A Washington state court issues in important ruling-Funkhouser v. Wilson, 950 P.2d 501 (Wash. App. 1998)
[ Corporations, Church Officers, Directors, and Trustees,Negligence as a Basis for Liability ]
Article summary. A Washington state court ruled that a church and a member of the church board could be sued by three women who had been molested by a volunteer youth worker when they were minors. The board member had received information indicating that the worker was a child molester, but failed to disclose this information for twenty—three years. The court found that the church had a “special relationship” with minors that imposed upon it a duty to protect them from the criminal and intentional acts of others. This feature article addresses this important ruling and its relevance to church leaders.
A woman calls your church and asks to speak with “someone in authority.” The pastor is out—of—town, so the church secretary refers the caller to a member of the church board who happens to be at the church. The caller informs the board member that a volunteer youth worker in the church is a child molester, and she urges the board member to have the volunteer removed from any position involving contact with children. The board member does not disclose this call to the pastor, the church board, or any other person. Over the next few years the volunteer worker molests the pastor’s three minor daughters. Is the board member legally responsible for the girls’ injuries? What about the church? These were some of the questions addressed by a Washington state court in an important case. This feature article will review the facts of the case, summarize the court’s ruling, and evaluate the significance of the case to other churches.
Facts
In 1968 a member of the church board who also served as the church’s youth director (“David”) was at the church when the church secretary received a call from an unknown woman who asked to speak with someone in a position of authority. Since the pastor was not in his office the secretary asked David to take the call. The woman informed the board member that a prominent church leader (“Bob”) who had served as a member of the board of deacons, Sunday School teacher, and vacation Bible school director, was a child molester. The purpose of her call was to warn the church that Bob posed a risk of harm to children in the congregation. David advised the woman to file charges with the police, and asked that she “keep the church informed.” He did not inform anyone of the woman’s accusation until some twenty—three years later. However, he was concerned enough about what the woman told him that he felt it was his duty as the church’s youth director to “keep an eye” on Bob.
In 1969 the church employed a new pastor who had three minor daughters. Between 1969 and 1973 the two older girls were repeatedly molested by Bob. Most of these acts occurred in Bob’s home where he and his wife served as “babysitters” for the girls while the pastor and his wife traveled on church—related business. David was aware of the babysitting arrangement, but said nothing to the pastor regarding the risk Bob posed to the girls.
In 1974 the pastor and his family moved to another state to accept another pastoral position. During this time the church’s new pastor (the “successor pastor”) received information from Bob’s daughter—in—law that Bob had sexually molested his granddaughter in 1974. The successor pastor also learned from the sheriff’s office that a warrant had been issued for Bob’s arrest on charges of child molestation. The successor pastor immediately called a state denominational agency and asked an official what he should do with this information. The official allegedly advised him to “let it be and see what happens.” He also asked the successor pastor to keep him informed. In response to the successor’s question about removing Bob from the church board, the official replied “why hang your dirty wash out?” Neither the successor pastor nor the denominational official with whom he had spoken ever told anyone in the local church that Bob was a child molester.
In 1978 the former pastor and his family returned to their previous congregation. By this time the pastor’s two older daughters had grown up and moved away from home. The youngest daughter was eleven years old. Like her sisters, she was repeatedly molested by Bob in his home and on at least one occasion on church premises.
The sisters claimed that they “suppressed” their memories of Bob’s abuse for many years. In 1991 the youngest sister became fully aware of the abuse in the course of psychological counseling. She and her sisters then informed their father of the countless times they had been molested. It was only then, some twenty—two years after the first incidents of molestation occurred, that their father learned the truth. The pastor disclosed the allegations to David out of a concern that David’s own daughters may have been molested. David then disclosed the telephone call he had received from the woman some twenty—three years ago. The pastor and his daughters then learned that the successor pastor and the denominational agency had become aware of Bob’s propensities but did nothing to intervene.
In 1994 the three sisters sued David, the church, and the denominational agency that had counseled the successor pastor about Bob.
David (the church board member)
The sisters claimed that David was liable on two grounds. First, he had received information that Bob “had a prior history of child sexual abuse but negligently failed to investigate in order to substantiate the accusation against him, or to prevent him from being installed in church leadership positions that gave [him] unlimited access to and significant authority over children of the church.” Second, David “negligently and intentionally” failed to warn the girls’ father about Bob, thereby preventing him from protecting his daughters.
The local church
The sisters claimed that their church “negligently failed to protect them from abuse” despite David’s knowledge of Bob’s history of child abuse.
The denominational agency
The youngest sister claimed that the denominational agency “negligently failed to protect her” from Bob’s sexual abuse despite knowing of his disposition to sexually abuse children.
A trial court dismissed the lawsuit, and the sisters appealed.
The court’s decision
The court’s decision addressed a fundamental question-can an individual or church ever be legally responsible for not disclosing the dangerous propensities of another person? Consider the following examples:
• Example. A mother informs a member of the church board that her minor child was molested by a volunteer youth worker at a church activity. The board member does nothing about the allegation. The same volunteer later molests another child. Is the board member legally responsible for the injuries suffered by the second victim? Did the board member have a legal duty to protect other children from harm?
• Example. A church member informs her pastor that her minor child was molested by a volunteer youth worker at a church activity. The pastor confronts the youth worker, who leaves the church. A few weeks later the pastor learns that the youth worker has begun working with children in another church. The other church never asks the pastor for a reference or any other information concerning the youth worker. The pastor is concerned, but does not contact the other church. Later in the year it is disclosed that the youth worker molested a child in the other church. Is the pastor legally responsible for this incident? Did the pastor have a legal duty to inform the other church of the youth worker’s prior misconduct so that it could protect children from harm?
These are questions of fundamental importance to church leaders, and they were addressed directly by the court in this case.
The court began its opinion by noting that “as a general rule, there is no legal duty to protect another from the criminal acts of a third person.” However, it referred to two exceptions to this general rule:
(1) Special relationship. A church may have a duty to prevent a third person from causing physical harm to another if (i) a “special relationship” exists between the church and the third person which imposes upon the church a duty to control the third person’s conduct, or (ii) a “special relationship” exists between the church and the victim which imposes upon the church a duty to “protect” the victim from harm.
(2) Duty to warn. A church or church leader may be negligent by failing to warn another church that an individual represents a risk of harm to others, if the church or church leader should recognize that the failure to warn “involves an unreasonable risk of harm” to others-even if the risk involves criminal conduct. Since the court concluded that David, the church, and the denominational agency were liable on the basis of a “special relationship,” it did not determine whether or not they were also liable on the basis of a failure to warn.
special relationship-between the defendants and Bob
Did a “special relationship” exist between any of the three defendants (David, the church, and denominational agency) and Bob? If so, that defendant had a legal duty to control Bob’s conduct. If this duty was violated by failing to adequately control Bob, then the defendant would be liable for Bob’s acts of molestation.
The court noted that a “duty to control” will be imposed “only upon a showing of a definite, established and continuing relationship between the defendant and the [wrongdoer],” and that “cases in which such a duty has been established … have uniformly involved situations where the person charged with the duty of control has some sort of legal authority to control the [wrongdoer’s] conduct.”
The sisters insisted that a special relationship did exist between the three defendants and Bob which imposed upon the church a duty to “control” him. They pointed out that Bob was a “deacon” of his church, and then noted that the church constitution “recited the obligations of church members and leaders to comply with the highest standards of behavior and deportment, including the obligation to nurture those under their care and to live exemplary lifestyles.” According to the church constitution, deacons are to be “men of dignity [and] beyond reproach.” The pastor and deacons are charged with the responsibility of interviewing and disciplining members who violate their Christian obligations. The constitution contains provisions for formal disciplinary proceedings. The sisters further noted that the deacon board was expected to address issues concerning the welfare of the children in the church and to warn church members about dangers or risks presented by any church members who were “wayward or destructive in their actions (if such a situation were to arise).” They insisted that David and the church, by virtue of the church constitution, “voluntarily assumed a duty which included active intervention if one of the church members became a source of danger to other church members.”
The court rejected the sisters’ arguments, and concluded that neither David, the church, nor the denominational agency exercised sufficient control over Bob to create a “special relationship” that would impose a duty to control his behavior. Among other things, the court pointed out that the church’s disciplinary process could be triggered only upon receipt of a formal, written charge of misconduct. The woman’s telephone call in 1968 did not satisfy this requirement. Further, the church’s alleged “control” over Bob “was weaker than the usual employer—employee relationship would allow.”
Special relationship-between the defendants and the three sisters
The court noted that there is a second exception to the general rule that a church (or any other person or institution) has no legal duty to protect others from criminal acts of third persons. While a special relationship did not exist between the defendants and Bob imposing upon the defendants a duty to control his behavior, a special relationship also could arise between the defendants and the three sisters which would impose upon them a legal duty to protect the sisters from harm. If such a special relationship existed, then it may have been violated by the failure of the defendants to investigate or disclose Bob’s background. In other words, does a special relationship exist between churches and children who participate in their programs and activities? The court concluded that such a relationship did exist:
[W]e believe that churches and the adult church workers who assume responsibility for the spiritual well being of children of the congregation, whether as paid clergy or as volunteers, have a special relationship with those children that gives rise to a duty to protect them from reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over them. In each of the protective special relationships considered by the Washington courts to date, one party has, in some sense, been entrusted with the well being of another. The entrustment aspect is what appears to us to underlie the imposition of the additional duty to protect someone from foreseeable criminal acts of third parties.
The church then rejected the following defenses offered by David and the church:
(1) Courts should not apply contemporary understandings of child abuse to incidents occurring many years ago. David and the church insisted that much more is understood today about child sexual abuse than was understood in 1968 when the church received the telephone call concerning Bob. They also claimed that the information given by the caller was ambiguous, and that David reasonably could have believed that Bob was being accused only of having made unwanted advances of an immoral nature to a teenage girl rather than of molesting a child. The court was not convinced, noting that David was alarmed enough by the call to “keep an eye” on Bob for the protection of children in the church. Further, the court concluded that the call was not “anonymous” since the woman identified herself by name and expressed concern for the safety of children in the church.
(2) There was nothing the church could have done with the information provided by the telephone call in 1968. David and the church claimed that there is little they could have done with the information provided by the caller in 1968 since it was not a written accusation that would have triggered the possibility of formal disciplinary action under the church’s bylaws. And, they insisted that they could have been sued for defamation had they issued any warnings to the congregation based on the content of the telephone call. The court disagreed, noting that there would have been no defamation had David or the church warned the pastor that his daughters were in danger while Bob was serving as their babysitter.
(3) Most if not all of the molestation occurred in Bob’s home, and not on church premises. David and the church pointed out at least two of the daughters were never molested on church property or in the course of any church activity. The court did not consider this relevant. It noted that the daughters were alleging that the defendants were liable because they breached the duty of protection that arose as a result of the special relationship between the daughters and their church. The fact that the daughters were molested in Bob’s home did not matter. The court observed:
[T]he duty of reasonable care was breached when [David] not only failed to notify [the pastor] of the warning [he] had received but also failed to take any action that would have prevented [Bob] from continuing to serve in leadership roles in the church that gave him responsibility for the spiritual well being of the children of the congregation and that may have inspired trust by parents and children alike in [Bob’s] morality. There is also evidence in the record that [David] knew that [the pastor] had called upon [Bob] to baby—sit the [daughters] so that the pastor could travel on church business; yet he failed to warn [the pastor] that [Bob] might be a child molester.
Statute of limitations
The trial court had dismissed the claims of the youngest daughter on the ground that they were barred by the statute of limitations. Washington has a three—year statute of limitations for negligence cases, although the statute does not begin to run for injuries occurring to minors until their eighteenth birthday. The appeals court conceded that the youngest daughter’s lawsuit had been filed more than three years after her eighteenth birthday, but it insisted that she was protected by the so—called “discovery rule.” Under the discovery rule a lawsuit does not “accrue” (and the statute of limitations does not begin to run) until a person “knows, or in the exercise of due diligence should have known, all the essential elements of the cause of action.”
The court acknowledged that the youngest daughter had always recalled some of the acts of abuse against her and had always known that they harmed her to some extent. The church and denominational agency argued that because she always remembered some of the acts and corresponding injuries, the statute of limitations began running when she turned eighteen. The court disagreed:
The issue, however, is not when [the daughter] discovered [Bob’s] intentional tort, but when she discovered or should have discovered the elements of her negligence claims against the [defendants]. This, in turn, depended on her finding out that information about [Bob’s] history of sexually molesting children had been given to the [defendants] on two separate occasions before she was molested, and that they failed to warn her father or otherwise take reasonable steps to protect her from abuse by [Bob] ….
[T]he same factors that are likely to delay recognition of the full extent of injury inflicted by the perpetrator of sexual abuse are likely to delay discovery that the abuse might have been prevented if persons having a special relationship with the child had not breached a duty to protect the child from the abuse. Here, there is evidence that although [the youngest daughter] always knew that [Bob] had molested her, she suppressed the memory of the worst of the abuse until she was in therapy. Only after receiving therapy was she able to disclose the abuse to her father. Her disclosure to her father led to the discovery of her cause of action against the [defendants] only by happenstance. [The pastor] disclosed the abuse to [David] because he was concerned for the welfare of [David’s] daughters; he did not set out to discover a cause of action by his daughters against the [defendants] or any of them by making that initial disclosure. Indeed, we believe that a [jury] could conclude that the failure of church leaders to take reasonable steps to protect children of the congregation from sexual abuse by another church leader whom they believe to have molested even one child, let alone more than one, is so far beyond the pale of expected human behavior that due diligence simply does not require that an inquiry be made as to whether church leadership concealed their knowledge instead of taking reasonable steps to protect the children of the congregation.
The court rejected the defendants’ claim that the daughter failed to exercise due diligence by failing to inform her father of the abuse: “We decline to rule as a matter of law that [she] failed to exercise due diligence by failing to disclose the abuse to her father until 1991. The [defendants] may wish to make that argument to a jury, if they can find no more logical basis for arguing a lack of due diligence, but we are not persuaded as a matter of law that [the daughter] failed to exercise due diligence.”
Significance of the case to other churches
What is the relevance of this ruling to other churches? A decision by a Washington state appeals court is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there are a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:
1. Personal liability of board members for failing to act. The most important aspect of this case was the court’s conclusion that churches as well as “adult church workers” have a “special relationship” with children that gives rise to a “duty to protect” those children from harm. The court observed:
[W]e believe that churches and the adult church workers who assume responsibility for the spiritual well being of children of the congregation, whether as paid clergy or as volunteers, have a special relationship with those children that gives rise to a duty to protect them from reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over them.
This is an extraordinary conclusion. It exposes church leaders to liability for failing to protect children against “reasonably foreseeable risks of harm” by volunteer or paid youth workers. In this case, David (the church board member) could be sued because he breached his duty to protect the three girls from the reasonably foreseeable risk of harm associated with Bob. Of course, the church can be sued in such cases too. But the critical point is that those church leaders “who assume responsibility for the spiritual well being of children” have a duty to protect children and they can be personally liable for breaching that duty.
• Key point. Basing personal liability on a failure to protect children from foreseeable harm makes the location of acts of child molestation irrelevant. Most of the incidents in this case occurred in Bob’s home. The court concluded that this did not affect David’s responsibility for the girls’ injuries.
Let’s address each of the examples presented earlier in this article in light of this ruling:
• Example. A mother informs a member of the church board that her minor child was molested by a volunteer youth worker at a church activity. The board member does nothing about the allegation. The same volunteer later molests another child. Is the board member legally responsible for the injuries suffered by the second victim? According to the Washington court’s decision, the answer is probably yes. The board member likely has “assumed responsibility for the spiritual well being of children” as a member of the church board, and this responsibility gave rise to a “duty to protect” children in the church from any “reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over [children].” It is possible if not likely that any court following the Washington court’s ruling would conclude that this duty was breached by the board member’s failure to intervene after being informed by a mother that her minor child had been molested by the volunteer youth worker.
• Example. A church member informs her pastor that her minor child was molested by a volunteer youth worker at a church activity. The pastor confronts the youth worker, who leaves the church. A few weeks later the pastor learns that the youth worker has begun working with children in another church. The other church never asks the pastor for a reference or any other information concerning the youth worker. The pastor is concerned, but does not contact the other church. Later in the year it is disclosed that the youth worker molested a child in the other church. Is the pastor legally responsible for this incident? According to the Washington court’s decision, the answer is probably yes. The pastor likely has “assumed responsibility for the spiritual well being of children” as a result of his position in the church, and this responsibility gave rise to a “duty to protect” children in the church from any “reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over [children].” It is possible if not likely that any court following the Washington court’s ruling would conclude that this duty was breached by the pastor’s failure to intervene after being informed by the parent that her minor child had been molested by the volunteer youth worker.
2. Avoiding personal liability. What steps can church leaders take to reduce the risk of personal liability after receiving information suggesting that a youth worker poses a risk of harm to children in the church? The court responded to this question as follows:
[T]he duty of reasonable care was breached when [David] not only failed to notify [the pastor] of the warning [he] had received but also failed to take any action that would have prevented [Bob] from continuing to serve in leadership roles in the church that gave him responsibility for the spiritual well being of the children of the congregation and that may have inspired trust by parents and children alike in [Bob’s] morality. There is also evidence in the record that [David] knew that [the pastor] had called upon [Bob] to baby—sit the [daughters] so that the pastor could travel on church business; yet he failed to warn [the pastor] that [Bob] might be a child molester.
In summary, the court concluded that a board member (such as David) can satisfy the “duty to protect” children and avoid personal liability by:
• warning potential victims (or their parents), and
• “preventing” an alleged molester from working with children in the church
3. What about defamation claims? The court rejected the argument that “notifying” potential victims of a known risk would be defamatory. It concluded that notifying the pastor that his three girls were being exposed to risk by their association with Bob would not be defamatory-presumably because only one person was being informed.
4. Is there a duty to inform the entire congregation? As so often happens, the court’s decision left unanswered a few critical questions. One of those questions is whether or not church leaders should “notify” an entire congregation that a known or suspected child molester is in their midst. For example, what if a person with a prior conviction for child molestation wants to teach Sunday School? Or, what if such a person merely wants to attend the church? Are board members and pastors personally responsible for this person’s actions unless they notify the entire congregation of his background? This is a very difficult question. Note that the court concluded that the risk of liability can be reduced if church leaders refuse to permit such a person to work with children in the church. In addition, the court suggested that church leaders can reduce the risk of liability by notifying individual victims or their parents. If the potential molester is not allowed to work with children in the church this will minimize the need for notification. However, as this case illustrates, it may not eliminate it altogether. Remember that most of Bob’s acts of molestation occurred off of church premises in his own home. Yet, the court found David (the board member) personally liable because of his failure to notify the victims’ father. What does this mean? It suggests that church leaders who are aware that a known or suspected child molester is “babysitting” or entertaining children from the church in his home have a duty to notify the children’s parents of the risk of harm. This is exactly what David failed to do, and he was found personally liable because of it.
Further, note that the risk of defamation of invasion of privacy is reduced if not eliminated if parents are informed only of a criminal conviction that is a matter of public record.
• Key point. Church leaders should consult with an attorney before disclosing to anyone that a known or suspected child molester poses a risk of harm.
5. The church’s constitution or bylaws. The court rejected the victims’ attempt to impute liability to the church and David on the basis of the church constitution. The victims pointed out that the church constitution called upon members to comply with the highest standards of behavior, and charged the board with responsibility for disciplining members who violate those standards. A specific procedure for disciplining members also was set forth in the constitution. The court concluded that these provisions were not sufficient to impose liability on David or the church for Bob’s actions. It noted that the church’s disciplinary process could be triggered only upon receipt of a formal, written charge of misconduct, and that the woman’s telephone call in 1968 did not satisfy this requirement.
This conclusion will be good news for many churches. It is common for church constitutions to contain similar provisions, and this case will be helpful in rebutting any attempt to use such provisions as a basis for church liability.
6. The “discovery rule.” Another aspect of the court’s ruling that should be of special interest to church leaders is its expansive interpretation of the statute of limitations. Even though the youngest daughter was well aware of her injuries on her eighteenth birthday, the court ruled that the statute of limitations did not begin to “run” until she became aware of the legal basis for her claims against David and the church. This did not occur until she learned of the information that had been communicated with David about the alleged risk that Bob presented. Only then did she “discover” her legal claim, and so it was then that the statute of limitations began to run.
This ruling greatly extends the statute of limitations on child molestation claims-at least when church leaders fail to disclose or act upon information that a youth worker is a known or suspected child molester.
© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m86 m56 m10 c0498
