Key point. Churches that voluntarily agree to pay counseling fees to victims of sexual misconduct may be able to discontinue these payments without liability if the counseling has not placed the counselee in a worse position.
A Pennsylvania court ruled that a Catholic diocese that agreed to pay counseling fees for a victim of childhood sexual abuse was not responsible for the victim's suicide that occurred shortly after the diocese decided to stop paying for the counseling. For three years a student (the decedent) at a church-operated parochial school was a victim of sexual abuse by a priest. Thereafter, the decedent graduated from a state university with honors, and became employed in a professional capacity. In 2008, allegedly as a result of the effects of the sexual abuse, the decedent attempted to take his own life. Following this incident, the local diocese began paying for the decedent's counseling expenses. A year later, the decedent again unsuccessfully attempted suicide. The diocese continued to provide payment for counseling services. In 2010, the diocese indicated that it would not financially support any further services or treatment, and agreed to issue a final payment for $75,000 regardless of decedent's need for further treatment. A psychotherapist advised the diocese that the decedent needed continued treatment because of suicidal behavior. The decedent's family claimed that the diocese knew or should have known that their decision to discontinue further payment for psychiatric treatment would likely cause severe emotional distress to decedent. The family further claimed that decision to terminate further support resulted in the decedent taking his life.
The decedent's family filed a wrongful death complaint against the diocese. A trial court dismissed all claims against the diocese. The family appealed. A state appeals court affirmed the trial court's dismissal of the family's claims. The court quoted, in support of its decision, the following excerpt from the Restatement (Second) of Torts (a respected legal treatise that has been adopted by many states):
Termination of Services. The fact that the actor gratuitously starts in to aid another does not necessarily require him to continue his services. He is not required to continue them indefinitely, or even until he has done everything in his power to aid and protect the other. The actor may normally abandon his efforts at any time unless, by giving the aid, he has put the other in a worse position than he was in before the actor attempted to aid him. His motives in discontinuing the services are immaterial. It is not necessary for him to justify his failure to continue the services by proving a privilege to do so, based upon his private concerns which would suffer from the continuance of the service. He may without liability discontinue the services through mere caprice, or because of personal dislike or enmity toward the other.
Where, however, the actor's assistance has put the other in a worse position than he was in before, either because the actual danger of harm to the other has been increased by the partial performance, or because the other, in reliance upon the undertaking, has been induced to forego other opportunities of obtaining assistance, the actor is not free to discontinue his services where a reasonable man would not do so. He will then be required to exercise reasonable care to terminate his services in such a manner that there is no unreasonable risk of harm to the other, or to continue them until they can be so terminated. Section 323, comment "c".
The court concluded that the diocese had not placed the decedent in a worse position by offering counseling services, and so the above-quoted exception did not apply. It noted that the decedent twice attempted to take his life prior to the third, successful, attempt. The court concluded: "Thus [the family] is not in a position to allege that the diocese, by notifying the decedent that it would be discontinuing payments for further treatment, can be viewed as putting him in a worse position than he was in before the diocese began paying for treatment …. The decedent was suicidal before the diocese aided him; he was suicidal while the diocese aided him; and unfortunately, he was suicidal after being informed that aid was being terminated. As the diocese had not put the decedent in a worse position than before services began, the diocese was free to discontinue services without liability."
What This Means For Churches:
Some churches and denominational agencies have voluntarily agreed to pay counseling fees for persons who were sexually abused by a minister, lay employee, or volunteer. Over time, the question inevitably arises as to the duration of this obligation—a question that often is not contemplated or addressed when the commitment is made. This case suggests that a commitment to pay counseling fees, gratuitously made, may be terminated so long as the counseling has not placed the counselee in a "worse position." But as this case illustrates, this may be difficult to prove. Because of the seriousness and complexity of this issue, and the fact that the Restatement is not recognized in all states, any commitment to pay counseling fees should not be terminated without the advice of legal counsel. Unglo v. Zubik, 29 A.3d 810 (Pa. Super. 2011).
This Recent Development first appeared in Church Law and Tax Report, March/April 2012.