Key point 10-04. 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.
A Texas court ruled that a church was not liable for the sexual molestation of two children by a teenager who had been selected as a babysitter by the victims' parents due to false information in a flyer that had been made available to parents of young children. In the summer of 2007, a married couple (the "plaintiffs") enrolled their two young sons in a church-operated childcare center. A 20-year-old college student (Lydia) worked at the center as a teacher and swimming instructor in a summer job between her junior and senior years of college. Lydia's mother (Beth) spent the first part of the summer of 2007 teaching vacation Bible school at the church. She had five years' prior experience working at the childcare center and wished to return to work there. She applied and, in August, the center rehired her to work as a teacher. Her class included one of the plaintiffs' boys and she developed a warm rapport with the parents.
After Lydia returned to college in the fall, she asked her mother to circulate a flyer to school parents to let them know that she would be available for babysitting during her winter break. The school often circulated flyers that advertised events and personal services by placing them in the children's backpacks. Under the school's policy, it prescreened each proposed flyer. If the school approved the flyer, it charged $20 to circulate it.
In late fall, Beth circulated an approved flyer offering Lydia's babysitting services. The flyer explained that Lydia was Beth's daughter, that she had been a summer school swimming teacher at the center, that she was CPR-certified, and that she would provide references upon request. The plaintiffs hired Lydia to babysit for their sons during the winter break.
Near the end of 2007, Beth prepared a similar flyer, this time advertising her son Mark's availability for babysitting services. The childcare center approved this flyer and gave permission to her to circulate it. The flyer went home in the children's backpacks, along with other materials that the school distributed. Though the flyer states that Mark was "part-time summer help" and a "vacation bible school worker," at the time the plaintiffs read the flyer, the childcare center had not yet employed him. It also had not performed a criminal background check on him, and it had not trained him to work with children. The childcare center had, however, offered the possibility that Mark could work part time the following summer as summer school help.
The plaintiffs discussed the possibility of hiring Mark, and, despite some doubts, decided to do so, because, according to the flyer, he had experience working with children and, in particular, experience working at the childcare center. They did not ask him directly whether he had such experience.
The plaintiffs hired Mark in the first week of January 2008. He went to the plaintiffs' home while they were present. According to the boys' mother, Mark was paid "to come to the house to spend time with us, interact with the boys, and get to know them, because my overriding concern was just the transition of them getting to know someone new." The mother's first impression of Mark was not positive, but she thought, "okay, maybe he's just not good with grown-ups," and that "he must be good with kids or the center wouldn't have hired him."
Mark first babysat alone with the boys at the plaintiffs' home a couple of weeks later. He babysat for them five to ten times between January and June 2008. Toward the end of that period, the boys' mother noticed a change in his attitude. It caused her concern, and she decided to stop hiring him.
Meanwhile, following up on the center's offer to employ him that summer, Mark completed his application for summer employment at the center in February 2008 and cleared a criminal background check. Mark worked at the center as a paid employee for one day, in late June. On that day, the plaintiffs' sons disclosed to their parents that Mark had molested them while he was babysitting. The parents contacted law enforcement, and Mark was arrested. The childcare center immediately discontinued his employment.
Mark later admitted to having sexually assaulted the boys. He pleaded guilty to felony charges and was sentenced to 12 years' imprisonment. Before his arrest, Mark had no criminal history and no record of any school misconduct that would warrant suspension.
The plaintiffs sued the church and its childcare center (collectively, the "Church"), and Beth, Mark's mother, who also was a teacher at the childcare center. The jury returned a verdict in favor of the plaintiffs. It found that:
- The childcare center violated the Texas Deceptive Trade Practices Act (DPTA) by either "(a) representing that Mark had sponsorship, approval, status, affiliation, or connection that he did not have, or (b) representing that services are or will be of a particular standard, quality, or grade if they were of another," they did so knowingly, and Beth did so intentionally.
- In preparing the flyer, Beth knowingly and intentionally failed to disclose information and engaged in an unconscionable course of conduct "with the intention to induce [the plaintiffs] into a transaction they otherwise would not have entered into if the information had been disclosed."
- Beth was acting in the scope of her employment in circulating the flyer.
The church appealed.
The appeals court's decision
The court noted that to prevail on a DTPA claim, the plaintiffs were required to prove that they were consumers; they "detrimentally relied" on the false, misleading, or deceptive act or practice; and the false, misleading, or deceptive act or practice was a "producing cause" of their injuries. If a DTPA claim is based in part upon a failure to disclose material information, the statute also requires proof that the defendant knew the information and failed to bring it to the plaintiffs' attention.
The jury found that the plaintiffs would not have hired Mark but for the representations in the flyer, and that those representations were a substantial factor in bringing about their damages. But the appeals court disagreed:
A legal cause sufficient to impose civil liability for the criminal conduct of another is lacking in this case … . The relationship between Mark and the plaintiffs developed independently of Beth and the church. After the initial flyer, all of the contact between Mark and the plaintiffs took place at the plaintiffs' home … . The plaintiffs own interactions with Mark informed their decision to continue to hire him. By the time of the abuse, the connection between the representations in the flyer and Mark's presence in the plaintiffs' home was too attenuated to cause the plaintiffs' injuries..... The misrepresentations in the flyer created a condition that later made the grievous injuries possible—it was not a producing cause of them.
What This Means For Churches:
This case illustrates the potential risk churches face when they endorse or recommend to the congregation a member's services, especially when the recommendation is accompanied by false information. While the appeals court concluded that the church was not liable for the false information shared with the victims' parents about Mark's prior childcare experience or the church's steps to screen him, the trial court disagreed with this conclusion as might other courts. Further, the appeals court relied in part on the length of time that transpired between the false recommendation and the incidents of abuse, and the fact that all the abuse occurred off of church premises. The court's decisions likely would have been different but for these two circumstances. The lesson is clear: churches should avoid recommending person's services to the congregation unless they are fully vetted and the text of any recommendation is verifiably accurate.
This case also demonstrates that churches may be liable under state "deceptive trade practices" legislation for communicating false information to members concerning the fitness and suitability of youth workers. Bryant v. S.A.S., 416 S.W.3d 52 (Tex. App. 2013).