and suffered serious injuries to his other leg because of an accident caused by the reckless driving of the pastor of a Presbyterian “missions” church. At the time of the accident, the boy was standing on the “running board” of a car driven by the church's pastor at an excessive rate of speed (he was “racing” a car driven by a seminary student). The boy's family sued the pastor individually, as well as the Presbytery of San Francisco (the Presbytery overseeing the local missions church). The court was asked to determine whether an ecclesiastical body could be sued on account of the negligence of one of its ministers acting in the course of his employment. Noting that there was “no compelling reason” why a religious organization should not be liable for the negligence of its employees, the court proceeded to determine whether a minister could be characterized as an employee. In reaching its decision that a minister could be deemed an employee, the court relied on well--established criteria employed by the courts in determining the status of other workers:

Whether a person performing work for another is an employee or self--employed depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged employee. The power of the employer to terminate the services of the employee gives him the means of controlling the employee's activities. “The right to immediately discharge involves the right of control.” It is not essential that the right of control be exercised or that there be active supervision of the work of the employee. The existence of the right of control and supervision establishes the existence of an employment relationship.³

The court also found that a minister could be deemed a church employee under the criteria set forth in the Restatement of Agency:

(1) An employee is a person employed to perform  service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control.

(2) In determining whether one acting for another is an employee or self--employed, the following matters of fact, among others, are considered:

(a) the extent of control which, by the  agreement, the employer may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer; and

(i) whether or not the parties believe they are creating the relationship of employer and employee.⁴

In concluding that the negligent pastor was an agent of the Presbytery (and not an independent contractor), the court noted the following two additional considerations. First, the Presbytery exercised significant control over “missions” churches (it held title to all church property, assisted with the churches' finance, and paid a portion of clergy salaries). Second, the Presbytery had the authority to approve or disapprove a missions church's selection of its pastor. Following the installation of such a pastor, “he was not responsible to the local church but only to the Presbytery. The Presbytery, not the church, had the power to remove him. Furthermore, he could not transfer to another pastorate without permission of the Presbytery, and in fact he was a member of the Presbytery rather than of the local church.”

The court concluded: “The existence of the right of control and supervision establishes the existence of an agency relationship [making the employer legally responsible for the acts of an employee committed within the scope of his or her employment]. The evidence clearly supports the conclusion of the jury that such control existed in the present case. The right of the Presbytery to install and remove its ministers, to approve or disapprove their transfer to other jurisdictions, and to supervise and control the activities of the local churches, particularly those in the mission stage, is inconsistent with a contrary conclusion.” The court emphasized that “we are not here called upon to determine the liability of the Presbytery for negligence in the activities of a fully established and independently incorporated Presbyterian church which has passed from the mission stage.” Clearly, the Malloy case would not support liability of the Presbytery for the activities of clergy serving such churches, since there would be none of the control by the Presbytery over the activities of the local church that in Malloy was deemed sufficient to establish an agency relationship between the Presbytery and a pastor of a missions church.

In another leading case,⁵ a church was sued for injuries and damages caused by the reckless driving of its pastor. The injured victim alleged that the pastor was an employee of his church, and thus the employer--church was vicariously liable for the consequences of the pastor's negligence committed in the course of employment. The church denied liability on the ground that its pastor was self--employed and not an employee, and accordingly his negligence could not be imputed to the church. The court concluded that the pastor was an employee of his church and that his negligence was imputable to the church. In reaching this decision, the court employed the same criteria used by the California Supreme Court in the Malloy case.⁶

Other courts have concluded that a minister was not an employee and accordingly his church was not legally responsible for his actions on the basis of respondeat superior. To illustrate, one court ruled that injuries caused by a Catholic priest's negligent driving were not imputable to his diocese since the priest was self--employed rather than an employee.⁷ The priest injured the occupants of another vehicle while driving his car in an allegedly negligent manner. At the time of the accident, the priest was on his way to visit a friend, and was driving a car that he both owned and insured. The accident victims sued the priest's diocese on a theory of respondeat superior. The court concluded that the diocese could not be sued under this theory since the priest was not an employee of the diocese but rather was self--employed. In reaching this conclusion, the court applied the “right to control test” under which a worker is considered to be an employee if the employer either controls or has the right to control the person's work. Since an employer has the authority to control an employee, it is responsible for the employee's misconduct.

In reaching its conclusion that the priest was not an employee, the court relied on the following factors: (1) the priest's “day--to--day activities are within his own discretion and control”; (2) the priest is authorized under canon law to do whatever he feels necessary to carry out his duties; (3) he sets his own hours and vacation; (4) he makes out his own paycheck, and hires and fires non--clergy workers; (5) he has complete discretion in purchasing church supplies and paying bills out of parish funds; (6) his work requires a high level of skill and experience and is generally done without supervision; and (7) he was driving his own car at the time of the accident and had obtained his own insurance on the vehicle. Under these facts, the court concluded that the priest was not an employee of the church. And, since self--employed persons are not subject to an employer's control with respect to the manner and methods of performing their duties, the diocese was not responsible for the priest's negligence.

The court acknowledged that the priest was clearly subject to the “ecclesiastical control” of his bishop, the diocese, and the Catholic Church, but such control was not relevant in determining the issue of legal control for purposes of imputing liability to the diocese on the basis of respondeat superior. The court also noted that the diocese “followed the majority of dioceses in issuing a W--2 form to each priest,” but did this practice inconsistent with its conclusion that the priest was self--employed for purposes of respondeat superior. This decision is significant because it recognizes that (1) a church or religious denomination will not necessarily be legally accountable for the negligence of a minister merely because the minister is subject to the “ecclesiastical control” of the church or denomination, and (2) ministers who are treated as employees for federal income tax purposes (and are issued W--2 forms) will not necessarily be considered employees for purposes of holding their church or denomination legally responsible for their actions under the principle of respondeat superior.

Another court ruled that a Catholic order was not legally responsible for the actions of a priest who had entered an abortion clinic and injured a woman while destroying several pieces of equipment with a sledge hammer.⁸ The priest, a member of the Benedictine Society, had been appointed pastor of a local parish and “pro--life coordinator” for the local diocese by the bishop. The injured woman sued the Benedictine Society and the priest's immediate superior (an abbot), claiming that the priest was an “agent” of the society and accordingly that the society was legally responsible for his conduct. In particular, she argued that the priest “was a member of the society and, as such, was subject to [his abbot's] orders as it related to his 24--hour life as a monk, including the authority to recall him to the abbey.” A trial court rejected the woman's claims, and she appealed. The supreme court agreed with the trial court that the plaintiff had produced no evidence demonstrating an agency relationship between the society and the priest:

The Benedictine Order is a clerical order. [The priest] is a monk in that society and [the abbot] is his superior. However, the relationship between [the priest] and the society was ecclesiastical and did not necessarily create a . . . principal/agent relationship. Furthermore, the fact that [the priest] is a monk 24 hours a day does not necessarily mean that his membership in the society makes the society liable for all of his actions.⁹

The court further observed that

the law with regard to ecclesiastical orders and religious societies to be that the relationship is essentially ecclesiastical in nature. I would analogize this to situations where a young man may be in a seminary and the seminary is asked to supply a preacher or a minister for a congregation. The fact that the young minister may have some alma mater does not make the seminary responsible for his behavior in the event he elects to commit a burglary or some other act which he might consider to be ordained by divine aegis or providence. It would not in and of itself make the seminary responsible for his behavior.¹⁰

Similarly, “the plaintiff must have evidence in addition to the fact that [the priest] was a member of the Benedictine Society of monks.” The court further noted that there was no evidence “that the Benedictine Society was acting in a principal--agency capacity with the [priest]. Further, the court finds there was no employment as that term implies or no employment in the sense required for negligent employment.” Finally, the court rejected the plaintiff's contention that the fact that the priest had driven a society--owned car to the abortion clinic demonstrated that the priest was acting as an agent of the society and accordingly that the society was legally responsible for his actions. It noted that the priest “had access to the car for both business and personal use; therefore, the mere fact that he was driving the car does not, standing alone, constitute evidence that the society was responsible for [his] actions.”

This case is significant for the following reasons. First, it recognizes that the mere existence of ecclesiastical authority by a denominational agency over a minister does not, by itself, make the minister an “agent” of the denomination. Second, the court used an interesting analogy to support its conclusion—that of a seminary's relationship with its graduates. The seminary confers a degree upon each graduate, but that action, standing alone, does not make the seminary liable for the subsequent actions of its graduates. Similarly, many denominations confer ecclesiastical credentials upon clergy, but this procedure, by itself, should never authorize persons injured by the actions of a minister to sue the denomination. Third, the state supreme court affirmed a “directed verdict” by the trial court. A directed verdict is a decision by the trial judge, before the case is submitted to the jury, that the plaintiff's case is not supported by any evidence and accordingly that the case need not be submitted to a jury. This is an extraordinary action for a trial court to take, and it is reserved for only the most meritless claims. The fact that such a verdict was involved in this case, and was upheld by the state supreme court, reinforces the position taken by the court.

In summary, the determination of a minister's status for purposes of imputing liability to an employing church on the basis of respondeat superior is a complex inquiry that requires an analysis of all of the facts of each case. More recent court decisions are less likely to jump to the conclusion that clergy are employees. Some courts have drawn the helpful distinction between ecclesiastical and temporal control. The fact that a church exercises ecclesiastical control over a minister should not be controlling in determining whether or not the minister is an employee for purposes of assigning legal liability to his or her employing church. Courts should focus on aspects of temporal control in determining whether or not a minister is an employee for such purposes.

b. Negligence

The doctrine of respondeat superior imputes an employee's negligence to his or her employer. The term negligence was defined at the beginning of this article.

c. Course of Employment

The doctrine of respondeat superior imputes an employee's negligence to his or her employer only if the negligence occurred “in the course of employment.” It often is difficult to ascertain whether employees are acting “in the course of their employment” at the time of a negligent act. Nevertheless, conduct of an employee is generally “in the course of employment” if (1) it is of the kind the employee is employed to perform, (2) it occurs during the hours and within the geographical area authorized by the employment relationship, and (3) it is motivated, at least in part, by a desire to serve the employer. Thus, an employer generally will not be responsible for the misconduct of an employee that occurs before or after working hours, that occurs an unreasonable distance from an authorized work area, or that occurs while the employee is engaged in personal business.

Several courts have addressed the question of whether a church employee's negligence occurred in the course of his or her employment. To illustrate, in ruling that a church was not legally responsible for a Sunday school teacher's repeated rape of a young boy, one court observed:

Certainly [the teacher] was not employed to molest young boys. There is no evidence the acts occurred during Sunday School. . . . There is no evidence to suggest that [the teacher's] conduct was actuated by a purpose to serve [the church]. Rather, the acts were independent, self--serving pursuits unrelated to church activities. Finally, [the teacher's] acts of sexual molestation were not foreseeable “in light of the duties he was hired to perform.” There is no aspect of a Sunday School teacher's or member's duties that would make sexual abuse anything other than highly unusual and very startling. We conclude [the teacher's] acts against [the boy] were neither required, incidental to his duties, nor foreseeable. They were, therefore, not within the scope of his employment.¹¹

Similarly, an Illinois state appeals court ruled that a church and a parent denomination were not legally responsible for a pastor's homosexual assault of three boys.¹² The court emphasized that the pastor's assault constituted a deviation from the pastor's “scope of employment.” Since the assault did not occur within the scope or course of the pastor's employment, it could not be imputed to the church or parent denomination.

The District of Columbia appeals court affirmed a trial court's summary judgment in favor of a church in a case alleging that the church was responsible for the sexual misconduct of a church custodian.¹³ In affirming summary judgment in favor of the church, the court ruled that the sexual misconduct did not grow out of and was not generated by the employment and therefore the acts did not occur while the employee was acting within the scope of his employment. The court relied on the definition of “scope of employment” contained in section 228 of the Restatement of Agency (Second):

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and;

(d) if force is intentionally used by the servant against another, the use of forceis not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time and space limits, or too little actuated by a purpose to serve the master.

Several other courts have concluded that churches cannot be sued on the basis of respondeat superior if church workers were not engaged in the course of their employment at the time their conduct resulted in injuries to others. To illustrate, the following kinds of conduct were deemed not to have occurred within the course of employment: a minister sexually seduced a woman during marital counseling;¹⁴ seven Catholic priests allegedly engaged in a sexual relationship with a female parishioner;¹⁵ a teacher at a church--operated school engaged in sexual relations with a minor;¹⁶ a Catholic nun was driving a car on personal rather than church business.¹⁷

On the other hand, churches have been found legally responsible on the basis of respondeat superior for the injuries caused by the misconduct of church workers committed in the course of their church employment. For example, if a minister injures a pedestrian, or the occupants of another vehicle, while driving a car in a negligent manner while engaged in church business, the church ordinarily will be legally responsible for the injuries inflicted.¹⁸

A few courts have interpreted the concept of “course of employment” very broadly. For example, the Alaska Supreme Court ruled that a pastoral counseling center could be sued on the basis of respondeat superior by a woman who was sexually seduced by a counselor.¹⁹ The woman claimed that she had visited the counselor on several occasions, and that the pastoral counselor “negligently handled the transference phenomenon” by taking advantage of her sexually. She allegedly suffered severe emotional injuries, and as a result sued the center and two of its directors for damages. She claimed that the center was legally responsible for the counselor's misconduct on the basis of respondeat superior. In explaining the “transference phenomenon,” the director of the center explained that “transference is a phenomenon that occurs that is similar to a state of dependency in which the client begins to project the roles and relationships and the images and experiences that they have had with other people previously in their life, especially other significant people such as mother, father, brothers, sisters, early teachers and adult models, upon the therapist.”

The director acknowledged that the transference relationship is very “delicate” and “fragile,” and that a counselor has “a professional and ethical responsibility to manage that relationship so that the client is not damaged in any way.” A trial court summarily dismissed the lawsuit, concluding that the center was not responsible for the intentional and unauthorized misconduct of a counselor. The case was appealed directly to the state supreme court, which reversed the trial court's decision and ordered the case to proceed to trial. The court announced a very broad interpretation of the respondeat superior doctrine. The court concluded that an employer could be responsible for an employee's sexual misconduct that “arises out of and is reasonably incidental to the employee's legitimate work activities”—even if the misconduct was intentional and unauthorized by the employer. This ruling ignores the vast majority of court rulings that have rejected an employer's legal responsibility for the intentional misconduct of an employee.

A state appellate court concluded that a Catholic diocese could be sued on the basis of respondeat superior for damages resulting from the alleged sexual molestation of minors by a Catholic priest.²⁰ A Catholic diocese in Louisiana suspended a priest from performing his “priestly duties” after he admitted to sexual misconduct with minors. The priest was asked to leave the diocese and he eventually was admitted (with the approval of the diocese) to a rehabilitation program in another state. Just prior to the priest's discharge from this program, the diocese informed him that his “options in the ministry were severely limited if not nil,” and that “because of the possibility of legal action and the responsibility on the part of any institution that might hire you, I think realistically that for church employment you are a very poor risk.” The diocese further advised the priest that he would not be permitted to perform priestly duties upon his release, and that he was not to return to the diocese.

Following his release from the rehabilitation program, the priest accepted a job as a counselor of adolescents in an alcohol and drug rehabilitation center in a private hospital. He was terminated from this job because of complaints of sexual abuse by former patients. Eight adolescents and one adult sued the hospital, the priest, as well as his diocese and bishop. The plaintiffs alleged that the diocese had negligently supervised the priest, and that it should have warned the private hospital of his pedophilia. The appeals court agreed that “an employer may be held liable for acts beyond the scope of employment because of its prior knowledge of the dangerous tendencies of its employee.” The diocese argued that it could not be liable for the misconduct of the priest, since his actions did not arise out of his priestly duties and accordingly were not within the scope of his employment relationship with the diocese. In rejecting this claim, the court observed that “the duty of obedience which [the priest] owed the diocese encompassed all phases of his life and correspondingly the diocese's authority over its cleric went beyond the customary employer/employee relationship. . . . Despite his employment with [the hospital], the employment relationship between [the priest] and the diocese continued.” The court sent the case back to the trial court to determine whether the diocese had been negligent in supervising the priest, and whether it should have warned the hospital of his pedophilia.

In an interesting ruling, a federal appeals court concluded that a Methodist church was legally responsible for the copyright infringement of a minister of music since “the only inference that reasonably can be drawn from the evidence is that in selecting and arranging the song . . . for use by the church choir [the minister] was engaged in the course and scope of his employment by the church.”²¹

d. Inapplicability to Nonprofit Organizations

The policy considerations supporting vicarious liability rest upon the fundamental principle of risk allocation. That is, a principal or employer has the unique ability to allocate the risks of inevitable injuries suffered by the consumers of its products and services through price adjustments.²² By increasing its prices, the employer allocates the risk of injuries to the consumers of its products and services. As reasonable as this policy may be in the context of “for--profit” employers, it has no application whatever to most nonprofit employers who have no ability to allocate risk to consumers through price increases. Certainly this is true of religious organizations, which would find it difficult if not impossible to compel members to donate larger amounts to “allocate risks” to the “consumers” of its services. For this reason, the rule of vicarious liability should be used sparingly, if at all, in the context of nonprofit employers. Some courts have acknowledged that the concept of vicarious liability has little relevance in the context of nonprofit religious organizations. To illustrate, one judge made the following observation in a case involving the alleged liability of a religious employer for the sexual misconduct of an employee:

Spreading the cost of therapist--patient sex to the consumers of mental health services is unfair. Therapist--patient sex, although not uncommon, is not an inevitable cost of mental health care. It is a cost imposed by therapists who intentionally disregard the standards of conduct of mental health professionals for personal sexual gratification.²³

The same judge also rejected the contention that a religious employer can “allocate risk” by purchasing liability insurance:

Imposing vicarious liability would tend to make malpractice insurance, already a scarce and expensive resource, even harder to obtain. It is also unclear whether malpractice insurance would even cover sexual misconduct. Whether or not mental health employers could insure against this risk, they would have to raise the cost of their services dramatically. Mental health services would be denied to those who are least able to pay. While victims of therapist sexual misconduct may enjoy a greater chance of being compensated, the cost of creating that benefit in reduced access to mental health services is unacceptable.²⁴

The California Supreme Court ruled that a public school district was not legally responsible, on the basis of respondeat superior, for the injuries suffered by a 15--year--old boy who was homosexually assaulted by his high school math teacher.²⁵ This case is significant for a couple of reasons.

First, the court rejected the application of the respondeat superior doctrine not on the basis of the facts of the case, but rather on the basis of the doctrine's own theoretical justifications. The court observed that

although the facts of this case can be made to fit a version of the respondeat superior doctrine, we are unpersuaded that they should be or that the doctrine is appropriately invoked here. We draw our decision not from the various factual scenarios in which vicarious liability has or has not been imposed on employers for the torts of their employees, but instead from the underlying rationale for the respondeat superior doctrine.²⁶

The court stated the rationale for the respondeat superior doctrine as follows:

Three reasons have been suggested for imposing liability on an enterprise for the risks incident to the enterprise: (1) [I]t tends to provide a spur toward accident prevention; (2) it tends to provide greater assurance of compensation for accident victims; and (3) at the same time it tends to provide reasonable assurance that, like other costs, accident losses will be broadly and equitably distributed among the beneficiaries of the enterprises that entail them.²⁷

The court rejected all three reasons as a basis for imposing liability on the school district in this case. The court observed:

The first of these three considerations just noted plays little role in the allocation of responsibility for the sexual misconduct of employees generally, and with respect to the unique situation of teachers, indicates that untoward consequences could flow from imposing vicarious liability on school districts. Although it is unquestionably important to encourage both the careful selection of these employees and the close monitoring of their conduct, such concerns are, we think, better addressed by holding school districts to the exercise of due care in such matters and subjecting them to liability only for their own direct negligence in that regard. Applying the doctrine of respondeat superior to impose, in effect, strict liability in this context would be far too likely to deter districts from encouraging, or even authorizing, extracurricular and/or one--on--one contacts between teachers and students or to induce districts to impose such rigorous controls on activities of this nature that the educational process would be negatively affected. . . .

Nor is the second consideration—the assurance of compensation for accident victims—appropriately invoked here. The acts here differ from the normal range of risks for which costs can be spread and insurance sought. The imposition of vicarious liability on school districts for the sexual torts of their employees would tend to make insurance, already a scarce resource, even harder to obtain, and could lead to the diversion of needed funds from the classroom to cover claims.

The only element of the analysis that might point in favor of vicarious liability here is the propriety of spreading the risk of loss among the beneficiaries of the enterprise. School districts and the community at large benefit from the authority placed in teachers to carry out the educational mission, and it can be argued that the consequences of an abuse of that authority should be shared on an equally broad basis. But the connection between the authority conferred on teachers to carry out their instructional duties and the abuse of that authority to indulge in personal, sexual misconduct is simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher's employer. It is not a cost this particular enterprise should bear, and the consequences of imposing liability are unacceptable.²⁸

Further, it is interesting that the court denounced a dissenting opinion as

reflecting an unduly pessimistic view of human nature, for, if we read the opinion correctly, it seems to suggest that sexual misconduct is foreseeable any time a minor and an adult are alone in a room together, at least if not constrained by the possibility of being interrupted. Given the facts of this case and the benefit of hindsight, all would have to agree that the prospect of such misconduct is conceivable, but that is a far cry from foreseeability, even under the broad meaning that concept is given in the respondeat superior context. Simply stated, for the reasons we discuss, we think the teacher's acts here can only be characterized as “so unusual or startling” that vicarious liability cannot fairly be imposed on the [school district].²⁹

It is very significant that the California Supreme Court rejected so decisively the application of the respondeat superior doctrine in the context of sexual misconduct of teachers. Surely the same considerations apply to religious organizations.

The court's rejection of the availability of insurance coverage as a justification for extending the respondeat superior principle to charities is important. Insurance coverage is not an effective means for churches to allocate risk, for a few very significant reasons. First, insurance is expensive, sometimes prohibitively so for smaller churches. Second, insurance coverage is becoming increasingly difficult for religious organizations to obtain. Third, insurance policies contain numerous exclusions—in some cases excluding one or more of a church's greatest risks. Fourth, covered risks are subject to the dollar limits of the policy. In some cases, higher risks have  lowered coverage. Churches are uninsured for damages claimed in excess of the policy limits. In a case upholding the validity of a state law limiting the liability of charities, the New Jersey Supreme Court made the following significant observation:

The principle of charitable immunity was deeply rooted in the common law of New Jersey. The principle is premised on the fact that charitable associations are created to pursue philanthropic goals and the accomplishment of those goals would be hampered if they were to pay tort judgments in cases similar to this matter. . . . [A] person who makes a charitable contribution expects his donation to further the goals of the organization, and not to be used to satisfy lawsuits which bear no direct relationship to those goals.³⁰

The court also noted that the state limitation on charity liability reflected the inapplicability of the respondeat superior doctrine to charitable organizations.

e. Miscellaneous

The principle of respondeat superior ordinarily will impose liability upon churches for injuries caused by the negligence of both employees and uncompensated volunteers. However, a church generally is not responsible for the misconduct of independent contractors. Independent contractors are persons who offer their services to the public and are generally engaged to do some particular project or piece of work, usually for a specified sum, and who may perform the task with little or no supervision or control. They are not considered to be employees.³¹

A number of courts have held that the members of an unincorporated association are personally liable for the misconduct of agents and employees of the association occurring in the course of employment.³² Some courts impute liability only to those members of an unincorporated association who took an active part in or affirmatively condoned an employee's misconduct.³³

A church worker whose negligence results in injury to another person is not insulated from personal liability by the respondeat superior doctrine. Church workers whose negligent conduct injures other persons in the course of their church duties can be sued directly by injured victims. Often, both the worker and the church are sued.

In one of the most significant reported decisions, the Virginia Supreme Court ruled that a church and its pastor could be sued by a mother whose child was sexually assaulted by a church employee.³⁴ In 1985, a mother sued a Baptist church and its pastor, alleging that her 10--year--old daughter had been repeatedly raped and assaulted by a church employee. She asserted that the church and minister were legally responsible on the basis of three separate theories. First, she claimed that the church and minister were liable on the basis of “negligent hiring” (referred to as negligent selection in this article). Specifically, she alleged that when the employee was hired, the church and minister either knew or should have known that he had recently been convicted of aggravated sexual assault on a young girl, that he was on probation for the offense, and that a condition of his probation was that he not be involved or associated with children. Despite these circumstances, the individual was hired and entrusted with duties that encouraged him to come freely into contact with children, and in addition was given keys to all of the church's doors. The mother alleged that the employee in fact came into contact with her daughter on the church's premises, and had sexual intercourse with her on numerous occasions. Second, the mother alleged that the church and its pastor were liable on the basis of their “negligent supervision” of the employee. Third, the mother alleged that the church and its pastor were legally responsible for her daughter's injuries because of the their failure to warn parents of the employee's previous criminal and sexual history.

The church and pastor sought a dismissal of the suit, arguing that churches were immune from liability under Virginia law, and also that the employee's probation and parole were controlled by the Commonwealth of Virginia and could not be delegated to a church. A trial court agreed with the church's contentions, and dismissed the case. The mother appealed to the state supreme court, which ruled that the church and its pastor could be sued on the theory of negligent selection. The theories of negligent supervision and failure to warn were not addressed by the court, since the mother's attorney abandoned them on appeal. The state supreme court rejected the church's contentions that the theory of negligent selection either was not recognized under Virginia law, or was not recognized in the context of church employers. It cited earlier decisions in which it had recognized the theory of negligent selection in the context of charitable employers. The court also rejected the church's contention that it could not be responsible for criminal acts of employees: “To say that a negligently hired employee who acts willfully or criminally thus relieves his employer of liability for negligent selection when willful or criminal conduct is precisely what the employer should have foreseen would rob the tort of vitality . . . .” The court also rejected the church's claim that it could not be liable since the alleged conduct of its employee was not within the “scope of his employment”:

This argument demonstrates that [the church] is confusing the doctrine of respondeat superior with the tort of negligent hiring. . . . The two causes of action differ in focus. Under respondeat superior, an employer is vicariously liable for an employee's tortious acts committed within the scope of employment. In contrast, negligent hiring is a doctrine of primary liability; the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others. Negligent hiring, therefore, enables plaintiffs to recover in situations where respondeat superior's “scope of employment” limitation previously protected employers from liability.³⁵

Accordingly, the church's contention that “proof that the misconduct was within the scope of the wrongdoer's scope of employment is misplaced.” The court remanded the case back to the state trial court for a trial on the issue of negligent selection.

What activities on the part of the church would prevent a finding of negligent hiring? Unfortunately, the Virginia Supreme Court did not address this issue, other than to refer to earlier decisions in which it had concluded that (1) an employer need only exercise “due care in the selection and retention of employees,” and once this duty is discharged, it cannot be liable on the basis of “negligent hiring” for injuries caused by its employees, and (2) an employer was responsible for injuries caused by an employee who “got dangerously angry from slight provocation” since “no one made inquiry concerning his past record, habits, or general fitness for the position” (had it done so “it probably would not have offered [him] the job”).

In most of the reported cases, churches have successfully defended themselves against charges of negligent selection. To illustrate, a Washington state appeals court ruled that a church--operated school was not legally responsible for damages resulting from an alleged sexual relationship between a teacher and a student.³⁶ The student's parents had sued the school and church for “negligent hiring” and “negligent supervision.” The court rejected both allegations. With regard to the school's alleged negligent hiring, the court observed that “the hiring process employed by the school suggests it took reasonable care in hiring [the teacher]. . . . The process appears sufficient as a matter of law to discover whether an individual is fit to teach at [the school].”

An Illinois state appeals court ruled that a church and a parent denomination were not legally responsible for a pastor's homosexual assault of three boys.³⁷ A Methodist pastor allegedly molested three boys. The boys' parents sued the pastor, his church, and the Central Illinois Annual Conference of the United Methodist Church, claiming that the boys had suffered severe emotional damage. The parents claimed that the Conference negligently assigned the pastor to the church, knowing of a prior homosexual assault on another boy several years earlier. A trial court rejected the Conference's motion for a dismissal of the case, and a jury returned a verdict against the Conference in the amount of $450,000 ($150,000 per boy) on the basis of its alleged negligence. The Conference appealed. A state appeals court dismissed the negligence verdict against the Conference, but ordered a new trial on this issue. It is significant to note that the court observed that “the jury could well have determined that the Conference took adequate precaution in having [the pastor] counseled and should not have been held to have reasonably foreseen that [he] would be likely to commit the acts of sexual assault.”

What is the significance of this case to churches and denominations? The case suggests that churches and denominations may be legally responsible on the basis of “negligent hiring” or “negligent retention” if they hire or retain a minister after learning that he or she was guilty of sexual misconduct in the past. However, the court emphasized that mere knowledge of previous incidents of sexual misconduct does not automatically create legal liability. Liability for negligent hiring or retention requires that the actions of the church or denomination created a foreseeable and unreasonable risk of harm to others. For example, if there is knowledge of only an isolated incident many years before, without any known repetition, then a jury might conclude that a church or denomination was not “negligent” in hiring or retaining such a person. Similarly, a jury might conclude that a minister who has undergone extensive counseling for previous incidents of sexual misconduct does not present a foreseeable and unreasonable risk of harm to others. Of course, a jury might also conclude that the church or denomination was negligent under such circumstances. Obviously, a church or denomination that has no knowledge of a minister's previous misconduct ordinarily cannot be legally responsible on the basis of negligent hiring or retention for injuries that he inflicts.

Many churches conduct scouting programs for boys and girls. Such programs present unique risks. While no reported case deals specifically with the scouting programs of churches, a number of rulings address the liability of the Boy Scouts of America for incidents of molestation occurring during scouting activities. Consider the following two decisions. In one case, a boy scout sued a regional organization of the Boy Scouts of America alleging that he had been emotionally and physically damaged by the intentional homosexual acts of a first aid attendant at a camp operated by the regional organization.³⁸ The victim alleged that the regional organization was liable on the basis of “negligent retention and supervision.” The court rejected these theories of liability, since an organization “must have had constructive or actual notice of the employee's unfitness to work as a first aid attendant at the camp to be liable for negligent retention and supervision,” and there was no evidence that the organization had any notice of the attendant's unfitness to work with youth.

In the second case, a California state appeals court ruled that the Boy Scouts of America (BSA) was not responsible for the homosexual molestation of two young boys by a scoutmaster.³⁹ The mother of the two boys learned in 1984 that her sons had been repeatedly molested by the scoutmaster during the course of scouting activities. She sued the BSA, alleging that it had been negligent in failing to discover that the scoutmaster “had been discharged from the Air Force for improper sexual conduct and had also been convicted . . . of child abuse in another situation.” A trial court dismissed the case against the BSA, and the mother appealed. A state appeals court affirmed the trial court's order dismissing the case. The court rejected the mother's claim that BSA was liable for failing to adequately investigate and supervise the scoutmaster. While such facts may have rendered the BSA liable to the victims, they did not render the BSA liable to the mother. And, since the mother was the only party named as a plaintiff in the case, the court had no alternative but to dismiss this allegation as well.

(3) Preventive Measures

Church leaders can take several steps to reduce the risk of incidents of sexual molestation of minors. Consider the following:

 Churches can significantly reduce their risk of legal liability for negligent selection (and thereby the likelihood that an incident of abuse or molestation will occur) by having every applicant for youth work (volunteer or compensated) complete a “screening application.” At a minimum, the application should ask for the applicant's name; address; a full explanation of any prior criminal convictions for sexual abuse, molestation, or related crimes; the area of youth work the applicant is interested in; any training or education in youth--related work; a description of church membership over the past five years; a description of church volunteer work over the past five years; a description of any youth work (at churches or any other organization) over the past five years; the names and addresses of two references. The application should be completed by every applicant for any position involving the custody or supervision of minors. The application should also be completed by current employees or volunteers having custody or supervision over minors.

Having an individual complete the form is in itself not enough to protect a church and its members. Significant protection only occurs if the church takes the following additional steps: (a) If an applicant is unknown to you, confirm his or her identity by requiring photographic identification (such as a state driver's license). Child molesters often use pseudonyms. (b) Contact each reference listed on the application and make a written record of each contact. Show the date and method of the contact, the person making the contact as well as the person contacted, and a summary of the reference's remarks. Such forms, when completed, should be kept with an applicant's original application. (c) Contact each church in which the applicant has indicated prior experience in working with youth. Provide a written record of all of the information contained in the preceding paragraph. (d) Be sure your entire staff (volunteer and compensated) is aware of the child abuse reporting requirements in your state. You will need to check with a local attorney for clarification and guidance. (e) Be sure you are aware of any additional legal requirements that apply in your state. For example, a number of states have passed laws requiring church--operated child--care facilities to check with the state before hiring any applicant for employment to ensure that each applicant does not have a criminal record involving child abuse or molestation. Again, you will need to check with a local attorney for guidance. (f) The church must treat as strictly confidential all applications and records of contacts with churches or references. Such information should be marked “confidential,” and access should be restricted to those few persons with a legitimate interest in the information.

Churches should keep the following additional considerations in mind when preparing a screening procedure:

(1) The screening procedure should apply to all workers—both compensated and volunteer. Acts of molestation have been committed by both kinds of workers.

(2) The screening procedure should apply to new applicants as well as current workers. Obviously, churches need to use some common sense here. For example, if your 4th grade Sunday school teacher is a 60--year--old woman with 25 years teaching experience in your church, you may decide that reference checks are unnecessary. The highest risks involve male workers in programs that involve overnight activities. Persons in this category should be carefully screened.

(3) If the screening application and reference forms seem overly burdensome, consider the following: (a) One insurance company executive has described as “an epidemic” the number of lawsuits that have been filed against churches as a result of acts of sexual molestation. (b) Your church liability insurance policy may exclude or limit coverage for acts of child molestation. If so, you have a potentially enormous uninsured risk. Reducing this risk is worth whatever inconvenience might be generated in implementing a screening procedure. Just ask any member of a church in which such an incident has occurred. (c) The screening procedure is designed primarily to provide a safe and secure environment for the youth of your church. Unfortunately, churches have become targets of child molesters because they provide immediate and direct access to children in a trusting and often unsupervised environment. In order to provide some protection for the youth of your church against such persons, a screening procedure is imperative. (d) The relatively minor inconvenience involved in establishing a screening procedure is a small price to pay for protecting the church from the devastation that often accompanies an incident of molestation. (4) Think of the screening procedure in terms of risk reduction. A church is free to hire workers without any screening or evaluation whatever, but such a practice involves the highest degree of legal risk. On the other hand, a church that develops an extensive screening procedure and that utilizes it for all current and future workers has the least risk.

(5) The services of a local attorney should be solicited in drafting an appropriate screening form to ensure compliance with state law. It is also advisable that such forms be shared with a church's insurance company for its comments. It is also desirable to share them with a local office of your state agency that investigates reports of child abuse.

(6) Obtain copies of the application forms used by the Boy Scouts, Big Brothers, and similar organizations. As a result of numerous lawsuits, these organizations have developed detailed and highly effective application forms. Review these forms, and use them as resources when preparing your own application. The local office of the state agency responsible for investigating reports of child abuse may have application forms for you to review, and they often are willing to review the application forms that churches prepare.

 Churches can significantly reduce the risk of incidents of sexual molestation by adopting a policy restricting eligibility for any position involving the custody or supervision of minors to those persons who have been members in good standing of the church for a minimum period of time (e.g., six months). Such a policy gives the church an additional opportunity to evaluate applicants, and will help to repel persons seeking immediate access to minors.

 Remember that the screening procedure is designed to protect the church against the charge of negligent hiring. Your church may exercise sufficient caution in hiring a worker, but can be sued for “negligent supervision” if it inadequately supervises him or her. Overcoming a charge of negligent supervision requires the implementation of procedures designed to provide reasonable supervision of youth workers while at the same time minimizing if not eliminating the opportunity of an adult to have access to one or more children without another adult being present. The question of negligent supervision is addressed later in this article.

  Some churches that have developed a close relationship with a local police agency are permitted to obtain criminal records checks as an additional means of screening applicants. Obviously, common sense needs to be used. Such an extraordinary procedure should be employed only for high--risk positions or perhaps to verify information shared by a reference. State agencies responsible for investigating reports of child abuse sometimes will perform the same service.

 A number of denominations have been sued as a result of incidents of molestation occurring in affiliated churches or in denomination--sponsored activities. As a result, denominations should consider encouraging affiliated churches and programs to implement a screening procedure. This will enable them to materially assist their churches and programs while at the same time reducing their own risk of liability.

  Should a church hire an applicant for youth work who has been guilty of child molestation in the past? Occasionally, such persons freely admit to a prior incident, but insist that they have since had a conversion experience and that they now present no risk whatever. The safest course would be to encourage such an individual to work in the church, but in a position not involving access to children. This is a reasonable accommodation of the individual's desire to serve his or her church. A church that permits such an individual to work with children, on the basis of the professed religious conversion, will have a virtually indefensible position should another incident of molestation occur. The church's defense—that the molester claimed to have been converted—would likely be viewed with derision by the court. To illustrate, one court cited with approval the following testimony of a psychiatrist: “In the years that I have been doing this work, I probably have treated people from every religious denomination. We have seen priests, ministers, rabbis who have engaged in pedophilic [i.e., child molestation] behavior, so attendance at a church or being high up in a religious hierarchy doesn't contraindicate that a person is a [pedophile]. . . . They tell us that they have repented, that they have found the Lord and no longer have the problem they were accused of having. So we don't see religiosity as solving the problem.”⁴⁰ Churches that place a known child molester in a position involving access to children are taking an enormous risk.

  Higher risk individuals (e.g., single males) and persons applying for higher risk positions (e.g., boys groups, scouting groups, camps, overnight or largely unsupervised activities involving either male or female children or adolescents) should be interviewed by a responsible staff member who has been trained to identify child molesters. Law enforcement personnel, and local offices of state agencies responsible for investigating reports of child abuse, often have materials that can be used to train the staff member who will conduct interviews. Employees of these agencies ordinarily are more than willing to assist a church representative in learning how to identify potential child molesters during an interview. These resources should be utilized.

  Consider adopting a child abuse policy that (a) quotes verbatim the provisions of state law that define child abuse, identifies those persons under a legal obligation to report known or reasonably suspected cases of abuse, and indicate sthe penalties for failure to report; (b) lists the most common signs and symptoms of child abuse (your local child abuse agency can assist you in preparing such a list); and (c) mandates all church employees and workers (compensated and volunteer) to immediately report known or reasonably suspected cases of child abuse. Some state laws require an individual who reasonably suspects that child abuse has occurred to report directly to the child abuse agency. Other state laws permit the individual to report the case to his or her employer (the employer is then responsible for filing the report). Be sure that church workers are aware of their reporting obligations as well as the legal consequences of failing to report. Such consequences include possible criminal penalties (if the person who failed to report was under a mandatory duty to report) as well as the possibility of a civil lawsuit by the victim at some time in the future. The point is this—child molesters ordinarily will not remain in an environment in which youth workers are adequately informed of the indications of child abuse and openly advised of their duty (under both stated church policy and state law) to report known or suspected instances of child abuse. Child molesters thrive on secrecy, and are most likely to commit criminal acts in environments in which information regarding questionable and inappropriate activities is suppressed, denied, and ignored. One more point—acts of child molestation often are preceded by questionable or inappropriate conduct that does not amount to reasonable suspicion of actual abuse. A church's child abuse policy should encourage workers having less than a reasonable suspicion of actual abuse to report questionable or suspicious behavior by another worker to the pastoral staff. Such a policy, if implemented with care and sensitivity, can help to avoid actual instances of abuse or molestation.

  Consider the adoption of a church “arbitration policy.” Such a policy, if adopted by the church membership at a congregational meeting as an amendment to the church's bylaws, may force church members to resolve their disputes (with the church, pastor, board, or other members) within the church consistently with the pattern suggested by the apostle Paul in 1 Corinthians 6:1--8. While a discussion of arbitration policies is beyond the scope of this section (it is discussed later in this article), churches should recognize that arbitration is an increasingly popular means of resolving disputes in the secular world since it often avoids the excessive costs and delays associated with civil litigation and the uncertainty of jury verdicts. Of course, any arbitration policy should be reviewed by a church's liability insurer before being implemented. Such an approach, at a minimum, merits serious consideration by any church.

  Immediately report all known or reasonably suspected cases of child molestation occurring on church property or during church activities to your church insurance company. Insurance policies require the insured to promptly notify the insurance company of potential claims, and in addition your insurance company often will have helpful suggestions regarding the proper handling of such occurrences.

  As a general rule, adult males working with junior or senior high school students should never be allowed to be alone with a female member of the group. This means that a male youth worker should not be permitted to drive an unaccompanied female either to or from church activities. It also means that the adult male youth worker and an unrelated female member of the youth group should not be permitted to engage in private counseling sessions, or to associate publicly. Unusual attention shown by an adult worker toward a male member of the group also should be monitored.

  Whenever possible, a church should select married couples as volunteer youth leaders. Having two adults working together substantially reduces the risk of any sexual misconduct, and also provides protection against unfounded claims of misconduct. Further, married couples can be positive role models.

  Any suspicions of inappropriate conduct or relationships between an adult volunteer worker and a member of the youth group should be immediately confronted and investigated. Prompt warnings should be issued when appropriate, and the situation monitored very closely. The adult worker's services should be terminated immediately for continued violation of such warnings, or for a single violation of sufficient gravity.

  Church staff should pay special attention to a member of the youth group who appears aloof or withdrawn, or who exhibits a marked personality change. This may indicate a problem that needs to be addressed.

  Adults who work with junior or senior high school students should be apprised of the fact that sexual relationships with minor members of the youth group can lead to a felony conviction and imprisonment in a state penitentiary. The law views such misconduct very seriously, as it should.⁴¹

  If an incident occurs, the church should immediately react with concern and compassion, making such services (including counseling) available as are appropriate under the circumstances. All too often, a church reacts to such an incident by “shunning” the victim and his or her family—viewing them as potential adversaries in a court of law. This only aggravates the pain and confusion experienced by the victim and his or her family, and increases significantly the likelihood of a civil lawsuit against the church.

  Churches should take an aggressive position in protecting against incidents of sexual misconduct between youth group leaders and minors. Not only will they be protecting minors and their families from the emotional trauma often associated with such incidents, but they also will be protecting the church from devastating publicity, and the perpetrator from a sentence in the state penitentiary.

  Of course, it is imperative to discuss known or reasonably suspected cases of molestation or abuse with a local attorney who is familiar with your state laws regarding reporting obligations. An attorney should also be able to provide you with helpful guidance in dealing responsibly with the molester, the victim, the victim's family, and the media.

b. Sexual Seduction of Counselees by Clergy

Churches have been sued on the basis of negligent selection for failing to exercise reasonable care in the selection of clergy. For example, if a church employs a minister who was guilty of seducing a female counselee in another church, then the church may be guilty of negligent selection if it fails to exercise reasonable care in checking the minister's background and the minister engages in the same kind of misconduct with a member of the current church. Churches are not strictly and absolutely liable for injuries suffered by victims of a minister's sexual misconduct. Rather, they will be responsible only if they are negligent—meaning that they fail to exercise reasonable care. It is possible for a church to exercise reasonable care and still not uncover facts about a ministerial applicant that would have resulted in the rejection of his or her application for employment.

Churches and denominations that are considering hiring a minister after learning of previous incidents of sexual misconduct must consider several factors, including (a) the nature and severity of the previous misconduct; (b) the frequency of the previous misconduct; (c) how long ago the misconduct occurred; (d) whether the minister received counseling; (e) the competency and effectiveness of any counseling received; (f) the likelihood that the minister will repeat the same type of misconduct now; (g) the possibility of legal liability if a jury concludes, on the basis of all the evidence, that the church or denomination was negligent in hiring the minister. The same considerations apply if a church or denomination learns of previous incidents of misconduct after hiring a minister, since a jury might conclude that the organization was negligent in retaining the individual. Churches and denominations that decide, after evaluating the evidence, to hire or retain clergy after learning of previous incidents of sexual misconduct must recognize that they are assuming a significant legal risk. They should take steps to reduce the risk of repeat behavior. Such steps might include professional counseling and assessment, periodic evaluation by church officials, and limiting certain “high--risk” activities (such as counseling with unaccompanied females).

The issue of sexual seduction of counselees by clergy is discussed further in Seduction of Counselees and Church Members.

c. Careless Driving of Church Vehicles

Churches may be sued on the basis of negligent selection for failing to exercise reasonable care in the selection of drivers of church vehicles. For example, if a church uses a person with a suspended drivers license, or with a history of traffic offenses, then it may be responsible on the basis of negligent selection for injuries caused by the driver's negligence. To reduce the risk of liability in this context, churches should refrain from using any driver without taking the following steps:

  Confirm that the individual has a current drivers license for the type of vehicle that he or she will be driving.

  Ask each prospective driver for a complete history of all traffic convictions.

  Obtain the drivers license number of each prospective driver, and ask the church's liability insurance carrier to check on the individual's driving record. Often, insurance companies will perform this task if requested. The insurance company should be requested to update its research on all drivers of church vehicles periodically, to screen out persons with a recent history of unsafe driving.

  Discontinue using any driver if reports are received that he or she is operating a church vehicle in a negligent manner. Fully investigate such reports, and do not use the individual again unless the investigation clearly demonstrates that the complaints were without merit.

  If the prospective driver is a new member, then ask for the names and addresses of other churches in which he or she has worked as a driver. Contact those other churches and ask if they are aware of facts that would indicate that the individual should not be used as a driver. Make a written record of such contacts.

  Periodically invite a local law enforcement officer to speak to all drivers concerning safety issues.

  Require all drivers to immediately inform the church of any traffic convictions.

To illustrate, a state court ruled that a church was not responsible for the homosexual rape of a 6--year--old boy occurring on church property during Sunday school.⁴² The boy attended a Sunday school class of about 45 first and second graders. One adult female teacher was present on the day of the rape along with two teenage volunteers (one male and one female). During “story time,” the victim became disruptive, and the teacher allowed the male volunteer to “take him back and color” in an unused room. The adult teacher did not check on the boy for the remainder of the Sunday school session. The boy's mother alleged that the male volunteer took her son to an unused room, slapped him into submission, raped him, and threatened to hurt or kill him if he “told anyone.” The boy and his mother later sued the church, the pastor, the Sunday school teacher, and the alleged rapist and his parents. The lawsuit sought money damages for personal injuries, emotional distress to the mother, loss of services, and medical and psychological expenses. With regard to the church, the lawsuit alleged that the boy's injuries were a result of the church's “negligent supervision” of its agents, and that the church had “willfully, wantonly and recklessly placed [the alleged rapist] in a position of control and supervision of the child, causing the aforesaid injuries.” The pastor and Sunday School teacher were sued personally for negligent supervision and negligently allowing the alleged rapist to have custody of the boy.

A trial court awarded a summary judgment in favor of the church and its pastor and Sunday school teacher. The victim and his mother appealed this judgment, and a state appeals court affirmed the trial court's ruling. The appeals court noted that the church and its pastor and teacher were being sued for negligence, and it observed that

legal liability for negligence is based upon conduct involving unreasonable risk to another, which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under the same or similar circumstances. The established test of negligence is the conduct of a reasonably prudent man in like circumstances. [N]egligence does not consist of failing to take extraordinary measures which hindsight demonstrates would have been helpful.⁴³

The court further observed that a church is “not an insurer of the safety” of persons on its premises, but rather has only a “duty of ordinary care to avoid injury consistent with [existing] facts and circumstances.” Did the church and its pastor and teacher violate this duty of ordinary care toward the victim and his mother? No, the court concluded. It emphasized that the victim and his mother “have presented no evidence that [the church or its pastor or teacher] knew, or in the exercise of reasonable diligence should have known of or anticipated a criminal sexual assault by [the alleged rapist] upon another.” The victim and his mother placed great significance upon evidence that “a similar incident had occurred several years earlier.” In rejecting the relevance of this evidence the court observed simply that “there is no evidence that the church or its agents knew, or in the exercise of diligence, should have known of such prior activity.” Finally, the court noted that the victim and his mother cited no legal authority in support of their position. As a result, the appeals court upheld the summary judgment in favor of the church and its pastor and teacher.

This ruling is significant for a number of reasons. First, it illustrates that churches are not “guarantors” or insurers of the safety of children (or adults) on their premises. They are legally responsible only for those injuries caused by a breach of their duty or ordinary care. Second, the appeals court's ruling affirmed the trial court's summary judgment in favor of the church and its pastor and teacher. The significance of a summary judgment cannot be overstated, since it represents a decision that the prevailing party is entitled to win as a matter of law without the necessity of a jury trial. The court in essence says that reasonable minds could not disagree as to the outcome of the case, and therefore it should be disposed of summarily. Such a ruling is an especially strong statement of the merits of the prevailing parties' position. Clearly, it is a much stronger vindication of the position of the church and its pastor and teacher than a jury verdict in their favor. Third, the court hinted that its decision might have been different had the church (or its pastor or teacher) been aware of prior incidents of molestation by the alleged rapist. The court's ruling was based squarely on the assumption that no such knowledge existed. Fourth, it is interesting that the church was not found negligent in having only one adult supervisor for a class of 45 first and second graders. Other churches should not take comfort in this aspect of the court's ruling, for it is entirely possible that courts in other states would find such a low teacher--pupil ratio to be evidence of negligence. Finally, note that the court did not rule in favor of the alleged rapist or his parents.

Similarly, a Washington state court ruled that a church school was not legally responsible for damages resulting from an alleged sexual relationship between a teacher and student.⁴⁴ In rejecting the claim of the victim's parents that the school had been guilty of negligent supervision, the court agreed that “schools have a duty to supervise their students,” and to take precautions to protect students from dangers that may reasonably be anticipated. However, “at some point the event is so distant in time and place that the responsibility for adequate supervision is with the parents rather than the school.” Such was the case here, concluded the court, since the alleged misconduct occurred off school property during noninstructional hours.

Such cases illustrate the difficulty often encountered in establishing that a church was guilty of negligent supervision of church workers and activities. Nevertheless, a few courts have found churches and other religious organizations negligent in the supervision of their activities. For example, a Pennsylvania state appeals court ruled that a seminary was responsible for the drowning death of a 12--year--old boy.⁴⁵ The victim was swimming with a group of altar boys from a Catholic church at a seminary--owned pool. The victim's mother sued the seminary, alleging that it had been negligent in allowing the boys to use the pool without a qualified lifeguard on duty. At the time of the drowning, the pool was under the supervision of a priest. The jury concluded that both the seminary and church were negligent, and it awarded more than $1 million in damages. The seminary appealed, and a state appeals court upheld the jury's award. The court observed that

it is clear that [the evidence] was sufficient to support the jury's finding that the seminary had breached a duty owed to the minor decedent. The seminary, as owner of the pool, had a duty to exercise those precautions which a reasonably prudent owner would have taken to prevent injury to those persons whom it knew or should have known were using the pool. . . . A jury could have found, in view of the evidence, that the seminary knew or should have known that its pool was being used by children and that it failed to exercise reasonable care to prevent injury to them.⁴⁶

The court further observed that “it was for the jury to determine whether the seminary had been negligent in failing to take reasonable precautions to prevent access to its pool when a competent lifeguard was not present and whether the seminary could reasonably rely upon [the priest] to supervise the activities of the boys while they were using the pool.” This case illustrates the important principle that churches and religious organizations may be liable for negligent supervision if they do not have an adequate number of trained adults supervising a youth activity. The mere presence of adult supervision will not be enough in some cases. Those adults must in fact be qualified to supervise the activity in question and to respond to emergencies that may occur.

Other circumstances in which courts have found churches guilty of negligent supervision include: a youth activity in which a 9--year--old boy was killed when a utility pole crushed him;⁴⁷ a church picnic during which a 15--year--old boy was rendered a quadriplegic when he fell out of a tree;⁴⁸ a church--sponsored party for its altar boys at which a 12--year--old boy drowned;⁴⁹ a church picnic at which a child drowned;⁵⁰ allowing a dangerous condition to continue in a crowded church service, which resulted in injury to a member;⁵¹ permitting a snowmobile party on farmland without making an adequate inspection for dangerous conditions;⁵² and in failing to adequately supervise the activities of a church--sponsored scout troop.⁵³ The related question of the liability of religious denominations for the negligent supervision of clergy is discussed in Denominational Liability.

Churches can reduce the risk of negligent supervision in a variety of ways, including the following:

  Use an adequate number of adults to supervise all church activities, especially those involving minors. Also, be sure that the adult supervisors are adequately trained to respond to emergencies. Check with the Red Cross, YMCA, Boy Scouts, and similar organizations to obtain guidelines on the number of adults to use, the training of adult workers (based on the type of activity involved), and other safety procedures. Reliance on such standards makes it much less likely that a church will be guilty of negligent supervision.

  Consider adopting a “two--adult” rule. Such a rule simply says that minors must never be in the custody of one adult during any church activity. This rule reduces the risk of sexual molestation, and also reduces the risk of false accusations of molestation by parents seeking a quick legal settlement.

  Consider adopting a policy restricting eligibility for any position involving the custody or supervision of minors to those persons who have been members in good standing of the church for a minimum period of time (e.g., six months). Such a policy gives the church an additional opportunity to evaluate the suitability of applicants for volunteer positions in the church.

  Avoid high--risk activities. Some activities, such as rope--repelling, explosives, and possibly some events involving firearms, are so hazardous that a church will be deemed “strictly liable” if an accident occurs, no matter how much care it exercised in supervising the event. Swimming, boating, and any other water--related activities are also uniquely hazardous, and should never be conducted without an adequate number of trained adult supervisors.

  Only release minors from church activities to the parent or legal guardian who brought them. Churches are legally responsible for the safety of a minor from the time they receive custody until the time they return custody of the minor to his or her parent or legal guardian. Churches should never release minors to play without supervision on church property while awaiting the adjournment of an adult service.

  Consider adopting a “claim--check” policy in the church nursery. As a parent drops a child off at the church nursery, pin a plastic number on the child's clothes and give the parent an identical number. Inform parents that only those persons presenting the corresponding number will be given custody of children. This policy is designed to prevent the kidnapping of children by noncustodial parents, and others. Numbers should be assigned on a random basis for each service. Unfortunately, in many churches the nursery is staffed by minors who are inclined to transfer custody to anyone who asks for it. Sets of plastic numbers can be obtained from a variety of manufacturers. Ask a local restaurant that has a “coat check” booth. The concept is the same.

  Have parents sign a form that has the following four elements: (1) a consent to the participation by their child in the customary activities of the church's youth program, including swimming, boating, camping, hiking, and sporting events; (2) a certification that their child is physically fit, knows how to swim, and is capable of participating is all such activities; (3) a medical questionnaire listing any health conditions that would limit the child's participation in any customary activity; and (4) a consent to medical treatment in the event of a medical emergency if the parents cannot be located. The form should be signed and dated by at least one parent or legal guardian, and the signature should be notarized. The form should require the parent or guardian to inform the church immediately of any change in the information presented, and it should state that it is valid until revoked by the person who signed it. The parent or guardian should sign both in his or her own capacity as parent or guardian, and in a representative capacity on behalf of the minor child.

Many churches use “release forms,” which purport to release the church from legal responsibility for injuries inflicted by the negligence of its employees or workers. Besides being of dubious legal value,⁵⁴ such forms primarily protect the church's liability insurance company. If injuries are caused by the negligence of a church worker, then the liability insurer will pay for such damages up to the policy limits. If the church is not negligent, then it ordinarily will not be assessed any damages. A release form, even if deemed legally valid by a court, would have the effect of excusing the church's liability insurer from paying damages to a victim of the church's negligence.

Contributory negligence is conduct on the part of a person injured through the negligence of another that itself falls below the standard to which a reasonable person would conform for his or her own safety and protection. Historically, the contributory negligence of an accident victim operated as a complete defense to negligence. Accordingly, accident victims who themselves were negligent could be denied any damages. To illustrate, a woman who was injured when she fell down the back stairway of a church while carrying a large ice chest was denied any monetary damages on the basis of her own contributory negligence.⁵⁵ The court concluded that the member “loses because she was contributorily negligent. [T]he fact is she stepped through a doorway, with her vision at least partially obscured by the ice chest she carried, missed her step, and fell. Reasonable prudence required her to be more careful. . . . She had no right to assume that there was a place to land her foot because she could not see where she was going.” The absence of a handrail, and the width of the top step, in no way contributed to the member's injuries, the court concluded.

Most states have attempted to lessen the severity of the rule denying any recovery to an accident victim who was contributorily negligent through the adoption of comparative negligence statutes. Under the so--called pure comparative negligence statutes, accident victims whose contributory negligence was not the sole cause of their injuries may recover against another whose negligence was the primary cause of the accident, but their monetary damages are diminished in proportion to the amount of their own negligence. Under a pure comparative negligence statute, victims may recover against a negligent defendant even though their own contributory negligence was equal to or greater than the defendant's negligence.

Many other states have adopted the equal--to or greater--than rule or the fifty--percent rule. Under these statutes, accident victims whose contributory negligence is equal to or greater than the defendant's negligence are totally barred from recovery. But, accident victims whose contributory negligence is less than the defendant's negligence may recover damages, although their damages are diminished in proportion to the amount of their own negligence.

Other states permit a plaintiff to recover for the injuries caused by a negligent defendant if his own contributory negligence was slight in comparison to the negligence of the defendant. To illustrate, a woman was injured when she was struck by a church--owned vehicle that was being driven in a negligent manner. The woman sued the church, and a jury found the church negligent, assessing damages at $300,000. However, the jury also found that 80 percent of the woman's injuries were attributable to her failure to wear a seat belt, and accordingly her damages were reduced by 80 percent (or $240,000) to a total of $60,000. At the trial, the church established that the woman's car had a seat belt. The woman herself testified that she was thankful not to have worn the belt because of her belief that a seat belt would have caused additional injuries.⁵⁶

d. Assumption of Risk

Persons who voluntarily expose themselves to a known danger or to a danger that was so obvious that it should have been recognized will be deemed to have assumed the risks of their conduct. As a result, persons who voluntarily expose themselves to the negligent conduct of a defendant with full knowledge of the danger will be barred from recovery for any injuries resulting from the defendant's negligence. Assumption of risk is closely related to contributory negligence. One court has distinguished the two by noting that assumption of risk connotes “venturousness,” whereas contributory negligence connotes a state of carelessness.⁵⁷ To illustrate, one court ruled that an adult church member who was seriously injured when he slipped and fell on a wet linoleum floor immediately following his baptism by immersion could sue his church if the church knew or should have known that the floor presented an unreasonable risk of harm. However, the court concluded that the church's negligence might be superseded by the victim's own negligence in carelessly exposing himself to a known hazard.⁵⁸

A state supreme court ruled that a minor who had been rendered a quadriplegic as a result of injuries sustained while playing football for a church--operated high school could not sue the church.⁵⁹ “We feel sympathy for the severe injuries suffered by this plaintiff,” concluded the court. “However, there are dangers and risks inherent in the game of football and those who play the game encounter these risks voluntarily.”

Another court ruled that a church board member who was seriously injured when he fell off a ladder while installing a ceiling fan in the church was barred from recovering any damages because of his assumption of a known risk.⁶⁰ The court observed: “[I]t is well--established that a landowner is not liable for injuries resulting from open and obvious dangers on the premises, including the open and obvious danger of falling from high places. We determine that [the board member's] attempt to install the ceiling fans in the church's high ceiling by positioning his ladder in the church pews was an open and obvious danger, and his injuries are therefore not recoverable . . . .”

e. Intervening Cause

Generally, a person's negligence is not the legal cause of an injury that results from the intervention of a new and independent cause that is (1) neither anticipated nor reasonably foreseeable, (2) not a consequence of his or her negligence, (3) not controlled by him or her, and (4) the actual cause of the injury in the sense that the injury would not have occurred without it. If an intervening cause meets these conditions, it is considered a “superseding” cause that terminates the original wrongdoer's liability. For example, a superseding, intervening cause was found to have insulated the original wrongdoer from liability for his negligence in the following situations: a bus driver ran a stop sign, causing a car approaching from an intersecting street to abruptly stop, resulting in the car being struck by another car that had been following it too closely;⁶¹ a motorist's negligent driving resulted in a collision with a second vehicle, and a third motorist, whose attention was distracted by the scene of the accident, struck a pedestrian;⁶² and a motorist's negligent operation of his automobile caused an accident, and a police officer investigating the scene of the accident was injured when struck by another vehicle being operated in a negligent manner.⁶³

f. Liability Insurance

Although technically not a defense to the negligence of employees, a general liability insurance policy may protect a church against liability, since the insurer ordinarily is under a duty to defend the insured against claims of negligence and to pay any resulting damages up to the policy limits. In some cases, even though a church has a general liability policy, it may be liable for the negligence of its employees. This may occur in any of the following situations: (1) the amount of damages exceeds the policy limits; (2) the policy has lapsed because of nonpayment of premiums; (3) failure to notify the insurer and provide a proof of loss within the time limits prescribed by the policy or by state law; (4) failure to promptly forward a summons or lawsuit to the insurer; (5) misrepresentations contained in the church's insurance application; (6) failure to cooperate with the insurer;⁶⁴ or (7) the loss is not covered by the terms of the policy. In addition, an insurer may not be liable for punitive damages, for interest and costs, or for criminal or intentional misconduct.

g. Charitable Immunity

In many states, religious organizations are subject to being sued for the negligence of their employees just as any commercial organization.⁶⁵ However, the view that religious organizations should be completely immune from liability for the negligence of their employees was once common. It gradually was rejected by all of the states that had adopted it. The principle of total immunity frequently was criticized. One court observed: “Even the most cursory research makes it apparent that there is no ground upon which this doctrine of nonliability has rested . . . that has not been assailed and criticized at length by some other court . . . .”⁶⁶

However, the concept of charitable immunity lives on in many states, in a limited form. For example, some states immunize religious organizations from liability for the negligence of agents and employees committed against “beneficiaries” of the organization.⁶⁷ This view ordinarily is based upon one of the following grounds: (1) the funds of religious organizations are held in trust for charitable purposes and may not be diverted to the payment of damages; (2) the misconduct of employees should not be imputed to a religious organization when their services are for the benefit of humanity and not for the economic gain of the organization that employs them; (3) a religious organization is engaged in work highly beneficial to the state and to humanity, and its funds should not be diverted from this important purpose to the payment of damages; or, (4) those accepting the benefits of a religious organization implicitly agree not to hold it liable for injuries that they may receive at the hands of its employees.⁶⁸ To illustrate, a woman who visited a church to view the sanctuary and its stained--glass windows was deemed to be a beneficiary of the church and hence incapable of recovering for injuries she suffered in the church.⁶⁹ Other examples of beneficiaries include a church Sunday school teacher,⁷⁰ a nonmember who attended a church social,⁷¹ a member of a Girl Scout troop that met on church property,⁷² a person attending a religious service,⁷³ and a guest at a church wedding.⁷⁴

To illustrate, a New Jersey appeals court ruled that a state “charitable immunity” law prevented a church from being sued by the family of a boy who was injured seriously while attending a church day camp.⁷⁵ A Baptist church operated a summer day camp for grade school children that was designed to “integrate biblical truth into the lives of children through formal teaching and informal activities such as crafts and games.” A boy was injured while participating in a camp activity. Though his parents had registered him in the camping program, neither the parents nor the boy attended the church or had any other contact with it. The parents sued the church, alleging that their son's injuries were caused by the church's negligence. The church asked the court to dismiss the lawsuit against it on the basis of a state “charitable immunity” law that prevented charitable organizations from being sued on the basis of negligence by “beneficiaries” of their charitable activities. The New Jersey statute specifies: “No nonprofit corporation . . . organized exclusively for religious, charitable [or] educational . . . purposes shall . . . be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation . . . where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation . . . .”

The trial court rejected the church's request to dismiss the case, and the church appealed. A state appeals court agreed with the church that the charitable immunity statute prevented the victim's parents from suing the church, and accordingly it dismissed the lawsuit against the church. The court observed that the statute provides legal immunity to nonprofit organizations with respect to injuries caused to their “beneficiaries” by their agents or representatives. The court concluded that these two requirements were satisfied in this case. Clearly, the church was a nonprofit religious organization. And second, the victim was a beneficiary. The court reasoned that one is a beneficiary who participates in an activity of a charity that furthers its charitable objectives. Since the victim was participating in a camp that existed to further the religious objectives of the church, he was a beneficiary of the church and therefore could not sue it on the basis of its alleged negligence. In defending the statute, the court observed:

The principle of charitable immunity was deeply roo5ed in the common law of New Jersey. The principle is premised on the fact that charitable associations are created to pursue philanthropic goals and the accomplishment of those goals would be hampered if they were to pay tort judgments in cases similar to this matter. . . . [A] person who makes a charitable contribution expects his donation to further the goals of the organization, and not to be used to satisfy lawsuits which bear no direct relationship to those goals.⁷⁶

There are two other very important modern--day versions of charitable immunity—limited liability of the uncompensated officers, directors, and volunteers of charitable organizations, and limits on the amount of monetary damages that can be assessed against charitable organizations. These significant topics are considered individually.

(1) Limited Liability of Uncompensated Officers, Directors, and Volunteers

As noted in Officers, Directors, and Trustees,⁷⁷ most states have enacted laws immunizing uncompensated officers and directors of nonprofit organizations from personal liability for their ordinary negligence. Such statutes often extend to uncompensated volunteers as well, meaning that uncompensated, volunteer church workers cannot be legally accountable for the results of their ordinary negligence (with some exceptions).⁷⁸ In addition, some state laws exempt compensated employees of nonprofit organizations from liability for their ordinary negligence.⁷⁹

(2) Limits on Monetary Damages

Three states have enacted laws limiting the liability of churches (and other charitable organizations). This is a very positive development that is based in part on a recognition of the inapplicability of the concept of vicarious liability to nonprofit, charitable organizations (as discussed above). This section will review the three state laws that protect churches, and discuss state supreme court ruling upholding the validity of two of the laws.

The 3 State Laws

The legislatures of  South Carolina,  Texas and Massachusetts have enacted laws limiting the liability of churches and other charitable organizations. The laws will be quoted in their entirety below to enable church leaders interested in promoting similar laws in their own state legislatures to have verbatim copies of the text. Section 33--55--210 of the South Carolina Code reads:

Any person sustaining an injury or dying by reason of the tortious act of commission or omission of an employee of a charitable organization, when the employee is acting within the scope of his employment, may only recover in any action brought against the charitable organization for the actual damages he may sustain in an amount not exceeding two hundred thousand dollars. The judgment in an action under sections 33--55--210 through 33--55--230 shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the charitable organization whose act or omission gave rise to the claim. The plaintiff, when bringing an action under the provisions of sections 33--55--210 through 33--55--230 shall only name as a party defendant the charitable