• Key point 10-02.3. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.

• Key point 10-04.1. Some courts have found churches liable on the basis of negligent selection for the molestation of a minor by a church worker if the church failed to exercise reasonable care in the selection of the worker.

• Key point 10-07.1. Some courts have found churches liable on the basis of negligent retention for the sexual misconduct of ministers and other church workers on the ground that the church was negligent in retaining the offender after receiving credible information indicating that he or she posed a risk of harm to others.

• Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on first amendment considerations.

Negligence as a Basis for Liability

* A federal court in Connecticut ruled that a woman who had been molested by a priest when she was a minor could sue her church and other church agencies on the basis of negligence for the injuries she sustained. An adult female (Jane) sued a priest, church, and church agencies alleging that the priest sexually molested her when she was a teenager. She claimed that the church defendants were responsible for the priest’s acts on the basis of respondeat superior and negligence.

respondeat superior

In order for an employer to be liable for the intentional acts of its employee on the basis of the respondeat superior doctrine, the employee must have been acting “in furtherance of the employer’s business.” The court noted acts of sexual abuse by clergy generally are not in furtherance of the church’s business, and so the church cannot be liable for such acts on the basis of respondeat superior. The court concluded that Jane had alleged no facts demonstrating that the sexual acts by the priest furthered the church’s business.

negligence

Jane argued that the church defendants were negligent in the following ways: (1) failing to properly screen, evaluate, or investigate the priest’s past activities and moral fitness for working with minors, and fitness for the priesthood prior to his ordination and assignment to a church; (2) failing to properly supervise and investigate the priest’s activities while he was within the jurisdiction of the diocese and while he was residing in the church rectory; (3) failing to recognize the priest’s inappropriate behavior which made him ill-suited for the priesthood or for which he should have been counseled; (4) failing to recognize warning signs that he was engaging in sexual abuse with a minor; (5) failing to establish guidelines and procedures to prevent injuries to minors; (6) failing to properly train the priest regarding his role as a priest and the boundaries of appropriate behavior and decorum in the rectory; and (7) failing to provide appropriate counseling for priests having difficulties with the constraints of celibacy. Jane also alleged that due to the frequency, duration, and location of the alleged misconduct, the church defendants should have known or did know that the priest was engaging in sexual abuse with Jane on church premises.

The court noted that in cases “where resolution of disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the first amendment mandates that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a hierarchical church.” It acknowledged that “several courts outside this jurisdiction have refused to adjudicate cases regarding negligent supervision of priests by the church for fear that any inquiry into the policies and practices of the church defendants in hiring or supervising their clergy raises … first amendment problems of entanglement … which might involve the court in making sensitive judgments about the propriety of the church defendants’ supervision in light of their religious beliefs … and any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination.”

The court “recognized the concerns of religious institutions regarding entanglement of the courts in examining their religious practices,” and conceded that it “does not, will not, and cannot sit as the reviewing authority for religious practices and doctrinal matters.” But, “as far as negligent supervision and employment are concerned, such inquiries can generally be conducted without any entanglement in the religious doctrines and practices of the church.” Jane’s claims of negligent hiring and supervision “do not involve the entanglement of this court with the church’s religious practices” so long as the scope of her claims was limited to “secular matters of negligent hiring and supervision.”

sufficient knowledge

The court noted that the existence of a “duty of care” is an essential element of negligence, and that while “no universal test for duty ever has been formulated,” the initial question “has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.” In cases regarding the liability of religious organizations for negligent supervision of clergy, “the courts have held that in order for a duty to have existed, the organizations must have known or should have known that misconduct was occurring.”

The church defendants in this case claimed that Jane’s negligence claims should all be dismissed since she failed to allege or prove that they knew about any previous sexual misconduct by the priest. The court concluded that Jane had alleged sufficient facts “from which knowledge could be inferred.” However, the court cautioned the parties that it would “not entangle itself in the church’s religious practices or doctrine and would not examine the specific employment practices of the church and diocese unless they clearly indicate that the defendants knew or should have known that the priest was likely to engage in sexual misconduct. It is not the place of this court to determine the fitness of individuals for the priesthood or the internal policies that are maintained to promote the clergy’s morality. We are merely concerned with whether the defendants had knowledge or should have known about the priest’s alleged misconduct.”

fiduciary duty

The court rejected Jane’s claim that the church defendants were liable based on a breach of a fiduciary duty they owed to her. It noted that she had not alleged enough “to indicate a unique situation that supports a fiduciary duty claim …. There is no indication that she attended schools run by defendants; was involved with youth programs, encouraged by defendants; or was in any other way connected to defendants demonstrating a unique degree of trust and confidence. Although some courts have acknowledged a fiduciary duty between priest and parishioner, fiduciary relationships between a diocese and parishioner have only been found in unique circumstances.”

Application. This case is important for the following reasons:

1. The court rejected “respondeat superior” as a basis of church liability in cases of clergy sexual misconduct. This is an important conclusion because this type of liability does not require proof of negligence.

2. The court rejected the church defendants’ argument that the first amendment prevented the civil courts from resolving negligence claims against churches based on the sexual misconduct of clergy, so long as such claims could be resolved without any inquiry into doctrinal matters.

3. The court was emphatic that church defendants cannot be liable on the basis of negligence in the hiring or retention of a minister unless they have knowledge of prior misconduct. In other words, churches that act promptly and responsibly on the basis of knowledge of prior misconduct have a much diminished risk of liability based on negligence.

4. The court rejected “breach of fiduciary duty” as an independent basis of liability. Doe v. Norwich Roman Catholic Diocesan Corporation, 268 F.Supp.2d 139 (D. Conn. 2003).

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