Key point. A church may be liable on the basis of negligent selection for a worker's molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.
Key point. 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.
A Kentucky court ruled that a church could be liable for an employee's sexual molestation of two minor girls since church leaders had sufficient evidence of inappropriate conduct by the offender to make it foreseeable that he would molest the two girls. The principal of a church-operated private high school appointed a 23-year-old church member ("Eric") as the girls' basketball team coach. Pursuant to school policy, a criminal background check was performed prior to Eric's appointment. Although Eric previously resided in Ohio, only a Kentucky background check was performed, which did not reveal his criminal history for drug and traffic offenses in Ohio. Prior to his appointment, he told members of the congregation, including the principal, about his prior drug use, and several church members confirmed that he had "testified" in church regarding his drug use.
After his appointment as coach, Eric began telephoning a 14-year-old team member (the "victim") late at night. Upon learning of the contact between her daughter and Eric, the girl's mother informed the principal about the phone calls and stated that she found his conduct inappropriate. The principal assured the mother that Eric would be supervised. Subsequently, the principal met with Eric and instructed him to stop calling the team member and giving her rides in his car.
Despite this admonition, Eric had sexual intercourse with the victim on two occasions. He also attempted to sexually assault a second team member in a school van, but ceased his advances when other team members approached the van.
Several team members later testified that Eric made sexual advances toward the girls and that he was "weird" and "creepy." There was also testimony that a student who knew of Eric's calls to the one victim suspected a possible sexual relationship between the two and informed the principal regarding his suspicions.
The parents of Eric's two victims sued the church and school claiming that they were legally responsible for his actions on the basis of negligent hiring and negligent retention. The trial court dismissed the lawsuit on the ground that negligence-based liability requires proof of foreseeable harm, and there was nothing in Eric's background to suggest that he would sexually molest minors in his care. The parents appealed.
A state appeals court noted that liability for negligent hiring and retention "can be imposed on an employer who knew or should have known that an employee was unfit for the job in which he was employed and that his placement or retention in that job created an unreasonable risk of harm." The court agreed with the trial court that liability for negligent hiring or retention requires proof that the victims' injuries were reasonably foreseeable. The court conceded that the school's failure to conduct an Ohio criminal records check was evidence of negligent hiring or retention since such a check would have only uncovered drug and traffic offenses in that state which "did not render it foreseeable that Eric would commit criminal sexual acts." While his drug-related convictions "did not render him a desirable athletic coach, there was nothing in his criminal history to suggest that he had a propensity to sexually abuse children."
However, the court concluded there was additional evidence of foreseeability that required it to reverse the trial court's dismissal of the case. It observed:
The principal was warned by students and [one victim's mother] that Eric had engaged in inappropriate behavior toward girls at the school. As a result, the principal verbally reprimanded him and instructed him to cease further contact with [that victim]. Furthermore, students informed the principal that they believed Eric's conduct toward female students was inappropriate.
Although the principal and other school personnel may not have known that he would commit or was committing criminal acts, the law only requires that it be reasonably foreseeable that there was a risk of harm. It is not beyond reason for a jury to conclude that the principal's knowledge of Eric's late night phone calls to female students, providing transportation to [one of his victims] in his private vehicle, and information gained from [that victim's] mother and other sources, make it foreseeable that he would commit the acts alleged by the [parents].
Application. This case is instructive for three reasons. First, it demonstrates that the shortcomings of local or in-state criminal records searches. The church only conducted a search of Kentucky criminal records, and as a result was unaware of drug and traffic offenses Eric had committed in Ohio.
Second, since the Ohio offenses did not involve sexual crimes, they did not make it reasonably foreseeable that Eric would molest minors, and therefore the church's failure to uncover these offenses was not negligent. Of course, had Eric's offenses in Ohio (or in any other state) included sexual offenses, then the church's failure to discover those offenses could have made his molestation of the two victims in this case reasonably foreseeable and therefore negligent.
Third, the court concluded that the foreseeability that an employee or volunteer will molest minors is not limited to the results of criminal records searches. It also can be based on any other credible evidence that is known to church leaders. The court concluded that the school principal in this case had sufficient warnings (from one victim's mother, and other team members) of Eric's inappropriate conduct to make it reasonably foreseeable that he would molest the victims. The lesson is clear—church leaders who ignore credible allegations of inappropriate sexual conduct by an employee or volunteer are exposing their church to potential liability based on negligence for that person's future misconduct. 2009 WL 3320924 (Ky. App. 2009).
This Recent Development first appeared in Church Law & Tax Report, November/December 2010.