Church Officers, Directors, and Trustees, Negligence as a Basis for Liability

• Key point 6-07.01. Church board members may be personally liable for their own torts (conduct causing personal injury to another). This is so whether or not the church is incorporated.

• Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

The Washington state supreme court ruled that a church and a member of the church board could be sued by three women who had been molested by a volunteer youth worker when they were minors. The board member had received information indicating that the worker was a child molester, but failed to disclose this information for twenty-three years. The court found that the church had a “special relationship” with minors that imposed upon it a duty to protect them from the criminal and intentional acts of others.

Facts

In 1968 a member of a church board who also served as the church’s youth director (“David”) was at the church when the church secretary received a call from an unknown woman who asked to speak with someone in a “position of authority.” Since the pastor was not in his office the secretary asked David to take the call. The caller informed the board member that a prominent church leader (“Bob”) who had served as a member of the board of deacons, a Sunday School teacher, and a vacation Bible school director, was a child molester. The caller stated that the purpose of her call was to warn the church that Bob posed a risk of harm to children in the congregation. David advised the woman to file charges with the police, and asked that she “keep the church informed.” He did not inform anyone of the woman’s accusation until some twenty-three years later. However, he was concerned enough about what the woman told him that he felt it was his duty as the church’s youth director to “keep an eye” on Bob.

In 1969 the church employed a new pastor who had three minor daughters. Between 1969 and 1973 the two older girls were repeatedly molested by Bob. Most of these acts occurred in Bob’s home where he and his wife served as “babysitters” for the girls while the pastor and his wife traveled on church-related business. David was aware of the babysitting arrangement, but said nothing to the pastor regarding the risk Bob posed to the girls.

In 1974 the pastor and his family moved to another state to accept another pastoral position. During this time the church’s new pastor (the “successor pastor”) received information from Bob’s daughter-in-law that Bob had sexually molested his granddaughter in 1974. The successor pastor also learned from the sheriff’s office that a warrant had been issued for Bob’s arrest on charges of child molestation. The successor pastor immediately called a state denominational agency and asked an official what he should do with this information. The official allegedly advised him to “let it be and see what happens.” He also asked the successor pastor to keep him informed. In response to the successor’s question about removing Bob from the church board, the official replied, “Why hang your dirty wash out?” Neither the successor pastor nor the denominational official with whom he had spoken ever told anyone in the local church that Bob was a child molester.

In 1978 the former pastor and his family returned to their previous congregation. By this time the pastor’s two older daughters had grown up and moved away from home. The youngest daughter was eleven years old. Like her sisters, she was repeatedly molested by Bob in his home and, on at least one occasion, on church premises.

The sisters claimed that they “suppressed” their memories of Bob’s abuse for many years. In 1991 the youngest sister became fully aware of the abuse in the course of psychological counseling. She and her sisters then informed their father of the countless times they had been molested. It was only then, some twenty-two years after the first incidents of molestation occurred, that their father learned the truth. The pastor disclosed the allegations to David out of a concern that David’s own daughters may have been molested. David then disclosed the telephone call he had received from the woman some twenty-three years ago. The pastor and his daughters then learned that the successor pastor and the denominational agency had become aware of Bob’s propensities but did nothing to intervene.

In 1994 the three sisters sued David, the church, and the denominational agency that had counseled the successor pastor about Bob. The sisters claimed that David (the board member) was liable on two grounds. First, he had received information that Bob “had a prior history of child sexual abuse but negligently failed to investigate in order to substantiate the accusation against him, or to prevent him from being installed in church leadership positions that gave [him] unlimited access to and significant authority over children of the church.” Second, David “negligently and intentionally” failed to warn the girls’ father about Bob, thereby preventing him from protecting his daughters. The sisters claimed that their church “negligently failed to protect them from abuse” despite David’s knowledge of Bob’s history of child abuse. The youngest sister claimed that the denominational agency “negligently failed to protect her” from Bob’s sexual abuse despite knowing of his disposition to sexually abuse children.

The court’s opinion

The Washington state supreme court began its opinion by noting that “where a special relationship exists, a duty to protect against the intentional or criminal acts of third parties may arise.” The court continued:

Whether there is a special relationship between a church and the children of its congregation that gives rise to a duty to protect the children against foreseeable harms is an issue of first impression. In important aspects, however, the activities of a church generate the kind of relationships where we have, in other contexts, imposed a duty of reasonable care. The children of a congregation may be delivered into the custody and care of a church and its workers, whether it be on the premises for services and Sunday school, or off the premises at church sponsored activities or youth camps. As in other agency relationships, a church chooses its officials, directs their activities, and may restrict and control their conduct. In many respects, the activities of a church, and the corresponding duties legitimately imposed upon it, are similar to those of a school. As a matter of public policy, the protection of children is a high priority. In general, therefore, we find churches (and other religious organizations) subject to the same duties of reasonable care as would be imposed on any person or entity in selecting and supervising their workers, or protecting vulnerable persons within their custody, so as to prevent reasonably foreseeable harm.

The more difficult question, the court noted, was whether a church can be liable on the basis of a “special relationship” between a church and the children of the congregation for acts of child molestation committed by a church worker off of church premises and not in the course of any church activity. The sisters did not claim that Bob’s wrongful acts occurred on church premises or during church activities. Nor did they claim that they were, at the time of the molestation, within the protective custody of the church. Rather, they asserted that the church had a duty to protect “the children of its congregation” against foreseeable harms perpetrated by a church official whom the church “placed in authority and in close relationship to church children, knowing of the danger.” The supreme court agreed on the basis of the following four factors: (1) the special relationship between Bob and the church; (2) the special relationship between the church and the victims; (3) the alleged knowledge of the risk of harm possessed by the church; and (4) the alleged direct connection between Bob’s position in the church and the harm to the victims. The court concluded:

Under these circumstances, we simply do not agree with the church that its duty to take protective action was arbitrarily relieved at the church door. Where a protective special relationship exists, a principal is not free to ignore the risk posed by its agents, place such agents into association with vulnerable persons it would otherwise be required to protect, and then escape liability simply because the harm was accomplished off premises or after-hours. Under these facts, the focus is not on where or when the harm occurred, but on whether the church or its individual officials negligently caused the harm by placing its agent into association with the [minors] when the risk was, or should have been, known.

[A] jury could reasonably find [Bob’s] position in the church was a [direct] factor in the resulting harm. [He] was a prominent member of the church, placed into positions of trust over children. This position not only brought him into close connection with the children of the congregation, it allegedly inspired confidence to place the [sisters] into his care. In addition, there is evidence that [he] baby-sat the victims in order that their father could travel on church business and that the church was aware of this arrangement. Given the church’s specific and superior knowledge of the facts, a jury could reasonably find the church knew or should have known the children of its congregation, and specifically these particular [minors], were exposed to an unreasonable risk of harm at the hands of [Bob].

The court noted that its conclusion was “supported by the strong public policy in favor of protecting children against acts of sexual abuse. Current law makes it a criminal offense for certain professionals to fail to notify the proper authorities when there is reason to suspect childhood sexual abuse …. While the reporting requirement is permissive as to other persons not specifically defined … the legislature has made clear that the prevention of child abuse is of ‘the highest priority, and all instances of child abuse must be reported to the proper authorities, who should diligently and expeditiously take appropriate action.'”

The court concluded that “where a special protective relationship exists a principal may not turn a blind eye to a known or reasonably foreseeable risk of harm posed by its agents toward those it would otherwise be required to protect simply because the injury is arbitrarily perpetrated off premises or after-hours.”

Application.
A decision by the Washington state supreme court is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there are a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:

(1) Personal liability of board members for failing to act. The most important aspect of this case was the court’s conclusion that churches as well as “adult church workers” have a “special relationship” with children that gives rise to a “duty to protect” those children from harm. This is an extraordinary conclusion. It exposes church leaders to liability for failing to protect children against “reasonably foreseeable risks of harm” by volunteer or paid youth workers. In this case, David (the church board member) could be sued because he breached his duty to protect the three girls from the reasonably foreseeable risk of harm associated with Bob. Of course, the church can be sued in such cases, too. But the critical point is that those church leaders “who assume responsibility for the spiritual well being of children” have a duty to protect children and they can be personally liable for breaching that duty.

(2) Off-premises acts of molestation. Basing personal liability on a failure to protect children from foreseeable harm makes the location of acts of child molestation irrelevant. Most of the incidents in this case occurred in Bob’s home. The court concluded that this did not affect David’s responsibility for the girls’ injuries. This is a sweeping conclusion that exposes churches to unprecedented risks for the private conduct of volunteers. A dissenting judge warned correctly that the court’s decision “is far reaching, encompassing a variety of organizations where families associate, such as day care centers, youth groups, civic organizations, sports clubs and activities, music groups, parent-teacher associations and volunteer activities in public and private schools. Virtually any organization providing services or activities for children falls under the majority’s analysis because in any such organization a parent might come to trust those involved in the activity, even those in voluntary capacities. I do not believe that an organization extending membership to families with children should become the guarantor of the other members’ private conduct.”

(3) Avoiding personal liability. What steps can church leaders take to reduce the risk of personal liability after receiving information suggesting that a youth worker poses a risk of harm to children in the church? The state appeals court responded to this question as follows: “[T]he duty of reasonable care was breached when [David] not only failed to notify [the pastor] of the warning [he] had received but also failed to take any action that would have prevented [Bob] from continuing to serve in leadership roles in the church that gave him responsibility for the spiritual well being of the children of the congregation and that may have inspired trust by parents and children alike in [Bob’s] morality. There is also evidence in the record that [David] knew that [the pastor] had called upon [Bob] to baby-sit the [daughters] so that the pastor could travel on church business; yet he failed to warn [the pastor] that [Bob] might be a child molester.” In summary, the appeals court concluded that a board member (such as David) can satisfy the “duty to protect” children and avoid personal liability by: (1) warning potential victims (or their parents), and (2) “preventing” an alleged molester from working with children in the church. Funkhouser v. Wilson, 1999 WL 547877 (Wash. 1999).

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