An Ohio court issues an important ruling-Evans v. Ohio State University, 680 N.E.2d 161 (Ohio 1996) [Negligence as a Basis for Liability]
Article summary. The Ohio Supreme Court ruled that the 4—H organization was not responsible for the molestation of a girl by a 4—H volunteer despite the fact that 4—H officials were aware that he was a convicted child molester when they decided to use him. The court stressed that the incident occurred in the volunteer’s home and not in the course of any official 4—H activity. The court’s opinion provides useful guidance in predicting when a church or other agency that cares for children may be legally responsible for a volunteer’s acts of child molestation occurring outside of officially sanctioned activities or programs.
A pastor receives an anonymous letter informing him that a youth worker in his church was convicted of child molestation several years ago. The pastor shares this information with the church board. The board decides that no action needs to be taken since the worker is involved in group activities that are “in the open.” Besides, other adult workers are almost always present. A few months later the worker invites a young girl in the youth group to his home and molests her. The girl and her parents sue the church. Is the church legally responsible for the molester’s behavior? Was it negligent? These were the issues before an Ohio court in a recent case. While the case involved a non—religious charity (4—H), the court’s decision is of direct relevance to church leaders. This feature article will review the facts of this unfortunate case, discuss the court’s ruling, and evaluate the relevance of the case to churches and church leaders.
In 1981 a man (the “defendant”) became a volunteer advisor for a local 4—H club in Ohio. He had two children in the 4—H program at the time. In 1984 the defendant was convicted of gross sexual imposition and corruption of a minor. He served two years in prison and was released in 1987. In 1988 he again became involved in 4—H activities. Some 4—H volunteers were aware of the criminal conviction and prison sentence, but they believed that the defendant was innocent.
A 4—H volunteer in a neighboring county was acquainted with the defendant, and invited him to be a “small animal” judge at the 1988 and 1989 county fairs. The volunteer also asked the defendant to speak at pre—fair clinics. In 1990, a 4—H official received a phone call from a woman who stated that the defendant “is on your nonrecommended, nonapproved, noncertified judges list, and I believe he is a convicted child molester. I’m not for sure, but I’ve heard that.” As a result of this conversation, the 4—H official sent out a letter to 4—H officials in every county in the state advising them to inform those persons responsible for selecting judges of the facts concerning the defendant.
The letter was discussed at a meeting of 4—H volunteers in the county in which the defendant had served as a judge and speaker. During that meeting, a woman stood up and spoke on behalf of the defendant, stating that she had known him “for a long time,” that she was aware of his prior criminal record, and that she did not believe that he was guilty. Several people then spoke up and expressed confidence in this woman’s opinion since she was personally acquainted with the defendant. Others observed that “we were only asking him to come and do a clinic, in a public setting, where he would be under our control, and then he would be back across the county lines, that it was a reasonable thing to go ahead and ask him to come and allow him to do that clinic.” The group decided to let the defendant speak at clinics in 1990 and 1991.
A young girl (the “victim”) joined the neighboring county’s 4—H program in late 1991-after the defendant had completed his judging and speaking commitments. She met the defendant, and the two began talking about the victim’s interest in small animals. These casual conversations led to numerous telephone conversations. The defendant informed the victim and her mother that he was an orthopedic physician who worked at a local hospital. He often carried a small black medical bag with him. In fact, the defendant was not a physician and was not employed in any medical occupation. The victim’s mother found the defendant to be very trustworthy, and on one occasion allowed the defendant to take the victim to his home to show her some of his animals. The victim was molested by the defendant that day, in his home, under the pretext that he was going to give her a physical examination. At the time of the molestation, the victim believed that the defendant was a physician. It was later disclosed that the defendant had molested other girls in the 4—H program, all under the same pretext that he was a physician. The defendant was later convicted on various counts of kidnapping, corruption of a minor, rape and felonious sexual assault involving four minors.
The victim and her mother sued a state university that was responsible for administering the 4—H program, claiming that the university and 4—H officials knew of the defendant’s criminal record and that he posed a risk of harm to minors, and that they were negligent in hiring him and in supervising and retaining him. A trial court refused to find the university or 4—H program liable for the victim’s injuries. It based its decision on the fact that the defendant was not acting in his capacity as a 4—H volunteer when he took the victim to his home. The court observed:
The child molesting activities of [the defendant] in this case were the direct and proximate result of [his] securing the confidence and trust of [the victim] and her parents. The county extension agent had no reason to anticipate or believe that [he] would develop such personal relationships, and he was never aware of any such activities …. [4—H officials] had neither the power nor the duty to control [the defendant’s] personal activities. The criminal acts that [he] committed against [the victim] did not occur at a 4—H event, function or activity and did not occur on property owned or under the control of 4—H. [He] was only paid to judge [events] and do pre—fair clinics …. He properly performed those responsibilities. 4—H is not responsible for the personal actions of [the defendant] or of the actions of the thousands of young people who participate in volunteer 4—H activities when they are not attending a 4—H function. In this case [the victim and her mother] have failed to prove by a preponderance of the evidence that [4—H] was negligent and such negligence was a cause of the assault on [the victim]. It was not reasonable or foreseeable that a person hired to be a judge from [another] county would then become personally involved with children and their families who attended the fair and clinics.
The victim and her mother appealed this decision to a state appeals court.
The court’s decision
The appeals court acknowledged that “it was not disputed” that 4—H officials had knowledge of the defendant’s criminal record. The victim and her mother insisted that this was all that was needed to find 4—H responsible for the victim’s injuries on the basis of negligent hiring and retention. The court disagreed. It stressed that mere knowledge of a volunteer’s criminal background does not automatically make a charity liable for every injury caused by that person. Rather, in order for a charity to be liable on the basis of negligence a victim must prove that the charity had a “duty” to protect him or her from the volunteer. The court pointed out that such a duty ordinarily arises only if it was reasonably foreseeable that the victim would be injured by the misconduct of the volunteer or other worker. In other words, 4—H could be responsible for the victim’s injuries on the basis of negligence only if the victim could prove that her injuries were a reasonably foreseeable result of the decision by 4—H to use the defendant as a judge and speaker. The court concluded that this requirement was not met. It observed:
Under the facts of this case, we find that the attack on [the victim] was not a reasonably foreseeable consequence of [the decision by 4—H] to engage [the defendant] as a judge or clinic speaker. The record indicates that [he] was hired … to conduct four separate clinics and to judge two county fair shows. The two fair events (in 1988 and 1989) as well as two of the clinics (in 1988 and 1989) took place before the [information concerning the defendant’s criminal record] was circulated. After learning of [the defendant’s] prior record, the [4—H volunteers] met and discussed the [matter]. Thereafter, a decision was made to allow [the defendant] to speak at a clinic in 1990 and a subsequent clinic in 1991 based upon the view that the nature of his employment, including the fact that [he] would have limited contact with 4—H members, would not result in any harm. The duties [he] was hired to perform required him to speak at clinics in a controlled setting under the supervision of the county extension office. The clinics were open to the public and there was no evidence that any incidents occurred at the clinics (or fairs) in which he was asked to participate. The injured plaintiff was not a member of … 4—H at any time during which [the defendant] judged a fair show or conducted a clinic; she became a 4—H member approximately six months after [he] last spoke at a clinic and the molestation took place, not at a 4—H activity, but at [his] residence, over one year after the employment relationship between 4—H and [the defendant] had ended ….
The evidence indicated that [the defendant] gained the trust and friendship of parents and members of the 4—H community, [that] he was adept at developing personal relationships and he convinced these individuals that he was a physician and that he could be influential in obtaining “scholarships” for the children. The evidence further indicated that [he] would appear unannounced at the home of [the victim] and that he pursued a continuing relationship with the family through numerous telephone calls to [the victim’s] home ….
[T]he molestation of [the victim] by [the defendant] was a self—serving act, unrelated to [his] employment as a 4—H judge or clinic speaker. On the date of the incident, [he] made arrangements with [the victim’s] mother to pick up [the victim] and drive her to his home. As noted above, the molestation occurred at [the defendant’s] home, over a year after he was last hired to conduct a clinic … and the events giving rise to the incident occurred without the sanction, knowledge or control of the county 4—H extension office.
In summary, 4—H was not liable on the basis of negligence for the victim’s injuries because it did not owe her a “duty” of care in selecting the defendant as a judge and speaker. It did not owe her a duty of care because it was not reasonably foreseeable that the defendant would harm her. The court concluded:
[W]e are unable to conclude that the probability of harm to the [victim] should have been reasonably anticipated by [4—H] at the time [the defendant] was engaged to be a clinic speaker. As previously noted, the duties for which [he] was hired involved limited contact with those in attendance and took place in a controlled setting …. The scope of an employer’s duty in exercising reasonable care in making a hiring decision is largely dependent on the type of responsibilities associated with the particular job. In addition to the limited nature of the duties for which [the defendant] was hired as well as the limited degree of contact he had with other individuals in performing those duties, the circumstances of this case indicate that no incidents occurred at any clinic in which [he] participated … the assault at issue did not occur at a 4—H event, the injured [victim] was not a member of 4—H at the time [the defendant] was employed … and there was no employment relationship between [4—H and the defendant] at the time of the molestation [since the defendant’s] last clinic event took place over one year prior to the incident.
The court conceded that 4—H owed a duty of care “to children attending the fair and clinic events for which [the defendant] was hired.” Further, this duty may have extended to 4—H members with whom the defendant “was involved through 4—H club meetings or activities,” if known to 4—H officials. However, the court noted that “we are unable to conclude that a duty of care extended to every member of 4—H who [the defendant] may have come in contact with following his fair and clinic employment; more particularly, under the circumstances of this case [the] duty of care did not extend to the risk of foreseeing the misconduct that occurred.”
• Key point. Why is a “duty of care” a requirement for negligence? Why aren’t charities liable for all of the injuries caused by their negligence-whether or not those injuries are foreseeable? The “duty” requirement was created to limit liability. To illustrate, assume that a church has a large tree on its property that has not been inspected or trimmed for many years. During a thunderstorm, a branch breaks off and severs a power line. This causes a power failure at a hospital 10 miles away, while an operation is in process, causing the patient’s condition to deteriorate. Is the church’s negligence in failing to maintain the tree the “cause” of the patient’s additional injuries? Yes it is. But this result is so unlikely that as a matter of policy the law does not impose liability on the church. There must be some limit to the consequences of one’s negligence, and that limit is defined in terms of “duty.” That is, a charity will be liable for injuries caused by its negligence-but only if it owed a “duty of care” to the victim. A charity owes a duty of care to any “foreseeable” victim of its negligence. It was not foreseeable that a church’s failure to maintain a tree would cause a problem to a surgical patient 10 miles away, and so the church is not liable for those injuries even though it caused them. It owed no duty of care to the patient. Similarly, 4—H did not owe the victim a duty of care since it was not foreseeable that she would be injured as a result of the decision by 4—H to use the defendant as a judge and speaker several months before she became a member.
The victim and her mother insisted that by selecting the defendant as a judge and clinic speaker 4—H had given him an “aura of respectability” with 4—H members and their families-and this was enough to make him an “agent”. The court disagreed. It acknowledged that a charity can be liable for a person’s actions on the basis of “apparent agency” if (1) it holds the apparent agent out to the public as having authority to do a particular act, and (2) a person dealing with the apparent agent had reason to believe that the agent possessed the authority to do the act in question. These requirements were not met, the court concluded:
[A]part from the occasions in which [4—H] hired [the defendant] to judge two fair shows and conduct four clinics, the evidence does not indicate that [it] had the right to control, nor that it manifested a right to control or supervise [his] actions. [The defendant] was not a 4—H advisor and, while he may have attempted to clothe himself with authority from the 4—H organization, his self—serving pursuits were not in service to … 4—H. In an action alleging apparent authority, a principal is responsible for the acts of an agent within his apparent authority only where the principal himself by his acts or conduct clothes the agent with the appearance of the authority, and not where the agent’s own conduct creates the apparent authority.
In summary, the defendant was not an apparent agent of 4—H since it had only retained him to serve as a judge and speaker on a few occasions. These actions could not create a reasonable impression that 4—H was “holding out” the defendant as its agent in any other context, including what he did in his own home.
Relevance to churches
What is the relevance of this ruling to other churches? Obviously, a decision by an Ohio appeals court is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:
1. No negligence without a duty of care. Perhaps most importantly, this case illustrates that there can be no liability based on negligence without a duty of care. A church cannot be responsible for a person’s conduct on the basis of negligence unless it owed a duty of care to the victim. This case demonstrates the rule recognized in most states that a duty of care extends to any foreseeable victim of negligent conduct. What is the relevance of this legal principle to church leaders? Consider the following examples:
• Example. A church member is assaulted and robbed in a church parking lot while approaching her car after leaving a church activity. No assaults or any other criminal activity have ever occurred in the church’s parking lot. The member sues the church, claiming that it was negligent in supervising its premises and that its negligence caused her injuries. The church can argue that it was not negligent and therefore not liable for the woman’s injuries since her injuries were not reasonably foreseeable and therefore the church owed her no duty of care.
• Example. Same facts as the previous example, except that three other assaults have occurred in the church’s parking lot over the past two years. It is far more likely under these circumstances that the church will be legally responsible for the member’s injuries on the basis of negligence. The previous assaults in the parking lot made future assaults reasonably foreseeable, and as a result a court may conclude that the church owed its members a duty of care when they were in the parking lot. If the church breached that duty by failing to adequately supervise its parking lot, then it would be legally responsible for injuries occurring to a foreseeable victim.
2. Factors to consider in evaluating foreseeability. The court concluded that 4—H was not liable for the victim’s injuries since it could not have reasonably foreseen those injuries. This was so despite the fact that 4—H officials were aware of the defendant’s criminal record. Here are the factors cited by the court in concluding that the victim’s injuries were not foreseeable:
• The defendant was hired by 4—H in a very limited capacity-to judge a few events and speak at a few clinics.
• Both judging and speaking involved “controlled settings” with no unsupervised access to minors.
• The defendant’s judging and speaking were under the direct supervision of a 4—H official.
• The defendant’s judging and speaking were in settings “open to the public.”
• The victim was not a member of 4—H at the time of any of the defendant’s judging or speaking activities. She did not become a member until more than six months after the defendant’s last authorized activity.
• The molestation occurred not at any 4—H activity, but at the defendant’s home.
• The molestation occurred more than a year after the defendant’s last authorized activity.
• No 4—H official was aware that the defendant had taken the victim to his home.
3. A duty of care in this case. The court concluded that 4—H did owe a duty of care to children attending the defendant’s judging and speaking events, and therefore it would have been liable for any acts of molestation committed by the defendant at those events if it was guilty of negligence in hiring or supervising him.
The court added that 4—H also may have had a duty to 4—H members “with whom the defendant was involved through 4—H club meetings or activities if known to 4—H officials.” However, it insisted that 4—H did not have a duty of care “to every member of 4—H who came in contact [with the defendant] following his fair and clinic employment.”
These are very important observations. The court was saying that a charity dealing with minors is not automatically responsible for every injury that occurs. This is especially true for injuries that occur in the homes of volunteer leaders when not engaged in any official function or activity. On the other hand, if charity officials are aware that an adult worker is “involved” with a minor as a result of charity activities, then a duty of care may arise which will make the charity liable for any injury to the minor that results from the charity’s negligence. Let’s illustrate these points with some examples.
• Example. T was a Sunday School teacher for several years. T resigned his position, and had no further position in the church involving minors. A few years later it is disclosed that T invited a child from the church to his home and molested her. Church leaders were not aware that T had ever invited a child to his home, or that he ever had any social contacts with children from the church. T’s parents sue the church, claiming that it was negligent in supervising T. It is unlikely that the parents will win. The church could argue that negligence is the breach of a duty of care that is owed to foreseeable victims of harm. Since it was not foreseeable that T would molest the child, the church cannot be liable for her injuries on the basis of negligence.
• Example. Same facts as the previous example, except that T had been asked to resign as a Sunday School teacher after the pastor learned that he had engaged in inappropriate sexual conduct with another minor. Church leaders were not aware of any contacts or socializing between T and children from the church. It is unlikely that the parents will win in a lawsuit against the church. As in the previous example, the church could argue that (1) negligence is the breach of a duty of care that is owed to foreseeable victims of harm; and (2) it was not foreseeable that T would molest the child in his home, and so the church owed her no duty of care; and (3) since the church did not owe the girl a duty of care, it could not have been negligent (negligence is a breach of a duty to use reasonable care with regard to a foreseeable victim).
• Example. Same facts as the previous example, except that church leaders were aware that T was having frequent social contacts with the victim prior to the date of the molestation. The church may be liable to the victim under these circumstances on the basis of negligence. The court in the 4—H case noted that 4—H may have had a duty to those members “with whom the defendant was involved through 4—H club meetings or activities if known to 4—H officials.” This suggests that the church may have had a duty of care with regard to the victim if it knew that T was visiting her and that he had engaged in inappropriate contact with another minor on a prior occasion. This example suggests that churches may have an affirmative duty to “warn” parents about the propensities of known or suspected child molesters who socialize with children from the church. If such a situation arises in your church, be sure to consult with a local attorney for specific guidance. Remember-this is a volatile situation that may result in legal liability for the church if not handled correctly.
4. Not a “guarantor” of the safety of minors. This case illustrates an important point-churches and other agencies that care for children are not absolutely liable for every injury that occurs. They are not “guarantors” of the safety of the children. Rather, they will be liable only if they were negligent, meaning that they breached a duty to use reasonable care with regard to a foreseeable victim of harm.
5. Agency. Persons who are molested by a church volunteer often assert that the church is liable for the volunteer’s behavior on the basis of agency. That is, the volunteer was an “agent” of the church, and as a result the church is legally responsible for his or her actions. This case illustrates that such a conclusion is far from automatic. The victim and her mother insisted that 4—H had given the molester an “aura of respectability” with 4—H members and their families by selecting him as a judge and clinic speaker -and this was enough to make him an “agent”. The court disagreed. It acknowledged that a charity can be liable for a person’s actions on the basis of “apparent agency” if it holds the apparent agent out to the public as having authority to do a particular act, and outsiders have reason to believe that the agent possessed the authority to do the act in question. These requirements were not met in this case since 4—H had retained the molester to serve as a judge and speaker on only a few occasions. This limited involvement did not create a reasonable impression that 4—H was “holding out” the molester as its agent in any other context, including what he did in his own home.
6. The risks of mercy. It is common for church leaders to give people a “second chance.” Mercy, grace, and forgiveness are powerful elements of the Christian faith. But when these impulses are directed to convicted child molesters, church leaders need to be careful. Remember what happened in this case. Leaders of 4—H were aware that the defendant was a convicted child molester, but they chose to disregard the obvious risk that he posed because of the comments of a woman who had known him for several years and who insisted that he was not guilty. In retrospect, this was a foolish statement that directly resulted in the molester being given another chance to be placed in a position of trust involving children. Tragically, he abused this trust by molesting another victim. Church leaders must recognize that they are assuming enormous risks, and subjecting innocent lives to horrible tragedy, when they give child molesters a “second chance.” Such a decision should never be made without first consulting with your insurance agent and an attorney.
• Key point. It is reckless and irresponsible for church leaders to use an applicant for youth work and ignore his previous conviction for child molestation on the ground that a church member has known the applicant for many years and does not believe that he was guilty. Remember that guilt in a criminal case is determined by proof beyond a reasonable doubt. This is a very high standard to meet. The applicant had the chance to convince a jury of his innocence, but failed to do so. Trusting a member who insists that the applicant was “innocent” of the previous charges will expose the church, and its officers and directors, to substantial liability.
7. A dissenting judge. One judge dissented from the court’s opinion.
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