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Sexual Misconduct by Clergy, Lay Employees, and Volunteers

The Arkansas Supreme Court ruled that a company was not liable on the basis of negligent hiring or negligent supervision.

Key point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.
Key point 10-10.1. Some courts have found churches liable on the basis of negligent supervision for a minister's acts of sexual misconduct involving adult church members on the ground that the church failed to exercise reasonable care in the supervision of the minister.
Negligence as a Basis for Liability

* The Arkansas Supreme Court ruled that a company was not liable on the basis of negligent hiring or negligent supervision for a sexual assault committed by one it is employees. While the case involved a for-profit business, the court's conclusions are applicable to churches. An employee (Greg) of a cable company entered a female customer's home to adjust her cable connection. While inside the home he produced a knife and forced the woman into a bedroom where he raped her. He then unsuccessfully attempted to kill her by slitting her throat with the knife, and holding her head under water in a bathtub. Miraculously, the woman survived, and Greg was convicted of rape, kidnapping, arson, and attempted murder. The woman later sued the cable company, claiming that it was legally responsible for Greg's acts on the basis of negligent hiring and negligent supervision. A trial court ruled in favor of the company on the ground that it could not have known that Greg had a propensity for violence. The woman appealed to the state supreme court.

negligent supervision

Employers can be liable in most states on the basis of negligent supervision for the acts of their employees. However, the court noted that "the employer's liability rests upon proof that the employer knew or, through the exercise of ordinary care, should have known that the employee's conduct would subject third parties to an unreasonable risk of harm. As with any other negligence claim, a plaintiff must show that the employer's negligent supervision or negligent retention of the employee was a cause of the injury and that the harm to third parties was foreseeable. It is not necessary that the employer foresee the particular injury that occurred, but only that the employer reasonably foresee an appreciable risk of harm to others."

The court noted that the employer was aware that Greg had made offensive sexual remarks to another female customer a year earlier, and had unlocked some of her windows before leaving her home (apparently so he could enter the home that night), and therefore the trial court erred in dismissing the negligent supervision claim.

negligent hiring

The victim claimed that employers have a duty to conduct a reasonable reference check of their employees, citing other cases in which courts found employers liable for the criminal actions of their employees because sufficient checks were not made before hiring the employees. The court rejected this claim. The court concluded,

[The victim states that the company's] background check was inadequate, and yet she offers no evidence for this conclusion …. It is irrelevant to the negligent hiring claim that Greg might not have been up to the level of expected performance in his previous jobs or in his position [with the company]. The victim had to present proof of something in Greg's history that (1) would have been found by an "adequate" background check, and (2) would have put the company on notice that Greg was predisposed to commit a violent act. No such proof was offered. There must be a direct connection between an inadequate background check and the criminal act for which the victim is attempting to hold the employer liable …. The company provided documentation that Greg had passed a pre-employment drug screen and had been honorably discharged from the military. Further, its background check of Greg showed experience in wiring and pole climbing, and checks with two previous employers gave no indication that he might be a risk to customers. The victim … has shown nothing in Greg's background that could have alerted the company to the possibility that he was predisposed to commit a sexual assault. Thus, we affirm the trial court's grant of summary judgment on the negligent hiring claim.

Application. Note the following:

1. An employer may be liable on the basis of negligent supervision for an employee's sexual assaults, but only if it had reason to foresee that the employee created "an appreciable risk of harm to others." An employer need not be able to foresee the specific offense that its employee commits. As a result, churches that have no reason to suspect that an employee or volunteer creates an appreciable risk of harm to others cannot be liable on the basis of negligent supervision for that person's criminal acts.

2. The court concluded that an employee's offensive sexual remarks, plus unlocking a woman's windows, may have made it reasonably foreseeable to his employer that he presented an appreciable risk of harm to others.

3. The court rejected the victim's claim that the company was liable for Greg's acts on the basis of negligent hiring. It noted that the victim failed to prove that an "adequate" background check would have uncovered any evidence placing the company on notice of any dangerous propensities on the part of Greg. Note that this conclusion implies that a church can be liable on the basis of negligent hiring if it failed to conduct a background check and it can be shown that an adequate check would have disclosed evidence that the person was a risk to others. Saine v. Comcast Cablevision of Arkansas, 126 S.W.3d 339 (Ark. 2003).

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  • September 1, 2004

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