Key point 10-02. The doctrine of respondent superior imposes vicarious liability on employers for the negligent acts of their employees and agents committed within the scope of their employment.
Key point 3-08.09. Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.
The Mississippi Supreme Court ruled that a state conference of a denomination was not liable for injuries suffered by the former wife of an ordained minister who contracted HIV due to her husband’s repeated same-sex affairs.
A minister was married in 1991. Over the ensuing decades, the minister served several churches within the denomination. During his marriage, the minister engaged in extramarital sexual affairs with other men.
At some point during late 2012 and the first half of 2013, the minister contracted human immunodeficiency virus (HIV) from one of his extramarital same-sex affairs. The minister continued to have intercourse with his wife. On July 26, 2013, he discovered he had HIV through a self-test. The next day, he informed his wife that he was HIV-positive. She later tested positive as well. The couple divorced later that year.
After the minister’s confession, the couple called a fellow minister and practicing psychotherapist from the denomination who drove six hours the next day to provide in-person crisis support.
To help the minister with his sex addiction, the therapist encouraged him “to remove any acting out material off of his computer, in the same way that an alcoholic would take his alcohol out of the house.” This included removing any pornography he had downloaded. The therapist also suggested he shut down and purge any email accounts he had used to secretly contact men to meet for sex.
According to the denomination’s book of discipline, self-avowed practicing homosexuals cannot serve in ordained ministry. And on July 28, 2013, the day after the minister revealed his extramarital homosexual behavior and HIV status to his wife, the state conference of the denomination placed the minister on leave.
The minister’s former wife sues for multiple claims
In 2016, the wife sued her former husband, the state conference, and the therapist for multiple claims, including intentional and negligent infliction of emotional distress, negligent hiring and retention, negligent supervision, interference with a civil action, breach of fiduciary duty, failure to warn, and concealment.
The wife alleged that her former husband had a duty to warn her of his HIV status before he had sex with her. And because her former husband was the state conference’s “agent,” she claimed the state conference was vicariously liable for his actions.
The complaint also alleged the state conference had an independent duty in selecting, hiring, appointing, and retaining its pastors. And had it exercised reasonable care, the state conference would not have hired or retained her husband and she would not have suffered her injury.
In particular, the complaint asserted that the state conference knew or should have known about the minister’s sexual behavior and that he posed a risk to others, including his wife. She insisted that had the state conference properly exercised church discipline over the minister and followed its own specific sexual-misconduct policies, the state conference would have warned the wife and remedied her husband’s dangerous conduct.
As for the therapist, the complaint focused on her actions in response to the minister’s phone call. It alleged that the therapist, by helping the minister remove data from his computer, had interfered with a civil lawsuit and had negligently or intentionally concealed information.
The complaint also alleged that the therapist owed the wife a fiduciary duty, which the therapist breached by not warning her of her husband’s “high-risk sexual behavior with men.”
Why the court rejected the wife’s claims
The court rejected all of the wife’s claims against the state conference and the therapist for the following reasons.
The claims against the state conference
The court noted that the wife’s theory of recovery against the state conference “centers on her assertion that [the state conference] owed her a duty to discover and somehow remedy her husband’s extramarital sexual activities and that its failure to do so caused her injury.”
The court concluded, however, that the state conference did not owe the wife any such duty because “[u]nder Mississippi law . . . ‘an employer’s duty to supervise does not include a duty to uncover his employees concealed, clandestine, personal activities.’”
The wife insisted that the state conference assumed a duty by adopting the denomination’s sexual-misconduct policy, which forbids practicing homosexuals from serving as ministers. This policy, as the wife described it in her own words, included:
establish[ing] a regimen of psychological testing, education, interviews, character examinations, and careful supervision and monitoring to ensure that its clergy did not violate [the state conference’s] policies against sexual misconduct. A clergy member who was a practicing homosexual or used pornography would be brought up on charges (which would alert his spouse to the conduct), and could potentially be terminated.
The court noted:
[The wife’s] reliance on the [denomination’s] Book of Church Discipline—namely, its prohibition against ordaining practicing homosexuals—as giving rise to a duty to warn her of her husband’s homosexual behavior is fraught with First Amendment [i.e., religious freedom] concerns. . . .
Simply put, by seeking to hold [the state conference] liable for not protecting her against the negative consequences of her husband’s homosexual behavior, [the wife] is asking this court to hold [the state conference] “to a higher standard or impose special duties or burdens on the basis of [its] religious status” and church doctrine surrounding sexual behavior. . . . Because the First Amendment prevents [her] from filing suit based on the failure to perform religious or ecclesiastical duties, her claims against [the state conference] fail as a matter of law.
Next, the court dealt with the wife’s contention that because the minister was the state conference’s “agent,” it was vicariously liable for his actions. The court observed:
Similarly, [the wife’s] claims against [the state conference] based on vicarious liability also fail. . . . Here, [the minister’s] specific action for which [she] seeks to hold [the state conference] vicariously liable was his having sexual intercourse with his wife after engaging in high-risk sexual behavior with other men. [She] certainly presents no evidence that this act was performed in the course and scope of [her ex-husband’s] church duties, over which [the state conference] had power and control.
The court then quoted from one of its earlier decisions:
[I]t defies reason to argue that engaging in an affair at work or during working hours in any way furthered the business interests of [the employer]. Children’s Med. Group, P.A. v. Phillips, 940 So. 2d 931.936 (Miss. 2006).
“There is no vicarious liability where an agent acted with personal or malicious motive, unless the principal authorized or ratified the acts.” . . . And [the minister’s] personal decision to initiate sex with his wife after knowingly engaging in high-risk extramarital sexual behavior cannot be said to have been authorized or ratified by [the state conference].
The claims against the therapist
The wife sued the therapist, claiming that the therapist owed her a fiduciary duty which was breached by not warning her of her husband’s “high-risk sexual behavior with men.”
The court noted that a fiduciary duty is established “[w]henever there is a relation between two people in which one person is in a position to exercise a dominant influence upon the former, arising either from weakness of mind or body, or through trust. . . .”
The wife claimed that she and the therapist were in a fiduciary relationship, but the court concluded that she failed to demonstrate such a relationship:
[T]he only evidence [she] presents is that [the therapist] “rushed in” to provide guidance to [the minister and his wife] after [he] revealed he had infected [her] with HIV. Not only is the proposed relationship ancillary, a fiduciary relationship cannot arise after the alleged breach of that duty has already occurred. . . . Prior to that time, [the wife’s] evidence merely establishes [the therapist] . . . was a good friend of the couple.
What this means for churches
This case is important for two reasons.
1. Ministers are not necessarily agents
The most significant aspect of the court’s opinion was its conclusion that ministers are not necessarily agents of their church or denomination.
The significance of this ruling is the fact that a finding of agency would make the principal (i.e., a church or denominational agency) liable for the agent’s wrongdoing apart from any finding of negligence or culpability by the principal. The principal is responsible for the agent’s acts (i.e., sexual misconduct, negligent driving) no matter how careful it was.
To illustrate, consider a denomination with 25,000 ministers. If the ministers are agents of the denomination, then their wrongful conduct is imputed to the denomination, and no amount of care on its part changes that. Since it would be impossible for the denomination to police 25,000 ministers, it is absolutely liable with no defense. This makes a finding that ministers are agents of a denomination an existential threat jeopardizing its very existence.
Fortunately, some courts, like this one, have refused to characterize ministers as agents of their church or denomination, at least for injuries they cause when not acting in furtherance of the agency relationship.
This court concluded that ministers are agents of a church or denomination only if they cause injury while acting in furtherance of their agency status. The court explained:
Here, [the minister’s] specific action for which [his wife] seeks to hold [the state conference] vicariously liable was his having sexual intercourse with his wife after engaging in high-risk sexual behavior with other men. [She] certainly presents no evidence that this act was performed in the course and scope of [her ex-husband’s] church duties, over which [the state conference] had power and control. . . . “There is no vicarious liability where an agent acted with personal or malicious motive, unless the principal authorized or ratified the acts. . . . And [the minister’s] personal decision to initiate sex with his wife after knowingly engaging in high-risk extramarital sexual behavior cannot be said to have been authorized or ratified by [the state conference].
2. Disclosing risks of harm
The ex-minister’s wife claimed that the therapist was responsible for her HIV infection because she failed to warn her of her husband’s “high-risk sexual behavior with men.” This raises the question of whether a therapist (or pastor) has a duty to inform others that a counselee poses a threat of harm or death, and whether such a warning violates a duty of confidentiality.
Clergy who disclose confidential information shared with them in counseling may be exposing themselves, as well as their church, to liability on the basis of malpractice, invasion of privacy, breach of fiduciary duty, and infliction of emotional distress.
This conclusion may apply even when clergy share confidential information in order to discipline a member for violating church standards or to protect third parties from harm. As a result, clergy should not disseminate information obtained from confidential counseling sessions without first seeking legal advice.
Woodard v. Miller, 326 So.3d 439 (Miss. 2021)