Personal Injuries on Church Property or During Church Activities

Legal Developments

‘Reasonable, competent supervision’ required of church-owned school in playground assault case

A Louisiana court rules that a church-owned school was required to provide “reasonable, competent supervision” in a playground assault case.

Richard R. Hammar, Attorney, CPA
Bio

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.

In a case that will be relevant to every church leader, a Louisiana court addressed the liability of parents for injuries caused by their minor children on church premises. 

Background

Four kindergarten students at a church-owned elementary school were playing tag on a school playground when one of the boys (the perpetrator) assaulted another boy (the victim). The victim suffered serious injuries, including confinement to a wheelchair for approximately three months.

The victim’s parents sued the parents of the perpetrator in one lawsuit, and sued the school and church in a separate lawsuit. The victim’s parents claimed each of the parties were responsible for their child’s injuries. 

The trial court dismissed the lawsuits. 

The victim’s parents appealed.

Liability of parents for the conduct of a minor child

A state appeals court observed: “Generally, a father and a mother are responsible for damage caused by their minor child who lives with them …  when the child’s conduct creates an unreasonable risk of injury to others, even though the parent himself is not personally negligent, and the child is too young to be personally negligent.” 

The court noted that “there is no fixed rule for determining whether a child’s conduct creates an unreasonable risk of harm. Relevant factors to be considered and weighed include: 
  1. the claims and interests of the parties;
  2. the probability of the risk occurring; 
  3. the gravity of the consequences; 
  4. the burden of adequate precautions; 
  5. individual and societal rights and obligations; and, 
  6. the social utility involved. 

The injured person must prove that 

the child’s conduct presented an unreasonable risk of injury to another and that the damage resulted from the unreasonable risk of injury. Once this is proved, the parent can escape liability only if he shows the injury was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.

The appeals court reversed the trial court’s dismissal of all claims against the perpetrator and his parents, allowing it to proceed to trial. The appeals court concluded that there was sufficient evidence that the perpetrator posed an unreasonable risk of harm to others, based on the following facts:

In his deposition, the victim testified that he was playing a game of tag with two friends at recess when the perpetrator joined the game. The victim did not want to play with [the perpetrator] because, earlier in the school year [the perpetrator] had twisted his fingers more than once when they were standing in line at school. Without telling the other students, the victim quit the game of tag and walked away. The perpetrator followed him, shoved him to the ground, and jumped on him “on purpose.”

The victim’s mother testified that, before the playground incident, her son had repeatedly come home from school telling her that the perpetrator was “being mean” to him by twisting his fingers. The mother instructed her son not to play with him anymore. 

The victim’s mother also testified that, on a field trip in October 2017, she had personally seen the perpetrator being disruptive, not following orders, and grabbing another child in an attempt to “bear hug” the child. 

The mother further stated that, at a school function in early December 2017, the perpetrator’s mother told the victim’s mother that she had met with her son’s teacher regarding her son’s frequently being marked down on the classroom behavior chart.

The perpetrator had many documented behavioral concerns throughout the school year, including:
  • kicking students while walking down the hall, 
  • punching students in the bathroom, 
  • constant roughhousing on the playground,
  • misbehavior at special classes,
  • hitting students in the back while sitting on the carpet, slapping another student in the face while carpooling, and 
  • coloring on the classroom floor during nap time.

Liability of the school and church

The victim’s parents sued the school and church (the “church defendants”) in a separate lawsuit. The trial court also dismissed the parents’ claims against the school and church defendants and the victim’s parents appealed. 

The appeals court concluded:

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and proof of a causal connection between the lack of supervision and the accident. The risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised.

The victim’s family claimed that “because the school and church knew that the perpetrator had prior behavior problems, they were required to exercise a heightened amount of supervision over the perpetrator, particularly on the playground.” 

The appeals court agreed, allowing the lawsuit to proceed to trial.

What this case means for churches

This case illustrates the remarkable conclusion that not only are schools and churches potentially liable for injuries to children occurring on their premises, but so are the parents of children who injure other children when the child’s conduct creates an unreasonable risk of injury to others. 

The bottom line: Church leaders who become aware of a child exhibiting aggressive and harmful behavior toward other children should intervene promptly to restrain the offender and protect other children since a failure to do so may lead to liability for both the church and the parents of the child causing injuries to other children. 

This risk can be minimized by various interventions, including:

1. Using an adequate number of adults to supervise all church activities, especially those involving minors. Also, be sure that adult supervisors are screened and trained on responding to aggressive children. 

2. Checking with local public elementary schools to see what policies they have instituted in cases involving aggressive children. By aligning your policies to those of government agencies (such as a public school) you will go a long way toward demonstrating that your church exercised a sufficient degree of care and therefore was not negligent for injuries that occur.

3. Checking with non-governmental charities (i.e., the American Red Cross, YMCA, Boy Scouts of America, and similar organizations) to obtain guidelines on responding to violent and aggressive children. Reliance on such standards makes it much less likely that a church will be guilty of negligent supervision. Be sure that you document your research.

4. Using video technology to monitor children on church premises. This will help explain how injuries occur and may result in a church’s quick dismissal from a lawsuit. 

5.  Apprising parents of a minor child who injures another child in an unprovoked act of aggression. If the circumstances warrant, either expel the child or require that the child always be accompanied by a parent on church property.

6. Recognizing knowledge of past incidents. If a child is injured on church property, then the church’s duty of supervision increases. The church will be held to a higher standard of supervision because of such knowledge. It is important for church leaders to be aware of this, and to be diligent in implementing some, or all, of the risk management procedures mentioned in this article. As the victim’s parents asserted, “because the school and church knew that the perpetrator had prior behavior problems, [the school and church] were required to exercise a heightened amount of supervision over the perpetrator, particularly on the playground.” 

7. Familiarizing youth workers with the church’s policies and ensuring these policies are followed. This is essential. At a minimum, this should be part of an orientation process for all new workers (both paid and volunteer). Periodic training sessions are also desirable to reinforce nursery policies. A church that fails to follow its own risk management policies is placing itself in a precarious legal position. 

8. Regularly reviewing policies and procedures. It is a good practice to have your risk management procedures reviewed periodically by an attorney and by your church’s insurance agent. Such a review will help to ensure that your policies are current and effective.

Loupe v. Roman Catholic Church, 368 So. 3d 583 (La. App. 2023) and 365 So. 3d 844 (La. App. 2023).

Legal Developments

Child’s Injury Raises Questions of Church Liability

The case highlights the duty churches have to promptly identify and correct dangerous conditions.

Richard R. Hammar, Attorney, CPA
Bio

Key point 7-20.2 . A variety of defenses are available to a church that is sued as a result of an injury occurring on its premises.

A Tennessee court ruled that a church was not liable for severe injuries sustained by a five-year-old child who came into contact with a high-voltage power line on church property.

Downed, 4,000-volt power line causes severe injuries

When a church member arrived at church on a Saturday morning to teach a children’s Bible study, she learned that there was a power outage. Undeterred, she taught class by the light from the windows.

During the day, the class broke twice for the children to play outside. The children played in a mowed, grassy area between the fellowship hall and the sanctuary building; the grassy area was bounded by the fellowship hall and the sanctuary buildings on one side and woods on the other. The children played in the grassy area during their two breaks without incident.

After the Bible study, a five-year-old child returned to the same grassy area to play. Around 2 p.m., the child came in contact with a downed, 4,000-volt power line owned by a local utilities company. The shock produced by the power line burned over 40 percent of the child’s body and led to the amputation of his right hand and forearm.

The child’s parents sued the church.

­­They conceded that there was no evidence that the church created the dangerous condition that caused the child’s injuries, and that the church lacked actual notice of the dangerous condition, but they insisted that the church had “constructive notice” of the dangerous condition.

Constructive notice refers to knowledge of a fact that a person should have had upon the exercise of reasonable diligence. The trial court concluded that the church lacked constructive notice and dismissed the case.

The parents appealed.

Appeals court affirms dismissal

The appeals court affirmed the trial court’s dismissal of the case. It began its opinion by observing:

In a premises liability case, a plaintiff may establish constructive notice in two ways.

A plaintiff may (1) prove that a dangerous condition existed for such a length of time that a reasonably prudent property owner should have been aware of the dangerous condition’s existence or (2) prove that the dangerous condition resulted from a pattern of conduct, a recurring incident, or a general or continuing condition … The parents contend that they established constructive notice by proving that a dangerous condition existed for such a length of time that the church should have been aware of its existence.

The parents offered the affidavit of a licensed electrical engineer opining as to when the power line was downed.

The engineer testified that the power line was likely downed two days prior to the accident at 11:00 a.m. when a thunderstorm came through the area. And the power line was certainly down the morning prior to the accident when the church received an automated report of a “lost meter.”

Although a meter may not respond for other reasons, the most likely reason was the disruption of power caused by the downed power line. According to the parents “surely at least 26 hours is more than enough [time] for constructive notice.”

Generally, a jury must decide whether a dangerous condition existed long enough that a reasonably prudent property owner should have been aware of it. But the time element is not the only consideration in determining whether there is constructive notice of a dangerous condition. In addition to the time element, constructive notice requires some material competent evidence from which it can be logically inferred that the [church], by the exercise of ordinary care, would have or should have discovered the dangerous condition.

Here, such evidence is lacking. … But nothing indicates that the church would have or should have discovered the downed power line prior to the accident. …

Because the church did not cause the downed power line, in order to establish its liability, the parents had to prove that the church had either actual or constructive notice of the dangerous condition.

They conceded that the church lacked actual notice. … We conclude that the parents could not show that the church had constructive notice of the dangerous condition. They presented no evidence from which it could be logically inferred that church, by the exercise of ordinary care, would have or should have discovered the downed power line prior to the accident.

What this means for churches

This case illustrates an important legal principle.

Like any landowner, churches may be liable for injuries on their property due to a dangerous condition if they either created the condition or had actual or constructive notice of it.

Constructive notice refers to a dangerous condition that existed for such a length of time that the church should have been aware of its existence.

The principle of constructive notice imposes a duty on churches to regularly inspect their premises and promptly correct dangerous conditions.

A failure to do so may result in liability for injuries that occur.

Kelly v. Tewahedo Church, 2022 WL 202639 (Tenn. App. 2022)

Legal Developments

Member Sickened from Food at Church Banquet Not Allowed to Sue Caterer

While the church wasn’t named in lawsuit, churches should note the potential liability they could face if accused of negligence.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-01. Negligence is conduct that creates an unreasonable risk of foreseeable harm to the person or property of another, and which results in the foreseeable harm. The important point is that negligence need not be intentional. It includes conduct that is simply careless, heedless, or inadvertent. A person who kills a pedestrian while texting on a cellphone did not intend to kill the victim, but nonetheless may be liable for monetary damages in a civil lawsuit based on negligence.

A federal appeals court ruled that a woman who became violently ill after consuming shellfish prepared by a hotel caterer for a church banquet could not sue for her injuries.

Background

A female church member (the “plaintiff”) suffered an allergic reaction after eating a meal prepared by a hotel caterer for a church’s annual banquet hosted at the hotel’s conference center.

Representatives for the hotel communicated extensively with the pastor organizing the event about the entrée selections for the banquet. The menu was scheduled to include a blue-crab-stuffed chicken. The pastor asked the hotel about a chicken option with no seafood in case anyone had an allergy, and the hotel agreed to make one available. But no one from the church ever told the hotel to expect someone with food allergies and the church placed no orders for a seafood-free chicken dish.

The signed banquet event order forms reflected orders for 30 blue-crab-stuffed chicken breasts and 20 honey-glazed salmon entrees, with dietary restrictions marked “N/A.” When a hotel employee asked the pastor on the day of the banquet whether any attendees had “changes to this menu because of restrictions,” the pastor responded “no.”

The plaintiff did not inform the church or the hotel about her shellfish allergy. She claimed that she never saw the menu options that the church posted; instead, the pastor told her only that the options were “salmon, chicken or veggies.” The plaintiff told the pastor that she wanted the chicken.

On the day of the banquet, the plaintiff sat at a seat marked by a place card stating her name and “chicken.” The pastor had prepared these place cards in accordance with the event order form she received from the hotel. The hotel instructed the church to provide place cards to identify which entrée each attendee should be served.

The plaintiff didn’t communicate with the server, who delivered her blue-crab-stuffed chicken. She ate a few bites and almost immediately became seriously ill.

The plaintiff: Hotel was guilty of negligence

The plaintiff sued the hotel, claiming that it was guilty of negligence and “owed a duty to all patrons to provide an adequate warning of the latent dangers arising from the consumption of seafood products.”

She also asserted that the hotel knew or should have known the chicken dish contained seafood, which would be life-threatening to people with seafood allergies; that the presence of the crabmeat wasn’t obvious to her; and that the “food label” didn’t disclose the presence of crab meat. A federal district court in Georgia rejected the plaintiff’s claims, and the case was appealed to a federal appeals court.

Appeals court: Hotel had not “misled or misinformed consumers”

The appeals court concluded that the district court did not err in dismissing the case because the plaintiff failed to show that the hotel breached any duty of care that it owed her and therefore “no genuine issue as to any material fact” remained to be adjudicated.

The court noted that the plaintiff’s theory of liability was based on an alleged duty to warn all patrons of the latent dangers of seafood consumption. But “she has failed to identify any . . . statute or caselaw that might possibly stand for the proposition that a food-serving establishment has such a duty—particularly where, as here, the patrons preselected entrees to be served and told the establishment that no one had any dietary restrictions.”

The plaintiff noted that Georgia law prescribes that “[f]ood shall be offered for human consumption in a way that does not mislead or misinform the consumer.” According to the plaintiff, the hotel violated this provision by “disguising blue crab stuffed chicken as a regular chicken breast entrée.” The court disagreed:

This argument fails based on the undisputed facts in the record. [The hotel’s] agents communicated to the Church’s [pastor] repeatedly and in writing that the entrée being offered was a blue-crab-stuffed chicken breast and asked several times whether any guests had dietary restrictions. [The hotel] also offered a different seafood-free chicken entrée for anyone with a seafood allergy. [The pastor] nevertheless executed the banquet event orders on behalf of her church for “thirty blue crab stuffed chicken breasts.” . . . There is no plausible argument that [the hotel] “disguise[ed]” its dish or misled or misinformed consumers when it provided the exact entrée that the Church ordered for its members. Therefore, [the plaintiff] has failed to establish that [the hotel] breached any duty that it may have had under this [law].

What this means for churches

Churches conduct meal functions for a number of reasons, including retirements, celebrations, special anniversaries, weddings, and funerals. Such meals may be prepared onsite by church employees or volunteers, catered onsite by an outside food service, or catered by an outside food service at a location other than the church.

Whether an event occurs on or off church property, church staff must take steps to ensure that persons with food allergies are identified and accommodated. While the plaintiff in this case chose not to name her church as a defendant, others in similar circumstances may not be so restrained.

Crawford v. Marriott International, Inc. 2021 WL 5054442 (11th Cir. 2021)

Legal Developments

Intentional and Grossly Negligent Acts Negate Release Forms

A Texas appellate court says a signed release form didn’t bar an injured soccer player from pursuing an assault lawsuit.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-16.06. A release form is a document signed by a competent adult that purports to relieve a church from liability for its own negligence. Such forms may be legally enforceable if they are clearly written and identify the conduct that is being released. However, the courts look with disfavor on release forms, and this has led to several limitations, including the following: (1) release forms will be strictly and narrowly construed against the church; (2) release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents’ signature does not prevent minors from bringing their own personal injury claims after they reach age 18; (3) some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy; and (4) release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

A Texas court ruled that release forms that purport to relieve a person of liability for intentional acts and gross negligence is unenforceable as contrary to public policy. The decision underscores the cautions church leaders must exercise in making decisions about events and activities, including ones that involve release forms.

Background

On September 7, 2016, during a soccer match between two teams, a player on one team (the “plaintiff”) alleged that a player on the other team (the “defendant”) attacked him deliberately during the game.

The plaintiff suffered a “severe concussion, facial fractures that required surgery and . . . ongoing loss of sensation and nerve damages as a consequence of the violent act.”

The plaintiff sued for assault

The plaintiff sued the defendant for assault. The defendant asked the court to dismiss the case on the ground that the plaintiff’s injuries were an inherent risk of the game, and further claimed that the plaintiff had released his claims in a release form he signed prior to participating in any games at the local soccer club.

The plaintiff produced two witness statements in which the witnesses recalled the incident and claimed that the defendant “acted intentionally and that the move was not an accident stating [the defendant] did not appear to be trying to use his head to intercept the soccer ball, but instead appeared to intentionally hit [the plaintiff’s] face with the back of his head. . . . [The defendant’s] act was intentional and not an accident.”

The plaintiff insisted that, as a matter of public policy, release forms cannot extinguish intentional injuries like assault and so the plaintiff’s assault claim was not released by the release signed with the soccer club.

The trial court agreed with the defendant and dismissed the plaintiff’s lawsuit. The plaintiff appealed.

Court: Release forms do not cover assaults

A state appeals court began its opinion by observing:

“Generally, a contractual provision ‘exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.’” . . .

This court has previously held that “pre-accident waivers of gross negligence are against public policy.” . . . Other appellate courts have held that pre-injury waivers of gross negligence violate public policy and are void. . . . This is because “gross negligence involves conduct that poses an extreme risk of harm to others and an actor that proceeds with conscious indifference to the rights, safety, or welfare of others. . . . Turning to intentional conduct, such as an assault, the considerations are the same as those with gross negligence—an actor that poses an extreme risk of harm to others and proceeds to intentionally, knowingly, or recklessly cause bodily injury to another. “[E]nforcing a provision to allow one party to intentionally injure another with impunity violates the law.”

The defendant insisted that the plaintiff waived his rights to bring a lawsuit “because [his] present claim for the intentional tort of assault is subject to the release document.” The release in this case stated:

THE RELEASING PARTIES HEREBY RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE THE RELEASED PARTIES FROM ANY AND ALL CLAIMS RELATED TO OR ARISING FROM THE CLUB OR THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS ARISING FROM OR RELATED TO PERSONAL INJURY, ACCIDENTS OR ILLNESSES (INCLUDING DEATH), AND/OR PROPERTY LOSS.

The court continued:

The release in this case is a broad form release, purporting to release “all actions and causes of action” related to or arising from the “club” or “activity” including, [the defendant] argues, any claim for assault. It is important to note that in the context of the release argument, [the defendant] has not argued that [the plaintiff] has specifically consented to the alleged assault in this case by virtue of participation in the game of soccer. Instead, [the defendant] argues that [the plaintiff] has, by virtue of the release agreement between [the plaintiff] and the soccer club, released [the defendant] from any assault [the defendant] may inflict upon [the plaintiff] during any game played while at the club. “The law of torts imposes standards of conduct for the protection of others against unreasonable risk of harm. One cannot exempt himself from such liability for harm that is caused either intentionally or recklessly.” RESTATEMENT (SECOND) OF CONTRACTS § 195. . . . [T]o the extent that the trial court concluded that the release in this case released the claim of assault between [the plaintiff] and [the defendant], the trial court erred. . . . Such a conclusion would insulate a party from its future, deliberate, wrongful conduct and is against public policy.

What this means for churches

Many churches, schools, youth-serving charities, and recreational venues attempt to reduce the risk of liability for injuries occurring during sponsored events by having participants sign a form that purports to exempt the host organization from liability for injuries caused by its own negligence. Such forms typically are called release forms, waivers of liability, or assumptions of risk.

Understanding Release Forms

Go deeper on this topic in the “Release Forms” section of attorney Richard Hammar’s Legal Library. Therein you’ll find guidance on the legal requirements for valid forms, instructive case studies pertinent to this issue, reasons release forms are often disfavored by the courts, and more.

All too often, churches and other organizations use forms found online, and with no legal input or review. This can result in forms that are useless or of limited value.

As this case illustrates, several courts have ruled that release forms cannot release claims for injuries caused by the gross negligence or intentional acts of another.

Church leaders should not assume that a release or assumption of risk form signed by a competent adult will apply to deaths or injuries caused by the gross negligence of the church or its agents. Distinguishing between ordinary negligence and gross negligence is often a difficult task, but this distinction is significant because it generally will determine the validity of a release form or assumption-of-risk form. One court noted:

Negligence is defined as “any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm.” A claim for gross negligence, however, sets the evidentiary hurdle at a higher elevation:

[G]ross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. . . .

“[W]e have viewed gross negligence ‘as something more than simple negligence, and likely more akin to reckless conduct.’”

How can a church be guilty of gross negligence? It is possible, depending on an examination of all the facts and circumstances, that the following practices could be grossly negligent:

  • A church’s governing board refuses to institute a policy to reduce the risk of child molestation at church or during offsite church activities. The church uses a volunteer in its children’s ministry without conducting a criminal records check or obtaining references. A church volunteer sexually molests a child during a church activity. It is later discovered that the volunteer is a pedophile who molested a child at a previous church.
  • A church uses a van to transport children to an offsite activity. The church selects a driver whose driving record was not examined. The driver’s negligence results in a collision that injures some of the children. It is later determined that the driver had a suspended driver’s license.
  • A church board is aware that the youth pastor frequently sends and reads text messages on his cellphone while driving his car on church business. Nothing is done about it. The youth pastor swerves into an oncoming lane of traffic while texting his girlfriend and collides with another vehicle.
  • The church youth group goes swimming at a lake. No lifeguards are present, and the church provides only two chaperones to oversee 50 minors. Neither chaperone is certified in CPR. One of the minors drowns, and no one is available to start CPR.

It is important for church leaders to be familiar with the concept of gross negligence for the following three reasons.

First, the presence of gross negligence renders release and assumption-of-risk forms as unenforceable.

Second, the same legal standard used to determine gross negligence is also used to determine the availability of “punitive damages.” Punitive damages are damages that a court can award to an injured person, over and above compensatory damages, based on the defendant’s gross negligence or willful and wanton conduct. Church leaders should be aware that public policy does not allow entities to insure against their gross negligence. Thus, punitive damages are not covered under church insurance policies.

Third, gross negligence negates the limited immunity from personal liability accorded to the uncompensated officers and directors of churches and other nonprofit organizations. This means these individuals can be personally liable to an injured plaintiff if gross negligence is found.

These potentially adverse consequences make it imperative for church leaders to understand the concept of gross negligence, and to avoid any decisions that, in retrospect, may be grossly negligent.

Brennan v. Kaufman, 2021 WL 3729257 (Tex. App. 2021).

Legal Developments

Church Found Not Liable for Serious Injuries to an HVAC Worker

Court: Plaintiff was aware of the inherent danger of stepping off church’s ceiling joists before falling.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-01. Negligence is conduct that creates an unreasonable risk of foreseeable harm to the person or property of another, and which results in the foreseeable harm. The important point is that negligence need not be intentional. It includes conduct that is simply careless, heedless, or inadvertent. A person who kills a pedestrian while texting on a cellphone did not intend to kill the victim, but nonetheless may be liable for monetary damages in a civil lawsuit based on negligence.

An Arizona court ruled that a church was not liable for serious injuries sustained by a worker employed by an HVAC company performing maintenance work at the church.

Background

A church contracted with a heating and cooling business (the “company”) for regular service and maintenance of its HVAC system. In March 2018, the company began upgrading the system as a charitable contribution. The parties had no written contract for this project, and the company donated all necessary parts and labor.

The company assigned a three-man team, including a technician with about three years’ experience (the “plaintiff”), to the church project. The team began by working in an attic space above a breezeway connecting the church to its school. The attic housed HVAC ductwork and did not have flooring installed across the ceiling joists.

According to the plaintiff, he and a coworker were “clear[ing] the floor of ductwork so [they] could lay plywood for a more even and secure walking surface” when the plaintiff stepped through a fluorescent light and fell about ten feet onto a concrete sidewalk. The fall fractured the plaintiff’s spine, paralyzing him from the waist down.

No evidence of negligence by the church

The plaintiff sued the church, claiming its negligence caused his injury. The church asked the court to dismiss the case on the ground that it owed no duty to the plaintiff as he was the employee of an independent contractor (the company). The plaintiff insisted that the church was liable because it “retained control over the premises [and] the work area,” and failed to provide a safe premises.

The trial court agreed with the church and dismissed the case, finding the company alone controlled the “method or manner” of the plaintiff’s work.

The plaintiff appealed, arguing that the church was liable for his injuries because it admitted that the property where the plaintiff was injured is “owned, occupied, maintained and controlled” by the church. But the court noted that “the critical question is not whether the Church controlled the property generally, but whether it retained control of the premises where the work is being performed.” And, the court concluded, the plaintiff “produced no evidence showing the Church retained any control of” the premises in question.

The plaintiff also argued on appeal that the church’s liability stemmed from its failure “to turn over safe premises to” the company. Specifically, he argued that the fluorescent light fixture was a “hidden-and-concealed defect in the attic floor,” and the church did not warn him of this danger.

The court acknowledged that a landowner “owes a duty to employees of an independent contractor ‘to disclose to [them] dangerous conditions which are known to the [landowner].’” But this duty is limited and required the plaintiff to prove “that the church knew the breezeway attic contained an unreasonable risk of harm which he would either “not discover or . . . fail to protect himself against.” The court concluded:

[The plaintiff] has produced no evidence showing church personnel entered the breezeway attic or had any reason to believe it posed “an unreasonable risk.” Rather, the church had every reason to believe [the plaintiff]—an experienced HVAC technician—would recognize any risks associated with walking across ceiling joists in an attic and take steps to protect himself. . . . [There is] no liability for “known or obvious” dangers. Indeed, the record shows both [the company and plaintiff] were aware of the danger inherent in stepping off the ceiling joists . . . [since the plaintiff] said the fall occurred while he and a coworker were installing plywood “for a more even and secure walking surface” in the attic. (Emphasis added.)

Though [the company] could have taken additional steps to protect [the plaintiff], “a landowner is not liable for the negligent conduct of an independent contractor unless the landowner has been independently negligent.” . . . We find no such evidence in this record.

What this means for churches

This case illustrates an important point: A landowner “owes a duty to employees of an independent contractor ‘to disclose to [them] dangerous conditions which are known to the [landowner].’” This means that when hiring a contractor to perform work on the church’s premises, a church should warn the contractor and its employees of hidden and dangerous conditions. But, as the court noted, there is “no liability for ‘known or obvious’ dangers.”

No deduction for donating labor

There is another interesting point raised by this case. The court noted that the parties had no written contract for this project, and that the company donated all necessary parts and labor.

It is common for contractors to offer to perform services on behalf of a church without remuneration. Often, they assume that they can deduct the value of their donated services as a charitable contribution. However, no deduction is allowed for a contribution of services. Persons who donate labor to their church may not deduct the value of their labor.

However, expenses incurred in performing donated services on behalf of a church or other charity may be deducted.

To illustrate, assume that a church begins a remodeling project. A church member donates 30 hours of labor toward the project. This member is a carpenter who ordinarily receives $50 per hour for his services on the open market. The member asks the church treasurer for a receipt showing a contribution of $1,500 (30 hours times $50 per hour).

The church may issue the member a letter of appreciation acknowledging the hours of labor that were donated, but it should clarify that this amount is not deductible as a charitable contribution. Scott v. Roman Catholic Church, 2021 WL 871686 (Ariz. App. 2021).

Legal Developments

Church Not Responsible for Hayride Injuries

But this case highlights the need for churches to set up stringent safeguards for inherently risky activities.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-11.1. Churches can reduce the risk of liability based on negligent supervision for injuries not involving sexual misconduct by adopting risk management policies and procedures.

A federal district court in New Jersey ruled that a church was not responsible for serious injuries sustained by a parishioner while participating in a hayride organized by the church.

Background

The Fellowship Event was a free, church-sponsored outing hosted each fall at a nearby commercial farm owned by longtime parishioners of the church. In 2015, the event began at 5:30 p.m. and ended around 10 p.m. About 50 people attended, most of whom were not farmers and did not possess farming experience. The church promoted the event through mentions in the weekly bulletin and announcements by the pastor in the weeks leading up to the event. No participants were required to sign liability waivers for the event.

Multiple wagons were hitched to tractors for the hayride. Hay was spread along the floor. Haybales were used as seats on the wagons as well as for steps for getting on and off the wagons.

The farmer provided and loaded all the hay bales. The bales were not secured and could easily move if someone stepped on them. The farmer and other church parishioners set up the wagons and tractors for the hayrides, while the farmer’s wife assisted with the bonfire setup.

The plaintiff attended the Fellowship Event with her husband and three children. She rode in one of the wagons hitched to a tractor.

At approximately 6:15 p.m.—before the plaintiff’s hayride began, and while the wagon and tractor sat idle—the plaintiff attempted to get out and retrieve additional blankets. The plaintiff said she turned herself around to descend backwards from the wagon, and as she did, she said one of the hay bales used as a step moved, causing her to fall backwards and “strike the ground with her back and head.”

No one witnessed the fall, though many saw her on the ground shortly after.

She sought no medical attention at the time and returned to the wagon to participate in the hayride. She also participated in the bonfire later. The plaintiff said she lost consciousness for an unknown period of time after the fall “and vaguely remembers the hayride or events thereafter.”

The plaintiff said she left the event and went to a hospital to receive medical attention. She alleged “she sustained numerous physical injuries to her head, neck, ankle, and back, as well as mental and emotional injuries.”

The plaintiff sues the farmers

In 2017, the plaintiff sued the farmers for negligence. The lawsuit asserted that the farmers “negligently caused the plaintiff’s injuries because they failed to provide a properly secured step to board and exit the wagon; failed to provide an attendant to assist boarding and exiting the wagon; failed to warn her about stepping onto the hay bale; and failed to adhere to state, local, and industry standards for steps and hand rails.”

The farmers, on the other hand, alleged that although no specific individual was assigned to assist people on and off the wagons, other assistance was provided, including verbal safety instructions during the hayride.

The farmers filed a third-party complaint against the church

The farmers also filed a third-party complaint against the church, alleging that the plaintiff’s injuries were caused in whole or in part by the negligent acts of the church.

Specifically, the farmers asserted that the church was “a beneficiary, organizer, and planner” of the Fellowship Event, and “provided materials, goods, and services” including the hay bales that injured the plaintiff.

The court’s decision

The court concluded that the church was not responsible for the plaintiff’s injuries:

There is no dispute that the Fellowship Event was held on the . . . farm. Importantly, the [farmers] have not presented facts to suggest that [the church] supplied the wagons, tractors, hay bales, and other farm equipment used on the farm during the event and that allegedly caused Plaintiff’s injuries. Although the [farmers] assert . . . that [the church] supplied the materials, equipment, and goods for the Fellowship Event, the [farmers] fail to cite to any evidence to support their contention. In fact, [the farmer’s] deposition testimony demonstrates that it was he who provided the bales of hay for use as seats on the wagons as well as for use as steps onto and off of the wagons. . . .

Furthermore, the fact that the event was advertised in the church’s bulletin, and during church services is immaterial because Plaintiff’s injury occurred on the . . . farm through the use of the [farmers’] farming equipment. Therefore, the facts reveal that [the church] was not [responsible for the accident].

What this means for churches

Hayrides are inherently risky activities that have resulted in injuries and deaths to many people.

Many courts have found the sponsors of these events, including churches, liable for any deaths or injuries that may occur, usually on the basis of negligent selection of the driver of the truck or tractor that pulls the wagon, or negligent supervision of the event itself.

Churches should not authorize or schedule such events (for minors or adults) without stringent safeguards to protect against injury or death.

For a list of 18 precautions, see my Q&A on church hayrides, which includes guidance on selection and supervision protocols, ideal times of day for hayrides, inspections, liability waivers, and more. West v. De Block, 2020 U.S. Dist. LEXIS 180321 (D.N.J. 2020).

Legal Developments

Why Churches Should Report Criminal Activities

Air Force’s liability for church shootings has broader implications—including the reporting of sexual abuse.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Negligence is a common basis for liability. Negligence is conduct that creates an unreasonable and foreseeable risk of harm to another person that results in injury. Negligent conduct need not be intentional. It may consist either of a specific act or failure to act.

A federal district court in Texas ruled that the United States Air Force was 60 percent at fault for the shooting rampage at the First Baptist Church in Sutherland, Texas, in 2017 that left 26 persons dead and 22 more wounded. The failure of Air Force leaders to report the perpetrator’s prior criminal conduct demonstrates the potential liability that organizations—including churches—can face as a result of failing to act.

A former service member attacks Texas church

Devin Patrick Kelley (Kelley) entered the First Baptist Church in Sutherland Springs, Texas, on November 5, 2017, and opened fire, killing 26 people and wounding 22 more. After fleeing the scene, Kelley later died from a self-inflicted gunshot wound.

Several survivors and relatives of those injured or killed (the plaintiffs) sued the United States government, claiming that Kelley should not have cleared the background check mandated for firearms purchases because he had been convicted of a disqualifying offense in November 2012 while he was serving in the Air Force at Holloman Air Force Base in New Mexico. Specifically, Kelley had been convicted by general court-martial of assaulting his then-wife and infant stepson on numerous occasions.

Court: The Air Force failed to meet an obligation

The court noted that the Air Force had an obligation—and multiple opportunities—to ensure that Kelley’s fingerprints and criminal history were submitted to the Criminal Justice Information Services Division (CJIS) of the Federal Bureau of Investigation (FBI) for inclusion in its databases as required by law, but it failed to do so.

In early 2019, the Air Force issued letters of admonishment to three Air Force employees involved in the investigation of Kelley between June 2011 and October 2012.

The letters concluded that the failure to ensure the reporting of criminal history data to the CJIS constituted a dereliction of duty that “fell below the minimum standards” and “contributed to Devin Kelley not being properly identified as an individual prohibited by law from purchasing a firearm.”

The court observed:

There is no question that the [Air Force] agents at [Holloman Air Force Base] who were responsible for collecting and submitting Kelley’s information to the FBI failed to meet this standard of care. [Department of Defense] and [Air Force] instructions imposed mandatory obligations on investigative agents and corrections officers to submit Kelley’s fingerprints and final dispositions. Yet the government stipulated that at no time before the Sutherland Springs Church shooting did the government submit Kelley’s fingerprints or final dispositions. . . . When the [Air Force] received notice of Kelley’s conviction for a reportable offense on November 7, 2012—based in part on conduct discovered during its own investigation—it had an obligation to submit the final disposition report to the FBI within 15 days. It failed to do so. . . . The court concludes that the government failed to exercise reasonable care in performing its undertaking to collect and submit Kelley’s fingerprints and conviction information to the FBI. . . .

The clerk at the Academy Sporting Goods store where Kelley purchased his weapons testified, “We did a [National Instant Criminal Background Check System (NICS)] background check, which goes to the FBI. After the FBI received their document, they sent us a document with a proceed to transfer the firearm to Mr. Devin Kelley.” As a result, “the only reason Kelley was able to acquire the firearms used in the shooting was the Air Force’s failure to submit his criminal history.”

The court concluded:

[T]he government failed to exercise reasonable care in its undertaking to submit criminal history to the FBI. The government’s failure to exercise reasonable care increased the risk of physical harm to the general public, including plaintiffs. And its failure proximately caused the deaths and injuries of plaintiffs at the Sutherland Springs First Baptist Church on November 5, 2017.

What this means for churches

This case is relevant to churches since it suggests that a church can be sued for negligence if it fails to report an incident of child abuse and thereby keeps the offender’s wrongful conduct out of searchable criminal databases.

To illustrate, assume that a pastor learns that a male youth worker has molested a minor female. The pastor decides to handle the matter internally and does not report it to the child abuse hotline.

The offender begins attending another church, where he applies for a youth ministry position. The second church conducts a background check and finds no evidence of wrongdoing. Accordingly, it selects the individual for a youth ministry position.

If the offender molests a minor in the second church, the argument could be made that the failure of the first church to report the offender’s abusive conduct to the state enabled the offender to molest the victim in the second church. This possibility demonstrates the importance of reporting child abuse . Holcombe v. United States, 2021 WL 2821125 (W.D. Tex. 2021).

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Legal Developments

Church Was Not Legally Responsible for a Man Injured on Its Property

The plaintiff “did not take reasonable care” when ascending an irregular stairway.

Richard R. Hammar, Attorney, CPA
Bio

Key point 7-20.2. A variety of defenses are available to a church that is sued as a result of an injury occurring on its premises.

The North Carolina Supreme Court ruled that a church was not legally responsible for injuries sustained by a visitor who was injured when he tripped on an irregular stairway.

The plaintiff sued church for injuries

An adult male (the “plaintiff”) visited a church for a funeral. Employees of the funeral home asked him to help carry the casket. After the plaintiff agreed, he was led through a section of the church building and then outside and down a small set of stairs.

He and three others carried the casket from a hearse to the church building, taking the same set of stairs he had just descended. The plaintiff walked sideways as he carried the casket. He watched the doorway instead of where he was stepping. He tripped near the top of the steps, fell into the church building, and was injured.

The set of stairs was fully visible as the plaintiff approached it with the casket. The set of stairs includes five steps. Each of the bottom four steps is made of gray concrete and rises about six and one-half inches. The fifth and final step is made of both red brick and gray concrete, initially rising about nine inches, with a white, wooden platform on top, set a few inches back from the edge, that adds just over an inch to that height. The total rise of the top step is, therefore, about four inches greater than that of the other steps, constituting about a 61 percent increase in rise.

The plaintiff sued the church to recover for his injuries alleging, among other things, that the church failed to keep its premises in a reasonably safe condition and failed to warn plaintiff of a dangerous and defective condition on the property.

State supreme court: the plaintiff “did not take reasonable care”

The church asked the trial court to dismiss the lawsuit on the ground that any dangerous condition on the property was open and obvious and that the plaintiff was contributorily negligent. The trial court dismissed the lawsuit, but a state appeals court reversed this judgment. The case was then appealed to the state supreme court.

The supreme court began its opinion by observing:

[Every person has] a duty to take reasonable care to not harm others and a corresponding duty . . . to take reasonable care to not harm oneself. . . . A landowner does not have a duty to warn a visitor about a condition on the landowner’s property that is open and obvious . . . and a defendant is not liable for injuries to a plaintiff when the plaintiff does not take reasonable care to protect himself. Our precedent requires courts to apply an objective reasonable person standard. In this case plaintiff used a set of stairs with a top step that was visibly higher than the other steps and made of noticeably different materials. When plaintiff used the set of stairs a second time, he failed to take the precautions a reasonable person would have taken to avoid tripping on the higher step. Because the alleged defect was open and obvious and thus should have been evident to plaintiff, and because plaintiff did not take reasonable care, the trial court correctly granted summary judgment in favor of defendant.

Was the top step on the church’s property an open and obvious condition such that a reasonably prudent person would have recognized it and taken appropriate care to avoid injury while using it? The court concluded that it was:

The distinct height and appearance of the step, the clear visibility of the set of stairs, and plaintiff’s previous experience walking down the set of stairs show that a reasonable person in plaintiff’s position would have been aware of the step’s condition and taken greater care.

The top step is obviously different in height than the other steps. First, the visible part of that step is made mostly of red brick, making its appearance starkly different than that of the other gray concrete steps. The wood on top of that step, which was painted white, only accentuates its distinctiveness. Second, that step rises about nine and one-half inches to the top of the brick, and about ten and one-half inches including the wooden portion on top, compared to the about six and one-half inch rise of the other steps. All in all, the top step is thus about four inches, or about sixty-one percent, higher than the others. This great difference would be readily apparent to a reasonable person.

At the time of the fall, plaintiff had just walked down the set of stairs, experiencing the difference in the height of the steps firsthand. A reasonable person in plaintiff’s position would have become aware of the approximately four-inch difference. Moreover, the top step sits a few feet above the ground; thus, it is at a height plainly visible to someone walking towards the steps and then using them. Common experience dictates that a reasonable person would recognize the starkly different condition of the top step and thus understand that he would have to step up higher when he arrived at it. Viewed objectively, the condition was open and obvious, visible to a reasonable person in plaintiff’s situation. Thus, defendant had no duty to warn plaintiff of the condition of the top step. . . .

Because the condition of the top step would be open and obvious to a reasonable person, defendant had no duty to warn plaintiff. Similarly, because plaintiff, after his previous descent of the steps, did not heed the risk obviously presented by the distinct appearance of the top step, and because he carried the casket while walking sideways without looking at the steps, his own negligence contributed to his fall.

What this means for churches

A church is not automatically responsible for injuries that occur on its premises. As this case illustrates, churches ordinally will not be legally responsible for injuries sustained by adults who expose themselves to an open hazard or defect. This principle is known as assumption of risk, or contributory negligence. Draughon v. Evening Star Holiness Church, 843 S.E.2d 72 (N.C. 2020).

Legal Developments

Church Not Liable for Injuries Sustained by Teen at Youth Event

Case demonstrates the difficulty of proving negligence claims for injuries caused by “open and obvious” hazards unless concealed by a distraction such as darkness.

Richard R. Hammar, Attorney, CPA
Bio

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.

An Illinois court ruled that a church was not liable for injuries sustained by a 13-year-old boy who fell 25 feet from a platform in a tree at the home of a church member during a bonfire activity sponsored by the church’s youth group.

A church’s youth ministry conducted a bonfire at a church member’s home. The homeowner had previously constructed a platform in a tree from which he had removed the upper branches and foliage. The platform was about 25 feet above the ground, and was reached by a ladder tied to the tree. The platform had a rail around it, but no other fall protection.

The platform had a triangular hole in it, and through the hole, was a metal “fire pole.” The pole was made out of sprinkler pipe, was affixed in concrete at the base, and was 3½ inches in diameter. The surface of the pole had oxidized. The ground around the pole was grass covered, and no force-absorbing material, such as sand or wood chips, had been placed around the bottom of the pole.

The homeowner explained that he built the platform and fire pole for his children. He testified that between 150 to 200 people had used the pole, all without injury. The homeowner was a construction contractor and was familiar with fall protection for working above the ground and had employed it in his work, but no fall protection was installed or available on the platform.

On the day of the bonfire, the church’s youth pastor arrived 15 to 30 minutes before the announced start of the event. Some of the parents stayed to socialize, others dropped their children off. One mother (the “plaintiff”) dropped off her 13-year-old son (the “victim”) and then went shopping nearby, intending to finish shopping and then return for the remainder of the event.

According to the youth pastor, the point of the event was the bonfire and indoor fellowship. The youth attending were not expected to play in the backyard, but were expected to roast marshmallows in the bonfire and to play in the basement, where pool and board games were available. After about an hour outside, the youth pastor went inside, planning to steer the event toward worship.

One of the youth came inside and alerted the youth pastor and the adults that the victim was hurt. The victim testified that he climbed up the ladder. The ladder had metal rungs, so his hands became cold. At the top, on the platform while waiting for his turn, he put on gloves. He testified that the gloves were like ski gloves, and were slick, possibly made of nylon. The victim testified that he waited his turn along with several other youth on the platform. When it was his turn, the victim grabbed the pole with his hands, but he did not wrap his arms or legs around the pole. As he began his descent, he lost control, grabbed for the edge of the platform but could not hang on, and he plummeted the rest of the way to the ground. He suffered serious injuries, including broken bones, resulting in a permanent limp and the insertion of a metal rod in one of his legs.

The plaintiff sued the church, its youth pastor, and the homeowner, claiming that their negligence caused the injuries.

The youth pastor and homeowner testified that, when the plans were made to use the property for the bonfire, they did not conduct an inspection of the property to determine if there were any unsafe conditions. Rather, the homeowner testified that he had a safe house, including the fire pole, because nobody had been injured using it up to that time.

The plaintiff’s expert witness, a park and recreation planner and consultant, testified that the fire pole was too wide, too high, and the landing area was too hard. He opined that the width of the pole, being almost twice the diameter that industry standards allowed in playground equipment, contributed to the accident because the excessive width of the pole decreased the strength of the user’s grip of the pole. He did not, however, offer any opinion about the effect of the victim’s gloves on his ability to grip the pole, but noted that any effect would depend on the type of glove, which he could not recall. He further testified that the fall height was much greater than industry standards allowed (five feet is the norm), and the landing area did not contain any force-mitigating substances, and these circumstances caused or contributed to the likelihood and severity of injury. The expert believed that the darkness could have contributed to the victim losing his grip on the pole because it obscured the size of the pole and its texture.

The trial court dismissed the plaintiff’s lawsuit, explaining that “defendants owed no duty to plaintiff based on the open and obvious nature of the platform and fire pole on the property.” The plaintiff appealed.

On appeal, the plaintiff argued that the trial court erred in holding that the platform and fire pole presented open and obvious conditions. The plaintiff further claimed that design flaws in the construction of the platform and the fire pole and the lack of lighting rendered the dangers hidden rather than open and obvious.

The appeals court’s ruling

The appeals court, in affirming the trial court’s dismissal of the case, explained:

As a general matter, the owner or possessor of land owes a visiting child the duty to keep the premises reasonably safe and to warn the visitor of dangerous nonobvious conditions, but if the conditions are open and obvious, the owner or possessor has no duty. . . . Generally, falling from a height is among the dangers deemed to be open and obvious and appreciable even by very young children. The risk that confronted the victim as he clambered up to the platform and attempted to use the fire pole was simply a fall from a height, and thus, was an open and obvious risk.

The court acknowledged that some exceptions exist to the impact of the “open and obvious” danger principle upon negligence claims. One of them pertains to persons who are distracted and thus unable to appreciate an open and obvious danger:

We conclude that there was no evidence of distraction presented in the record. The victim climbed up the ladder to the platform, some 25 feet above the ground. Once there, he waited in a line for the fire pole. He did not testify that any of the other persons in the line bothered or distracted him as he prepared to slide down the fire pole. Instead, he put on slick nylon gloves and attempted to slide down the pole by grasping the pole with only his hands. As he began his descent, he lost control, attempted to arrest his descent by grabbing the deck of the platform, failed, and fell from a height onto the ground. There is nothing in the evidence in the record to support a conclusion that he was distracted. . . . Rather, he was participating in using the fire pole as he intended. Indeed, he attributed his fall to losing his grip when he attempted to slide down the pole using only his hands and not wrapping his arms and legs around the pole. Accordingly, we hold the distraction exception does not apply here.

Plaintiff also claims that the darkness of the evening distracted the victim from perceiving the width of the fire pole and the height of the drop from the platform. We disagree. He had to have been acutely aware of the height of the platform, having climbed every inch of the 25-foot height up the ladder. As to the width of the pole, he would have perceived it as he grasped it. [The homeowner] testified that everyone he had observed use the pole had instinctually wrapped their arms and legs around it. The victim testified that he attempted to use only his hands to grip the pole for his descent, despite the fact that a number of other children had used the pole before him and he apparently had the opportunity to observe them while waiting his turn.

We also note that there is no evidence that the victim stepped through the opening while trying to use the fire pole. . . . Instead, he testified that he was able to negotiate his way to the pole and grasp it to begin his descent. Thus, there is no evidence that he simply stepped into the opening which went unperceived due to the darkness of the evening. Likewise, there is no evidence that one of the persons waiting for a turn distracted him so he stepped into the opening and fell. There is no evidence of distraction evident, so we reject plaintiff’s contention that he was distracted by the darkness and the other children.

What this means for churches

This case demonstrates the difficulty of proving negligence claims for injuries caused by “open and obvious” hazards unless concealed by a distraction such as darkness. Grosch v. Anderson, 2018 IL App (2d) 170707-U (Ill. App. 2018).

Legal Developments

Church Not Responsible for Pedestrian Accident Near Premises

Church was not responsible for injuries sustained by a member who was struck by a car when crossing a five-lane road that separated the church from an overflow parking lot across the street.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Churches are not necessarily liable for injuries incurred by members and visitors while crossing a public street from an overflow parking lot to the main church building.

The California Supreme Court ruled that a church was not responsible for injuries sustained by a member who was struck by a car when crossing a five-lane road that separated the church from an overflow parking lot across the street.

A church was located on a five-lane public road across the street from a swim school. The church had an agreement to use the swim school lot for overflow parking when the church’s main lot was full. There were no traffic signals or crosswalks at the intersection used by church members to access the parking lot.

An adult male (the “plaintiff”) sought to attend a seminar at the church on a rainy evening in November. When he arrived, a church member volunteering as a parking attendant informed him that the main lot was full and told him to park at the swim school lot across the street. The plaintiff, along with two others, attempted to cross in the middle of the block directly opposite the church. Midway across, he was hit and injured by an oncoming car.

The plaintiff and his wife sued the church for negligence and loss of consortium (a legal term meaning loss of intimacy with a partner). He alleged that the church created a foreseeable risk of harm by maintaining an overflow parking lot in a location that required persons to cross a busy five-lane street, and that the church was negligent in failing to protect against that risk. He also alleged that the church was negligent in failing to adequately train or supervise its parking attendants. The church moved for summary judgment on the ground that it did not have a duty to assist the plaintiff with crossing a public street it did not own, possess, or control. The trial court dismissed the case, but a state appeals court ruled that the case could proceed against the church. The church appealed to the state supreme court.

The supreme court observed:

The plaintiff contends that landowners could assist invitees in crossing the street. But crossing volunteers are not authorized traffic officers and generally have no authority to direct traffic or otherwise control public streets. Further, crossing volunteers may inadvertently convey to invitees that they do possess authority to direct traffic and thereby cause invitees to rely on such assistance to their detriment.

The plaintiff also contends that landowners can warn of the danger of crossing the street, perhaps by posting a sign. But the danger posed by crossing a public street midblock is obvious, and there is ordinarily no duty to warn of obvious dangers. Although some fraction of people may fail to appreciate an obvious danger, to require warnings for the sake of such persons would produce such a profusion of warnings as to devalue those warnings serving a more important function.

It is possible that a landowner can reduce the risk of harm by maintaining a parking lot in a location that does not require invitees to cross a public street. We note that landowners already have incentives to provide parking that is safe and convenient for their invitees. Doing so increases the likelihood that invitees will visit the landowners’ premises and can help create a positive experience for invitees, increasing the likelihood of repeat visits. Conversely, a landowner’s reputation will be damaged if parking is unsafe or inconvenient. But there may be instances where another parking option that did not require crossing a public street was available and would not have been cost prohibitive. Finding a duty here may encourage landowners to choose safer parking options. This approach would be socially desirable if it reduces collisions on the public street, and it is fair to place the costs on landowners to the extent they seek to attract invitees. But it is likely difficult in many cases to reliably assess which of several parking options was the safest at the time the invitee was directed where to park. The relevant considerations are multitudinous and vary by the hour, day of the week, and month, and many will be hard to establish with accuracy. These considerations include the volume and speed of traffic along the streets in the area, the volume of traffic to and from the landowners’ premises and neighboring properties, crime rates and perceptions of safety on the sidewalks, and the location of crosswalks and traffic control devices.

What this means for churches

Many churches use overflow parking lots located across a public street from the church building. This case illustrates that a church is not necessarily liable for injuries to members and visitors who park in such lots and are injured when crossing the street to attend the church. Vasilenko v. Grace Family Church, 3 Cal.5th 1077 (Cal. App. 2017).

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Legal Developments

Church Member Injured in Tug of War Assumed Risk of “Common” Consequences

Competent adults who voluntarily expose themselves to a known risk have assumed that risk and cannot seek monetary damages for injuries due to that risk.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-16.2. Adults who voluntarily expose themselves to a known risk created by a church program or activity generally cannot sue the church if they are injured as a result of that risk.

A New Jersey court ruled that a church was not liable for injuries sustained by a member while engaged in a game of tug of war during a church-sponsored picnic, because the member assumed the risk of injuries that were “common, frequent, expected and inherent in the activity itself.”

A church member (the “plaintiff”) was injured when he voluntarily engaged in a game of tug of war during a church picnic at a public park. The plaintiff claimed that he sustained injuries as a result of the opposing tug-of-war team pulling and releasing the rope too early, which caused team members to collide. The plaintiff claimed that the church’s pastor, who was watching the contest, “changed the rules” of tug of war by telling the teams to pull and let go causing the other team to fall to the ground.

The plaintiff claimed that he suffered serious and permanent injuries including a torn right ACL requiring surgical intervention, as well as injuries to his head, neck, back, as well as to the bones, tissues, and ligaments. This was the second game of tug of war that the plaintiff participated in that day.

The plaintiff insisted that the church was responsible for his injuries on the basis of its negligence in supervising the event. A trial court disagreed and dismissed the case on the ground that the plaintiff had assumed the risk of the harm that caused his injuries.

The plaintiff appealed, claiming that he had a reasonable expectation of how the tug of war game was to be played, and he could not have appreciated the risks associated with altering the rules of the game, as he alleges was done. He also argued that the trial court erred in granting summary judgment based on the assumption of the risk doctrine. A state appellate court affirmed the trial court’s dismissal of the lawsuit:

By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself. It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers… . In the present case, the trial court recognized that the assumption of the risk doctrine arises in cases involving sporting events when the player or spectator knows that an accident or injury may occur and that by playing or watching he voluntarily assumes the risk of injury… .

In the present case the plaintiff voluntarily participated in the tug-of-war game at the church event. He knew the risks associated with the game of tug of war because he played the game twice. A risk which is common in tug of war is falling down amongst your team members. The plaintiff assumed the risk of the tug-of-war game.

The court acknowledged that the plaintiff’s wife had testified that she saw the pastor hold his hand to his mouth and tell the other team to “pull it and drop.” This testimony the court concluded

does not change the fact that the plaintiff assumed the risks that are inherent in the game of tug of war; falling, and that to establish negligence there must exist a duty. Persons conducting activities have no duty to warn or protect participants against risks which are common, frequent, expected and inherent in the activity itself. No duty was owed to the plaintiff while he was participating in the game. The rules and risks of the game were not altered in a way where the duty to the plaintiff changed at any time.

In support of its ruling, the court referred to a prior case in which a Pennsylvania court addressed the liability of a baseball league for injuries to persons participating in tryouts. Bowser v. Hershey Baseball Assoc., 516 A.2d 61 (Pa. Super. 1986). The Pennsylvania court, in dismissing the victim’s lawsuit for monetary damages, noted that the victim had agreed to participate in baseball tryouts, and voluntarily exposed himself to the risks inherent in baseball. The court reasoned that having exposed himself to the risks associated with baseball such as being hit by a batted ball, the victim could not recover from the sponsor of the baseball event for injuries caused by this very risk. The court concluded:

Persons conducting activities have no duty to warn or protect participants against risks which are common, frequent, expected and inherent in the activity itself. Thus, persons conducting the event are not negligent for failing to warn or protect a participant against risk which are inherent in the activity.

What This Means For Churches

This case illustrates that competent adults who voluntarily expose themselves to a known risk have assumed that risk and cannot seek monetary damages for injuries due to that risk. John v. St. Thomas Church, 2017 WL 1049654 (N.J. Super 2017).

Legal Developments

Court Ruled a University Has a Duty to Protect Others from Foreseeable Violence

Colleges have a duty to act with reasonable care when aware of a foreseeable threat of violence in a curricular setting.

Richard R. Hammar, Attorney, CPA
Bio


Key point 7-20.4. A church may be legally responsible for assaults occurring on its premises if similar assaults occurred on or near the premises in the recent past and the church failed to take reasonable precautions.

The California Supreme Court ruled that a university has a legal duty to protect students from foreseeable violence during curricular activities.

A male university student (the “assailant”) began experiencing problems with other students in both classroom and residence hall settings. For example:

• He informed a professor that he was “angered” by “offensive” remarks from other students during a final examination and “outraged” because their comments had affected his performance.

• He claimed to have heard another professor calling him “troubled” and “crazy,” among other things.

• He complained about mistreatment by fellow dormitory residents. In a three-page letter to the Dean of Students, he alleged a female resident had repeatedly made “unwelcomed verbal sexual advances” toward him, and others had spread rumors and “accusations of a sexual nature about him throughout the entire student body.”

• He claimed the residents frequently disrupted his sleep, called him “stupid,” and eavesdropped on his phone calls. Not only had he been “made the target” of the residents’ “teasing,” but he also “received an immense amount of unwanted attention” around campus. He warned that if the university failed to discipline the responsible parties, the matter would likely “escalate into a more serious situation,” and he would “end up acting in a manner that will incur undesirable consequences.”

• He was expelled from the university dormitories after assaulting a student on a baseless charge.

The assailant began to receive counseling at the campus counseling center. Though he denied wanting to hurt himself or others, he continued to report auditory hallucinations and paranoid thoughts. He threw away prescribed antipsychotic medication. A counselor diagnosed schizophrenia and urged him to see a psychiatrist.

One day, while doing classwork in a chemistry laboratory, the assailant, without warning or provocation, stabbed a fellow student in the chest and neck with a kitchen knife. The victim was taken to the hospital with life-threatening injuries but ultimately survived. When campus police arrived, the assailant admitted he had stabbed someone and explained that the other students had been teasing him. He pleaded not guilty by reason of insanity to a charge of attempted murder, and was admitted to a psychiatric hospital and diagnosed with paranoid schizophrenia.

The victim sued the university. She claimed that the university had a special relationship with her as an enrolled student, which entailed a duty “to take reasonable protective measures to ensure her safety against violent attacks and otherwise protect her from reasonable foreseeable criminal conduct, to warn her as to such reasonable foreseeable criminal conduct on its campus and in its buildings, and to control the reasonably foreseeable wrongful acts of third parties and other students.” She alleged that the university breached this duty because, although aware of the assailant’s “dangerous propensities,” it failed to warn or protect her or to control the assailant’s foreseeably violent conduct.

A trial court rejected the university’s motion to dismiss the case, and the university appealed. A state appeals court reversed the trial court’s ruling, and dismissed all claims. The victim appealed to the state supreme court, which reversed the appellate court’s ruling and ordered the case to proceed to trial.

The supreme court’s ruling

The supreme court began its opinion by noting that “in general … one owes no duty to control the conduct of another, nor to warn those endangered by such conduct,” and that “a person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.”

In short, “whether [the university] was negligent in failing to prevent the assailant’s attack depends first on whether a university has a special relationship with its students that supports a duty to warn or protect them from foreseeable harm.”

The supreme court noted that the following special relationships are recognized by the Restatement 3rd Torts (a respected restatement of the law) that “may support a duty to protect against foreseeable risks”:

  • common carrier and customer
  • innkeeper and customer
  • business or landowner and invited guests
  • landlord and tenants
  • a guard with those in his or her custody
  • an employer with its employees, and
  • a school with its students.

The Restatement does not exclude colleges from the school-student special relationship. However, it cautions that reasonable care varies in different school environments, with substantially different supervision being appropriate in elementary schools as opposed to colleges. State courts have reached different conclusions about whether colleges owe a special relationship-based duty to their students. The California Supreme Court noted that it had not previously addressed the question. It noted:

Relationships that have been recognized as “special” share a few common features: Generally, the relationship has an aspect of dependency in which one party relies to some degree on the other for protection… . The corollary of dependence in a special relationship is control. Whereas one party is dependent, the other has superior control over the means of protection. “[A] typical setting for the recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.'”

The Restatement authors observed over 50 years ago that the law has been “working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence.”

The court noted that in a previous case it had ruled that a high school has a special relationship with students “arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, analogous in many ways to the relationship between parents and their children,” and this special relationship gives secondary school personnel “the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally” (emphasis added).

The court concluded that “postsecondary schools have a special relationship with students while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.” The court explained:

The college-student relationship thus fits within the paradigm of a special relationship. Students are comparatively vulnerable and dependent on their colleges for a safe environment. Colleges have a superior ability to provide that safety with respect to activities they sponsor or facilities they control.

The court cautioned that

many aspects of a modern college student’s life are, quite properly, beyond the institution’s control. Colleges generally have little say in how students behave off campus, or in their social activities unrelated to school. It would be unrealistic for students to rely on their college for protection in these settings, and the college would often be unable to provide it.

Having concluded that colleges and universities have a duty “to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally,” the court explained foreseeability as follows:

Whether a university was, or should have been, on notice that a particular student posed a foreseeable risk of violence is a case-specific question, to be examined in light of all the surrounding circumstances. Any prior threats or acts of violence by the student would be relevant, particularly if targeted at an identifiable victim. Other relevant facts could include the opinions of examining mental health professionals, or observations of students, faculty, family members, and others in the university community. Such case-specific foreseeability questions are relevant in determining the applicable standard of care or breach in a particular case.

The court concluded:

We emphasize that a duty of care is not the equivalent of liability. Nor should our holding be read to create an impossible requirement that colleges prevent violence on their campuses. Colleges are not the ultimate insurers of all student safety. We simply hold that they have a duty to act with reasonable care when aware of a foreseeable threat of violence in a curricular setting. Reasonable care will vary under the circumstances of each case. Moreover, some assaults may be unavoidable despite a college’s best efforts to prevent them. Courts and juries should be cautioned to avoid judging liability based on hindsight.

The court sent the case back to the trial court for trial.

What This Means For Churches:

Most church leaders are concerned about the threat of armed assailants on church property. This concern is rooted both in a desire to protect parishioners and to mitigate a church’s legal risk for deaths or injuries that may occur. For this reason we monitor legal developments in this fast-evolving area of the law and apprise readers of notable cases having both a direct and indirect relevance to churches.

The California Supreme Court’s recent ruling is notable because rulings by this court often are trend-setters for the rest of the nation, and because the case directly addresses the important question of the liability of landowners for assaults on their premises. Note the following takeaway points.

First, the court noted that “special relationships” give rise to a duty “to use reasonable measures to protect against foreseeable injury at the hands of third parties acting negligently or intentionally.” Special relationships include any relationship that has “an aspect of dependency in which one party relies to some degree on the other for protection.” The “corollary of dependence in a special relationship is control. Whereas one party is dependent, the other has superior control over the means of protection. A typical setting for the recognition of a special relationship is where the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.”

This is a broad understanding of special relationship, and clearly applies to the relationship between a primary and secondary school and its students and, according to the California Supreme Court, to the relationship between a university and its students when engaged in activities that are “part of the school’s curriculum or closely related to its delivery of educational services.” And while the court did not address religious schools, its ruling likely will apply to religious primary, secondary, and postsecondary schools in California and in any state that follows the court’s reasoning, meaning that such schools may be deemed to have a duty “to use reasonable measures to protect against foreseeable injury at the hands of third parties acting negligently or intentionally.”

Second, what about churches? Does the California Supreme Court’s ruling mean that churches in that state, or in any other jurisdiction that follows the court’s ruling, have a legal duty “to use reasonable measures to protect against foreseeable injury at the hands of third parties acting negligently or intentionally”? The court did not address this issue. But note:

(1) No court has said that a special relationship exists between churches and their members (unless a counseling relationship exists), and so churches generally have no legal duty to protect members against armed assailants on that basis. (2) It is unlikely that a special relationship exists between a church and its members using the court’s analysis, since the requisite elements of dependency and vulnerability ordinarily do not exist. (3) Some courts have found landowners liable for assaults and other criminal acts on their premises if such acts were reasonably foreseeable, meaning that similar acts have occurred on or near the owner’s premises in the recent past. (4) Many church leaders believe that even if they do not have a legal duty to protect members against armed assailants, a moral or theological duty exists to safeguard human life.

Regents of the University of California v. Superior Court, 4 Cal. 5th 607 (Cal. 2018).

Posted:

Legal Developments

Court Rules Workers’ Compensation Insurance Is Exclusive Benefit for Job-Related Injuries

Employees are precluded from electing to sue their employing church in a civil lawsuit in an attempt to obtain greater damages.

Richard R. Hammar, Attorney, CPA
Bio

Key Point 8-07.1. All states have enacted workers’ compensation laws to provide benefits to employees who are injured or become ill in the course of their employment. Benefits generally are financed through insurance premiums paid by employers. Workers’ compensation laws were enacted to give injured workers’ a quicker, less costly, and more certain recovery than was possible by suing an employer directly for negligence.

Prior to the general acceptance of workers’ compensation statutes in the early part of the 20th century, injured employees were often unsuccessful in collecting damages from their employers. When they did collect, the awards were sometimes so high that they threatened the solvency of the employer. In every case, the costs to the injured employee of suing an employer were high. Churches are subject to workers’ compensation laws in most states.

A New York court ruled that workers’ compensation insurance is an exclusive benefit for job-related injuries, and therefore a worship leader who was injured when she tripped over a bass guitar cable could not bring a civil lawsuit against her church.

A volunteer worship leader (the “plaintiff”) was injured during a church service when she tripped and fell over an exposed power cord. The church is a parish within a Roman Catholic Diocese, which was self-insured with a workers’ compensation policy that extended coverage to volunteers.

The church applied to the Workers’ Compensation Board for a determination of the injured plaintiff’s eligibility for benefits. The injured plaintiff was notified on multiple occasions by the Diocese’s claims adjuster that a claim had been filed and her exclusive remedy was workers’ compensation.

Thinking that she would receive more benefits if she pursued a civil lawsuit, the plaintiff did not seek workers’ compensation benefits and instead filed a lawsuit against her church. The church asked the court to dismiss the lawsuit on the ground that the workers’ compensation is the exclusive benefit for employees injured on the job.

The court declined to do so since it was unclear if the plaintiff was acting as a volunteer covered under workers’ compensation at the time of her accident. On appeal, a state appeals court agreed with the church that the plaintiff was a volunteer covered by the state workers’ compensation law, and this coverage was exclusive and precluded the plaintiff’s civil lawsuit.

The court concluded: “[A] plaintiff cannot elect to waive benefits under the Workers’ Compensation Law and proceed on a tort cause of action … . Accordingly, the [trial] court should have granted the church’s motion, in effect, for summary judgment dismissing the complaint based on the exclusivity provisions of the Workers’ Compensation Law.”

What this means for churches

This case illustrates two important points. First, workers’ compensation benefits are an exclusive remedy for church employees who are injured on the job. As a result, these employees are precluded from electing to sue their employing church in a civil lawsuit in an attempt to obtain greater damages. Second, in some states, workers’ compensation law covers volunteers as well as employees. Usually, conditions apply. Church leaders should confirm with an attorney or the church’s insurance agent if volunteers are covered under the state workers’ compensation law, and if so, if any conditions apply. Aprile-Sci v. St. Raymond Church, 151 A.D.3d 671 (N.Y. App. 2017).

Legal Developments

School Not Responsible for Student’s Suicide

Court ruled that a parochial school was not responsible for the suicide of a freshman student who was a victim of relentless bullying.

Richard R. Hammar, Attorney, CPA
Bio


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.

Key point 10-17.1. Punitive damages are monetary damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is reprehensible and outrageous. Most church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents an uninsured risk.

Editor’s note: The following Recent Development contains offensive slurs regarding sexual orientation. These details are facts from the case and are included here to help church leaders understand both the nature and severity of the situation, and the types of factors that can contribute to potential litigation.

The federal Court of Claims ruled that a parochial school was not responsible for the suicide of a freshman student who was a victim of relentless bullying.

In his freshman year as a student at a Catholic high school, a freshman student (the “victim”) was allegedly abused and harassed while on campus. He was called “faggot,” “fag,” “gay,” and suffered other sexually oriented and derogatory verbal abuse. The victim’s mother identified three male students as primarily responsible for the abusive behavior, which included advice for the victim to “go home and kill himself.” Students also hit the victim with belts. Tragically, the victim later committed suicide.

The victim’s mother (the “plaintiff”) sued the school, claiming that it was responsible for her son’s death because of its failure to enforce its own anti-bullying policy. The trial court granted the school’s motion to dismiss all claims, concluding that the plaintiff had failed to demonstrate that the school was negligent, and failed to show that she was entitled to punitive damages. The plaintiff appealed.

The appeals court agreed with the trial court’s dismissal of the lawsuit. It noted that a claim of negligence requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; and (4) the injury or loss was reasonably foreseeable “by a person of ordinary intelligence and prudence.” The court concluded that the victim’s suicide was not reasonably foreseeable and so the school was not responsible for it:

If a school is aware of a student being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that the victim of the bullying might resort to self-harm, even suicide… . Thus, to allege successfully that the victim’s suicide was foreseeable [the plaintiff’s] complaint should have included facts alleging that the school was aware of the abuse and harassment the victim experienced. The complaint fails to make such allegations. The fact that the students responsible for bullying him had a history of this behavior does not establish the school’s knowledge that they continued to be bullies or that the victim was their new victim. The plaintiff provides no facts that any teacher saw or heard the bullying, that [she or her son] told anyone at the school what was happening, or any other fact to support an inference that the school had any knowledge of the situation.

A school with no knowledge of bullying has no reason to believe the anti-bullying policy needs enforcement, let alone that failure to enforce the policy may result in a student’s death. Therefore, we cannot conclude that the harm giving rise to the lawsuit could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence.

The appeals court also agreed with the trial court’s rejection of punitive damages:

Under state law [the plaintiff] would be eligible for punitive damages only if the district court found that the school acted recklessly. A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. The trial court found that the plaintiff failed to allege facts showing that the school was aware the victim might try to hurt himself, or that it was aware but consciously disregarded the risk, and therefore decided punitive damages were not appropriate. The plaintiff points to no facts explaining why the decision to deny punitive damages was an abuse of the trial court’s discretion, beyond claiming that the court’s determination on the question of recklessness was incorrect. This claim was properly dismissed.

What this means for churches

This case is instructive for the following reasons. First, it is one of the few cases to address the liability of a religious organization for bullying activities. The court concluded that a religious organization is not responsible for deaths or injuries caused by bullying unless it was aware of the bullying activities that led to the injury or death and failed to intervene. Second, the court concluded that punitive damages were not appropriate in this case, even if the school had been negligent, since its conduct did not meet the high threshold of punitive damages—reckless behavior or gross negligence.

The implication is clear. Church leaders that know about bullying activities have a duty to intervene, and failure to do so may lead to liability based on negligence, and, possibly, punitive damages. It should be noted that punitive damages are monetary damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is reprehensible and outrageous. Most church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents an uninsured risk. Tumminello v. High School, 678 Fed.Appx. 281 (6th Cir. 2017).

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Legal Developments

Release Form Does Not Prohibit Minor from Suing Church After Summer Camp Injury

Minor who was injured while participating in a church’s summer camp program was not barred from suing the church by a release form signed by her mother.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-16.6. A release form is a document signed by a competent adult that purports to relieve a church from liability for its own negligence. Such forms may be legally enforceable if they are clearly written and identify the conduct that is being released. However, the courts look with disfavor on release forms, and this has led to several limitations, including the following: (1) release forms will be strictly and narrowly construed against the church; (2) release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents’ signatures do not prevent minors from bringing their own personal injury claims after they reach age 18; (3) some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy; and (4) release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

A Kentucky court ruled that a minor who was injured while participating in a church’s summer camp program was not barred from suing the church by a release form signed by her mother.

A 16-year-old girl (the “victim”) attended a church and was a member of the church youth group. The youth group was planning a five-day summer camp, and in advance of the camp, it sent information packets to parents that included a “medical permission and release form” that asked for the minor participant’s name and address, the guardian’s name and phone number, as well as information regarding immunizations, allergies, any medications taken by the participant, and childhood diseases. On the same form, in a clause titled “Permission For Medical Treatment, Photography/Video Notice, and Release and Indemnity,” the form states:

My permission is granted for the camp or event director, church official, any camp or event staffer, or adult present or in charge of First Aid, to obtain necessary medical attention in case of sickness or injury to my child. Also, I understand that as a participant, my child may be photographed or videotaped during normal camp or event activities and these photos/videos may be used in promotional materials.

I, the undersigned, do hereby verify that the above information is correct and I do hereby release and forever discharge [the church], camp or event sponsors, or state conventions and their employees from any and all claims, demands, actions, or causes of actions, past, present, or future arising out of any damage or injury while employed by or participating in this camp or event. I agree to indemnify [the church] from any and all claims, demands, damages, injuries, cost, suits or causes of action, past, present, or future arising out of or caused by my child while participating in this camp or event or while on property leased or owned by [the church].

The victim’s mother completed and signed the forms.

The youth group departed the church on July 9, 2007, and, upon arriving at a nearby college, were assigned dorm rooms. Three female youth-group members were assigned to a room across the hall from the victim. On July 10, 2007, a group of five girls received permission to return to their dorm rooms to change clothes before the afternoon session. No chaperones accompanied the girls.

The victim claimed that she went to her room and then proceeded to the room across the hall and entered in order to ask whether the girls needed to take their Bibles to the worship center. Upon entering, she was told to leave but proceeded inside. Once inside, she was again told to leave and then one of the other girls hit her nose. The victim returned to her room, observed blood coming from her nose and called her mother. Chaperones who examined her face and nose did not see any signs of injury.

Later that evening, the victim’s mother drove the victim to a hospital where she was x-rayed and offered pain medication. Several days later, after the pain did not subside, she was seen by her family physician, who referred her to an ear, nose, and throat specialist. In December 2007, she underwent nose surgery.

Upon turning 18, the victim sued the church, claiming that it negligently failed to supervise the youth group during the camp and failed to have proper access to medical care. She alleged she suffered severe physical injuries, emotional distress, lost wages, and destruction of her power to work and earn money. She also sought punitive damages.

The church asked the court to dismiss the case on the ground that the release was valid and enforceable under Kentucky law. It argued that the release was clear and unambiguous, that the family was not compelled to execute it, and that public policy favored protecting charitable organizations. The victim countered that the release was “buried” in language permitting medical treatment and did not release the church for its own negligence and that the mother was not in an equal position when signing the forms. The trial court granted summary judgment in favor of the church, and the victim appealed.

A state appeals court ruled that the release form signed by the mother was unenforceable. It observed:

Although releases for exemption from future liability for negligence are not invalid per se, such contracts are disfavored and are strictly construed against the parties relying upon them … . Because the law disfavors such contractual provisions, the wording of the release must be so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.

The court concluded that the release signed by the mother was unenforceable for the following reasons:

  • The release did not mention “negligence.”
  • The release did not explicitly release the church from liability for personal injuries caused by its own conduct.
  • The release could reasonably be construed to only release the church from vicarious liability in connection with any medical treatment rather than for its own conduct. Such a construction “was particularly reasonable where, as here, the language relied upon by the church was included within the medical permission form and ‘buried’ in small print within that provision.”
  • There was no specificity in the release “regarding the type of harm contemplated by the release, and, in fact, it was broadly written to purport to cover all claims, past and future, from whatever source or of whatever nature.”

What this means for churches

A release form is a document signed by a competent adult that purports to relieve a church from liability for its negligence. The courts look with disfavor on release forms, and this has led to several limitations, including:

1. Release forms will be strictly and narrowly construed against the church.

2. Release forms will not be enforced if they are ambiguous.

3. Release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and in most states their parents’ signatures do not prevent minors from bringing their own personal injury claims after they reach age 18.

4. Some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy.

5. Some courts refuse to enforce release forms that attempt to avoid liability for intentional acts, gross negligence, or willful or wanton conduct. If a release form does not explicitly exclude such conduct from its terms, the form may be invalidated by a court.

6. Release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

7. Some courts refuse to enforce release forms if they are “contracts of adhesion” based on a gross disparity in bargaining power between the releasor and releasee. To illustrate, if the person signing a release form has no ability to change it, this may suggest an unenforceable adhesion contract. On the other hand, some courts have ruled that a release form is not an unenforceable contract of adhesion if the party signing the form could walk away from the transaction and do business elsewhere. This exception may or may not apply to a church, depending on the circumstances. After all, is it realistic to say that a church member has the right to walk away and attend another church, and therefore a release form is not a contract of adhesion?

8. Some courts refuse to enforce a release if the release language is inconspicuous. To illustrate, if the language of release is buried in another, larger document, without a bold heading, larger font, and other features to draw attention to it, it may be unenforceable.

9. Some courts have ruled that release forms that do not contain a signature by the releasor are unenforceable. To illustrate, if the language of release is contained in a larger document, a signature line should appear directly after the language of release as well as at the end of the document.

Churches should not use releases without legal counsel. Grego v. Jenkins, 2017 WL 127729 (Ky. App. 2017).

TIP. Churches that send groups of adults on short-term missions projects should consider having each participating adult sign an assumption of risk form. So long as these forms clearly explain the risks involved, and leave no doubt that the signer is assuming all risks associated with the trip, they may be enforced by the courts. This assumes that the signer is a competent adult. Churches should consult with an attorney about the validity of such forms under state law. Also, see “Parental Permission and Medical Consent Forms.”

Legal Developments

Student Successfully Appeals Lawsuit Against Synagogue for Injuries Sustained During Study Abroad Program

Case demonstrates that the host organization may be legally responsible for injuries that occur.

Richard R. Hammar, Attorney, CPA
Bio


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 New York court declined to dismiss a lawsuit brought by a 19-year-old student against her synagogue seeking compensation for injuries she suffered while on a study abroad program in Israel sponsored by the synagogue.

A 19-year-old female member of a Jewish synagogue (the "plaintiff") was a participant in her synagogue's Nativ Program, in which first-year, college-level students live, study, and perform volunteer work in Israel for nine or ten months. The program provided the plaintiff with medical insurance and an insurance card. The plaintiff was also told that program staff would contact doctors, set up appointments, and attend them with her, should the need arise.

In September 2007, while studying at a university in Jerusalem during the first semester of the program, the plaintiff twisted her right knee. She was treated by a doctor who told her that she should return in two weeks if the knee was still bothering her. The pain lasted for one to two weeks, and the plaintiff did not return. This was not the first time the plaintiff had experienced a problem with her knees. In her medical forms for the program, she disclosed that she had arthritis and had worn a knee brace for sore joints "years ago."

For the second semester, the plaintiff lived in Yerucham, a small town in southern Israel, an hour and a half away from Jerusalem, where she performed volunteer work. Still, the plaintiff was not completely on her own. She had a host family in the town, relatives in Jerusalem, and a cell phone that she could use to contact her parents.

On March 5, 2008, while on a trip to a kibbutz in northern Israel, the plaintiff reinjured her right knee when she fell and struck it on the sidewalk while her boyfriend was giving her a piggyback ride. Staff members iced the knee, and on the next day brought her, accompanied by her boyfriend, to a hospital in Be'er Sheva, which was a half-hour away from Yerucham. There, a doctor told the plaintiff that her knee was filled with fluid, and advised her to rest and return in two weeks to get it drained, if it remained swollen. The plaintiff informed her parents about the incident.

On March 12, 2008, the plaintiff, accompanied by a staff member, returned to the hospital and had her knee drained. A few weeks later, the plaintiff, accompanied by an assistant director of the program, met with an orthopedist who diagnosed her with a bone contusion or bruise and for the first time prescribed physical therapy. Surgery was discussed, but the doctor and the assistant director did not think it was a good idea for the plaintiff to undergo surgery in Israel because the closest physical rehabilitation center to Yerucham was in Be'er Sheva.

The plaintiff testified that she asked the assistant director to contact the insurance company to arrange for the prescribed physical therapy and that the assistant director never called because the plaintiff and the program were going back to Jerusalem. The plaintiff claimed that she did not contact the insurance company herself because she believed it was the program's responsibility, she did not have the money for transportation to and from Be'er Sheva, and the insurance company representatives did not speak English.

On May 19, 2008, the program ended, and the plaintiff returned home to New Jersey. The plaintiff sued the synagogue, alleging that it was responsible for her injuries based on its negligence. A trial court dismissed the lawsuit, and the victim appealed.

A state appeals court noted that "to establish a claim for negligence, a plaintiff must show that the defendant owed the plaintiff a duty and breached that duty, and that the breach proximately caused the plaintiff harm." The "threshold question" is whether "a defendant owes a plaintiff a duty of care." The court concluded that "the parties' relationship created a duty to provide the victim with the necessary medical care because not only did the synagogue agree to do so, it was in the best position to protect against the risk of harm." Further, the program

was not an ordinary college or study-abroad program. Indeed, the second semester did not take place in a university environment. Rather, it took place in a small town in the Negev desert, involved volunteering, and was supervised by counselors who did pretty much everything, including responding to medical issues. Under the circumstances, the synagogue exercised a sufficient degree of control over the program to create a duty of care to plaintiff.

The court concluded that the synagogue owed the plaintiff a duty of care that included a duty to facilitate the physical therapy her treating orthopedist in Israel had prescribed.

What this means for churches

Many churches, ministries, and other religious organizations have established study-abroad programs in the Holy Land and elsewhere. This case demonstrates that the host organization may be legally responsible for injuries that occur. In the case of adults, liability may be based on the sponsoring organization's negligence if it has sufficient control over the program and fails to provide necessary medical care to injured participants. In the case of minors, liability may be based on negligence or the legal doctrine of "in loco parentis" which makes organizations liable for injuries to minors over whom they serve "in place of the parents" as a result of a custodial relationship. Katz v. United Synagogue, 23 N.Y.S.3d 183 (N.Y. App. 2016).

Legal Developments

Appeals Court Finds Sufficient Evidence of Negligence in Lawsuit over Missions Trip Death

The court ruled that the mother had produced sufficient evidence of the church’s negligence to survive the church’s motion for summary judgment.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-16.6. A release form is a document signed by a competent adult that purports to relieve a church from liability for its own negligence. Such forms may be legally enforceable if they are clearly written and identify the conduct that is being released. However, the courts look with disfavor on release forms, and this has led to several limitations, including the following: (1) release forms will be strictly and narrowly construed against the church; (2) release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents' signature does not prevent minors from bringing their own personal injury claim after they reach age 18; (3) some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy; and (4) release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

A Mississippi state appeals court ruled that a trial court erred in dismissing a lawsuit brought by the mother of a 17-year-old boy who was killed while participating on a mission trip to Costa Rica that had been organized by his church. In June of 2009, a church organized a mission trip to Costa Rica for the purpose of constructing a sanctuary. There were 20 members on the trip, including 13 adults and 7 minors. The trip was organized and led by the church's youth pastor. One of the participants on the trip was a 17-year-old male (the "victim") who was to begin his senior year in high school in the fall.

Before leaving for the mission trip, the victim's grandmother signed two documents before a notary public as a condition of the victim participating. These documents included a "Youth Medical/Parent Consent" form and a "Parental Consent" form. The victim also signed a document titled "International Missionary Profile and Release of Claim" that contained warnings about the dangers associated with participating on the mission trip.

The group arrived in Costa Rica on June 20, 2009. Geographically, Costa Rica sits between the Caribbean Sea and the Pacific Ocean. The church group was on the Pacific Ocean side. The victim and other members of the group began climbing on volcanic-rock formations separated from the shore by shallow water. The victim and another minor climbed on and over the rock formation to the Pacific Ocean side, and then they climbed down near the Pacific Ocean's edge, where they saw some crabs. While watching the crabs, waves from the Pacific Ocean knocked the boys off of the rocks and into the ocean's currents of dangerous riptides. When a third wave hit them, the boys went under water, and when the second boy surfaced, he no longer could see the victim. The other boy later testified that prior to the trip, no one warned them of unsafe tide, surf, waves, or other conditions existing on the Pacific Ocean coast of Costa Rica. Fifteen minutes before the boys were knocked into the ocean by the first wave, a 350-pound adult chaperone was knocked off his feet and thrown into the surf by another wave a short distance from the boys' location.

The youth pastor testified that she had led youth mission trips before and had traveled with youth groups internationally before, and that she had consulted with team leaders from another church who had traveled to Costa Rica on youth mission trips. But, she acknowledged that she had failed to check US State Department online travel advisory warnings, or any other travel advisories, regarding any unsafe beach, tide, or surf conditions in Costa Rica. She also admitted to not instructing or warning the victim or any of the other youth about beach safety or about the dangerous surf or riptides of Costa Rica's Pacific coast.

The mission-trip members immediately sought help after seeing people on the beach reacting and in the water. Local residents contacted emergency services and an ambulance and local authorities arrived soon thereafter. Everyone at the beach began looking for the victim. Other members of the group stayed on the beach for over three hours after the incident until darkness ended their search. The victim's body was found the next day and identified by the youth pastor.

The victim's mother sued the church, claiming that in planning and supervising the trip, a duty existed to warn of the hidden dangers and perils not in plain view that the church and its youth pastor knew, or should have known, existed. Additionally, once the tide rose and the large waves began knocking some of the adults down, the youth pastor should have evacuated group members from the water, or at a minimum, more closely supervised them and warned them of the dangerous conditions. The trial court concluded that the mother had failed to produce sufficient evidence of the church's negligence, and it dismissed the case. The mother appealed.

A state appeals court ruled that the trial court erred in dismissing the mother's claims since there was sufficient evidence of negligence to let a jury resolve the question of the church's negligence. The court observed: "The record reflects existing material questions of fact as to whether the church, through its mission trip leader … negligently breached its duty to [the victim] to plan and supervise this international mission trip and to warn him of the dangerous beach and surf conditions on Costa Rica's Pacific coast … . In planning and supervising this trip, a duty existed to warn of the hidden dangers and perils not in plain view that the church and its mission trip leader knew, or should have known, existed. Additionally, once the tide rose and the large waves knocked adults down, the mission trip leader bore a duty to supervise and warn the victim of the dangerous conditions."

The church argued on appeal that the waivers signed prior to the trip by the victim and his grandmother precluded any recovery. But the court noted that the two persons who signed the waivers of liability—the victim and his grandmother—were not parties to this lawsuit. The mother was the party who sued the church, but she had not signed any waiver or release and therefore was not bound by the forms the victim and his grandmother signed. In addition, the victim was a minor (17 years old) at the time he signed an agreement waiving any legal claims against the church, and as such, he lacked the legal capacity to sign a contractual document.

What This Means for Churches:

This case is relevant to church leaders for the following three reasons:

1. Negligence

The court ruled that the mother had produced sufficient evidence of the church's negligence to survive the church's motion for summary judgment. As examples, the court noted that the church could be found negligent by a jury based on:

  • A failure by the youth pastor to "plan and supervise this international mission trip."
  • While the youth pastor consulted with team leaders from another church who had traveled to Costa Rica on youth mission trips, she failed to check with the US State Department online travel advisory warnings, or any other travel advisories, as to any unsafe beach, tide, or surf conditions in Costa Rica.
  • A failure to warn the victim of the dangerous beach and surf conditions on Costa Rica's Pacific coast.
  • In planning and supervising this trip, a duty existed to warn of the hidden dangers and perils not in plain view that the church and its youth pastor knew, or should have known, existed.
  • Once "the tide rose and the large waves knocked adults down, the mission trip leader bore a duty to supervise and warn the victim of the dangerous conditions."

These alleged failures can assist other churches in planning mission trips. The bottom line is that churches have a duty (1) to warn participants (minors and adults) of dangerous conditions, and of hidden perils not in plain view of which church leaders either know about, or in the exercise of reasonable care should have; (2) to consult with other youth group leaders who have led mission trips to the same destination for advice; and (3) to check US State Department online travel advisory warnings, or any other travel advisories, regarding any unsafe conditions in the target destination of the mission trip, and, based on this evidence, warn adult and minor participants of such conditions (and the parents of minor participants), or choose a different, and safer, destination.

2. Preinjury waivers of liability

The court ruled that the preinjury waivers were "unenforceable with respect to the negligence claims for wrongful death raised in this case against the church for its negligence in planning, supervising, and failing to warn of the dangerous beach and ocean conditions on this mission trip to Costa Rica," for the following reasons:

  • The two persons who signed the waivers of liability—the victim and his grandmother—were not parties to this lawsuit. The mother was the party who sued the church, but she had not signed any waiver or release and therefore was not bound by the forms the victim and his grandmother signed. In addition, the victim was a minor (17 years old) at the time he signed an agreement waiving any legal claims against the church, and as such he lacked the legal capacity to sign a contractual document.
  • The language in the waivers applied to church mission-related activities and related risks. The waivers contained no language regarding the liability or risks of recreational activities such as hiking, swimming, or rock climbing on Costa Rica's beaches on the Pacific Ocean or the risks of the dangerous riptides and dangerous ocean surf.
  • Public policy prohibits the use of preinjury waivers of liability for personal injury due to future acts of a defendant's own negligence.
  • For a waiver to be valid and enforceable, it must not be ambiguous. It must be specific in wording about liability.
  • Waivers are strictly construed against the defendant.
  • When a waiver contains ambiguous language, it cannot be construed as a waiver of liability for injuries that result from the negligence of a defendant.

For additional insights on forms related to church activities, see sidebar "Parental Permission and Medical Consent Forms."

3. Insurance for short-term mission trips in other countries

Many church leaders are unaware of an "exterritorial exclusion" in most churches' liability insurance policies. Such an exclusion means that the insurance policy provides no coverage for deaths and injuries occurring outside the United States. Church leaders should discuss this issue with their insurance agent to see if such an exclusion exists in the church's policy, and if so, what coverage options exist. First United Methodist Church, 2016 WL 1203753 (Miss. App. 2016).

Parental Permission and Medical Consent Forms

While release forms cannot avoid liability for injuries to minors, there are other forms that churches should consider. For example, churches should not allow a minor to participate in any church activity (such as camping, boating, swimming, hiking, or sporting events) unless the child’s parents or legal guardians sign a form that

  1. consents to their child participating in the specified activity;
  2. certifies that the child is able to participate in the event (e.g., if the activity involves boating or swimming, the parents or guardians should certify that the child is able to swim);
  3. lists any allergies or medical conditions that may be relevant to a physician in the event of an emergency;
  4. lists any activities that the parents or guardians do not want the child to engage in; and
  5. authorizes a designated individual to make emergency medical decisions for their child in the event that they cannot be reached.

    6. Ideally, the form should be signed by both parents or guardians (if there are two), and the signatures should be notarized. If only one parent or guardian signs, or the signatures are not notarized, the legal effectiveness of the form is diminished. Having persons sign as witnesses to a parent’s signature is not as good as a notary’s acknowledgment, but it is better than a signature without a witness.

    The form should require the parent or guardian to inform the church immediately of any change in the information presented, and it should state that it is valid until revoked by the person who signed it. The parent or guardian should sign both in his or her own capacity as parent or guardian, and in a representative capacity on behalf of the minor child.

Legal Developments

National, Regional Denominational Agencies Not Legally Responsible for Child’s Brain Damage Incurred at Affiliated Church

Regional and national denominational agencies are not necessarily liable for deaths and injuries occurring on the property of affiliated churches.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

Key point 10-18.3. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister's prior wrongdoing in accordance with the denomination's governing documents; lack of an agency relationship; the prohibition by the First Amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.

A Louisiana appeals court ruled that national and regional denominational agencies were not legally responsible for permanent brain damage suffered by a toddler who fell into a filled, uncovered baptistery in an affiliated church.

On December 19, 2013, a mother and her 22-month-old daughter attended a dinner at a church in their community. At some point during the dinner, the daughter was found submerged in the baptismal pool of the church. The child suffered a severe brain injury that has left her unable to walk, talk, or feed herself. The mother sued the church, and regional and national denominational agencies with which it was affiliated (the "regional church" and "national church") claiming that they had all been negligent in failing to guard the baptismal pool in any way and leaving the pool full of water. The pool is four feet deep. There are no doors or other barriers separating the pool from the general premises of the church and no cover over the pool or any other safety features.

The regional church and national church filed motions for summary judgment seeking dismissal of the mother's claims on the ground that neither had any responsibility for the employment of the church's pastor, nor was there any employer-employee or agency relationship between them and the local church sufficient to impose upon them any liability for the actions of the church. They each claimed that there were no genuine issues regarding their lack of supervision, governance, or control over the church, and, therefore, they were entitled to judgment as a matter of law.

In support of their motions for summary judgment, the regional church and national church pointed to the national church's constitution and bylaws, which clearly demonstrate that these two entities are separate and distinct from the local church. For example, the constitution states that each affiliated church

has the right of self-government … and shall have the power to choose or call its pastor, elect its official board, and transact all other business pertaining to its life as a local unit. It shall have the right to administer discipline to its members according to the Scriptures and its constitution or bylaws. It shall have the right to acquire and hold title to property, either through trustees or in its corporate name as a self-governing unit. The fact it is affiliated with [the national church] shall in no way destroy its rights as above stated or interfere with its sovereignty.

The national church's bylaws clarify that the limited "control" exercised by the national or regional churches over affiliated churches is limited to the approval or disapproval of "scriptural doctrine and conduct" and the revocation of a church's certificate of affiliation if deemed necessary. The national church's bylaws add:

Affiliated churches are deemed to be sovereign, autonomous, self-governing, and self-determining bodies, which have, by their sovereign, self-determining action in making application for and receiving recognition as [an] affiliated church, entered into an agreement … to be amenable to the [national and regional churches] in matters of doctrine and conduct.

An officer of the national church testified that affiliated churches are congregational in polity and that the denomination is a cooperative fellowship of independent and autonomous churches that have plenary control over their own properties. This officer testified that the national church has no authority to require churches to comply with any risk management recommendations, and that it lacks authority to supervise or control church property. An officer of the regional church testified that the denomination practices baptism by immersion, but stressed that neither the national church nor regional church controlled the setting for baptisms by immersion, which could be done anywhere the local pastor chooses. Further, this officer testified that the national and regional churches had no ownership of the property of local churches.

The trial court, in dismissing the mother's claims against the national and regional churches, relied on the following facts:

The trial court concluded that the mother had presented no evidence to controvert the evidence submitted by the national and regional churches, or which would indicate that they controlled the daily secular or financial affairs of the local church. Absent such evidence, the court concluded that there was no authority for finding them liable for injuries occurring in affiliated churches. It also found that the affidavits—the constitution and the bylaws—were "replete with references to the sovereign and autonomous nature of affiliated churches."

In dismissing the mother's claim that the national and regional churches, and all affiliated churches, comprised one "single-business enterprise" making any one defendant legally responsible for the acts and omissions of the others, the court noted that the single-business-enterprise doctrine was a theory for imposing liability where two or more business entities act as one. When corporations integrate their resources in operations to achieve a common business purpose, each business may be held liable for wrongful acts done in pursuit of that purpose. But the trial court found that the main focus of the relationship between the national and regional churches and local churches was doctrinal in nature. It found nothing to indicate that the two councils were responsible for maintaining the individual church's property.

The mother appealed the trial court's dismissal of her claims against the national and regional church. She alleged three bases of liability that the trial court had rejected:

Respondeat superior liability
Under Louisiana law, "masters" and employers are answerable for the damage occasioned by their servants in the course of their employment. This form of liability is known as respondeat superior (the superior, or employer, responds). A servant is a person employed to perform services in the affairs of another and who, with respect to the physical conduct in the performance of the services, is subject to the other's control or right to control. The word servant includes anyone who performs continuous service for another and whose physical movements are subject to the control or right to control of the other as to the manner of performing the service. The single, most important factor to consider in deciding whether the master-servant relationship exists is the right of the employer to control the work of the servant or employee. The right of control necessarily encompasses "supervision, selection and engagement, payment of wages or salary and the power to dismiss."

The appeals court concluded that the national and regional churches
had no right under the constitution and bylaws to control the property of [the church] or to dictate what actions were taken on a day-to-day basis at the church. The individual churches own the property on which the churches are located, insure them individually and have control over who they employ as their pastors. Although the pastors [are licensed and ordained by the denomination] which has the right to intervene when a pastor has acted in an inappropriate manner or contrary to the teachings of the church, all the evidence presented leads to the conclusion that the local churches are sovereign and autonomous. The national and regional churches have no control over the daily secular or financial aspects of the local church; and, therefore, there is no master-servant relationship between them and the church.

Single-business enterprise
The appeals court concluded that the trial court correctly rejected "single-business enterprise" as a basis of liability:
The single-business-enterprise doctrine is a theory for imposing liability where two or more business entities act as one. Generally, under this doctrine, when corporations integrate their resources in operations to achieve a common business purpose, each business may be held liable for wrongful acts done in pursuit of that purpose ….

When determining whether a corporation is an alter ego, agent, tool or instrumentality of another corporation, the court is required to look to the substance of the corporate structure rather than its form. The courts have considered various factors to support an argument that a group of entities constitute a single-business enterprise. These factors can include such things as … common directors or officers; unified administrative control of corporations whose business functions are similar or supplementary; directors and officers of one corporation acting independently in the interest of that corporation; corporation financing another corporation; corporation paying the salaries and other expenses or losses of another corporation; receiving no business other than that given to it by its affiliated corporations; corporation using the property of another corporation as its own; noncompliance with corporate formalities; and common employees and services rendered by the employees of one corporation on behalf of another corporation. This list is illustrative and is not intended as an exhaustive list of relevant factors. No one factor is dispositive of the issue of single-business enterprise.

The court concluded that the national and regional churches
presented evidence in the form of the constitution and bylaws, as well as deposition testimony, which showed that [the church where the accident occurred] is a sovereign and autonomous entity over which they had no control. The national and regional churches are separately incorporated, as is each church, which becomes a part of the [denomination]. Judged by the substance of corporate structure rather than the form, the national and regional churches do not share officers and directors with local churches, do not pay the salaries of the local pastors, do not act independently on behalf of the local churches and do not insure the properties owned by the local churches. The mother presented no evidence to controvert that of the national and regional churches showing that there is no single-business enterprise between them. Therefore, there are no genuine issues of material fact remaining in this regard, and this assignment of error is without merit.

Unincorporated association
The mother further claimed that the national and regional churches, and local church, comprised an "unincorporated association" making each defendant fully liable for the acts of other defendants. In rejecting this novel theory, the court observed:
An unincorporated association … does not come into existence or commence merely by virtue of the fortuitous creation of a community of interest or the fact that a number of individuals have simply acted together; there must also be an agreement whereby two or more persons combine certain attributes to create a separate entity for a legitimate purpose. While the parties need not specifically intend or have knowledge of all the legal ramifications of juridical personality, they must at least conceive of their creation as a being or thing separate from themselves … .

Clearly, under the constitution and the bylaws, all three levels of the church are separate corporate entities, and the sovereign nature of the local churches is often reiterated. Through the constitution and the bylaws, the national church has devised a method by which … individual churches are created to act autonomously and free of the national and regional churches in all but doctrinal theory. Therefore, there is no agreement whereby two or more persons combine certain attributes to create a separate entity for a legitimate purpose in regard to the [denomination] and there is no unincorporated association.

What this means for churches

This tragic case is illustrative for the following reasons:

1. It demonstrates the risks involved in maintaining filled, uncovered baptisteries on church premises.

2. It demonstrates that regional and national denominational agencies are not necessarily liable for deaths and injuries occurring on the property of affiliated churches. In this case, regional and national denominational agencies were not liable for the injuries sustained by the toddler who fell into the church baptistery because:

Most importantly, the denomination's constitution and bylaws unequivocally described the independence and autonomy of affiliated churches, and the lack of any authority by regional and national denominational agencies to supervise or control affiliated churches or church properties. The language of a denominational agency's governing documents will often determine whether the agency is, or is not, vicariously liable for the acts and omissions of affiliated churches. Often, such documents are written without a legal review, and with no thought of legal liability, and this becomes apparent when the plaintiffs' attorneys seek to establish vicarious liability of a parent denominational agency based on ambiguous or technically imprecise language. This makes a periodic legal review of denominational governing documents a necessity.
The limited authority of the national and regional church over affiliated churches was limited to doctrinal fidelity, precluding liability based on respondeat superior, single-business enterprise, and an unincorporated association status. 185 So.3d 125 (La. App. 2016).

Legal Developments

Church Not Liable for Camp Attendee’s Death Due to Lack of Foreseeability

Church Law and Tax Report Church Not Liable for Camp Attendee’s Death Due to Lack

Church Law and Tax Report

Church Not Liable for Camp Attendee’s Death Due to Lack of Foreseeability

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.

An Ohio appeals court ruled that a church was not liable, on the basis of negligent supervision, for the choking death of a minor while attending a church camp, since such an accident was not reasonably foreseeable. A minor (the “victim”) died from choking and asphyxiation while attending a church camp. It was his 18th birthday. The victim’s mother sued the church, claiming that it was responsible for her son’s death based on its negligent supervision of the church camp. She claimed that her son had asked her if he could attend the camp, and that she had met with the church’s youth pastor to discuss the camp. She specifically asked him about supervision during the camp and was told “not to worry about it, we will take good care of him, he is a good kid.” The mother thereafter agreed to let her son attend the camp. While at the three-day camp, the victim called his mother on his 18th birthday and said, “Hey, mom, I’m a man now, I’m 18.” His mother reminded him that because he was born at 5:06 p.m., he was not “fully a man until 5:06.”

Later that day the victim’s mother received a phone call informing her that her son “had an accident,” and was told to call the local police. The police connected her with a hospital, and a doctor informed her that her son had died after being found “hung with a belt” at the camp. The doctor gave her no indication that her son’s death was a suicide. The first time she heard anyone mention suicide was when she went to the hospital to identify her son’s body and a nurse offered her condolences and said, “Suicide is a hard thing.” The suggestion of suicide made the mother “irate” because it “was never his nature,” as he was “happy-go-lucky,” and not depressed.

The death certificate issued by the local coroner listed the victim’s cause of death as asphyxiation due to, or as a consequence of, hanging. It further listed the manner of death as suicide.

Sometime after the victim’s death, another boy who had been at the camp met with the mother. The mother asked him to describe what happened to her son. The boy told her that he was the one who found her son hanging from a tree and cut him down. The boy told the mother that he believed that her son was depressed.

The mother also met with the youth pastor who told her that on the morning that her son died, it “seemed like everything was going well” and they sang “Happy Birthday” to him. When one of the kids told him something had happened to the victim, he ran to where his body was and attempted to perform CPR. He had no recollection of seeing a belt around the victim’s neck. When the mother asked him how this could have happened, the youth pastor told her, “I’m sorry, we screwed up. We didn’t watch the boys.” The church’s senior pastor later informed the mother that they had found a document in the victim’s handwriting that indicated some suicidal thoughts and that the church had turned that document over to police and so the mother was unable to view it.

The camp director stated that the victim was found in a section of the camp property that was “very difficult to get into,” and that in his 26 years at the camp, he had not “seen anybody in that section of woods other than deer hunters.” When the director reached the victim, he found the youth pastor on his knees attempting CPR. The director contacted the police, and assisted first responders, including paramedics, the fire department, and the sheriff’s department, to find the exact location in the woods.

The director later told police investigators that he at first thought the victim had committed suicide, but upon further reflection noted that “there was a possibility that it wasn’t a suicide, but it might have been the choking game” that kids played.

The mother’s lawsuit against the church claimed that the church had “assumed the duty to supervise this youth camp outing and ensure the safety of [the participants],” and that the church “negligently supervised” both her son and the other campers allegedly responsible for harming her son.

At the close of the mother’s case, the church moved for a directed verdict in its favor. The trial judge granted the church’s motion, concluding that the church “was under no duty to supervise the victim as he was an adult at the time of his death,” and that “there was no evidence presented that the injury or harm to [the victim] was reasonably foreseeable to [the church].” The mother appealed.

A state appeals court affirmed the directed verdict in the church’s favor. It noted that even if it accepted the mother’s account that her son’s death had been due to his participation in a “choking game,” any duty the church owed to the victim was dependent on the foreseeability of the prank. The mother asserted that pranking was foreseeable because she received an information sheet from the church that specifically prohibited campers from bringing “prank items” to the youth retreat. However, the court concluded:

[The mother] presented no evidence of prior pranks at the church, the camp, or by the campers attending the camp. In fact, the evidence presented demonstrated that pranks were specifically prohibited by the church and the camp. It is hard to imagine how the prohibited conduct could be foreseeable. Even if the evidence that pranks were prohibited made pranks somehow foreseeable, there was no evidence that the so-called “choking game” was the type of prank that fell within the “prank items” described in the flyer, or that anyone at the youth retreat knew of the choking game or could have anticipated that any of the retreat attendees would have participated in the choking game while at the camp. The mother does not explain how the church’s prohibiting prank items makes it foreseeable that some campers might engage in a choking game prank.

Ultimately, the record provided to this court demonstrates that the mother failed to present any evidence that the church reasonably could have or should have foreseen the “prank” that led to the victim’s injury and death. Without any indication of foreseeability, the church could not have had a duty to supervise or protect the victim and the mother’s negligent supervision claim fails as a matter of law… . Following our independent review of the record … we conclude reasonable minds could come to but one conclusion that the “prank” leading to the victim’s death was not foreseeable. Accordingly, the trial court did not err in granting the church’s motion for directed verdict.

What This Means For Churches:

This case is instructive for two reasons. First, churches are not guarantors of the safety of minors during church activities, nor are they automatically liable for every injury that occurs. Second, while a church has a duty to provide reasonable supervision of minors who participate in its programs and activities, this duty only applies to foreseeable harm. The appeals court concluded that the church was not responsible for the victim’s death because death by choking was not foreseeable. 41 N.E.3d 1275 (Ohio App. 2015).

Legal Developments

New York Court Rules Custody and Responsibility of Children Ceases, Even on Property, When Parents Pick Up Their Children

Church Law and Tax Report New York Court Rules Custody and Responsibility of Children Ceases,

Church Law and Tax Report

New York Court Rules Custody and Responsibility of Children Ceases, Even on Property, When Parents Pick Up Their Children

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 New York state appeals court ruled that a school was not responsible for severe injuries sustained by a 3-year-old preschool student. The student was struck by a car when he ran onto a busy street adjacent to school property after he had been picked up by his mother at the end of the school day. A 3-year-old child was a student at a public school that included “pre-kindergarten” instruction. The victim had been released from school to his mother inside the school, near his classroom, at 2:30 p.m. Thereafter, the mother, the victim, and the victim’s sister went outside and, while the mother was speaking to another parent on the sidewalk around the corner from where they had left the school, the victim ran into the street from between two parked buses and was struck by a car.

The victim’s mother sued various defendants, including the city and board of education, alleging negligent supervision. The municipal defendants asked the trial court to dismiss the lawsuit, but the court declined to do so. A state appeals court reversed this ruling, and ordered the lawsuit dismissed. The appeals court began its opinion by observing:

A school’s duty to supervise the students in its charge arises from its physical custody over them. The rationale underlying this duty is that when a school takes custody of a child, it deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived. For this reason, a school’s duty to supervise is generally viewed as being “coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases … .”

The municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they had released the infant to the [mother’s] custody and, thus, he was no longer in the custody of the municipal defendants when the accident occurred.

What This Means For Churches:

This court affirmed the general rule that schools are responsible for the safety of children in their custody. When custody is transferred back to a parent at the end of a school day, the school ceased to be responsible for injuries that may occur, even on church property, since the responsibility for supervising the child has transferred back to the parent. Courts that recognize this rule likely would apply it to churches and church schools. Giresi v. City of New York, 3 N.Y.S.3d 88 (N.Y. App. 2015).

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