Church Law and Tax 1995-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Employers ordinarily cannot be liable on the basis of negligent hiring for an employee’s assaults if a background check would not have revealed any evidence of violent criminal behavior.

• A Tennessee court ruled that an employer was not responsible on the basis of “negligent hiring” for a worker’s assault, despite the fact that it failed to conduct a background check on the worker when he was hired. While the case did not involve a church, the court’s conclusions will be relevant to churches and other religious organizations that often are accused of negligently hiring workers who later sexually molest or assault others. A nursing home hired a worker who later assaulted an elderly resident. The worker entered the resident’s room, discovered that she had soiled her clothing, became enraged and grabbed the woman by the hair, jerked her out of her chair and began beating and kicking her. The woman sustained serious injuries, and later sued the nursing home alleging that it was responsible for the worker’s behavior on the basis of negligent hiring. Specifically, she claimed that the nursing home should have known that the worker had a “history” of violent and abusive behavior toward patients at a prior place of employment, and it was guilty of negligence when it hired the worker to work with elderly residents. A jury ruled in favor of the woman, and ordered the nursing home to pay her $75,000. The nursing home appealed. A state appeals court reversed the jury’s award and dismissed the case. The court acknowledged that the worker had listed 3 previous employers on his application form, and that the nursing home had not contacted each of these employers before hiring him. Further, the court acknowledged that the nursing home did not conduct a criminal records check on the worker at the time he was hired. However, the court concluded that “there is no evidence … to show that if [the nursing home] had checked each of [the worker’s] former employers, it would have uncovered any evidence that would have put [it] on notice that [the worker] would or might abuse a nursing home patient.” The court noted that a prior employer had stated that it would not rehire the worker, but this was due to his absenteeism rather than to any abusive behavior. The court also rejected the victim’s claim that the nursing home’s previous suspension of the worker for consuming alcohol while at work demonstrated a risk of violent behavior. The court concluded that evidence of alcohol or drug abuse do not indicate “a propensity to commit violent crimes against property or persons.”

This case is important for a number of reasons, including the following:

Most importantly, it illustrates that employers (including churches) are not automatically responsible on the basis of negligent hiring for assaults and other injuries caused by their employees.
The case illustrates that hiring an employee with a criminal record does not necessarily make the employer responsible for the employee’s assaults or other criminal behavior on the basis of negligent hiring. There must be some correlation between the criminal record and the assault. The court referred to a prior case in which the Tennessee Supreme Court concluded that an employee’s previous convictions for driving while intoxicated did not place his employer on notice of any propensity to engage in violent behavior. Similarly, the court in this case concluded that an employer’s previous discipline of an employee for consuming alcohol while on the job did not place the employer on notice of any propensity by the employee to assault others.

While it is impossible to say if other courts would agree with the court’s conclusions, this case will be a useful precedent for churches who are sued as a result of the misconduct of employees and volunteers. Long by Cotten v. Brookside Manor, 885 S.W.2d 70 (Tenn. App. 1994).