Youth ministry offers many churches their best—and perhaps only—opportunity to reach middle- and high-school students and teach them about the love of Christ. It’s a critical effort that deserves our full attention as we watch an increasingly changing landscape of beliefs, attitudes, and morals unfold in American culture.
Connecting with these students requires the full commitment of church leaders to properly staff and resource their youth ministries, and to make certain the work done speaks deeply to these students in contexts they know and understand.
This is hard work. It often requires creativity and flexibility, ranging from socially minded service projects to pick-ups and drop-offs of students to ongoing exchanges of texts with students to remind them of upcoming events.
This creativity and flexibility may be essential. It also may introduce potential risk and legal liabilities that the church must be prepared to address.
Unfortunately, many do not prepare as well as they should. Many headlines only confirm this. Consider the following examples:
- In Washington, a youth pastor sent sexually explicit emails to a girl in the youth group. He was sentenced to 30 years in prison.
- In Florida, a 15-passenger van carrying a church youth group rolled over, killing 1 person and injuring 19 others.
- In Oregon, a 15-year-old boy and an adult camp counselor fell into a pool at the base of a waterfall during a youth retreat involving multiple churches. Both drowned. The family of the boy is now suing the camp organizer and churches for $13 million.
- In Illinois, an 18-year-old man stands accused of raping two 15-year-old girls on separate occasions last year, allegedly using car rides home from church events as his way to isolate and victimize them.
- In Colorado, a youth pastor was accused of having a seven-year relationship with a girl in his group that started when she was 15. To make matters worse, pastors and elders acted on erroneous advice from legal counsel and didn’t report her accusation when she came forward. All were charged with misdemeanors for failing to report. The woman and her family filed a civil lawsuit against the church.
These situations are tragic and heartbreaking, especially because most were likely preventable. These situations also hit close to home: How many of these events could happen at your church?
Unfortunately for many, the answer is at least one—and possibly more. We know this because Christianity Today’s Church Law & Tax Group collaborated a number of years ago with Brotherhood Mutual Insurance Company to conduct the “Youth Ministry in America” survey. The purpose of the survey was “to gain a better understanding of the activities and practices of youth ministries in America to help create meaningful content to assist churches in ministering safely and effectively to the young people in their churches.”
More than 800 youth ministry leaders and pastors nationwide participated. The results of their responses revealed eight specific vulnerabilities that churches must address, especially because of the legal implications they pose. In this article, I review the survey responses and the ways churches can respond to potential problems in their youth ministries.
Risk #1: Lacking policies for communicating with youth
In a media-saturated culture such as ours, effective communication is a key to getting the attention of middle- and high-school students—and keeping that attention. Social media and texting are two of the popular methods, although face-to-face conversations remain a vital approach.
The survey asked survey respondents whether their church had a written policy on communicating with youth; 32 percent said yes, but 63 percent said no and 5 percent did not know.
The communication methods most often used involved social media and in-person contact.
The survey also asked youth pastors about the frequency of one-on-one communications. More than one-third (35 percent) said a few times each week, while 19 percent said daily, and 8 percent said several times each day. Another 19 percent said weekly, and 18 percent said occasionally.
Together, these responses reveal critical risks. A whopping 81 percent of respondents said they engaged in one-to-one communication with youth group members at least weekly. Many did so much more frequently. This level of personal and intimate communication with minors is troubling for several reasons. Most significantly, it opens the door to an intensification of the relationship that can lead to sexual intimacy, either physically or indirectly.
Allowing youth leaders to communicate with minors without any supervision or accountability is a dangerous practice. It is no different than a church’s senior pastor texting adult females in the church.
In some cases, such an unrestricted practice leads to the transmission of sexually explicit text messages or images (“sexting”) using a cellphone or an electronic device. In many states, sexting with minors is a felony criminal offense. Such messages also can be used as evidence in civil lawsuits against youth pastors by adolescents with whom they had a virtual or physical relationship.
For example, assume that an adolescent female in a church youth group claims that the youth pastor had nonconsensual sexual contact with her. She sues the church, claiming the church is responsible for the youth pastor’s acts on the basis of negligent hiring and supervision. The victim subpoenas the youth pastor’s text messages to establish the truth of her claims.
Several courts have addressed the issue of criminal liability of pastors for engaging in sexting. Consider the following examples:
Example. A pastor was convicted of several sexual offenses involving his sexual solicitation and molestation of a minor, and sentenced to a minimum prison term of 186 years. One of his offenses was “contributing to the delinquency of a minor,” which was based in part on several sexually explicit text messages (“sexting”) that the pastor sent to the minor on his cellphone. 2010 WL 10409 (N.C. App. 2010).
Example. A youth pastor (the “defendant”) was sentenced to five years in a state prison as a result of various sexual offenses with a minor female (the “victim”). The victim had sought out the defendant for counseling as a result of her depression and suicidal thoughts that stemmed from an incident of sexual abuse that occurred when she was nine or ten years old. One night, a sheriff found the defendant and victim parked off of a gravel road in a rural area. The defendant claimed he was parked in a remote area because he was trying to get a signal on his cellphone. The sheriff told him “it wasn’t smart to be out on a gravel road parked like that with a youth in his vehicle,” and he told him to “use his head.”
The sheriff later informed the victim’s father about what he had seen, and the father instructed the defendant to have no further contact with his daughter by cellphone or text message. A few weeks later the sheriff again found the defendant and victim in a car parked along a secluded farm road. The defendant claimed that he was counseling the victim regarding an incident of sexual abuse that had occurred several years earlier. The sheriff again informed the victim’s parents.
The defendant was later charged with several sex offenses. An investigation by the sheriff’s office uncovered text messages between him and the victim containing strong sexual content. His cellphone contained a partially nude image of the victim, and he sent a partially nude image of himself to the victim via a text message. This evidence was used to prosecute the defendant for violating a state law that makes the sexual exploitation of a counselee by a counselor a criminal offense. The court found that the defendant, as a youth counselor engaged in counseling the victim, was a “counselor,” and it sentenced him to a prison term of five years. State v. Duvall, 776 N.W.2d 301 (Iowa App. 2009).
Example. A court used sexually explicit text messages between a youth pastor and a female member of the youth group to corroborate her account of sexual exploitation. The court sentenced the pastor to a prison sentence of four years to life. 2009 WL 1476934 (Colo. App. 2009).
Example. A youth pastor (the “defendant”) sent several sexually explicit emails to a female adolescent in the church’s youth group. The victim told her mother about the emails. After reviewing the messages, the mother contacted the police. A police officer questioned the defendant about the emails.
The defendant admitted that he sent the emails, and expressed deep remorse for his actions. In the transcript of this conversation, the defendant stated that he had made “a very, very poor decision to engage in these email conversations with her, uh, and allowed myself to get caught up in things of a sexual nature.”
The state charged the defendant with six counts of communicating with a minor for immoral purposes under a state law making it a class C felony for a person to communicate with a minor for immoral purposes through electronic communication.
At trial, the defendant testified that he did not remember sending any of the emails. The jury didn’t believe him, and found him guilty on all six counts. The trial court sentenced the defendant as a class C felon to the statutory maximum of five years per count. State v. Haack, 2010 WL 4216705 (Wash. App. 2010).
Example. A volunteer youth leader (the “defendant”) in a local church was sentenced to eight years in prison on each of two counts of sexual assault in the first degree and contributing to the delinquency of a minor.
At trial, the defendant’s former husband testified that he suspected his wife of having an affair. He set up surveillance in his house and then left for the weekend. When he returned and retrieved the hidden device, he watched the videotaped recording of his wife and a 17-year-old male consuming alcohol and having sexual relations. He gave the police this recording, which led to the defendant’s arrest and prosecution.
Among the several items of evidence introduced at trial by the prosecution were several sexually explicit text messages from the defendant that the mother of the victim found on her son’s cellphone. Cluck v. State, 2009 WL 1362863 (Ark. App. 2009).
How should a church’s respond to this risk? Consider the following:
- Many churches have adopted policies banning any one-to-one communications by youth leaders with members of the youth group using cellphones, email, or any other form of communication, including social media. This is a reasonable response to the risk. But note that the survey reveals that this presently is the approach taken by only 1 percent of all churches.
- The church can further manage this risk by making all parents aware of the policy so that they can assist in its enforcement. Parents should be encouraged to report any violations immediately to the senior pastor or some other designated person.
- Youth leaders who violate the policy should be appropriately sanctioned. For a first offense, this may be a simple warning. But for serious infractions, or for continued violations after being warned to desist, dismissal must be an option. The point is this: Churches that are aware of inappropriate behavior by youth leaders, and refrain from taking appropriate remedial action, significantly increase their risk of liability for future inappropriate acts by the youth leader involving members of the youth group.
- If youth leaders use a cellphone provided by the church, church staff should examine monthly invoices carefully to look for potential violations of the church’s policy. Also consider having youth leaders provide their church-issued phones to the church for periodic inspections.
- “Benchmarking” is always a good risk management tool. This means checking with other youth-serving charities in your community to see how they handle the same issues. Start with your public school district, since its policies will reflect the risk management decisions of your state government. This goes a long way in establishing the reasonableness of your church’s policies.
Risk #2: Failing to document youth ministry participation
Survey respondents were asked: Does your youth ministry document who participates in youth activities (i.e., using a sign-in sheet or other forms of documentation)?
In response, 77 percent of youth pastors said “yes,” but only 58 percent of senior pastors agreed. Regardless of which response is accurate, the fact remains that a significant number of churches do not document ministry participation by youth.
Documenting youth participation in ministry events is a desirable practice from a legal perspective. Churches, like schools, are generally responsible for the safety of minors from the time they receive custody until the time custody ends. For younger minors, custody is ordinarily transferred when a minor is physically dropped off at church by a parent, guardian, or older sibling. In the case of older minors who drive (or are driven) to church, custody generally is transferred at the time they enter the church’s premises.
Problems arise when minors leave the custody of the church without permission before the end of a ministry activity.
For example, a 14-year-old girl is dropped off at church by her mother. The girl enters the church building, and exits out another door where her boyfriend is waiting for her. They drive off together, and return in time for the girl to be picked up at church by her mother. On one occasion the girl is severely injured in an accident caused by her boyfriend’s negligent driving. The church youth group does not keep records documenting the attendance of minors. Had it done so, and had it sent notifications to parents that their child had missed a specified number of events, then the parents would have been tipped off to their daughter’s activities, giving them a chance to confront her and perhaps spare her from being involved in the accident.
In summary, documenting youth participation in ministry activities can promote accountability.
Risk #3: Keeping imbalanced adult-to-youth ratios
Survey respondents were asked, “What is your adult-to-youth ratio for activities?” Church leaders struggle with this question, and so, predictably, their answers varied. More than four in ten respondents said they have one adult for every six to ten youth. One-third of the respondents said they have one adult for every one to five youth.
Any activity involving minors should be staffed with an adequate number of qualified adults. This will help demonstrate that the church exercised reasonable care to protect participants in youth ministry events, thereby reducing the risk of liability based on negligence in the event that a minor is injured or molested.
The appropriate ratio of adults to minors in youth ministry events will depend on several factors, including:
- Location of the event. More adults are needed to properly supervise out-of-town trips and events.
- Duration of the event. More adults are needed for longer events.
It is often helpful to contact other institutions for assistance with staffing ratios. For example, some churches base their adult-to-child ratio in the nursery on what the state requires of licensed day care facilities. You may also contact the Red Cross, Salvation Army, or similar organizations. But the best comparable institution will be your public schools, since they are state agencies that reflect the official policy of your state government.
If your church can demonstrate it based its adult-to-child ratio on the established practices of other similar organizations in its community, and especially public schools, then it possesses a strong defense in the event that it is accused of liability (for an injury to a child) on the basis of negligent supervision.
Consider these examples:
Example. Your church is planning a short-term missions trip to another state that will last seven days. The group will stay in a hotel. Public high schools in the area engage in frequent overnight trips during the school year for a variety of events (such as sports, music, or debate competitions).
Church leaders contact the public school district to find out what “adult-to-minor” ratios are used by schools in the district. The church follows the same ratios used by the public schools for overnight, out-of-town trips. This helps demonstrate that the church employed reasonable care in the supervision of its missions trip, which will assist in rebutting any claim of negligence in the event of an injury.
Example. A Michigan court ruled that a church was liable on the basis of negligent supervision for injuries sustained by a small boy who slipped and fell off of a piece of playground equipment on the church’s property.The court observed:
A teacher owes a duty to exercise reasonable care over students in his or her charge. . . . The evidence showed that three teachers were on the playground. The victim wandered away from the group unnoticed by the assistant assigned to his class, climbed on the monkey bars, fell, and was injured. There was no evidence that the other teachers were supervising him. Such evidence was sufficient to create a question as to the issue of negligent supervision. It is plausible that the victim would not have wandered off from the group, or at least not gone on the monkey bars unsupervised, had there been proper supervision. Daniels v. New St. Paul Tabernacle Church, 2003 WL 1984453 (Mich. App. 2003).
One judge dissented from the court’s ruling. Calling the case a “frivolous action,” he observed:
Here, three adults were supervising fifteen children at the time of the accident. The ratio required by the state Department of Consumer and Industry Services is one caregiver present for every ten children. . . . The child’s sudden and unexpected action of losing his grasp of the monkey bars was a true accident. The child fell off the playground equipment owned by the church. There’s no allegation of any defect in the equipment. This is an accident. The incident did not occur as a result of any negligence of any individual.
The dissenting judge also noted that the church was not guilty of negligence since “greater supervision would not have prevented the victim from losing his grasp of the monkey bars.”
Risk #4: Incorporating physical games, contests, or challenges
Survey respondents were asked, “What percentage of your youth group activities involve physical games, contests, or challenges?” Two-thirds of the respondents said that 25 percent or less of their youth group activities involve physical games, contests, or challenges. But substantial numbers of respondents indicated that their church’s youth ministry uses physical games, contests, or challenges. This is significant, since such high-risk activities can result in unanticipated liabilities for the church. This risk is illustrated by the following case.
Case study. Two minor boys (the “victims”) attended a “Youth Bash New Year’s Eve Lock-in” at their church. The event was sponsored, planned, and promoted by the church’s youth pastor. More than 100 youths attended. Several “competitions” occurred throughout the evening, in which participants could win prizes donated by local businesses.
One such competition was a “food testing” game. The youth pastor asked students to volunteer for the game, and offered a $50 gift certificate to those who volunteered to play. The youth pastor picked four adolescents, including both victims, to come up on stage. The four contestants were all invited to taste something good like chocolate milk.
Then the youth pastor brought an adult volunteer on stage, and poured various foods into his mouth that he chewed up and spit into a cup. Some of the foods were dog food, cauliflower, cottage cheese, salsa, sauerkraut, and pickle juice. The ingredients were all stirred together, and then the youth pastor offered each of the contestants a gift card if he or she would drink the mixture. Two girls who volunteered left the stage. Then the youth pastor handed the cup to each of the victims who reluctantly drank the mixture despite their revulsion.
The victims threw up several times that evening and again the next day, and remained ill for three days with headaches and a sore throat. Each boy’s parents took him to see a physician who conducted several tests to determine if the boys had contracted any diseases from the adult volunteer.
The victims’ parents sued the church, youth pastor, and the adult volunteer for battery, negligence, and emotional distress. A jury found in favor of the victims and awarded each boy a total of $10,000 in compensatory damages. The jury also found against the church in the amount of $45,000 in punitive damages for each boy. The church appealed the award of punitive damages.
A state appeals court noted that punitive damages “are imposed to deter and punish wrongful activity,” and require proof of “conscious and intentional misconduct, which the actor knew would probably result in injury.” Punitive damages may be awarded “only if there is clear and convincing evidence that the defendant acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake, honest error or judgment, overzealousness, mere negligence, or other human failing.” In other words, the defendant must have “subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences.”
The victims’ parents insisted the youth pastor’s actions were intentional, and therefore warranted punitive damages, because he planned the game before the lock-in. The court disagreed. It concluded the youth pastor’s planning of the event did not prove that he subjected the two boys “to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences.”
In fact, the court found no evidence that the youth pastor intended in any way to endanger the victims’ well-being. In support of its conclusion, the court quoted from the youth pastor’s description of another game that was conducted during the lock-in: “It was a quiz show, but it was a quiz show with a Nickelodeon emphasis. Well, we’re not going to bodily harm them. That wasn’t our goal that night. But we might dump flour on their heads, put shaving cream on them for the wrong answers. There was a funny, messy consequence. But that’s what teenagers enjoy.”
Regarding the food testing game, the youth pastor conceded that it was a “gross-out game,” but he insisted that “if I believed at any point that having anybody ingest that stuff would be harmful to them in any way, I would not have allowed the game to go on.”
The court concluded that the youth pastor’s behavior “at most, demonstrated an extreme lack of good judgment and perhaps an overzealous attempt at entertaining the adolescents with gross games.” It pointed out that “today there are numerous reality television programs featuring gross competitions. The youth pastor clearly wanted to emulate this trend to appeal to the adolescents who attended the lock-in.” Gomez ex rel. Gomez, 858 N.E.2d 1072 (Ind. App.2006).
This case illustrates the risks associated with games and challenges at youth ministry events.
Here are some steps that church leaders can take to reduce these risks with physical games, contests, or challenges:
Board approval of all activities. All games and activities that will be conducted during youth ministry should be preapproved by the lead pastor and church board. Youth leaders should not have the unilateral authority to expose minors to games or contests involving an excessive risk of personal injury.
Prohibit games and competitions that are unsafe. Games and activities that create an unreasonable risk of personal injury should not be tolerated, no matter how appealing they may be to minors. These may include rope repelling, rock climbing, bungee jumping, consumption of exotic liquids and substances, jumping on trampolines, skateboarding, swimming and diving, and so on. Such activities should not be tolerated unless an adequate number of qualified adults are present to provide supervision. Even then, the risk may not be lowered to an acceptable level.
Parental permission. Have parents sign permission slips that describe the activities that will be conducted. Permission slips should also contain parents’ contact information (home and cellphone numbers, and so on), as well as the designation of a staff member to make emergency medical decisions in the event a parent cannot be located.
Adequate supervision. It is essential for a church to provide adequate supervision during youth ministry events, including games and contests.
Benchmarking. It is a good practice to check with other charities in your church’s community to see what precautions they use when conducting lock-ins. For example, consider contacting the local Boy Scouts and Girl Scouts troops, the YMCA and YWCA, and the local public school district. Make a written summary of the precautions that these other groups follow, and align your church’s practices with the “community standard.” Note the adult-to-minor ratios followed by these organizations, as well as procedures to manage risk.
Screen workers. All adult workers, including every person who assists as a supervisor or chaperone at a church-sponsored youth ministry event, should be prescreened according to the church’s policy. Hopefully, the church already has implemented a screening program for persons who work with minors.
Key point. Remember, a church is not a guarantor of the safety of minors. But, it must exercise reasonable care when conducting activities involving minors. Reasonable care simply means complying with a community standard of care as evidenced by the practice of several charities in the area. Using local affiliates of national youth-serving charities is the best option, since in some states the standard of care is defined with reference to a “national” standard.
Risk #5: Ineffective consent forms for activities
Survey respondents were asked, “Does your youth ministry require signed consent forms before allowing youth to participate in activities?” Nine in ten respondents require signed consent forms before allowing youth to participate in activities:
One-third said each participant signs one form that covers all regular, recurring activities for the year plus individual forms for unique activities.
More than two in ten said each participant signs a form for each activity (24 percent) or only occasionally as needed (21 percent).
Another 7 percent of the respondents said they do not require a signed form to participate in activities.
Once again, these responses reflect considerable diversity in approaches.
Churches should not allow a minor child to participate in any church activity (such as camping, boating, swimming, hiking, or some sporting events) unless the child’s parents or legal guardians sign a form that:
- consents to their child participating in the specified activity;
- certifies that the child is able to participate in the event (e.g., if the activity involves boating or swimming, the parents or guardians should certify that the child is able to swim);
- lists any allergies or medical conditions that may be relevant to a physician in the event of an emergency;
- lists any activities that the parents or guardians do not want the child to engage in; and
- authorizes a designated individual to make emergency medical decisions for their child in the event that parents or legal guardians cannot be reached.
Ideally, the form should be signed by both parents or guardians (if there are two), and the signatures should be notarized. If only one parent or guardian signs, or the signatures are not notarized, the legal effectiveness of the form is diminished. Having persons sign as witnesses to a parent’s signature is not as good as a notary’s acknowledgment, but it is better than a signature without a witness.
The form should require the parent or guardian to inform the church immediately of any change in the information presented, and it should state that it is valid until revoked by the person who signed it. The parent or guardian should sign both in his or her own capacity as parent or guardian, and in a representative capacity on behalf of the minor child.
Consent forms should be drafted, or reviewed by, an attorney.
Many churches use “release forms,” which purport to release the church from legal responsibility for injuries inflicted by the negligence of its employees and volunteers. These may be stand-alone forms, or, more commonly, they may be incorporated directly into a consent form. Besides being of dubious legal value, such forms primarily protect the church’s insurance company.
If injuries are caused by the negligence of a church worker, then the liability insurer will pay for such damages up to the policy limits (if no exclusion applies, and no condition is violated). If the church is not negligent, then it ordinarily will not be assessed any damages.
A release form, even if deemed legally valid by a court, would have the effect of excusing the church’s liability insurer from paying damages to a victim of the church’s negligence. Imagine, for example, an adult who signs a valid release form as a condition to participating in a church activity. The adult breaks a leg as a result of the negligence of a church worker, and incurs $20,000 of medical bills—only to discover the release form he signed prevents him from obtaining insurance benefits under the church’s insurance policy, which would have been available to him had he not signed the release. The pastor of this church will have a very unhappy member.
Release forms that purport to excuse a church or other organization from liability for injuries to a minor are the most likely to be invalidated by the courts, often on the ground that they violate public policy.
There are two exceptions to the enforceability of releases that often are recognized by the courts. First, releases generally will not prevent an organization from being liable for its gross negligence. Second, releases will be scrutinized closely by the courts, and must clearly point out exactly what is being released. This is a very exacting standard that many release forms used by churches will not meet.
There are other exceptions to the enforceability of release forms that have been recognized by other courts, including the fact that the person signing the release is a minor. Churches should not use releases without discussing them with their insurance agent and a local attorney.
Consider these examples:
Example. A New York court ruled that a release form signed by a high school student and his parents did not relieve a church-operated school from liability for injuries sustained by the student when he was sexually assaulted by other students while on a school-sponsored trip to Europe. The court concluded that the release form was “unenforceable because it does not clearly and unequivocally express the intention of the parties to relieve the [defendants] from liability for injuries sustained as the result of their negligence.” John Doe v. Archbishop Stepinac High School, 729 N.Y.S.2d 538 (2001).
Example. A court in the Virgin Islands ruled that a release form signed by a mother of a minor child who attended a church-operated school did not absolve the school from liability for injuries the child sustained when injured during an after-school program. The court concluded that the release form was “ambiguous on the issue of whether it releases the liability of the school . . . for negligence in the supervision of the after-school program.” Joseph v. Church of God (Holiness) Academy, 2006 WL 1459505 (V.I. Super. 2006).
Example. A West Virginia court refused to enforce a release agreement signed by the youth pastor of a church on behalf of a 14-year-old girl who drowned on a church-sponsored whitewater rafting trip. The court noted that an “anticipatory release of liability” like the one in this case that “purports to exempt the defendant from liability to the plaintiff for the failure of the defendant to conform to the standard of care expected of members of his occupation is unenforceable.” As a result, the release form signed by the youth pastor was unenforceable. The court also refused to enforce an indemnification clause in the release agreement on the ground of ambiguity. The indemnification clause stated that “the undersigned parent and/or guardian of the minor, for themselves and on behalf of the minor, join in the foregoing waiver and release and stipulates and agrees to save and hold harmless, indemnify, and forever defend [the tour company] from and against any claims and negligence made or brought by the minor or by anyone on behalf of the minor.” However, the youth pastor who signed the form was not the parent or guardian of any of the minors. Johnson v. New River Scenic Whitewater Tours, Inc., (S.D.W.V. 2004).
Risk #6: Transporting youth participants to events
Survey respondents were asked, “How does your ministry typically transport youth participants to off-site events?” Note the following:
- The majority of the respondents use church-owned vehicles to transport youth participants to off-site events.
- An equal percentage of respondents use a youth pastor’s or leader’s personal vehicle, or transportation provided by youth and/or their parents.
- Two in ten respondents use other options that are not listed in the survey. The most common responses include rented, leased, or chartered vehicles, including buses or vans.
There are three important issues raised by these responses.
1. Church vans
There are significant legal and safety concerns associated with the continuing use of 15-passenger vans. Many 15-passenger vans carrying passengers have been involved in horrific accidents resulting in death or serious injury to occupants. In response, the National Highway Traffic Safety Administration (NHTSA) investigated several of these accidents, and in April 2001 issued a rare “consumer advisory” regarding an increased rollover risk for 15-passenger vans under certain conditions.
The advisory concludes that 15-passenger vans with more than 9 occupants have a rollover rate in single vehicle crashes that is nearly 3 times the rate of vans with fewer than 10 occupants. Since 2001, the NHTSA has taken the unprecedented step of reissuing its safety advisory on three additional occasions, in part due to “several tragic rollover crashes involving religious groups on trips.”
The NHTSA advisories make the following 10 recommendations to reduce the rollover risk associated with 15-passenger vans:
No more than 9 occupants.
Load occupants from the front of the van.
Each occupant is required to wear a seat belt at all times. The van owner should adopt a written seatbelt policy, and drivers should be informed that they are personally responsible for enforcing it. Nearly 80 percent of those killed in 15-passenger van rollovers in 2000 were not wearing seatbelts.
Absolutely nothing should be loaded on the van roof.
Van drivers should be well rested.
Drivers should drive cautiously (maintain a speed that is safe, given road and weather conditions, and be especially careful on rural and curved roads).
Inspect tires monthly to check for wear and proper inflation. Worn or improperly inflated tires increase the risk of a blowout. And, a 15-passenger van’s tendency to rollover increases dramatically during emergency maneuvers, such as a panic response to a tire blowout.
If the van’s wheels drop off the roadway, gradually reduce speed and steer back onto the road when it is safe to do so.
Only use drivers who have received specific training on the use of 15-passenger vans. Several options are available, including a van driver certification course offered by the National Safety Council. This training should be repeated every three years.
Drivers should keep the van’s gas tank as full as possible.
Some churches remove the back seat of their 15-passenger van in order to meet the NHTSA’s “no more than 9 occupants” recommendation, but then load the empty space with luggage, equipment, or other items. Such an arrangement does not work in most cases, since the problem involves weight; replacing people with equipment or luggage fails to address the underlying problem.
While not mentioned directly in the NHTSA recommendation, the safety problems associated with 15-passenger vans are compounded when towing trailers.
Any church or ministry that continues to use a 15-passenger van, following four NHTSA safety advisories regarding these vehicles, assumes enormous risks—risks of injuries or loss of human life, and potential legal liabilities caused by an accident. If one or more occupants are seriously injured or killed, a court might conclude that the use of a 15-passenger van was negligent. It is also possible a court would conclude that the church and its governing board were “grossly negligent” as a result of their disregard of the NHTSA safety advisories and the NHTSA’s recommendations. A finding of gross negligence is very serious, since it would expose the ministry to “punitive damages” that are not covered under its liability insurance policy. In addition, the members of the board could be personally liable for their gross negligence. While state and federal laws provide uncompensated board members of nonprofit organizations with limited immunity from liability, these laws do not protect against gross negligence.
It will become increasingly difficult to obtain liability insurance for 15-passenger vans because of the concerns mentioned above. The largest insurer of school buses in one state no longer insures 15-passenger vans that carry children to or from school. If your church owns one or more of these vehicles, be sure to confirm coverage under your insurance policies.
How should church leaders respond to the risk associated with 15-passenger vans? Consider the following four options:
First, continue to use 15-passenger vans but strictly comply with all 10 recommendations made in the NHTSA safety advisories quoted above, including to limit occupants to 9 or fewer per van. If continual compliance with all 10 recommendations cannot be guaranteed, without any exceptions, then this option must not be considered. In most cases, such an assurance will not be possible. In the rare case that continuous compliance with the 10 recommendations can be assured, a church then will have a defense to liability in the event of an accident. The defense may not be successful, but it at least can be made.
Second, sell all 15-passenger vans and replace them with smaller vans or “small school buses.” Small school buses are the safest form of transportation. While the initial cost of a new “small school bus” is slightly higher than a fully equipped 15-passenger van, the cost of operation is less expensive because buses are more reliable and last longer.
Third, rent a vehicle other than a 15-passenger van.
Fourth, use a commercial carrier to provide transportation services.
The second, third, or fourth options should be selected in any of the following five situations:
A church cannot obtain insurance for a 15-passenger van.
A church uses a 15-passenger van on a regular basis to transport school children (preschool through high school) to or from school or any school-related activity. In such a case, the van would be considered a nonconforming “school bus.” While it is still legal to use nonconforming school buses in most states, there is legislation pending in Congress and many state legislatures to change this. Further, even if the use of a nonconforming school bus does not violate state or federal law, such use may result in liability. The largest personal injury verdict in the history of one state resulted from the death of a student in a nonconforming school bus operated by a church.
A church wants to reduce the risk of death, injury, and liability (including uninsurable punitive damages, and personal liability for board members who authorize or allow the use of 15-passenger vans).
A church wants to send a message that it values human life.
A church cannot guarantee continuous compliance with the 10 safety recommendations contained in the NHTSA safety advisories.
An advantage of the second option is public image. The public is increasingly aware of the risks associated with 15-passenger vans. When people see a small school bus operated by a church, many will say, “There is a church that takes the safety of human beings seriously.” It really sends a positive message. On the other hand, when people see 15-passenger vans operated by churches and other ministries, many will have the opposite reaction.
In the final analysis, why would any rational person want to use 15-passenger vans in light of the potential for death, serious injury, and astronomical damages? There is only one reason—to save money. This justification is inexcusable. It also is erroneous when one considers the true “cost” of using these vehicles (death, injury, and staggering legal liability).
2. Church events
The transportation of minors to off-site events raises the important question of a church’s liability for injuries occurring at such events. Consider two illustrative cases.
Case #1. Archbishop Coleman F. Carroll High School, Inc. v. Maynoldi, 30 So.3d 533 (Fla. App. 2010).
Several students at a church-operated secondary school (the “school”) received cards inviting them to an “end-of-the-year party” at the home of two of the students. On some of the cards a bottle of liquor was faintly visible in the background. The cards were not prepared or distributed by the school, its faculty, or administration.
On the morning before the party, the school principal called the two students (brothers) hosting the party into his office so that he could question them. The students told him their parents would attend the party as chaperones.
School was dismissed for the year at noon on the last day of classes. Students began to arrive at the home where the party was to take place between 1 and 1:30 p.m. The mother of the “hosting” students arrived at the home sometime between 1:45 and 3:30 p.m., but went to her room and stayed there with the blinds drawn. Her husband joined her. Neither parent called the police or attempted to stop the party at any time.
Alcohol was consumed in the house and in cars. One student (the “victim”) and a classmate, though minors, had obtained 2 12-packs of beer and a bottle of vodka from a convenience store and arrived at the party at 2:30 p.m. The victim and the classmate drank in the victim’s car for an hour, and then went into the party with the remainder of their alcoholic drinks.
At about 4 p.m., the school’s principal and another school employee arrived at the party. The principal wanted to make sure things were okay, and that the parents were present. After a few minutes, the principal and the other school employee left and returned to the school. They did not notify police, visit the back of the home, call any parents (including the homeowners hosting the party), consume or provide alcohol, participate in the party themselves, or direct any students to leave.
Some 30 minutes to 45 minutes after the principal and school employee left the home where the party was in progress, the victim and his friend got into the victim’s car and drove away. Several miles away from the party and from the school, the vehicle struck a tree (traveling in a residential area at 100 miles per hour, according to police estimates) and split in half, instantly killing the friend and catastrophically injuring the victim. Two hours after the accident, the victim had a blood alcohol level of .09 percent (a blood alcohol level of .08 percent or higher subjects the vehicle operator to a criminal charge of driving while under the influence). The victim is now a quadriplegic, and he suffered traumatic brain injury as well.
The school’s parent and student handbook contained a section titled “Outside (Home) Parties,” which states:
Parents should be positive that responsible adults properly supervise activities that their child attends. We recommend the parents call the hosting family to ensure the activity has been planned for their home and that they plan to chaperone the event. In advance, if the school becomes aware of any party that involves illegal or immoral activities we will inform the proper authorities. We would ask that any parent who learns of any such party or event contact the administration so we could help prevent any tragedy that might result. THE SCHOOL WILL NOT BE RESPONSIBLE FOR ANY EVENT THAT IS NOT OFFICIALLY SANCTIONED BY THE ADMINISTRATION. We also strongly discourage allowing students to stay out after any official function is completed, or to rent facilities after any function, especially a dance or prom.
The handbook also contains a substance abuse policy applicable to alcoholic beverages that prohibited the use or possession of such beverages “by any student on school property or while attending or participating in any school-sponsored activity or at any time the student is wearing a school uniform.” The consequences of a violation were specified: “Transgression of this rule will result in disciplinary action, which may include dismissal from school, even for a first offense.” Another section stated:
The use, possession, or sale of alcoholic beverages or drugs is prohibited at all times on school premises before, during or after school hours or at school-sponsored events. ANY STUDENT WHO APPEARS TO HAVE CONSUMED ALCOHOLIC BEVERAGES, USED DRUGS, DISTRIBUTED DRUGS, OR ANY STUDENT WHO BRINGS SUCH SUBSTANCES ON THE SCHOOL PREMISES OR PLACE OF A SCHOOL SPONSORED FUNCTION IS SUBJECT TO DISMISSAL FROM SCHOOL, EVEN FOR A FIRST OFFENSE. The determination of “use” will by necessity be a judgmental decision by any staff or faculty member who may observe the behavior.
The victim and his parents (the “plaintiffs”) sued the school, the religious diocese that allegedly controlled the school, the school’s principal, the parents of the two students who hosted the party, and the convenience store that sold the alcohol to the victim and his friend. The plaintiffs settled with, or dismissed, all of the defendants except the school and diocese (the “defendants”).
The jury rendered a verdict awarding more than $55 million in damages, apportioning 53 percent of the negligence to the plaintiffs, 25 percent to the school, and 20 percent to the parents at whose home the party took place. The trial court allowed certain setoffs and ultimately entered an amended final judgment against the school and diocese for $13 million.
The school and the diocese appealed the final judgment.
The appeals court’s ruling
The court began its opinion by describing two rules that are used in deciding if a school (or church, or any other youth-serving organization) is legally responsible for injuries to students during off-premises activities:
School-sponsored events. A school may be responsible for injuries to students during an off-site “school-sponsored” event. The court noted that the “sponsor” of an event is one who pays for it or takes responsibility for it. In this case, “no resources of the school were used to conduct the party. High schools may be said to sponsor a prom away from the school premises, but the event is on official school calendars; faculty and staff ordinarily attend and chaperone; and the boundaries of liability are normally the boundaries of the school-sponsored venue.”
School-related events. The court noted that the broader category of school-related events “requires some connection to the school’s academic and extracurricular programs. A school athletic team’s participation in a scheduled competition at another location is obviously school-related.” The court referred to a prior case in which the Florida Supreme Court ruled that a school club’s off-premises meeting was school-related, subjecting the school to liability for negligence. Rupp v. Bryant, 417 So.2d 658 (Fla.1982). In that case, the activity that caused a student’s tragic injury was officially prohibited by the school (a hazing ceremony).
The school’s duty of supervision extended to the activity because the club in question was established and officially sponsored by the school, the school had reserved to itself the authority to control the activities of the club, and the club had a faculty adviser.
In this case, however, there was no club “recognized, endorsed, or supervised in any way by the school. The off-premises activity was planned, hosted, and attended by a collection of students having no name, group identity known to the school, or school-related purpose. Of the students attending, only two had been firmly identified (the students whose address was listed on the invitation) by the school, and those two told the school that their parents would be present. The two student hosts did not ask for or obtain the school’s permission to conduct the event, and the academic school year was complete when the students left the school premises (before the event began).”
The court stressed that “mere knowledge of the off-premises party is not a basis for liability.” But, it acknowledged that two additional facts needed to be addressed: the school handbook and the visit by the principal and another school employee to the off-premises residence at which the party took place.
With regard to the “Parent and School Handbook” section on “Outside (Home) Parties,” the plaintiffs alleged that the school undertook a responsibility to notify “the proper legal authorities” because the school became aware, in advance, that the party “involved illegal or immoral activities.” The court disagreed, noting that the school disclaimed responsibility for unauthorized home parties in an all-capitalized disclaimer in the same section:
THE SCHOOL WILL NOT BE RESPONSIBLE FOR ANY EVENT THAT IS NOT OFFICIALLY SANCTIONED BY THE ADMINISTRATION.
The party in this case “was not officially sanctioned.” In addition, “the school’s policy in the handbook does not change the fact that the incident occurred at a time when the school had no duty to supervise the students,” since it occurred after the end of the school year.
With regard to the visit to the off-premises party site by the principal and employee, “neither of these visitors undertook a special duty to care for [the victim]. The principal and employee were not invitees of the owners of the residence, and they never spoke to the student hosts’ mother. They did not offer a ride to anyone, offer to call [the victim’s] parents, take his keys, or otherwise render services to him or his parents. Nor was he under these visitors’ authority, control, or supervision. School was out.”
The court concluded its opinion with these words:
No conscientious juror or judge could (or can now) feel anything but the deepest sympathy for the tragic results of [the victim’s] accident. But our legal system requires more than heartfelt sympathy and demonstrable damages as predicates for the compensation of injured persons. . . . The parent and student handbook provisions, and the visit by the principal and employee to the residence where the party was underway . . . were insufficient as a matter of law to impose upon the school a duty to supervise, or a duty . . . regarding [the victim’s] acquisition and consumption of alcohol, attendance at the party, and fatal decision to get behind the wheel.
It is common for members of a church’s youth group to conduct activities off of the church premises. Such activities may involve worship or Bible study, parties, or recreational activities. In addition, church-operated schools conduct a variety of off-site activities, including club activities and sports teams. Is a church legally responsible for injuries sustained by minors before, during, or after such off-site activities? This case provides helpful guidance. Here are some points to note:
- Mere knowledge of an off-premises activity is not necessarily a basis for liability. There must be something more. The court concluded that liability may arise for either a “sponsored” event or a “related” event.
- A school, church, or other youth-serving charity may be responsible for injuries to minors during an off-site “sponsored” event. The court noted that the characteristics of a “sponsor” of an event include the following: (1) A sponsor pays for it or takes responsibility for the event; (2) the event is on its official calendar; (3) one or more of the sponsor’s employees typically attend as chaperones.
The court also noted that a school can be liable for injuries to students during “school-related” events that involve “some connection to the school’s academic and extracurricular programs.” As examples, the court cited a school athletic team’s participation in a scheduled competition at another location, or a school club’s off-premises meeting. The court noted that the school’s duty of supervision extends to such activities if the group is officially sponsored by the school and the school reserved the authority to control its activities.
The key point is this: While an event may not be officially sponsored by a church, the church may still be liable for injuries to minors who participate in the event if it is “church-related” in the sense that the minors are participating in a group that is church-sponsored and subject to the church’s supervision and control.
The court concluded that the victim in this case was not injured in the course of a school-related event. It cited the following factors in reaching this conclusion:
There was no extracurricular or student “organization” over which the school or principal could have exercised control, and so there was no duty to do so.
There was no “club” that had been recognized, endorsed, or supervised in any way by the school.
The off-premises activity was planned, hosted, and attended by a collection of students “having no name, group identity known to the school, or school-related purpose.”
The two student “hosts” did not ask for or obtain the school’s permission to conduct the event, and the academic school year was complete when the students left the school premises (before the event began).
The court referred to the following cases:
Rupp v. Bryant, 417 So.2d 658 (Fla. 1982). A school club’s off-premises meeting was school-related, subjecting the school to liability for negligence. The activity that caused a student’s tragic injury was officially prohibited by the school (a hazing ceremony). The school’s duty of supervision extended to the activity, however, because the school authorized and sponsored the club, reserved to itself the authority to control the activities of the club, and the club had a faculty adviser.
Fernandez v. Florida National College, Inc., 925 So.2d 1096 (Fla. App. 2006). A college was not responsible for a tragic accident during an off-campus excursion to celebrate the end of the school year because the teacher who drove the group did so in his individual capacity, after classes were officially concluded, and without authorization by the school.
Rhea v. Grandview School District, 694 P.2d 666 (1985). A high school senior class met in the school gymnasium just before graduation. Before their faculty adviser joined the group, the students planned an off-campus party to be held on one of the “release” days when seniors were not required to attend school. When the faculty adviser learned that the students were planning to bring beer to the party, he “admonished the students and reported the incident to the principal.” One of the seniors who attended the party consumed alcoholic beverages and was killed instantly in a collision while driving her car home. At the time of her death, the student’s blood alcohol level was .13 percent. In the ensuing lawsuit, the trial court and a Washington state appeals court both ruled in favor of the school, despite the principal’s and faculty adviser’s knowledge and inaction. The appeals court followed other cases determining that “the nexus between an assertion of the school district’s authority and potential tort liability springs from the exercise or assumption of control and supervision over [a student] organization and its activities by the appropriate agents of the school district.”
The court noted that the school disclaimed responsibility for unauthorized home parties in an all-capitalized disclaimer in its parent and student handbook: “THE SCHOOL WILL NOT BE RESPONSIBLE FOR ANY EVENT THAT IS NOT OFFICIALLY SANCTIONED BY THE ADMINISTRATION.” The party in this case “was not officially sanctioned.” In addition, “the school’s policy in the handbook does not change the fact that the incident occurred at a time when the school had no duty to supervise the students” since it occurred after the end of the school year.
Case #2: Bartell ex rel. Hoesel v. Mesa Soccer Club, 2010 WL 502993 (Ariz. App. 2010)
An Arizona appeals court upheld a $7 million verdict against a nonprofit youth soccer club as a result of permanent brain injuries suffered by a motorcyclist struck by an SUV driven by a 16-year-old girl. She was driving carelessly while transporting other minors to a scheduled practice.
The club sponsored a youth soccer league, fielding several different teams based on the age and ability of the players. It hired coaches for each team. The coach of one of the teams scheduled a training session in a park 20 miles away. Team members were told that they would all meet at a local mall, and from there they would carpool together to the park. A 16-year-old girl (“Allison”) drove herself to the mall in her mother’s SUV. From there she drove herself and four other players to the park.
The team trained at the park for two hours. Afterward, the coach gave the team driving directions back to the mall. Because a “no left turn” sign was posted at the park exit, the coach instructed drivers to make a right-hand turn out of the parking lot, make a legal U-turn, and then proceed in the opposite direction. The coach exited the parking lot first, turning right and then quickly executing a U-turn. The next driver made a right-hand turn out of the parking lot. Allison was driving the next vehicle, which contained several minors. She pulled into the intersection and began an illegal left-hand turn. She was immediately struck by a motorcyclist, who suffered severe and permanent brain injuries as a result of the accident. The victim’s guardian sued the soccer club, claiming it was responsible for Allison’s negligence on the basis of the legal doctrine of respondeat superior, which makes an employer responsible for the negligent acts of its employees while acting in the course of their employment. This principle has been extended to uncompensated volunteers.
The jury awarded the victim a $7 million verdict. It found the soccer club 1 percent at fault, the coach 16 percent at fault, and Allison 83 percent at fault. However, the soccer club was responsible for paying the entire verdict on the basis of the respondeat superior doctrine, which imposes liability on employers for the negligent acts of their employees and volunteers committed within the course of their duties. The soccer club appealed.
The appeals court noted that, in determining whether the respondeat superior doctrine applies to volunteers, “the two key elements are whether the actor has submitted herself to the directions and control of the one for whom the service is done and whether the primary purpose underlying the act was to serve another.” The court concluded that there was sufficient evidence for the jury to find that Allison subjected herself to the club’s control on the day of the incident and that the primary purpose of her actions was to serve the club. In support of this conclusion, the court noted that the soccer club did not normally control transportation of the players to and from practices and games. Instead, it relied on parents to provide transportation to and from events.
On the day of the accident, however, the coach directed the players to meet at the mall, rather than the usual practice site, and to carpool to the park 20 miles away. And, there was evidence the coach asked Allison to drive herself and several of her teammates from the mall to the practice site and back again since she had one of the bigger vehicles. The court concluded that reasonable persons could find that she performed this task primarily for the club’s benefit. Under club rules, Allison “had a general obligation to transport herself to and from practice, but she had no obligation to transport several of her teammates, as the coach requested that she do.”
Allison’s mother testified that she did not want Allison to drive from the mall to the practice site on the day of the accident because Allison was a newly licensed driver. Allison never previously drove to the park where the practice was scheduled, leading the mother to believe it was too far for Allison to drive and unsafe. While Allison may have benefitted from transporting herself to practice, it was for the club’s benefit that she was asked to transport her teammates.
The court pointed to evidence that the club exercised control over Allison’s driving to and from the practice site. Allison testified that, as the team was preparing to leave the practice site, the coach gave her directions back to the mall and directed her to follow him in his vehicle.
The court rejected the soccer club’s argument that the doctrine of respondeat superior could not apply to Allison’s “informal and temporary” conduct. It cited two cases as examples of court rulings finding that a nonprofit organization may be vicariously liable for the negligence of a one-time or occasional volunteer who injures a third-party while using his or her personal vehicle to transport goods or persons for that organization, so long as the organization exercised sufficient control over the volunteer’s actions:
Daniels v. Reel, 515 S.E.2d 22 (N.C. App. 1999). A baseball coach instructed his team to meet at the high school before a game. At the school, he asked for volunteers to drive to the game and Reel, a sixteen-year-old player, volunteered to drive himself and several players in his father’s SUV. While returning from the game, Reel was involved in an accident that injured two players in his vehicle and killed another. On those facts, the court found it was for the jury to determine whether Reel was an agent of the American Legion post that sponsored the baseball team and whether that American Legion post was vicariously liable for Reel’s negligence under the doctrine of respondeat superior.
Trinity Lutheran Church, Inc. v. Miller, 451 N.E.2d 1099 (Ind. App. 1983). Goodman volunteered to deliver cookies to sick and infirm members of the church’s congregation as part of the church’s Christmas program. While making deliveries, he turned his vehicle into Miller’s motorcycle, which resulted in Miller’s left leg being amputated. The court found there was sufficient evidence for the jury to conclude Goodman was an agent of the church and subject to its control. The court noted that Goodman drove at the invitation of a church member; he participated as a driver on previous Christmases; and, the church picked the delivery date, provided the cookies, organized the list of shut-in members who were to receive cookies, and chose the people to whom Goodman was to deliver cookies.
The court concluded that “there was sufficient evidence for the jury to find that Allison was an agent of the soccer club and subjected herself to its control at the time of the incident.”
The soccer club argued that “strong public policy concerns should compel rejection of vicarious liability under the facts of this case” and that imposing vicarious liability would subject numerous charitable and youth organizations to liability because their participants are often required to travel to and from sponsored events. It added: “All that would be needed to saddle one of these organizations with the potential for multi-million dollar liability would be a claim that a request was made by the organization.”
In rejecting this defense, the court observed: “To the extent the club is suggesting that charitable organizations should not be saddled with respondeat superior liability, we note that the doctrine of charitable immunity has long been abolished in Arizona.”
Going and coming rule
The court conceded that an employer is generally not liable for the negligent acts of its employee while the employee is going to, or returning from, his or her place of employment. However, that rule was not applicable in this case since Allison’s “driving to and from this particular practice location formed the very basis of the agency relationship.”
This case is of immense relevance to church leaders. Consider this: If your youth pastor or youth leaders direct members of the youth group to use their own or a parent’s vehicle to transport other members of the youth group to an off-site activity, the church may be liable for any accident or injuries that occur due to the drivers’ negligence. According to this court, all that is required is that the driver attempts to serve the church at the time of the accident, and that he or she is subject to some direction or control by the church, such as following instructions. Obviously, these tests are easily met. It is also worth noting that the soccer club’s culpability was enhanced by the fact that it allowed a 16-year-old girl with a new driver’s license to drive several other kids in a massive SUV, despite her own mother’s misgivings.
What can a church do to manage this risk?
First, build awareness of cases like this one, which demonstrate a potential liability for a church.
Second, understand that using minors to transport other minors at the direction of church leaders can create liability for the church in the event the driver causes an accident. A far better arrangement is to have parents drive. Parents may find it inconvenient and kids may rebel, but that’s often the outcome of implementing effective risk management strategies. Each church needs to determine what level of risk it is willing to tolerate.
Third, don’t use 16-year-olds to transport other minors. In many states, 16-year-olds are prohibited from driving other minors without the presence of an adult in the vehicle. It is imperative for a church’s youth leaders to be familiar with these legal restrictions and ensure that they are scrupulously followed.
Fourth, review the church’s liability insurance policy to ensure that you have nonowned vehicle coverage. This covers injuries and damages caused by members who use their own vehicle while performing services for their church. The driver’s personal car insurance is also available, but if inadequate, the nonowned vehicle coverage may kick in. This is usually available as an endorsement on your general liability policy. Check with your insurance agent for details.
3. Non-owned vehicle insurance
If a church employee or volunteer causes an accident while driving his or her own vehicle on church business, the church may be liable for any deaths or injuries that may result. Since the vehicle involved was not owned by the church, it is possible that the church will end up without any insurance coverage for the accident. This illustrates why non-owned vehicle insurance coverage is important. Be sure your liability policy includes coverage for non-owned vehicles used by church employees and volunteers, and, if it does not, ask your agent how to obtain this additional coverage (usually with a special endorsement).
Risk #7: Overnight events or trips
Respondents were asked if their church youth group participated in overnight events or trips. Nine in ten respondents answered yes to this question. These kinds of events involve significant risks because of the difficulty of providing adequate supervision. Here are several issues to consider when planning such events:
What kinds of activities will be conducted? See the prior analysis of contests and challenges.
Will minors be transported to an offsite location during the night? If so, see the prior analysis addressing transportation issues.
How many adults will supervise the event? See the prior analysis addressing adult-to-minor ratios. Adequate supervision is often difficult during overnight activities. It is essential for a church to provide adequate supervision during a lock-in. If the event lasts all night, then adults must supervise the group all night. They can divide the responsibility by assigning adults to different “shifts.” But, a minimum of two adults must be awake and “on duty” at all times. Anything less will expose participants and the church to an unacceptable level of risk. If young children are present, the area where the lock-in will occur should be thoroughly inspected to remove any toxic or dangerous substances or devices.
Any overnight youth event, including the activities that will be conducted, should be approved by the church board.
Have parents sign permission slips that describe the activities that will be conducted. Permission slips also should contain parents’ contact information (home and cellphone numbers, and so on), as well as the designation of a staff member to make emergency medical decisions in the event a parent cannot be located.
Churches that conduct lock-ins for both male and female adolescents run the risk of sexual contact among the adolescents. This risk can only be managed by strict segregation of male and female students, and continuous supervision by an adequate number of adult leaders. Consider conducting same-sex lock-ins.
Some lock-ins are inherently safer than others. For example, lock-ins that restrict participants to young girls, and limit supervisors or chaperones to adult females (including several mothers) are safer in most cases than lock-ins with male and female adolescent participants.
If possible, remote and isolated areas of the church should be locked.
It is a good practice to check with other charities in your community to see what precautions they use when conducting lock-ins. For example, consider contacting the Boy Scouts of America and Girl Scouts of the USA, and the YMCA and YWCA. Make a written summary of the precautions followed by these other groups, and align your practices with the “community standard.” Note the adult-to-minor ratios that they follow, as well as procedures to manage risk.
Key point. Remember, a church is not a guarantor of the safety of minors. But, it must exercise reasonable care when conducting activities involving minors. Reasonable care simply means complying with a community standard of care as evidenced by the practice of several charities in the area. Using local affiliates of national youth-serving charities is the best option, since in some states the standard of care is defined with reference to a “national” standard.
Acts of sexual molestation during lock-ins often occur when the group is watching videos in the dark. This risk is easily remedied by leaving lights on when showing videos, and prohibiting adults from lying next to minors. Be alert to the use of blankets to conceal acts of molestation.
Key point. It is difficult, if not impossible, to adequately supervise a group with the lights turned off. A church can reduce the risk of molestation, and other injuries, by leaving lights on during the showing of videos. This will also reduce the risk of children wandering away from the group in the dark, either intentionally or accidentally.
It is essential for supervisors to know if a minor leaves the church building during a lock-in. The church is legally responsible for the care and supervision of minors until custody is returned to a parent or guardian at the end of the event. If a teenager sneaks away during a lock-in for a rendezvous with a friend, the church is responsible for whatever injuries occur. Steps must be taken to prevent such unauthorized departures from happening. These may include some or all of the following:
- Conduct periodic “roll calls.” Read each name on the roster of participants and make sure everyone is present.
- Keep the group together at all times, with constant monitoring by at least two adults.
- Monitor exterior doors.
- Pay special attention to use of restrooms. This excuse provides minors with an opportunity to leave the group, and the church.
It is unwise to have minors of significantly different ages at the same lock-in. Power imbalances can lead to acts of sexual victimization of younger children, as well as a greater risk of injuries caused by “roughhousing.”
Restroom breaks present a significant risk. Appropriate safeguards will depend on the building layout and the age of the minors. Children must not be allowed to wander off to a restroom alone, or with one or more older children.
All adult workers should be screened. Hopefully, the church already uses a screening program for persons who will work with minors. Every person who assists as a supervisor or chaperone at a church-sponsored lock-in should be prescreened according to the church’s policy. At a minimum, the screening program should include:
- a written application
- an interview
- a criminal records check (including national file and a national sex offender registry check)
- reference checks (the best references are from other charities in which the applicant has worked with minors)
- a six-month rule for volunteers (require someone to be a member of the church for at least six months before allowing them to serve).
If the event involves swimming, use only facilities where certified life guards are on duty and assume responsibility for supervising activity.
If a trip involves sleeping at hotels, you will need to decide how to allocate members of the youth group to separate rooms. Consider these key points:
Avoid power imbalances (older youth sleeping in the same room with young children). Minors in each room should be about the same age.
Contact your local public school district to see how they handle sleeping arrangements in hotels. A key issue is whether to have adults in the same rooms as minors. While this is often appropriate, and necessary, for younger children, it is best to restrict the adults to parents of one or more children in the room.
For adolescents, it is common to have no adults in a hotel room. This option works best if all of the hotel rooms the youth group uses are on the same floor, so that chaperones can monitor room noise, and, more importantly, attempts by minors to exit their rooms. Again, check with your local school district. It sponsors overnight trips for sporting, fine arts, and other events, and it will have a policy that not only will be helpful, but will also express the conclusions of the state regarding proper housing arrangements involving minors.
Risk #8: Improper screening and selection of youth ministry staff and volunteers
Respondents were asked if their church screens people who work with the youth group. Three-fourths of the respondents said they screen all paid workers and volunteers for their youth ministry. Less than one in ten respondents said they do not screen youth workers or volunteers.
These responses reflect the significant change in church practice over the past few decades. Not long ago, these numbers would have been quite different. But, over time, the numbers of churches that screen youth workers has steadily increased, becoming the standard practice today. Only 10 percent of respondents said that their church does not screen youth workers. These churches are exposing children and youth to an elevated risk of sexual abuse, which exposes the church to significant legal liability. Any church that does not screen youth workers should start immediately.
Key point. Reducing the Risk is a comprehensive child-abuse prevention training resource that includes a screening program. Learn more at ChurchLawAndTax.com.
Key point. Our ongoing research shows the sexual abuse of minors remains the most common reason churches are in court. There are no legitimate reasons for a church to refuse implementing a program for screening paid and volunteer youth workers.
Respondents also identified ways that their church screens youth workers. While 86 percent said they conduct a background check, only 55 percent said they check references. In other words, nearly half of churches surveyed said that they do not conduct reference checks on youth workers. The key point is that criminal records checks are not an adequate means of screening youth workers. They must be used in conjunction with reference checks in order to reduce risk the most.
There are two basic kinds of references: personal and institutional.
- Personal references are persons that an applicant lists on his or her application. Usually, church leaders are not familiar with such references, and so they are of limited value. Further, the FBI profile on preferential child molesters states that one of the characteristics of pedophiles is that their only adult friends tend to be other pedophiles. This further diminishes the value of personal references.
- The best reference is an institutional reference. This is a reference from another institution with which the applicant has worked with minors, either as a paid employee or an unpaid volunteer. Obviously, obtaining a positive reference from one or more other institutions that have actually observed the applicant interact with minors is the gold standard in terms of references. Some applicants have not worked with other youth-serving institutions in the past, and so no institutional reference is available. In such cases, a church’s only option is to obtain personal references. However, risk can be reduced by limiting personal references to members of the church.