• 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.
Negligence as a Basis for Liability
• Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
• Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.
• 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.
* A federal court in Vermont ruled that a church was not liable for its pastor’s acts of child molestation on the basis of respondeat superior, breach of a fiduciary duty, or negligent hiring or supervision. Pastor Tim was senior pastor of a church for nearly 30 years. The church operated a private elementary and secondary school. A family in the church enrolled their son in the church’s school from third grade through ninth grade. The family became close friends with Pastor Tim, and often had Pastor Tim and his wife babysit their son and give him rides home from school or soccer practice. The family allowed their son to accompany Pastor Tim and his wife on a vacation to Mexico when he was in seventh grade.
The son later claimed that Pastor Tim sexually molested him on at least four occasions. One of these incidents occurred in Pastor Tim’s office; one occurred in Pastor Tim’s car while he was taking the boy home from a soccer practice; and two incidents occurred in Pastor Tim’s home (which was the church parsonage). The son never told anyone about these incidents until his family moved to another town.
When the allegations against Pastor Tim finally came to light, the church immediately barred him from church grounds and later revoked his ordination. Pastor Tim pled guilty to three counts of lewd and lascivious conduct with a minor. There was no evidence that he had a prior criminal record or background of sexual abuse of children. The victim later sued his former church, claiming that it was responsible for Pastor Tim’s acts on the basis of respondeat superior, breach of a fiduciary duty, and negligent supervision. A trial court dismissed all of the victim’s claims, and the case was appealed.
Respondeat superior
Respondeat superior is a legal doctrine that imposes liability on an employer for the acts of its employees that are committed within the scope of their employment. The church insisted that it could not be liable on this basis since Pastor Tim’s acts were outside the scope of his duties. The court agreed. It noted that conduct is within the scope of employment when it is of the kind the employee is employed to perform; it occurs substantially within the authorized “time and space limits” of the employment relationship; it is motivated, at least in part, by an intent to serve the employer; and, in cases of intentional or criminal acts, is foreseeable by the employer. The court concluded that the victim could point to no evidence that Pastor Tim’s actions were within the scope of his employment with the church. It observed, “Although some of the assaults took place on church grounds, no reasonable jury could find that his actions were either within the scope of his duties or in furtherance of the church’s business.”
The victim also argued that the church could be liable under section 219(2)(b) of the Restatement of Torts (a respected legal treatise) which holds employers liable for acts outside the scope of employment when the employer is negligent or reckless. The victim claimed that the church had been negligent since Pastor Tim’s acts of molestation were foreseeable. He based this on prior knowledge the church had of Pastor Tim’s misconduct, the general “social awareness” of clergy sexual abuse of children, and the fact that Pastor Tim violated his church’s “2-adult” rule when he molested the victim in his church office. The court rejected the victim’s claim that the church had been negligent in not adequately responding to a foreseeable risk. First, the court noted that “no adult member of the church or community suspected that Pastor Tim was molesting the victim. The victim argues that he told several friends, but these friends were also children, and were not in a position to make changes within the church. It is not alleged that any of the children told any adult. As such, the danger of Pastor Tim molesting children in general or the victim in particular was not foreseeable.”
The victim claimed that Pastor Tim’s acts were foreseeable to the church because “sexual abuse of minors by clergy has become sufficiently widespread, as has social awareness of the problem, in recent decades that it may fairly be regarded as a risk of church business.” In rejecting this argument, the court observed: “Although awareness of sexual abuse has increased in recent decades, the victim is essentially arguing that any church whose employee molests a child is per se liable for the molestation. A per se rule for liability would expand the scope of employer liability far beyond its current state under Vermont law.”
The victim claimed that the church was negligent in failing to follow its “2-adult” policy on the occasion when Pastor Tim molested the victim in a church office. The court concluded, “It appears that the church had at least an unwritten policy that no adult was to be alone with a single child. Pastor Tim disregarded this policy during the incident in his office, but his disregard for the policy is not sufficient to show negligence on the part of the church.”
Breach of fiduciary duty
The court rejected the victim’s claim that the church had a fiduciary duty towards its members that it violated by failing to prevent Pastor Tim from engaging in the acts of molestation. The court refused to address the question of whether a fiduciary relationship exists between churches and their members. It noted that even assuming that such a relationship exists, it was not violated by the church: “There is no evidence that the church knew or had reason to know that Pastor Tim had a propensity to molest young boys. He had no criminal history of molestation, and the church did not become aware of any incidents until the victim himself complained. As such, the church is not guilty of any bad faith in failing to reveal the danger Pastor Tim posed; it simply did not know of any danger.”
Negligent supervision and retention
The court rejected the victim’s claim that the church was liable for Pastor Tim’s acts on the basis of negligent supervision and negligent retention. It noted that negligence requires foreseeability of the harm that was suffered, and concluded that “there is no evidence that the church knew or should have known of Pastor Tim’s propensity to molest young boys. An employer is under a duty to control his employees from intentionally harming another only when he knows or should know of the necessity and opportunity for exercising such control. Because the church did not know of Pastor Tim’s propensities, it was under no duty to protect the victim from his volitional, criminal acts.”
Application. This case is significant for the following reasons:
1. The court rejected the argument that churches are automatically liable on the basis of respondeat superior or negligence for the sexual molestation of minors by church leaders because such claims are always foreseeable due to the massive media attention such claims have received in recent years. In rejecting this argument, the court observed: “Although awareness of sexual abuse has increased in recent decades, the victim is essentially arguing that any church whose employee molests a child is per se liable for the molestation. A per se rule for liability would expand the scope of employer liability far beyond its current state under Vermont law.”
2. The court acknowledged that the church’s failure to follow its “2-adult” policy may have contributed to Pastor Tim’s molestation of the victim in a church office, but concluded that Pastor Tim’s disregard for the policy “is not sufficient to show negligence on the part of the church.” Many churches may disagree with this conclusion.
3. The court rejected “breach of a fiduciary duty” as a basis for church liability in cases involving the molestation of minors when such acts are not foreseeable. It concluded, “There is no evidence that the church knew or had reason to know that Pastor Tim had a propensity to molest young boys. He had no criminal history of molestation, and the church did not become aware of any incidents until the victim himself complained. As such, the church is not guilty of any bad faith in failing to reveal the danger Pastor Tim posed; it simply did not know of any danger.”
4. The court ruled that the church could not be liable on the basis of negligent supervision or negligent retention for Pastor Tim’s molestation of the victim since negligence requires foreseeability of the harm that was suffered, and concluded that “there is no evidence that the church knew or should have known of Pastor Tim’s propensity to molest young boys. An employer is under a duty to control his employees from intentionally harming another only when he knows or should know of the necessity and opportunity for exercising such control. Because the church did not know of Pastor Tim’s propensities, it was under no duty to protect the victim from his volitional, criminal acts.”
5. The victim argued that the church should have been aware of Pastor Tim’s propensity to molest minors because he had a “‘background of homosexual or bisexual conduct from youth into adulthood.” The court dismissed this allegation by noting that Pastor Tim’s “homosexual or bisexual conduct is not the issue, and there is no evidence that he had any background of child molestation at the time he became pastor of the church.” Doe v. Newbury Bible Church, 2005 WL 1862118 (D. Vt. 2005).
Copyright © 1994 – 2006 Christianity Today International. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, A publication of Christianity Today International, 465 Gundersen Drive, Carol Stream, IL 60188.
