Article summary. Churches minister to children in a variety of ways, including Sunday Schools, nurseries, day care programs, private schools, youth groups, and scouting programs. In smaller churches, only a few children may be involved, but in larger churches the number swells to hundreds or even thousands. Unfortunately, children occasionally are injured on church premises, or during church activities. In some of these cases, parents sue the church, alleging either negligent selection of a youth worker who was responsible for the injury, or negligent supervision of the injured child. A recent Georgia case addressed the liability of a church for the molestation of a 4-year-old girl by a 10-year-old boy on church premises. The court concluded that churches have a duty to exercise reasonable care in the supervision of young children, and that this duty was breached in this case because the victim had been released from a nursery area and was allowed to roam freely throughout the church without adult supervision. While unsupervised, the victim was taken to a vacant classroom and molested by the older boy. The court's opinion will provide church leaders with helpful insights into how such incidents occur, a church's risk of liability, and steps churches can take to minimize this risk.
A Georgia court ruled that a church was legally responsible for the molestation of a 4-year-old girl by a 10-year-old boy on church premises. This feature article will summarize the facts of the case, review the ruling, and evaluate the significance of the case to other churches.
A 4-year-old girl attended a class at her church for 3-year-old to 6-year-old children, while her mother attended an adult church service. The mother left her daughter with a husband and wife who were the teachers of the children's class. A church elder later testified that the church had no written policies or procedures regarding the operations of Sunday School classes for children.
The victim ordinarily waited in the classroom for her mother to retrieve her after church. However, on one occasion, the children were allowed to leave the classroom and find their parents on their own without any adult supervision. While the victim waited for her mother next to a stairway leading to her classroom, she was approached by a 10-year-old boy (Corey) who asked her if she wanted to see his classroom. The victim followed Corey into an unoccupied classroom, where he pushed her underneath a table and sexually molested her. Corey later released the victim, who returned downstairs to find her mother. After telling her mother what Corey had done, the mother immediately confronted the pastor and informed him of the attack. She later testified that the pastor's response was "oh no, it's happened again," and that he acknowledged that Corey had acted inappropriately towards a child of another church family. The mother also testified that the church's elders advised her that they wanted to keep the incident quiet in order to avoid a conflict in the church.
Following the attack, the victim received treatment from a psychotherapist, and was hospitalized when she was 6 years old, and again at age 8, after expressing suicidal thoughts. A psychiatrist who treated the victim during her second hospitalization testified that the victim was severely depressed, tearful, had no interest in normal activities, and isolated herself. He concluded that Corey's attack was the major cause of her problems.
The victim's parents later sued their church, claiming that it negligently failed to protect their daughter from Corey despite having prior notice of his sexual propensities. A jury determined that the church had been negligent, and ordered it to pay damages to the victim. The church appealed, insisting that it could not be liable for the attack because it had no prior knowledge of any sexual misconduct by Corey.
The Court's Ruling
The court began its opinion by noting that
as a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such a person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm ….
What is at issue in a case alleging negligent supervision of a child is whether the danger of the type of harm the child suffered was reasonably foreseeable. And, what is reasonably foreseeable is not exclusively dependent upon what is known about a specific place. The danger is not only what may happen at a specific place but what may happen to any child at any place, given that children are mobile and may … wander away from the place where they are supposed to be if they are not adequately supervised …. Accordingly, the issue is whether there was evidence that the danger of the sexual assault on the victim was reasonably foreseeable to the church.
In summary, a church can be liable for an injury to a child occurring on church premises or during a church activity based on negligent supervision if the injury was reasonably foreseeable. The court concluded that an injury to a child can be foreseeable in either or both of two ways.
Foreseeable "General Risks"
The court concluded that some injuries are foreseeable because of the "general risks" associated with certain kinds of conduct, even if no similar injury has ever occurred in the past. It explained this type of foreseeability as follows:
Clearly, in this case the church assumed responsibility for caring for a class of 3-year-old to 6-year-old children, including the 4-year-old victim. Thus, the church had the duty to use reasonable care to protect the children from a reasonably foreseeable risk of harm. There is also evidence that the church, through the volunteer church teachers, breached that duty by allowing the victim and other young children to wander through the church without adult supervision ….
[W]e hold that the church had reasonable grounds for apprehending that if the teachers left the victim unsupervised, there was a general risk that the child could be harmed …. [T]hose who agree to supervise small children cannot avoid liability simply because the injury to a child without adult supervision occurred off the premises or because no prior, similar injury to the small child had occurred so as to place the supervisors on notice of the potential for such harm. Instead, care providers must realize that it is foreseeable that a small child, such as the victim, leaving a church classroom could wander off the church premises and be hit by a car, abducted or otherwise injured. Even if the child remained on the premises, the potential for harm exists-e.g., she could fall down stairs, fight with another child, or get into various forms of mischief that would cause injury. Even absent actual knowledge of a specific risk, those who agree to supervise small children are charged with constructive notice of the general risks of harm, including assault and molestation, that may befall an unsupervised child.
Accordingly, we conclude that [there was sufficient evidence in this case] even without evidence of [Corey's] prior behavior, to find that the church had a duty to supervise the victim, which it breached by allowing the victim to roam free in the church where it was foreseeable that she could be harmed by a plethora of environmental and societal dangers.
In summary, a church is liable on the basis of negligent supervision for foreseeable injuries resulting from its failure to adequately supervise young children. Foreseeable injuries include those "general risks" that result from a failure to supervise, and one of those risks is sexual assault. It does not matter that no child has ever been assaulted before on a church's premises. Such a risk is a foreseeable consequence of allowing children to roam unattended on church premises.
Foreseeability based on prior knowledge
The court also concluded that the victim's injuries were foreseeable because the church had actual knowledge of previous sexual misconduct by Corey. It based this conclusion on the following two considerations:
1. The pastor's response. The mother claimed that the pastor's immediate response to the incident was "oh no, it's happened again." She later testified that when she asked the pastor what he meant, he explained that Corey had previously acted inappropriately towards a child from another family in the church.
2. A church elder's knowledge. A few years before Corey assaulted the victim, another incident occurred involving Corey. A number of families from the church met at the home of a host family for a "casual get-together." The host family's 4-year-old daughter was in the bathtub when Corey "came in an exposed himself" to her. The girl's mother later informed a church elder of this incident. The elder, who was a physician, informed the mother that the incident was "benign" and merely a form of "show and tell" that should not be overemphasized. He did not think the incident was serious, and advised the mother to "let the matter drop."
Based on these facts, the court concluded that "there was sufficient evidence for a jury to conclude that … the church had notice that [Corey] had inappropriately acted in a sexual manner towards a smaller child prior to his attack on the victim."
The church argued that the only evidence that it had prior knowledge of Corey's sexual propensities was hearsay which was not admissible in court and therefore was insufficient to establish knowledge. Hearsay evidence consists of out-of-court statements that are introduced in court to prove the truth of those statements. Such evidence generally is not admissible in court. However, the court noted that "the definition of hearsay does not include out-of-court statements that are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made." It concluded that the statements made to the elder by the mother of the girl to whom Corey exposed himself were not offered into evidence to prove the truth of the matter alleged, but rather to demonstrate that the church had notice of Corey's alleged propensities.
Relevance of the case to church leaders
What is the relevance of this ruling to other churches? Obviously, a decision by a Georgia 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. Churches are not "guarantors" of the safety of children. The court acknowledged that churches are not "guarantors" of the safety of children. That is, a church is not automatically liable for every injury to a child that occurs on its premises or in the course of a church-sanctioned activity. For a church to be legally responsible for an injury to a child, it must be guilty of negligence or some other legal wrong.
2. Negligent supervision. A church can be liable for an injury to a child if it was negligent in the supervision of the child or its premises and activities. The court concluded that churches have a legal duty to properly supervise children, and they can be liable on the basis of negligent supervision for those "reasonably foreseeable" injuries that result from a lack of adequate supervision. The court concluded that an injury to a child can be reasonably foreseeable in two ways:
"General risks. There are "general risks" associated with certain church practices that are reasonably foreseeable even if such risks have never occurred before. For example, when a church allows young children to wander about unsupervised, there are a number of "general risks," including (1) leaving church premises and being struck by a car; (2) kidnapping; (3) falling down stairs; (4) molestation; or (5) fights with other children. A church is liable on the basis of negligent supervision for any of these kinds of injuries, even if they have never occurred before, because they are general risks that common sense indicates are "reasonably foreseeable" whenever young children are allowed to roam about unsupervised.
"Prior knowledge. An injury may be foreseeable if a similar injury has occurred in the past.
• Example. A church worker releases a group of 5-year-old children before they are picked up by their parents following a morning worship service. One of the children wanders off church premises and is struck by a car. Church leaders insist that the church is not responsible since such an accident has never occurred before and so they were not "on notice" of the risk. The Georgia court rejected such a defense. It concluded that churches have a duty to supervise young children, and they will be legally responsible for "reasonably foreseeable" injuries that occur to children as a result of inadequate supervision. The fact that no child has ever wandered off of the church's premises and been struck by a car is not relevant. The fact remains that any reasonable adult would recognize that such an injury is one of the "general risks" associated with allowing young children to wander about unsupervised, and as a result the church is liable on the basis of negligent supervision since the risk is "reasonably foreseeable."
• Example. Same facts as the previous example, except that the child is injured when she stumbles down a church stairway. Once again, churches have a duty to supervise young children, and they will be legally responsible for "reasonably foreseeable" injuries that occur to children as a result of inadequate supervision. The fact that no child has ever stumbled down a church stairway is not relevant. The fact remains that any reasonable adult would recognize that such an injury is one of the "general risks" associated with allowing young children to wander about unsupervised, and as a result the church is liable on the basis of negligent supervision since the risk is "reasonably foreseeable."
• Example. Same facts as the previous example, except that the child is abducted by an unknown person. The church had a duty to supervise young children, and it will be legally responsible for "reasonably foreseeable" injuries that occur to children as a result of inadequate supervision. The fact that no child has ever been abducted is not relevant. The fact remains that any reasonable adult would recognize that such an incident is one of the "general risks" associated with allowing young children to wander about unsupervised, and as a result the church is liable on the basis of negligent supervision since the risk is "reasonably foreseeable."
• Example. Same facts as the previous example, except that the child is molested by an adult in a church restroom. Assume that a similar incident occurred at the church two years ago. According to the Georgia court, the church had a duty to supervise young children, and it will be legally responsible for "reasonably foreseeable" injuries that occur to children as a result of inadequate supervision. The child's injuries are foreseeable in two ways. First, any reasonable adult would recognize that such an incident is one of the "general risks" associated with allowing young children to wander about unsupervised, and as a result the church is liable on the basis of negligent supervision since the risk is "reasonably foreseeable." Second, the child's injuries are foreseeable because of the similar incident that occurred two years before.
In conclusion, a church is assuming a significant risk of liability when it allows young children to wander about unsupervised. It will be liable for any reasonably foreseeable injury to a child, even if such an injury has never occurred before on church premises.
3. No policies. The church in this case did not have any policy regarding "early release" of young children. If such a policy had been adopted, and it permitted the release of children only to their parent or other designated adult, it is more likely that the teachers would not have released the victim. Church leaders should consider the adoption of such a policy. Of course, if adopted, the policy should be carefully explained to all teachers and workers to insure compliance.
4. The unsupervised room. The molestation in this case occurred in a vacant and unsupervised classroom. To the extent possible, church leaders should close off access to areas of the church that are not being utilized. This will reduce the risk of injuries to minors.
5. The offender's age. In this case, the perpetrator was a 10-year-old boy. There are two points to note:
"Some child molesters are children. Several studies have indicated that about twenty percent of all child molesters are themselves minors. As a result, church leaders should consider ways to reduce the risk of children molesting children. Here are some suggestions:
(1) Do not release children up to a specified age unless they are picked up by a parent or designated adult. Many churches apply this rule to children through elementary grades. In this case, the victim would not have been molested if the 10-year-old boy had not been released. Obviously, it is more difficult to retain older children. But a policy requiring the church to retain custody of children through the elementary grades until they are picked up by a parent or designated adult will reduce the risk of injuries.
(2) Do not allow minors to be the sole custodians of younger children.
(3) Adopt a screening program for adolescents who will work with adults in children's programs. This could include references from the child's parents and a coach or teacher.
"Acting out." When a 10-year-old boy molests a younger child, it is possible if not probable that the molester is himself a victim of molestation, and that he is "acting out" the behavior that is being inflicted on him by an older, dominant person.
6. Intervening criminal acts. Generally, intervening criminal acts cut off liability for negligence. That is, a church should not be liable for its failure to properly supervise children or activities when a child is injured because of an intervening criminal act, since such an act ordinarily is not foreseeable. The court rejected this defense, noting that "we cannot rule that [Corey's] intervening criminal act was unforeseeable as a matter of law."
7. Taking incidents seriously. The court concluded that Corey's molestation of the victim was foreseeable, in part, because of a prior incident in which Corey had "exposed" himself to another 4-year-old girl at a church member's home. What is interesting about this incident is that neither the girl's mother nor a church elder who was informed of the incident considered it to be serious. The elder, who was a physician, considered it to be a benign matter of sexual exploration that is normal among young children. The court viewed this incident far more seriously, noting that it constituted "sufficient evidence for a jury to conclude that … the church had notice that [Corey] had inappropriately acted in a sexual manner towards a smaller child prior to his attack on the victim." While it remains true that some degree of sexual exploration is normal among young children, church leaders must recognize that ignoring or minimizing such incidents as normal "child's play" can expose the church to substantial legal risk.
Bull Street Church of Christ v. Jensen, 504 S.E.2d 1 (Ga. App. 1998)