Key point 10-10.2. Many courts have ruled that the first amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.
Negligence as a Basis for Liability
* The Arkansas Supreme Court ruled that a charity could not be liable for an employee's sexual assault because it had no knowledge of any prior misconduct indicating that he posed a risk of harm to others. A nurse's aide employed by a nursing home ("John") sexually assaulted a female quadriplegic accident victim who was a patient at the facility. John's actions were observed by another employee ("Ann") who immediately informed a senior certified nurse who told her to "wait to see if it happened again." Ann was uncomfortable with this response, and reported the incident to the charge nurse. The charge nurse attempted to call the director of nursing and the nurse administrator. Although she tried repeatedly, she was unable to contact either of them. The charge nurse did not contact the police. Instead, a few days later she reported the incident to a senior administrator at the facility who reported the incident to the police and to the victim's family. John was then suspended from employment.
The victim died shortly after this incident, and her estate sued the nursing home alleging that it was liable for John's behavior on the basis of the legal doctrine of respondeat superior (employers are responsible for the negligent acts of their employees committed within the scope of their employment). The lawsuit also alleged that the nursing home was liable for negligently hiring and supervising John. The nursing home asked the court to dismiss the case. It insisted that it could not be found liable on the basis of respondeat superior since John's acts were outside of the scope of his employment. Further, it argued that it could not be liable on the basis of negligent hiring since it checked John's personal references and the national sex abuse registry at the time it hired John, and there was no evidence that a further criminal background check would have indicated a propensity to commit sexual assault. In rejecting the negligent supervision claim, the court pointed out that there was no evidence that the nursing home knew (or in the exercise of ordinary care, should have known) that John's conduct would expose patients or residents to an unreasonable risk of sexual assault. The nursing home had no knowledge or information of any history of similar sexual misconduct by John. The trial court agreed with the nursing home, and dismissed the case. The victim's estate appealed. A state appeals court ruled that the nursing home could not be responsible for John's acts on the basis of respondeat superior, but it could be liable on the basis of negligent supervision. The case was appealed to the state supreme court.
The supreme court noted that an employer's liability under the doctrine of respondeat superior occurs "when an employee commits a foreseeable act within the scope of his employment at the time of the incident." Since sexual assaults rarely if ever are in the scope of an employee's employment, and are not performed by any desire to serve the employer, they cannot serve as the basis for liability under respondeat superior.
The court ruled that the nursing home had exercised sufficient screening procedures when it hired John to avoid liability on the basis of negligent hiring.
The court reversed the appeals court's ruling that the nursing home was liable for John's acts on the basis of negligent supervision. It observed,
Negligent supervision of employees creates a limited duty to control an employee for the protection of third parties even where the employee is acting outside the scope of employment. However, an employer is not liable for negligently supervising an employee whose conduct is outside the scope of the employment unless the employer knew or, in the exercise of reasonable care, should have known that the employee presented a risk of danger to others. Our own court of appeals has also found that to recover under a theory of negligent supervision, a plaintiff must show that an employer knew or, through the exercise of ordinary care, should have known that its employee's conduct would subject third parties to an unreasonable risk of harm. This is required because foreseeability must be established …. In Arkansas, negligence is the proximate cause of an injury only if the injury is the natural and probable consequence of the negligent act and ought to have been foreseen in the light of attending circumstances.
To find a cause of action under negligent supervision of an employee, one must find that the natural and probable consequence of negligent supervision in allowing a newly hired and untried nurse's aide to care for an immobile, semi-comatose female patient is sexual abuse by that nurse's aide. As discussed, absent some form of notice that the employee posed a danger, such an act is not foreseeable. Here, there was no indication of a prior criminal record or patient abuse. There was nothing to put [the charity] on notice that [John] might do such a thing as sexually assault a patient. The fact that he was an inexperienced employee does not give rise to a reasonable probability that he would commit criminal sexual assault. On this basis, it was not foreseeable that he would commit criminal sexual assault.
Application. According to this court, a church cannot be liable on the basis of negligent supervision for the sexual assaults of employees unless such assaults were foreseeable based on information known to the church. This is another example of the importance of not ignoring information suggesting that an employee or volunteer poses a risk of harm to others. Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 49 S.W.3d 107 (Ark. App. 2001).
Resource. For specific recommendations on supervising church staff, see section 10-09.3 in Richard Hammar's book, Pastor, Church & Law (3rd ed. 2000).
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