Clergy Malpractice Claims

Courts generally refuse to recognize these claims.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Clergy Malpractice, Personal Injuries on Church Property or During Church Activities

Church Law & Tax Report

Clergy Malpractice Claims

Courts generally refuse to recognize these claims.

Richard R. Hammar, J.D., LL.M., CPA

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “nonreligious” counseling.

Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.

A Connecticut court ruled that the First Amendment prevented it from resolving a woman’s claims that the church and its pastor were responsible for injuries she sustained when she fell backward and hit her head on the floor while participating in a healing service. A church conducted a weekly “healing service” that was open to the public. A woman (the “plaintiff”) attended one of these services and was injured when she fell backward while the church’s pastor was praying for her. The plaintiff described the service as follows:

At these services the church’s pastor anoints and prays over each person by having each person come to the front of the church. The pastor anoints the person’s forehead and prays over them. Often, people will fall back in a relaxed state as the pastor prays over them. This is sometimes called “resting in the Spirit.” There are always catchers, men who stand behind the person being prayed over. The catcher catches the person before they hit the floor and places them gently on the floor until they wake up again.

Although the plaintiff expected that a catcher would be placed behind her while she fell backward to ensure she would not fall onto the floor, she was not caught from behind. Her head struck the floor, resulting in severe and painful injuries.

The plaintiff sued the church, claiming that her injuries were caused by the church’s failure to exercise the degree of care and skill ordinarily and customarily used by churches performing healing services. Specifically, the plaintiff alleges that the church was negligent in the following ways:

failure to have attendees seated or kneeling while being prayed over;
failure to provide a safe, soft surface for attendees, including the plaintiff, to fall to, if and when they fell or “rested in the Spirit”;
failure to warn attendees, including the plaintiff, about the possibility of injury while “resting in the Spirit”;
failure to promulgate and enforce rules, regulations, standards and protocols for attendees, such as the plaintiff;
failure to adequately train and supervise the “catchers” at the healing service;
failure to choose “catchers” who were physically and mentally fit to exercise their duty as “catchers;”
failure to choose an appropriate number of “catchers” for the healing service; and,
failure to utilize that degree of care and skill or diligence ordinarily exercised by charismatic churches.

The plaintiff also asserted that the pastor of the church was guilty of “clergy malpractice” for failing to ensure that the healing service was conducted in a safe manner.

negligence

The church asked the court to dismiss the case on the ground that the court was barred by the First Amendment guaranty of religious freedom from deciding whether healing services are conducted in a negligent manner. The plaintiff insisted that the court could resolve her claims because “there is nothing in the allegations of the complaint nor [the] facts of the incident that could possibly contemplate the examination of worship or spirituality.” A state appeals court agreed with the church and dismissed the case. It observed:

The present case clearly involves issues of religious doctrine and practice, and the court does not have jurisdiction to resolve this dispute. The plaintiff’s allegations stem from an injury that she suffered while voluntarily participating in a healing service …. She alleges that she was injured after she approached the altar, was prayed over, and “rested in the spirit,” causing her to fall backward and hit the floor with the back of her head. These claims are based on the church’s allegedly negligent performance of the healing ritual. The performance of a religious healing ritual certainly falls under the types of doctrines and practices which the First Amendment is designed to protect.

The plaintiff argues that First Amendment protections do not apply because the church’s allegedly tortious conduct was not religious in nature. She claims that her allegations deal merely with simple negligence and that “there is nothing in the allegations of the complaint nor facts of the incident that could possibly contemplate the examination of worship or spirituality.” This argument, however, fails to acknowledge that the incident giving rise to the plaintiff’s complaint occurred during a religious healing ritual. It would be improper to completely remove the incident from the religious context in which it occurred. Thus, despite the plaintiff’s argument that the church’s alleged omissions during the healing ritual are not religious in nature, the subject matter of the complaint clearly involves issues of spirituality and religious worship.

The court acknowledged that the First Amendment did not bar the civil courts from resolving lawsuits seeking to hold churches responsible for the molestation of children by clergy and lay workers, but it concluded that those cases, unlike the present case, did not involve behavior that was directly associated with religious doctrine or practice. It observed: “In those cases, the plaintiffs’ claims stem from allegations of intentional tortious conduct—the sexual abuse of minors by members of the clergy—which have no connection whatsoever to religious doctrine or practice …. The plaintiffs’ [claims] could proceed because analysis of such claims would not require impermissible delving into issues of worship and spirituality. In contrast, in the present case, the plaintiff alleges that the church was negligent in failing to establish adequate safety precautions for voluntary participants during a healing ritual service …. The facts of the clergy sex abuse cases are distinct from the present case, where the conduct complained of is clearly ecclesiastical in nature.”

clergy malpractice

The plaintiff alleged that the pastor “failed to exercise that degree of care and skill ordinarily and customarily used by ministers performing … healing services under all the facts and circumstances.” The court observed: “Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.”

The appeals court noted that “courts throughout the United States have uniformly rejected claims for clergy malpractice under the First Amendment because such claims would necessarily entangle the court in the examination of religious doctrine, practice, or church polity.” In dismissing the plaintiff’s clergy malpractice claim, the court observed:

For a court of law to determine the plaintiff’s claims, it would be required to ascertain whether the church performed within that level of skill commonly applied under the given circumstances by the average prudent clergy member. Such analysis, however, would necessarily involve evaluating the religious practices at issue. To evaluate the plaintiff’s claims, the court would need to define the appropriate standard of care and determine whether the clergy acted in accordance with that standard of care. Devising guidelines and protocols for clergy members presiding over religious services, however, would entangle the court with issues of religious doctrine and practice, which is exactly the type of conduct prohibited by the First Amendment.

What This Means for Churches:

This case is important for two reasons. First, it illustrates that churches that conduct healing services will not necessarily be liable for injuries that occur to participants who fall and are injured. Second, it demonstrates the continuing refusal by the courts to recognize clergy malpractice claims. Kubala v. Diocese, 2011 WL 2436680 (Conn. Super. 2011).

This Recent Development first appeared in Church Law and Tax Report, May/June 2012.

Legal Developments

Counseling and Clergy Malpractice

Most courts have rejected clergy malpractice as a basis for liability in all cases.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Clergy - Removal, Clergy Malpractice, Counseling

Church Law & Tax Report

Counseling and Clergy Malpractice

Most courts have rejected clergy malpractice as a basis for liability in all cases.

Richard R. Hammar, J.D., LL.M., CPA

* A Utah court ruled that a counselee’s lawsuit against a pastoral counselor had to be dismissed on the ground that it was in essence a claim of “clergy malpractice” that the civil courts could not resolve without violating the First Amendment. An adult male church member alleged that during a pastoral counseling session a pastor breached his fiduciary duty and intentionally inflicted emotional distress on him. The member sued the church, and a trial court dismissed the lawsuit. A state appeals court affirmed the dismissal. The appeals court noted that the state supreme court previously ruled that claims for clergy malpractice or similar claims are not recognized in Utah since recognition of such claims “would require an unconstitutional evaluation of religious philosophy and teachings, contrary to the First Amendment’s non-establishment of religion clause.” The state supreme court also noted that, regardless of the title of a claim, it “will not survive constitutional scrutiny if an adjudication of the claim would foster an excessive governmental entanglement with religion in violation of the First Amendment.” The appeals court concluded that “when a claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice or would otherwise require excessive entanglement with religion, the claim is barred.”

The court noted that “the plaintiff’s claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice. He asserts that [the pastor] breached a duty owed as part of his role as a cleric—essentially the same elements as clergy malpractice. Even if not identical to a clergy malpractice claim, the claim would require the same excessive entanglement in evaluating standards and duties in a religious setting, and would thus lead to the same violation of the First Amendment. Accordingly, the trial court correctly dismissed the plaintiff’s claim for breach of fiduciary duty.”

The court also rejected the plaintiff’s claim that the pastor intentionally inflicted emotional distress. It noted that such a claim requires proof of conduct that “may reasonably be regarded as extreme and outrageous,” and concluded that “there is nothing so shocking in [the pastor’s] conduct that evokes outrage or revulsion, or shows that the conduct was extreme.” Lowery v. Cook. 2007 WL 772782 (Utah App. 2007)

Legal Developments

Malpractice

A Connecticut court ruled that church elders who counseled with a woman could not be sued for their advice to remain with her abusive husband.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Clergy Malpractice, Counseling

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in "non-religious" counseling.

A Connecticut court ruled that church elders who counseled with a woman could not be sued for their advice to remain with her abusive husband.

A woman sought out leaders of her church for assistance in escaping from her husband's violence. She met with three church elders over the course of several years. One discouraged her from supplying any details about her husband, demonstrated discomfort at the topic, often told her that she might have caused her own problems, and once reprimanded her for discussing her husband's abuse with someone other than a church elder.

Two other church elders encouraged her to stay with her husband and refused to look at marks on her back she sustained from her husband. One elder told her to do whatever her husband told her to do. The woman later sued the church elders and her church for intentionally and negligently causing her emotional distress.

The court ruled that the alleged acts of the elders were not sufficiently outrageous to amount to intentional infliction of emotional distress, which requires conduct that is "so extreme in degree that it goes beyond all bounds of decency and is regarded as atrocious, and utterly intolerable in a civilized society." While the court found the woman's allegations troubling, it noted that "they must be considered in the context of efforts made as part of the church's pastoral counseling. While the counselor's suggestions may have been ill advised, indeed insensitive, they do not meet the threshold of extreme outrageous conduct."

The woman also claimed that the elders and church were guilty of negligent infliction of emotional distress, which requires proof of (1) negligence on the part of the defendant, and (2) that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm."

The woman claimed that the elders had a duty to exercise reasonable care in counseling and directing her with respect to her family life, that they breached that duty, and that any reasonable person in their position would have known that such acts and omissions would cause her to suffer severe emotional distress.

She further alleged that she suffered extreme emotional distress in that she was unable to eat, lost sleep, was hospitalized, and developed chronic conditions. The elders insisted that the only type of counseling they provided was spiritual, and so the first amendment guaranty of religious freedom barred a civil court from finding them liable based on the content of their advice.

The court agreed. It acknowledged that the first amendment does not create "blanket tort immunity for religious institutions or their clergy, thus allowing clergy and clerical institutions to be sued for the torts they commit." Further, "the common law doctrine of negligence does not intrude upon the free exercise of religion, as it does not discriminate against a religious belief or regulate or prohibit conduct because it is undertaken for religious reasons. Application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution."

The elders argued that the woman's claim of negligent infliction of emotional distress was actually a disguised claim of clergy malpractice, which is barred by the first amendment.

The court noted that clergy malpractice "has been universally rejected by courts in the United States." It quoted from the landmark Nally case: "Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of a particular denomination or ecclesiastical teachings of the religious entity." Nally v. Grace Community Church, 253 Cal. Rptr. 97 (Cal. 1988). The Connecticut court concluded:

The elders have presented evidence to establish that their conduct involved spiritual counseling based on the teachings of [their church]. The plaintiff has not countered that assertion. Under these circumstances, in order to determine whether the elders breached a duty in providing spiritual counseling, the court would necessarily intertwine itself with the religious philosophy of the [church]. A judicial review of plaintiff's claims would necessarily require an evaluation of the religious tenets of [her church], the religious definition of the marital relationship and the discharge of pastoral responsibilities by the elders. Such a review would impermissibly constitute excessive entanglement with religion.

What this means for churches

This case demonstrates the constitutional protection that the courts have extended to spiritual counseling. If the first amendment guaranty of religious freedom means anything, it means that church counselors who base their counseling on religious teachings and precepts cannot be liable on the basis of malpractice or negligence for the content of that counseling, even if it results in injuries to the counselee.

This has been the consistent conclusion of the courts that have addressed this difficult question. It is important to note that this conclusion has been applied most often in cases involving clergy counselors who are not licensed by their state as psychologists or counselors, and who are not providing exclusively "secular" counseling. The elders in this case were deemed to be pastoral counselors by the court, since they functioned as pastors within their congregation. Decorso v. Watchtower Bible Society, 2002 WL 172663 (Ct. 2002).

Legal Developments

Pastor Sued for Disclosing Confidential Information

Court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor’s disclosure of confidential information shared with him by a church member.

Richard R. Hammar, Attorney, CPA

Bio

State: Arizona
Categories: Clergy Malpractice, Counseling, Defamation, Invasion of Privacy

Key point. Ministers who disclose confidential information obtained during counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of a number of grounds, including malpractice, invasion of privacy, defamation, and infliction of emotional distress.

An Arizona court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor's disclosure of confidential information shared with him by a church member. A woman (the "victim") was referred to a pastor for counseling because of his many years of counseling experience. The victim met with the pastor for help with emotional problems following the breakup of an affair with another pastor with whom she had lived for nine months.

The victim later joined the counseling pastor's church, and continued to meet with him for counseling, relating to him highly personal and private matters including her feelings of guilt about having had an inappropriate relationship with the other pastor, and the fact that her father had a sexual relationship with her brother's wife. The victim's sister attended the same church, and married the pastor's son.

During premarital counseling the sister informed the pastor that her father had once embraced her in an "uncomfortable way." The marriage between the sister and the pastor's son deteriorated after the sister learned that her husband was having an affair with another woman. When the pastor's son publicly blamed his wife for the breakup of their marriage, the victim met with the pastor to defend her sister and to present evidence showing that the husband (the pastor's son) was the one who had been unfaithful.

With his wife present, the pastor told the victim that her sister was "screwed up" because she had been molested by their father, and suggested that he would reveal his knowledge of the affair between the victim and her former pastor if she and her sister did not drop their accusations against his son.

The pastor's wife told the victim to "stop lying" about her son because "we know things about your family." The next day the pastor and a church administrator had a conversation in which the pastor described the discord between the victim (and her sister) and his family. He also told the administrator that there were "incest problems" between the victim's father and his children, and that he had learned this information during his counseling sessions with the victim and her sister.

During a Wednesday evening church service, the pastor "marked" the victim and her sister as causing division in the church, and stated that their family was "incestuous" and "dysfunctional." The victim and her sister sued the pastor and the church on a number of grounds, including invasion of privacy, defamation, malpractice, and breach of fiduciary duty. The court's ruling is summarized below.

Civil court intervention in internal church disputes

The pastor and church defended themselves by insisting that the dispute was an internal church matter over which the civil courts have no jurisdiction. They noted that the pastor was motivated by a "biblical admonition" when he brought the victim and her sister's conduct to the attention of the congregation, and that their only real harm was the termination of their relationship with the church and its members. The court rejected these defenses, concluding that the general rule of judicial non—intervention in internal church disputes did not apply in this case "because this dispute can be resolved without inquiry into religious law and polity." The court continued:

We need not consider the "marking" ritual nor its origins in resolving these issues. [The pastor] revealed confidences from his counseling sessions with [the victim and her sister] and threatened to publicize [the victim's] involvement with [her former pastor]. He divulged confidences of [the victim and her sister] to his wife, mother, sister, and the church administrator and also relayed false information to them. There was no evidence that this conduct was part of the observance of the church's religious practices or beliefs; thus, the doctrine of ecclesiastical abstention has no bearing here …. That the injuries occurred in a religious setting does not render them noncompensable, nor does it deprive the court of jurisdiction.

Malpractice for disclosing confidential information

The pastor relied on several cases rejecting clergy malpractice claims because of first amendment concerns about determining a standard of care for pastors. The court concluded that:

Those cases are not applicable here because the claim submitted to the jury was for therapist malpractice, not clergy malpractice, and was based on a psychological therapist's duty not to disclose confidential information revealed in counseling sessions. [The victim's] claim arose, not out of any duty [the pastor] owed them in his capacity as their pastor, but rather out of his duty as a therapist or counselor to refrain from acting in a manner that carried a foreseeable and unreasonable risk of harm to the person being counseled.

Although we have found no Arizona cases in which the disclosure of confidential information by a counselor served as the basis of a malpractice claim, other jurisdictions have recognized causes of action arising from disclosures of confidences by providers of counseling services …. Arizona has long acknowledged and protected the confidential nature of relationships between physicians and their patients, and more recently between psychologists and other behavioral health providers and their clients, including counselors and "marriage therapists." The purpose behind these privileges is "to enhance the effective diagnoses and treatment of illness by insuring that a person requiring professional attention will not be deterred by fear that his physical or mental condition may become public, thereby subjecting him to embarrassment or humiliation."

The pastor insisted that the therapist—patient privilege only applies to licensed counselors and therapists, and that pastors should not be held to the same standards. Once again, the court disagreed:

One who holds himself out and undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. At trial [the victim] presented expert testimony that mental health therapists and counselors have a duty not to disclose confidential information, with certain limited exceptions, and that this duty applies to both pastoral and professional counselors, whether licensed or not. In Arizona, mental health counselors are not required to be licensed …. In sum [the pastor and church] offer no good reason for insulating a counselor from liability for betraying clients' confidences to their detriment merely because the counselor is a clergy member and unlicensed, and the counseling as well as wrongful disclosure takes place in a religious setting.

Here [the victim] testified that she was referred to [the pastor] for counseling to help her through emotional difficulties and depression "because of his 40 years' counseling experience," that she made an appointment with him for that purpose, and that she met with him in his office at the church.

During [her] first counseling session [the pastor] used a chart to determine her level of self—esteem and concluded it was very low and she needed to raise it. [He] also discussed ways for [her] to deal with her feelings of guilt about her relationship with [her former pastor]. The inclusion of biblical passages on the chart did not convert the session into religious counseling, especially when the purpose of the meeting was not to provide her with religious or spiritual guidance, the church's precepts and practices were not part of the counseling, and [the victim] was not a church member when she sought help from [the pastor].

What this means for churches

The importance of this case cannot be overstated. It demonstrates that pastors who disclose confidential information shared with them in counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of malpractice, invasion of privacy, breach of fiduciary duty, and infliction of emotional distress.

As this case illustrates, this conclusion may apply even when pastors share confidential information in order to discipline a member for violating church standards. The point is this-would members disclose confidential information if they suspected that their pastor would report it to the church board or congregation in order to discipline them? Clearly, the answer is "no."

Therefore, it is essential for pastors to refrain from disclosing information obtained during confidential counseling sessions-even if it relates to a person's qualifications or eligibility for membership. Of course, the church board can still discipline the individual, but not on the basis of any information shared with the pastor in the course of a confidential counseling session. Another alternative is for a pastor to obtain the permission of the counselee to share confidential information with the board or with some other person. If this permission is obtained (in writing), this will serve as a defense in the event that the pastor is later sued for disclosing the information.

Finally, note that the court suggested that in limited contexts pastors may not be subject to legal liability for disclosing confidential information obtained during a counseling session-because they are serving as pastoral counselors rather than as secular counselors or therapists. Facts supporting this limited exception, according to this court, include the following:

the counselee did not seek out the pastor as a counselor for relief of emotional difficulties;
the pastor did not engage in psychotherapeutic techniques, testing, or diagnoses;
the purpose of the counseling was to provide religious or spiritual guidance;
the church's precepts and practices were part of the counseling; and
the counselee was a church member.

Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).

Legal Developments

Woman Sues Church Over Affair with Pastor

Court allowed lawsuit on the basis of clergy malpractice.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Clergy Malpractice, Counseling

Church Law and Tax 1997-03-01

Malpractice

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Some courts have allowed pastors to be sued on the basis of “clergy malpractice” for engaging in sexual relations with a counselee in the course of a counseling relationship.

• Key point. Churches may be sued for invasion of privacy or defamation if they disclose to church members that a pastor has engaged in sexual relations with a counselee in the course of a counseling relationship.

A New Jersey court allowed a woman to sue her church for “clergy malpractice” as a result of a sexual relationship that was initiated by her pastor. The woman’s lawsuit alleged that she had sought counseling from a pastor of her church, and that the pastor became aware of her emotional vulnerabilities and exploited those vulnerabilities to induce her to engage in sexual acts with him. The woman filed a complaint with a “standing committee on clergy ethics” of her denomination, and the committee later determined that the minister had “violated his pastoral relationship” with the victim by engaging in inappropriate sexual behavior toward her.” The committee “sanctioned” the minister. The woman then sued her church, claiming that the pastor’s actions amounted to “clergy malpractice.” A trial court dismissed the case on the ground that clergy malpractice is not a recognized theory of liability because it would unduly “entangle” the courts with religion in violation of the first amendment. The woman appealed, and a state appeals court ruled that the woman could sue the church for clergy malpractice.

The court acknowledged that a number of courts have rejected liability based on clergy malpractice. The most notable example was the California Supreme Court’s decision in the Nally case in 1988 (fully addressed in a prior issue of this newsletter). The Nally case involved a lawsuit by parents seeking damages for the suicide of their son. The parents sued their son’s church and four pastors who had counseled him. The parents claimed that the church and four pastors had failed in their duty to recognize that their son was suicidal and to refer him to psychiatric care. The court held that the four pastors, as “nontherapist counselors,” had no duty to refer a counselee to psychiatric care. The court refused to extend the duty to prevent suicide, previously imposed on psychiatrists and hospitals caring for a suicidal patient, to non—licensed nontherapist counselors who provide counseling on “spiritual matters.” The court observed that “it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The New Jersey court concluded that the Nally case was not relevant for three reasons: “First, constitutional considerations played a minimal role in the court’s analysis. Second, the alleged breach of duty was closely connected with the content of the counseling and advice provided by the counselors. Lastly, Nally did not involve exploitation of the counselee for the counselors’ sexual gratification.”

The court observed that “malpractice” is nothing more than the negligent performance of a professional service and “a deviation from the standards of performance applicable to the professional service in question.” The court expressed concern over potential first amendment violations when civil courts apply the concept of malpractice to members of the clergy. However, it was unwilling to conclude (as many other courts have done) that the first amendment bars recognition of civil liability for clergy malpractice in all cases. The court observed:

Regarding the risk of undue entanglement in ecclesiastical affairs arising out of a case of clergy malpractice, we share the concerns of those courts that have addressed the issue. We are, however, persuaded that those concerns are overstated in circumstances, such as the present case, involving a cleric’s sexual misconduct …. We conclude that one test to determine whether a cause of action against a cleric is cognizable in civil courts is whether adjudication of the claim requires an evaluation of dogma or ritual, or other matters of purely ecclesiastical concern. In the present case, it is unlikely that [the church] will assert that sex with a counselee by a pastoral counselor is sanctioned by or somehow involves tenets of the … church, or would otherwise create an entanglement with religious beliefs or rituals of first amendment concern.

Moreover, there is a bright line between counseling culminating in a sexual relationship with a counselee and other types of harms allegedly resulting from a failed counseling relationship. Thus, we do not share the concern … that to recognize a cause of action for the sexual exploitation of a child would place civil courts “on the slippery slope.”

The court concluded that “[w]e perceive no impenetrable barrier … to establishing a standard of care applicable to cleric—counselors in the context of an allegation that the counselor used his position to sexually exploit the counselee.” The court cautioned that it was now up the woman to prove “an applicable standard of care, show that [the pastor] breached this standard, and prove the damages flowing from that breach.”

The court then turned its attention to another claim made by the woman-the legal liability of another pastor at the same church who informed the congregation of the sexual relationship. The woman sued this pastor as well, claiming that by informing the congregation the pastor had breached a fiduciary duty, invaded her privacy, made negligent misrepresentations, committed defamation, and placed the woman in a “false light.” The appeals court ruled that the woman could pursue this claim as well.

This case is important for a number of reasons. First, it demonstrates the liability of clergy and churches on the basis of “clergy malpractice” is not dead. It is still recognized as a viable claim by some courts in the context of inappropriate sexual behavior. Second, it reaffirms the view of nearly all courts that clergy cannot be sued on account of the content of their counseling. It is only their actions that may result in liability. Third, the court announced a new test for determining whether or not a lawsuit against a minister can be resolved by the courts-would resolution of the lawsuit require the court to engage in “an evaluation of dogma or ritual or other matters of purely ecclesiastical concern”? Fourth, the court allowed the woman to sue another pastor who informed the congregation of the affair. This illustrates the risks associated with communicating such information, even to members. The woman asserted that it was inappropriate for her name to have been mentioned, since this suggested that she was equally at fault for a relationship that she insisted was due entirely to the pastor’s exploitation of her emotional vulnerability. F.G. v. MacDonell, 677 A.2d 258 (N.J. Super. 1996). [Invasion of Privacy, Clergy Malpractice, Seduction of Counselees and Church Members, Judicial Resolution of Church Disputes]

© Copyright 1997, 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: m54 m67 c0297

Legal Developments

Priest Seduces Married Woman

Court dismissed husband’s lawsuit.

Richard R. Hammar, Attorney, CPA

Bio

State: Arkansas
Categories: Clergy Malpractice

Church Law and Tax 1997-01-01

Sexual Misconduct by Clergy and Other Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Many states have repealed laws that once permitted a person whose spouse was seduced by another individual to sue for “alienation of affections.” Husbands whose wives are seduced by clergy may be barred from suing for damages in such states.

The Arkansas Supreme Court ruled that a man could not sue a priest and bishop as a result of the priest’s seduction of his wife. A couple were married in 1972. Five children were born to the marriage. In 1986, the wife (Susan) became employed with the local Roman Catholic Diocese. In 1988, a new priest arrived at the Diocese. The priest was placed in charge of the Diocese Marriage Tribunal, having authority over Catholic marriages in the Diocese. Shortly after his assumed his new duties, he began spending his days off with Susan, taking all day trips out of town with her, and staying at her residence several nights a week until late in the evening, drinking alcohol to the point of intoxication. On one occasion, while Susan’s husband was stranded out of town in an ice storm, the priest spent the night with Susan at her home. On another occasion, the priest stayed the night with Susan and her family at their lake house. The priest and Susan stayed up until the “wee hours drinking and cavorting in the bedroom,” and Susan did not come to bed that evening with her husband. While her husband felt that the priest’s conduct “seemed highly improper,” he had no proof that he was having an affair with Susan. Over the next several months the husband became increasingly concerned over the accelerating “friendship” between Susan and the priest. In 1989, Susan sued her husband for divorce and moved into a home owned and furnished by the Diocese. The husband thereafter tried unsuccessfully to enlist the assistance of the bishop in removing the priest from his family life (although the bishop had no recollection of ever discussing the matter with him).

Susan and her husband were granted a divorce and Susan was awarded custody of the couple’s five children. Within a few days of the divorce, Susan and the priest were married. This “chain of events” confirmed what the husband had long suspected but could not prove. The husband sued the priest and bishop for breach of fiduciary duty, clergy malpractice, intentional infliction of emotional distress, and negligence. Specifically, the husband alleged that the bishop had a fiduciary duty to promote his spiritual well—being and to refrain from taking any action that would interfere with his spiritual well—being. He further alleged that the bishop breached this duty, committed clergy malpractice, and was negligent in allowing various rendezvous between Susan and the priest to take place at the expense of the Diocese when he was fully aware of their relationship. It was also alleged that the bishop, who had supervisory authority over the priest, was negligent in failing to supervise and shepherd his actions. The husband also claimed that the priest, as head of the Diocesan Marriage Tribunal, and as priest of his church, had a fiduciary duty to promote his spiritual well—being and to refrain from taking any action that would interfere with his spiritual well—being. The husband claimed that the priest’s actions amounted to a breach of fiduciary duty, negligence, and intentional infliction of emotional distress.

The state supreme court dismissed the husband’s lawsuit against both the priest and bishop. It concluded that the claims against the bishop were barred by the statute of limitations, and that the claims against the priest were barred by the state legislature’s abolition (in 1989) of lawsuits based on “alienation of affections.” Under prior law, the husband could have sued the priest for “alienating the affections” of his wife. With the abolition of any liability based on this theory, the court reasoned, it was not possible for the husband to accomplish the same result by asserting a breach of fiduciary duty, clergy malpractice, or infliction of emotional distress. As a result, the court upheld the trial court’s dismissal of the husband’s claims. Cherepski v. Walters, 913 S.W.2d 761 (Ark. 1996). [ Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

Legal Developments

No Case for Clergy Malpractice

Churches also not generally held responsible on basis of respondeat superior.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Clergy Malpractice

Key point: Most courts have ruled that clergy and churches cannot be sued for "clergy malpractice."

Key point: Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.

A New York court ruled that a church and diocese could not be sued on the basis of "malpractice" or "respondeat superior" for the alleged sexual misconduct of a priest.

The priest allegedly molested a minor pupil at a church-operated secondary school. A trial court dismissed the case, and the child and his parents appealed. A state appellate court affirmed the trial court's decision in favor of the church and diocese. In rejecting the malpractice claim, the court observed that malpractice is based on negligent rather than intentional behavior, and that the sexual assault alleged in this case was an intentional act. The court also pointed out that "we are unaware of any authority supporting the proposition that sexual abuse by a member of the clergy is cognizable as clergy malpractice." The court referred to the Nally case, see Clergy Malpractice below.

The court also rejected the parents' allegation that the church and diocese were liable on the basis of respondeat superior. Under the respondeat superior doctrine employers can be liable for the acts of their employees committed within the course of their employment. The court observed simply that "the alleged sexual assault was not within the scope of employment and cannot be said to have been in furtherance of the employer's business." Joshua S. v. Casey, 615 N.Y.S.2d 200 (A.D. 4 Dept. 1994).

See Also: Clergy Malpractice | Cases Finding Denominations Not Liable

Legal Developments

Clergy – Part 2

Personal Liability

Richard R. Hammar, Attorney, CPA

Bio

State: North Carolina
Categories: Clergy Malpractice

Church Law and Tax 1990-07-01 Recent Developments

Clergy – Personal Liability

Richard R. Hammar, J.D., LL.M., CPA

• A Utah court refused to recognize “clergy malpractice” as a basis for legal liability. A minister was approached by a 17-year-old parishioner who informed him that his mother wanted him to fly from Utah to North Carolina to locate and bring back his 19-year-old brother, and to get away from his abusive step-father. The boy indicated that his mother did not have adequate funds to pay for an airline ticket, and he asked if the church could help out. The minister responded that he could not help without the mother’s permission, and accordingly he attempted on several occasions to reach her at work. Unable to reach her by telephone, the minister informed the boy that written permission would suffice. The boy later produced a note purportedly signed by his mother, giving permission for him to travel to North Carolina if the church would pay for a ticket. The minister purchased a ticket with church funds, and the boy was flown to North Carolina. In fact, the boy had forged the note, and the mother was unaware that her son had flown to North Carolina. When she became aware of the circumstances, she sued the minister and his church on a variety of grounds, including clergy malpractice and intentional infliction of emotional distress. A trial court granted the minister and church a summary judgment, and the mother appealed. A state appeals court agreed with the trial court, and summarily rejected the mother’s claims. In rejecting the mother’s charge of clergy malpractice, the court observed: “[The mother] admits that no court has recognized clerical malpractice as a cause of action, but argues that such malpractice exists here, not because [the minister] who had not been trained as a counselor, improperly counseled [the boy], but because he failed to refer [the boy] to trained professionals or others who could assist in resolving the family conflicts. In other words, [the mother] wishes to impose a duty upon [the minister] to make further inquiry into the alleged family conflicts, and then, if beyond his expertise, refer [the boy] to others who are qualified to treat such problems. Under the present circumstances, charging lay clergy with this duty of care goes too far because it approaches the same level of care imposed upon trained professionals in medicine and psychology.” The court quoted with approval from the California Supreme Court’s landmark clergy malpractice ruling in Nally v. Grace Community Church (discussed in depth in the March-April 1989 issue of this newsletter): “Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The Utah appeals court agreed with the California Supreme Court’s refusal to recognize clergy malpractice as a basis for legal liability, and refused to impose upon clergy a duty to refer parishioners experiencing emotional trauma to medical professionals. The court also rejected all of the other theories of legal liability alleged by the mother. White v. Blackburn, 787 P.2d 1315 (Utah App. 1990).

© Copyright 1990, 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: m29 m30 c0590

Legal Developments

Clergy – Part 3

Malpractice

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Clergy Malpractice, Malpractice

Church Law and Tax 1989-01-01 Recent Developments

Clergy – Malpractice

Richard R. Hammar, J.D., LL.M., CPA

• The Ohio Supreme Court recently addressed the issue of clergy malpractice. Here are the facts. A husband and wife who had been experiencing marital problems went to a Lutheran minister for counseling. They selected him because “he held himself out to the public … as a minister and counselor trained and able to provide counseling for marital difficulties.” During the final three or four weeks of counseling, the minister allegedly engaged in consensual sexual relations with the wife. These relations, and the counseling, ended when the husband learned of the affair. The husband, who was later divorced from his wife, sued both the minister and his church. The suit against the minister alleged “clergy malpractice,” breach of fiduciary duty, fraud, misrepresentation, nondisclosure, and intentional infliction of emotional distress. The suit against the church alleged liability based on negligent supervision and negligent training of the minister. The husband alleged that the minister’s actions resulted in his divorce and caused him to suffer “mental and emotional anguish, shock, nervousness, and depression.” A trial court dismissed both suits, and a state appeals court ruled that the husband could sue the minister for intentional infliction of emotional distress (it dismissed all of the other allegations). The case was then appealed to the state supreme court, which dismissed all of the husband’s charges against both the minister and church. The supreme court began its decision by acknowledging that clergy are not immune from legal liability for their actions. It observed that “religious leaders have been held liable for obtaining gifts and donations of money by fraud; for undue influence in the transfer of property; for the kidnapping of a minor; for unlawful imprisonment; and for homosexual assault.” The first amendment guaranty of religious freedom did not prevent liability in these cases, and did not protect the minister in the present case, since “we find it difficult to conceive of pastoral fornication with a parishioner or communicant as a legitimate religious belief or practice in any faith.” The court then proceeded to reach the following conclusions: (1) the minister was not guilty of clergy malpractice since malpractice implies negligent conduct and the minister’s actions were intentional in nature; (2) the allegation of intentional infliction of emotional distress failed since this allegation “in truth and effect asserts an action for … alienation of affections” (i.e., enticing a spouse to lose his or her affections for the other spouse)—and such a tort was abolished by the Ohio legislature in 1978; and (3) the allegations of breach of fiduciary duty, fraud, misrepresentation, and nondisclosure were similarly rejected, since they all sought damages based on the minister’s seduction of the wife, and as such were barred by the state law prohibiting lawsuits based on “alienation of affections”. The court also concluded that the church was not liable: “[A]n underlying requirement in actions for negligent supervision and negligent training is that the employee is individually … guilty of a claimed wrong against the employer. Because no action can be maintained against [the minister] in the instant case, it is obvious that any imputed actions against the church are also untenable.” The court emphasized that it found the alleged conduct on the part of the minister to be “reprehensible,” but concluded that there was no basis for relief available to the husband. A dissenting judge expressed outrage at the result reached by the court, and observed: “[The husband] and his wife sought counseling from [the minister] in order to overcome their marital problems. Not only was [the minister] aware that such problems existed, but he was consulted for those very problems. Armed with this knowledge and cognizant of the great emotional strain and vulnerability experienced by his clients at that time, it is alleged that [the minister] sought not to remedy the situation but rather to exploit his position in order to obtain sexual gratification. Given [his] knowledge and experience, there exists a jury question as to whether he intentionally sought to inflict emotional harm upon [the husband].” Stock v. Pressnell, 527 N.E.2d 1235 (Ohio 1988).

© Copyright 1989, 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: m30 m67 m37 c0189

Legal Developments

Lawsuit that Initiated the National Debate Over Clergy Malpractice

A California appeals court recently overturned a state trial court's dismissal of the lawsuit that

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Clergy Malpractice, Counseling

A California appeals court recently overturned a state trial court's dismissal of the lawsuit that initiated the national debate over clergy malpractice several years ago.

The appeals court ruling sets the stage for a trial on the merits. The lawsuit was filed in 1980 by the parents of a young man who had committed suicide. The parents claimed that four ministers of a local church negligently counseled their son, dissuaded him from seeking psychiatric help, and advised persons that God sometimes approves of suicide.

The church and its ministers maintained that they had in fact referred the victim to a number of mental health professionals during the last months of his life, and that they could not be found liable for counseling person on the basis of biblical principles since this would violate the constitutional guaranty of religious freedom.

The appeals court, in a 70-page opinion, attempted to steer clear of the constitutional issue, emphasizing that the only issue was whether counselors can be guilty of "negligent failure to prevent suicide … whether those counselors are affiliated with a religious institution or not."

The court's ruling is appealable to the state supreme court. Nally v. Grace Community Church, ___ Cal. Rptr. ___(1987).