Key point. The use of cellphones by church employees and volunteers while driving vehicles on church business may expose the church to substantial liability in the event of an accident caused by distracted driving.
A Florida court ruled that the cellphone records of a driver who was killed when her car struck a truck could be examined by the trucking company's attorney to determine if the decedent was using her cellphone at the time of the accident.
Background
A truck operated by a trucking company collided with a vehicle driven by a woman, who was killed in the accident. Six months later, the decedent's estate filed a wrongful death action, but the trucking company denied liability. It asserted that the decedent's own negligence in operating a cellphone at the time of the accident was the sole cause of the accident, and therefore the trucking company could not be found liable for her death.
On several occasions the trucking company requested data from the decedent's cellphone, which had been kept unused since the accident. And while the trucking company received some calling and texting records from the decedent's wireless provider, other cellphone data was not disclosed, such as use and location information, internet website access history, email messages, and social and photo media posted and reviewed on the day of the accident.
Appeals court permits “limited and strictly controlled inspections” of information
The trucking company asked the trial court for an order permitting an expert to inspect the cellphone's data on the day of the accident. The decedent's estate objected to the cellphone inspection citing the decedent's privacy rights under the state Constitution. After a hearing, the trial court granted the trucking company's request.
The court's order allowing the inspection recognized both the trucking company's discovery rights and the privacy interest asserted by the decedent's estate. It stressed the relevance of the requested information, citing cellphone records showing that the decedent had been texting in the minutes preceding the accident; testimony from two witnesses indicating that the decedent may have been utilizing her cellphone at the time of the accident; and testimony from the responding troopers supporting the assertion that the decedent was using her cellphone when the accident occurred.
The order also recognized the decedent's privacy interests and set strict parameters for the expert's confidential inspection. It provided that the expert could examine the cellphone in the presence of the estate's counsel at an agreed date, place, and time. The order specified certain conditions to be followed by the expert, including the following:
(1) Install write-protect software to ensure no alteration of the phone's hard drive would be made during the inspection;
(2) Download a copy of the cellphone's hard drive, making a master copy, a review copy, and a copy for the decedent's counsel;
(3) Return the cellphone to the decedent's counsel immediately after copying the hard drive;
(4) Review only the data on the hard drive for a nine-hour period on the day of the accident, with the inspection to include call records, text messages, web searches, emails sent and received, uploads, downloads, data changes, and GPS data.
The decedent's estate immediately appealed this order, as overbroad, and a state appeals court affirmed the trial court's order compelling limited disclosure. It rejected the estate's contention that by allowing the inspection of "all data" on the decedent's cellphone the inspection amounted to "an improper fishing expedition in a digital ocean."
The appeals court disagreed, noting that "privacy rights do not completely foreclose the prospect of discovery of data stored on electronic devices. Rather, limited and strictly controlled inspections of information stored on electronic devices may be permitted."
The court noted that the trial court "closely considered how to balance the trucking company's discovery rights and the decedent's privacy rights. The order highlighted the relevance of the cellphone's data to the trucking company's defense and it set forth strict procedures controlling how the inspection process would proceed." The court continued:
The trial court didn't allow the inspection simply because the trucking company made assertions that decedent was on her cell phone, or because the decedent happened to possess a cell phone in her car. This case does not involve an unanchored fishing expedition as the decedent's counsel alleges. Rather, the trucking company supported its motion to inspect the cell phone with specific evidence. It cited cell phone records showing that the decedent was texting just before the accident; two witnesses indicated that the decedent may have used her cell phone at the time of the accident; and troopers responding to the accident lent support to the conclusion that the decedent was using her cell phone when the accident occurred. Additionally, no one has disputed that the decedent's smartphone may contain very relevant information. As the trucking company alleged, "With GPS enabled phones, such as [the decedent's] iPhone, there is a very high probability that if the GPS feature were enabled, we can look at the data and figure out conclusively what happened in the moments leading up to the accident, i.e. whether she stopped at the stop sign or not and whether she was texting, Facebooking, Tweeting, or nothing at the time of the accident."
The court concluded that "it has long been true that the more relevant and necessary the desired information is to a resolution of the case, the greater the state's interest in allowing discovery of the information."
The court conceded that the countervailing privacy interest involved in this case (the discovery of data on a cellphone) is also very important. But it concluded:
It would appear that the only way to discover whether the decedent used her cell phone's integrated software at the time of the accident, or drafted a text, dialed a number, searched for contact information, reviewed an old message, or used any other of the smartphone's many features, is by broadly inspecting data associated with all of the cellphone's applications. Or, at least, if an effective and superior privacy-respecting plan for segregating inspection-permissible from impermissible data exists, it hasn't been presented to the court. And so, we cannot conclude that the trial court violated the essential requirements of law by permitting a thorough inspection of the cellphone for the nine-hour period on the day of the accident.
What this means for churches
This case represents a trend in recent years of courts permitting access to cellphone records to determine if either or both parties to a collision was operating a cellphone at the moment of, or shortly before, the collision.
As this case demonstrates, the evidence can have a dramatic impact in determining fault. This underscores the need for churches to adopt cellphone usage policies for employees and volunteers who drive vehicles (their own, or the church's) in the course of performing their duties. Such a policy should include some or all of the following elements: (1) Comply fully with state laws that regulate and restrict the use of cellular devices while driving. These laws often change, so be sure you are familiar with current legal restrictions. (2) Ban drivers from using a cellphone for texting, performing internet searches, making phone calls, or any other use of a smartphone. (3) Benchmark, meaning obtain the cellphone policies of your public school district, and local units of national charities, to guide you in formulating your own policy. (4) Consult with legal counsel in the preparation or review of the policy.
Church leaders would never allow employees or volunteers to drive while intoxicated. Distracted driving due to smartphones must be viewed in the same light, and must bear the same consequences in terms of discipline or termination of employment. Antico v. Sindt Trucking, Inc., 148 So.3d 163 (Fla. App. 2015).
Court Rules Religious School Can Be Sued for Child’s Bullying
Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.
A Connecticut court ruled that a church school could be sued by the parents of a minor student who has been a victim of bullying by an older student. A minor student at a church-operated school was injured when he was assaulted by another student at school. The victim’s parent sued the school and diocese, claiming that the assault was caused by the negligence of the school in the following ways:
(1) it knew, or in exercise of due care should have known, that the assailant posed a risk to other students but failed to remedy the situation;
(2) it knew, or should have known, that the assailant had a history of threats and violence and posed a danger to others in the school, yet failed to exercise reasonable caution and take appropriate measures to prevent the assailant from acting violently;
(3) it failed to enforce its student behavior and disciplinary measures and rules in its student handbook, in one or more of the following respects:
• it failed to implement its policy of requiring the assailant to use appropriate language and actions toward the victim in violation of the rules set forth on page three of the Parent/Student Handbook;
• it failed to make the assailant serve detention in violation of the rules set forth on page three of the Parent/Student Handbook after the victim notified his teachers and the school principal that the assailant had bullied him and engaged in disruptive behavior;
• it failed to follow its policy of suspending or expelling the assailant from school after the victim notified his teachers and the school principal that the assailant was bullying him in violation of the provisions set forth on page four of the Parent/Student Handbook; and
• it failed to follow its policy of suspending or expelling the assailant after the victim notified his teachers and the school principal that the assailant was physically and verbally threatening, harassing, and abusing him in violation of the provisions set forth on page four of the Parent/Student Handbook; and
(4) it failed to adopt or enforce policies against bullying in violation of state of Connecticut policies against bullying as set forth under state law.
The court dismissed the defendants’ motion to dismiss the case. It concluded that the victim had presented enough evidence of the defendants’ negligence to allow the case to proceed to trial.
What This Means For Churches:
This case is important since it represents one of the first cases to address a religious organization’s potential liability for acts of bullying. The court concluded that the school could be liable on the basis of negligence, and that negligence could be demonstrated by proof that the school failed to comply with several relevant policies in its policy manual pertaining to student safety. The lesson is clear—churches and schools that have adopted policies for the protection of minors must be diligent in complying with those policies, since a failure to do so may constitute negligence. Nasuta v. Diocesan Corporation, 2014 WL 5472087 (Conn. Super. 2014).
Key point 7-20.1. In most states, whether a church is liable for injuries occurring on its premises will depend on whether the victim is an invitee, a licensee, or a trespasser. Churches, like any property owner, owe the highest degree of care to invitees, a lesser degree of care to licensees, and a very minimal degree of care to trespassers. As a result, it is more likely that churches will be liable for injuries to persons who meet the definition of an “invitee.”
A Michigan court ruled that a church was not responsible for injuries sustained by a member of its board of trustees when he fell from a ladder while performing volunteer service for the church. A church member (the “plaintiff”) also served as a volunteer on the church’s board of trustees, a group of individuals who volunteered to perform various repairs and maintenance on the church premises. The plaintiff never received or expected any payment or compensation for the work he performed for the church.
Plaintiff volunteered to take down confirmation banners hanging about 20 feet to 25 feet high in the gymnasium of the church’s school. To perform this task, the plaintiff decided to use the church’s extension ladder. The plaintiff, accompanied by the church’s pastor, carried the extension ladder from the garage to the gymnasium. Then, plaintiff, alone, set the extension ladder in place and positioned it on the linoleum gymnasium floor. While working on the extension ladder, without assistance or instruction, the ladder slipped, causing plaintiff to fall approximately 20 feet to the ground, resulting in serious injuries. After the accident, it was discovered that the ladder did not have any antiskid rubber pads on its feet to prevent it from slipping, which plaintiff alleged caused the ladder to fall. The plaintiff admitted that had he looked at the bottom of the ladder before using it, he would have observed that the feet lacked rubber pads and changed his use of the ladder.
The plaintiff filed a negligence action against the church, alleging that the church breached the duty of care owed to him by failing to provide a safe and non-defective ladder for his use, to properly maintain the ladder, and to warn him that the ladder lacked antiskid rubber pads. A trial court dismissed the lawsuit against the church, and the plaintiff appealed.
A state appeals court began its opinion by observing:
In a premises liability action, the duty that a premises owner or occupier owes to a visitor is dependent on the plaintiff’s status at the time of the injury as a trespasser, licensee, or invitee. An invitee is entitled to the highest level of protection under premises liability law. The landowner has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards. On the other hand, a landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.
The court concluded that the plaintiff was a mere licensee to whom the church owed a minimal duty of care, and that the church had not breached this duty:
The imposition of additional expense and effort by the landowner, requiring the landowner to inspect the premises and make them safe for visitors, must be directly tied to the owner’s commercial business interests. It is the owner’s desire to foster a commercial advantage by inviting persons to visit the premises that justifies imposition of a higher duty. In short, we conclude that the prospect of pecuniary gain is a sort of a quid pro quo for the higher duty of care owed to invitees. Thus, we hold that the owner’s reason for inviting persons onto the premises is the primary consideration when determining the visitor’s status: In order to establish invitee status, a plaintiff must show that the premises were held open for a commercial purpose… .
The undisputed reason for inviting plaintiff to the church’s premises was to secure a volunteer to help take down confirmation banners in the gymnasium, and thus … the invitation was for a noncommercial purpose. Although the church clearly benefited from the maintenance work performed by plaintiff as a volunteer, and was relieved of potentially paying for the service plaintiff provided, to gain invitee status there must be a commercial purpose for the particular visitor’s presence on the owner’s premises at the time of his injury. The proper focus … is on the premises owner’s reason for inviting the visitor onto the premises. In this case, the church’s reason for having plaintiff on its property was undisputedly to secure a volunteer to remove the confirmation banners hanging in its gymnasium, which was not directly tied to the church’s commercial interests. We conclude, as a matter of law, that plaintiff was a licensee … at the time of his injury.
The court noted that a landowner owes a licensee a duty only “to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the hidden danger involves an unreasonable risk of harm and the licensee does not know or have reason to know of the hidden danger and the risk involved.” Significantly, the landowner “owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit,” and has no obligation to take any steps to safeguard licensees from conditions that are open and obvious.” Because of the plaintiff’s status as a licensee, the church “had no obligation to inspect the ladder such that it should have been aware that it lacked antiskid rubber pads on its feet nor did it have an affirmative duty to make sure the premises and its instrumentalities were safe.”
The court also noted that the plaintiff conceded that he would have observed the lack of antiskid pads had he looked at the feet of the ladder and changed his use of the ladder accordingly:
This testimony, as well as the safety warnings affixed to the ladder instructing the user to inspect for damaged or missing parts before each use and to never use a ladder with missing or damaged parts, established that plaintiff had reason to know of the alleged danger, which he admittedly would have discovered had he merely looked at the bottom of the ladder before using it. Also considering the obvious and foreseeable risk that an extension ladder placed on a gymnasium floor might slip and telescope down because of inadequate bracing at its base, we find there is no factual dispute that plaintiff had reason to know of the lack of antiskid rubber pads and the readily apparent risk involved in using the ladder. For these same reasons, the condition of the ladder was open and obvious. An average user with ordinary intelligence would have been able to discover the danger and the risk it presented upon casual inspection. As a matter of law, defendant did not breach its duty to warn plaintiff, a licensee, that the ladder lacked antiskid rubber pads on its feet, and thus, summary disposition of his premises liability claim was proper.
What This Means For Churches:
In many cases, a church’s liability for injuries occurring on its premises will depend on the victim’s status. It is far more likely that a church will be found liable if the victim is an invitee, since a church owes a much greater duty of care to invitees than to either licensees or trespassers. This case makes a strong case for treating persons as mere licensees who are on church property for non-commercial purposes.
Because of the plaintiff’s status as a licensee, the church “had no obligation to inspect the ladder such that it should have been aware that it lacked antiskid rubber pads on its feet nor did it have an affirmative duty to make sure the premises and its instrumentalities were safe.”
The court also noted the cautionary warning labels on the ladder that urged inspection prior to use, and the plaintiff’s own testimony that he would have acted with greater care had he taken a few seconds to inspect the bottom of the ladder and discovered the lack of antiskid pads.
Unfortunately, accidents involving the use of ladders on church premises are a recurring occurrence. Here are some additional points to consider, based on recommendations from the Occupational Safety and Health Administration:
1. Maintain ladders free of oil, grease, and other slipping hazards.
2. Do not load ladders beyond their maximum intended load nor beyond their manufacturer’s rated capacity.
3. Use ladders only for their designed purpose.
4. Use ladders only on stable and level surfaces unless secured to prevent accidental movement.
5. Do not use ladders on slippery surfaces unless secured or provided with slip-resistant feet to prevent accidental movement.
6. Do not use slip-resistant feet as a substitute for exercising care when placing, lashing, or holding a ladder upon slippery surfaces.
7. Secure ladders placed in areas such as passageways, doorways, or driveways, or where they can be displaced by workplace activities or traffic to prevent accidental movement. Or use a barricade to keep traffic or activity away from the ladder.
8. Keep areas clear around the top and bottom of ladders.
9. Do not move, shift, or extend ladders while in use.
10. Use ladders equipped with nonconductive side rails if the worker or the ladder could contact exposed energized electrical equipment.
11. Face the ladder when moving up or down.
12. Use at least one hand to grasp the ladder when climbing.
13. Do not carry objects or loads that could cause loss of balance and falling.
14. Ladder rungs, cleats, and steps must be parallel, level, and uniformly spaced when the ladder is in position for use.
15. Ladders must not be tied or fastened together to create longer sections unless they are specifically designed for such use.
16. Ladder components must be surfaced to prevent snagging of clothing and injury from punctures or lacerations.
17. Wood ladders must not be coated with any opaque covering except for identification or warning labels, which may be placed only on one face of a side rail.
18. A competent person must inspect ladders for visible defects periodically and after any incident that could affect their safe use.
19. Do not use the top or top step of a stepladder as a step.
20. Do not use cross bracing on the rear section of stepladders for climbing unless the ladders are designed and provided with steps for climbing on both front and rear sections. Metal spreader or locking devices must be provided on stepladders to hold the front and back sections in an open position when ladders are being used.
21. Portable ladders with structural defects—such as broken or missing rungs, cleats, or steps, broken or split rails, corroded components, or other faulty or defective components—must immediately be marked defective or tagged with “Do Not Use” or similar language and withdrawn from service until repaired.
22. Fixed ladders with structural defects—such as broken or missing rungs, cleats, or steps, broken or split rails, or corroded components—must be withdrawn from service until repaired.
23. Defective fixed ladders are considered withdrawn from use when they are immediately tagged with “Do Not Use” or similar language, ormarked in a manner that identifies them as defective, orblocked—such as with a plywood attachment that spans several rungs.
24. Ladder repairs must restore the ladder to a condition meeting its original design criteria before the ladder is returned to use. Meier v. Zion Evangelical Lutheran Church of Monroe Michigan, 2014 WL 5409052 (Mich. App. 2014).
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.
An Indiana court ruled that a school could be liable for non-fatal injuries suffered by two public high school students who were shot by a former student previously suspended from school for threats and other inappropriate behavior. An eighth-grade student (the “shooter”) at a public middle school had a history of disciplinary problems that culminated in 50 discipline referrals, 43 of which were for disrespect toward school personnel or failure to follow school rules. He also had seven discipline referrals for harassing, threatening, and physically assaulting other students. On one occasion he commented to some of his classmates that he wanted to “just blow up the school.” After the classmates reported his remark, the school suspended him for 10 days. He remained barred from entering school property except to take a state standardized test. Because of his overall disciplinary history, the school’s principal also initiated expulsion proceedings, but before he was formally expelled his mother withdrew him from school.
On the morning of March 25, 2011, the shooter’s Facebook status read “today is the day” and “don’t use your mind, use your nine.” He arrived at the school around 7 a.m. He wore a dark-colored hooded sweatshirt with the hood pulled over his head and moved toward the building so as to avoid detection.
The school principal had developed a safety plan for the school and the school’s three surveillance cameras, positioned at three of the school entrances, were functioning properly that morning. One of the school’s entrances was unlocked from 6:30 a.m. to 7:30 a.m.; two other entrances were unlocked from 7:10 a.m. to 7:30 a.m.; and the five school employees who were assigned to various positions around the school’s exterior to monitor student arrival were in place beginning at 7 a.m. All of the monitors knew the shooter and were aware that he was prohibited from being on school property. None of the monitors noticed the shooter when he arrived at the school, although several students did. No students reported his presence to school personnel, even though “everybody knew” that he was banned from school property and even though the students saw that the shooter carried in his back pocket what appeared to be a wrench covered in a cloth.
The shooter proceeded to the school’s main lobby where he shot two students with a gun that he stole from the home of his former stepfather. He then fled the scene. The two victims were transported to a local hospital. Both fully recovered from their wounds.
The shooter was later apprehended, and charged with attempted murder. He was found guilty and sentenced to 35 years in prison.
Shortly after the shootings, the victims and their parents (the “plaintiffs”) sued the school, claiming that it was negligent when it
left one of the doors unlocked, allowing the shooter to enter the school;
failed to warn personnel monitors that the shooter posed a threat and to instruct them to specifically look for the shooter on school grounds after he was suspended; and,
failed to instruct personnel monitors to call 911 if he was spotted on school property.
foreseeability of harm
A trial court rejected the school’s request that the case be dismissed, and a state appeals court agreed. The court conceded that a property owner generally cannot be liable for an armed assault on its premises unless the assault is reasonably foreseeable, noting that “the duty to anticipate and to take steps against a criminal act of a third party arises only when the facts of the particular case make it reasonably foreseeable that a criminal act is likely to occur.” The court concluded that the school had failed to demonstrate that the shooter’s acts were unforeseeable as a matter of law, and therefore declined its request to dismiss the case. It observed:
We conclude that there exist genuine issues of material fact on this issue and that the School District has not proved as a matter of law that the shooting was not foreseeable. [The shooter] had a lengthy history of serious misbehavior in school; threatened to blow up the school; and was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting. He had made threats against [one of the victims] of which at least one teacher was aware. The day before the shooting, another student had made a threat to shoot a teacher. Given these facts, a jury could conclude that it is foreseeable that a shooting would occur at the school.
the school’s safety plan
The school insisted that it exercised reasonable care in providing for the safety of its students, noting that it had implemented (1) a school-wide policy prohibiting threats, bullying, and fighting; (2) a door numbering system; (3) an electronic door locking system; (4) a video surveillance system; and (5) the placement of personnel monitors around school grounds during the time in which students arrived in the morning. The school further noted that when the shooter threatened to “blow up the school,” he was suspended immediately and expulsion proceedings were initiated. The court was not impressed, and concluded that “reasonable persons could differ as to whether there is a sufficient relationship between the school’s duty to supervise and protect its students and its alleged failure to take adequate measures to protect [the victim] from the shooter.”
What This Means For Churches:
This case illustrates the general rule that property owners are not liable for armed assaults on their premises that are not reasonably foreseeable. However, the court interpreted “foreseeability” broadly, and further concluded that the many precautions the school had initiated to respond to the risk of armed assaults could be viewed as inadequate, and on that basis refused to dismiss the case. According to this court, the shooter’s armed assaults were reasonably foreseeable because of the following facts: (1) he threatened to “blow up” the school; (2) he had a lengthy history of serious misbehavior in school; (3) he was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting; and (4) he had made threats against one of his victims of which at least one teacher was aware. These facts imposed a duty upon the school to take appropriate steps to respond to the risk of an armed assault, but the court concluded that the many precautions the school had adopted were insufficient. Clearly, church leaders who are apprised that someone has made threats against the church, or individual members in the church, should be aware of the possible risk of liability should the person act on that threat, unless adequate precautions have been implemented. These are difficult questions that will depend entirely on the facts and circumstances of each case. Church leaders should discuss such behavior with law enforcement and legal counsel. M.S.D. v. Jackson, 9 N.E.3d 230 (Ind. App. 2014).
Aurora Movie Theater Could Be Liable for 2012 Shooting
Federal court rules armed assailant’s shooting could have been prevented if security measures were taken.
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.
A federal district court in Colorado ruled that a movie theater in Aurora, Colorado, could be liable for the acts of an armed assailant who killed 12 patrons. On the night of July 20, 2012, James Holmes entered the Century Aurora 16 theater complex in Aurora, Colorado, purchased a ticket for the midnight premiere showing of The Dark Knight Rises, and took a seat in Auditorium 9. During the previews he left the auditorium through the exit door to the outside, leaving it propped open with a plastic clip. He went to his car, which he had parked immediately behind the auditorium, donned body armor and a gas mask, and armed himself with a tear gas canister, a shotgun, a rifle, at least one handgun, and extra ammunition. Twenty minutes after the movie started Holmes reentered the auditorium through the exit door, disbursed tear gas, and began randomly shooting patrons. After killing 12 individuals and wounding many others, Holmes returned to his car, again through the exit door, and waited there until he was arrested by police.
Several victims and their families sued the theater and its parent company (the “defendants”) claiming that the injuries and deaths could have been prevented had the defendants taken reasonable steps to provide security for its patrons. The defendants asserted that the shootings were so unprecedented as to be legally unforeseeable, and therefore they had no legal duty to protect against such acts. They asked the court to issue a summary judgment in its favor on the ground that they neither knew nor should have known of this danger because the danger was unforeseeable as a matter of law.
In support of its position, the defendants relied on a 1987 case in California in which a state appeals court ruled that McDonald’s was not liable for the deaths and injuries caused by an armed assailant at one of its restaurants in California. Lopez v. McDonald’s Corporation, 238 Cal. Rptr. 436 (Cal. App. 1987). In 1984, an adult male walked into a McDonald’s restaurant armed with a rifle, a handgun, and a shotgun and indiscriminately shot patrons and employees, ultimately leaving 21 people dead and 11 others injured. Survivors and surviving family members sued McDonald’s, arguing that the restaurant was in a high-crime area; that it had considered, but ultimately declined to retain, a private security company; and that McDonald’s should be liable on theories of negligence and premises liability. McDonald’s countered that, as a matter of law, the incident was so unlikely as to fall outside the boundaries of a restaurant’s general duty to protect patrons from reasonably foreseeable criminal acts. The court agreed with McDonald’s that its general duty to its patrons did not include protection against a “once-in-a-lifetime” massacre. In affirming the trial court’s grant of summary judgment, a state appeals court concluded:
We conclude as a matter of law … that the unforeseeability of the unique, horrific event requires negligence liability to be restricted here. First, as to the foreseeability of harm to plaintiffs, the theft-related and property crimes of the type shown by the history of its operations, or the general assaultive-type activity which had occurred in the vicinity bear no relationship to purposeful homicide or assassination. In other words, under all the circumstances presented, the risk of a maniacal, mass murderous assault is not a hazard the likelihood of which makes McDonald’s’ conduct unreasonably dangerous. Rather, the likelihood of this unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of McDonald’s nonfeasance did not facilitate its happening. [The suspect’s] deranged and motiveless attack, apparently the worst mass killing by a single assailant in recent American history, is so unlikely to occur within the setting of modern life that a reasonably prudent business enterprise would not consider its occurrence in attempting to satisfy its general obligation to protect business invitees from reasonably foreseeable criminal conduct.
The Colorado court did not disagree with this reasoning, but observed that “what was so unlikely to occur within the setting of modern life as to be unforeseeable in 1984 was not necessarily so unlikely by 2012 … . If one Googles ‘mass shooting incidents’ one finds dozens of lists of the major incidents.” The court referenced an article that lists 31 mass shooting incidents between the 1984 McDonald’s disaster and the Aurora shootings. These incidents occurred in “schools, businesses, military bases, shopping malls, a supermarket, on a train, in an immigration center and, as we now know, in a theater.”
The court acknowledged that the plaintiffs had not discovered “any instance of an assailant’s entering a theater auditorium through a surreptitiously propped open exit door and committing a violent act against someone watching the movie.” However, the court declined to rule that nothing short of a previous similar act in another theater could possibly support the existence of a genuine dispute of fact. It observed:
To establish that an incident is foreseeable, it is not necessary that an owner or occupier of land held open for business purposes be able to ascertain precisely when or how an incident will occur. Rather, foreseeability includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct … . Simply because something has not yet happened does not mean that its happening is not foreseeable. Instead, foreseeability is based on common sense perceptions of the risks created by various conditions and circumstances … .
One such relevant fact in the setting of modern life is simply the changed landscape in which any school or base or business where large numbers of people congregate operated in July 2012. Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, “sitting ducks.” One might reasonably believe that a mass shooting incident in a theater was likely enough (that is, not just a possibility) to be a foreseeable next step in the history of such acts by deranged individuals.
The court concluded that the violent acts in this case were not so overwhelmingly unforeseeable as to deny the plaintiffs their day in court. The case now proceeds to trial.
At the end of its ruling, the court conceded that the plaintiffs will have many “hurdles” in pursuing their claims at trial, including the following:
(1) What should a reasonable theater have done before July 2012 even if it recognized that a shooting by an armed assailant “could happen to us?” The problem “is illustrated by the example of schools. What do we reasonably expect a school to do even now when we know that school shootings have become a repeated phenomenon?” Whether the defendants “reasonably could be expected to have implemented any specific additional security measure in light of what was known at the time and the realities of the theater business is not an easy question to answer.”
(2) Would any reasonable preventive measure or combination of measures have stopped the assailant in this case?
What This Means For Churches:
This case is instructive for one reason—while recognizing that a theater’s liability for the acts of an armed assailant require that those acts be reasonably foreseeable, the court concluded that “to establish that an incident is foreseeable, it is not necessary that an owner or occupier of land held open for business purposes be able to ascertain precisely when or how an incident will occur. Rather, foreseeability includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct … . Simply because something has not yet happened does not mean that its happening is not foreseeable. Instead, foreseeability is based on common sense perceptions of the risks created by various conditions and circumstances.”
This expansive definition of foreseeability suggests that a church could be liable for the acts of armed assailants even if no similar acts have occurred on church property. Such rulings support the implementation of reasonable risk management procedures on church premises during worship services and other events. We have addressed this issue in prior issues of this newsletter, and suggested several ways to manage this risk, recognizing that the risk can never be eliminated entirely. Working with local law enforcement, your insurance company, and an attorney in formulating your response will be crucial. Another resource is the 38-page guide released in 2013 by the Federal Emergency Management Agency (“FEMA”) to assist churches in responding to several emergencies, including “active shooters.” The guide, titled “Developing High Quality Emergency Operation Plans for Houses of Worship,” is available at fema.gov. It is addressed fully in the November/December 2013 issue of this newsletter, which is available in the archives on ChurchLawAndTax.com and as a part of Preventing a Violent Incident at Your Church, a downloadable Feature Report available on ChurchLawAndTaxStore.com. Axelrod v. Cinemark Holdings, Inc., 2014 WL 4470728 (D. Colo. 2014).
* See also “Privacy,” Clay Center Christian Church, 746 F.3d 375 (8th Cir. 2014), in the Recent Developments section of this newsletter.
Church Not Responsible to Supervise Outside Party Using Premises
As a result, the church was not liable for a minor’s injury that took place in their building.
Key point 7-20.3. Churches may be legally responsible for injuries occurring on their premises while being used by an outside group, if they maintain sufficient “control” over their premises during such use.
A New York court ruled that a church was not liable for injuries sustained by a minor on its premises during a concert since the church was not in control of the premises at the time. A church allowed one of its parishioners to use its fellowship hall for a concert in return for a $100 “donation.” Many of those attending the concert were minors, many of whom became intoxicated from consuming alcoholic beverages. One intoxicated attendee assaulted and injured another attendee, whose parents sued the church, claiming that its negligence in supervising the concert contributed to their child’s injuries.
A state court concluded that “although the church, as owner of the premises where the injured plaintiff was attacked, owed him a duty to keep its premises free of known dangerous conditions, which may include intoxicated guests, the church did not host the party at which such drinking took place, but merely permitted a 20-year-old parishioner to use its hall in exchange for a $100 donation. Under these circumstances, the church was not under a duty to supervise the party or otherwise retain control of its premises.”
What This Means For Churches:
Many churches allow community groups to use their facilities. Before doing so, there are a number of issues that church leaders should consider, including the following:
1. Have the outside group sign a “facilities use agreement” that (1) provides the group with a mere license to use the property; (2) contains a hold harmless and indemnification clause; and (3) states that the church provides no supervision or control over the property when being used by the group. This document should be prepared by an attorney. The agreement should clearly specify that it is a license agreement and not a lease. The church’s potential liability for injuries that occur during the use of its property by an outside group will depend to some extent on the nature of the relationship. A license exposes the church to less liability than a lease.
2. The church should be named as an additional insured under the group’s liability policy.
3. Review the group’s liability policy to ensure that it provides adequate coverage, and does not exclude sexual misconduct.
4. If the outside group’s use of the property will involve any participants who are minors (including minor children of participants), then the outside group should warrant that it has exercised a high degree of care in conducting background investigations on all persons who will have access to one or more minors to determine their suitability for working with, or being present with, minors during the outside group’s use of the property. The outside group also should warrant that it will use a high degree of care in supervising all activities involving minors during its use of the property under the terms of the agreement.
5. Check with the church insurer to determine coverage issues in the event the church is sued as a result of an accident or injury occurring during the group’s use of the property.
6. If you deny use of your property to any group because of its religious affiliation, be sure that you are legally permitted to do so under applicable federal, state, and local laws. Many jurisdictions permit religious organizations to discriminate on the basis of religion when allowing outside groups to use their properties. Check with an attorney regarding the application of such laws to your church.
7. The Americans with Disabilities Act prohibits places of public accommodation from discriminating against persons with a disability. The Act exempts religious organizations from this provision. Be sure to see if state and local law contains a similar exemption.
8. There are several potential violations of copyright law that may arise when an outside group is using the church, including the following: (1) An outside group that plays copyrighted music or shows copyrighted videos or images may be committing copyright infringement. (2) If the outside group makes audio or video recordings containing copyrighted music, this is another possible example of copyright infringement. (3) If a musical group performs a concert in which copyrighted music is performed, then this may result in copyright infringement. At a minimum, the agreement should include a statement making the outside group solely responsible for compliance with copyright law.
9. The fees received by the church may be subject to the federal “unrelated business income tax.” Generally, this tax will not apply unless the rented facilities are subject to an “acquisition indebtedness” (a mortgage loan).
10. The agreement should clarify that the outside group will be solely responsible for the collection of any sales taxes on the sale of any product during its use of the facilities, and that it will indemnify the church for any taxes it is assessed as a result of the outside group’s sales occurring on (or a result of) its use of the premises.
11. The outside group should agree to indemnify not only the church but also the church’s officers, agents, and employees from any and all claims or damages in connection with the use of the property by the outside group.
12. The agreement should contain a non-assignability clause.
13. The agreement should state that the church does not warrant or represent that the property is safe or suitable for the purposes for which it is permitted to be used under the terms of this agreement, and that the outside group (for itself and on behalf of all of its members, guests, or participants who will be using the property) acknowledges that the church is providing the property and all appliances on an “as is” basis.
14. The agreement should clarify that the church will bear no liability if the agreement is cancelled due to any legal or regulatory compliance issue, such as a zoning ordinance. Joseph R.C. v. Bronx Underground LLC, 2014 WL 2765971 (N.Y.A.D. 2014).
Release Form Not Enforceable Due to Lack of Clarity
Male severely injured in Habitat for Humanity bike race successfully sues organization for negligent conduct.
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 Connecticut court ruled that a “release form” signed by a participant in a charity-sponsored bicycle race was not legally enforceable. An adult male suffered catastrophic and life-altering injuries while participating in a cross-country bicycle trip sponsored by Habitat for Humanity (the “defendant”) to raise funds. His parents, as his legal guardians (the “plaintiffs”), sued the defendant, claiming that their son’s injuries were caused by its negligence in organizing and conducting the event.
The defendant organized, promoted, and sanctioned the annual fundraising cycling event, which required all participants to cycle across the entire country during a time period of approximately nine weeks. Despite having a history of injuries and deaths during prior events, the defendant made the decision to organize, promote, and sanction another event. The defendant was in control of the event and was responsible for taking the necessary precautions to provide for the safety needs of the bicycle riders. The defendant was responsible for selecting “trip leaders” with sufficient skill, maturity, knowledge, and training to appropriately and safely coordinate the event. The defendant was also responsible for properly evaluating prospective participants and for making sure that all participants had a sufficient skill level to safely participate.
The defendant scheduled the cyclists to ride 50 to 70 miles per day with only 1 day of rest out of 35 days of travel. On the day of the accident, the plaintiffs’ son was one of two cyclists riding at the rear of the group as monitors. A van normally travelled at the end of the group with its emergency blinkers flashing, but on the day of the accident, it was transporting a participant to a nearby hospital. When the plaintiffs’ son noticed that his partner was no longer behind him, he crossed the highway and was struck by a car, sustaining serious injuries.
The defendant asked the court to dismiss the lawsuit on the ground that the plaintiffs’ claims were “barred due to their son’s signing of a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement,” which provided:
I agree, for myself, my heirs, executors and administrators, to not sue and to release, indemnify and hold harmless Habitat for Humanity of Greater New Haven, its affiliates, officers, directors, volunteers and employees and all sponsoring businesses and organizations and their agents and employees, from any and all liability, claims, demands and causes of action whatsoever, arising out of my participation in the Challenge and related activities—whether it results from the negligence of any of the above or from any other cause. I agree not to make a claim against or sue Habitat for Humanity or other sponsors or affiliated organizations for injuries or damages related to bicycling and/or other activities during the Challenge.
The court concluded that this release agreement was invalid on the basis of a lack of clarity, and public policy.
Lack of clarity
The court noted that “unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts. It must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility.”
The court also noted that “terms must be unambiguous as well as understandable. This does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent. The question is whether an ordinary person of reasonable intelligence would understand that, by signing the agreement, he or she was releasing the defendants from liability for their future negligence.”
In addition to being understandable, a release form must be conspicuous:
“Conspicuous,” with reference to a term, means so written, displayed or presented that a reasonable person against which it is to operate ought to have noticed it … . The court agrees with the plaintiffs that the agreement does not meet the level of clarity … . Here, the mere use of the word “negligence of any of the above,” within the text of a lengthy sentence consisting of multiple interrelated clauses, does not rise to the level of clarity required to enforce an exculpatory agreement against an individual. The language waiving the plaintiffs’ right to sue the defendant for the defendant’s negligence is not conspicuous, as no effort has been made to set the word negligence off from the rest of the text. Furthermore, the particular paragraph in which the provision appears is not set off by headings or any other marker from the remainder of the two-page agreement. The court concludes that a reasonable individual reading such an agreement would not be sufficiently informed that he or she is waiving the right to sue the defendant for its own negligent conduct. On the face of the agreement, it is insufficiently clear or explicit to be enforceable.
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 the following:
Release forms will be strictly and narrowly construed against the church.
Release forms will not be enforced if they are ambiguous.
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. However, churches should not allow a minor child to participate in any church activity (such as camping, boating, swimming, hiking, or some 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. Lewis v. Habitat for Humanity, 2012 WL 386391 (Conn. Super. 2013).
Church Not Responsible for Rape of Teenage Girl by Camp Worker
Court says church and camp exercised sufficient care in selection and supervision of worker.
Richard R. Hammar
A North Carolina appeals court ruled that a church was not responsible on the basis of negligence for the rape of an adolescent camper by an adult worker at a church camp. The court concluded that the church and camp had exercised sufficient care in the selection and supervision of the worker to rebut the allegation of negligence. A 16-year-old female (the “victim”) attended a summer camp owned and operated by a national religious denomination and a regional affiliate (the “church defendants”). On the last night of camp, an activity called “the Game” was conducted. The purpose of the Game was for campers to sneak around camp staff members through a wooded area, in the dark, and ring a bell located at the top of a hill. The Game was restricted to senior high campers. All participants were required to play with partners for safety purposes. The victim and a friend were partners, and at some point during the evening they met two male camp staff members. The victim’s friend and one of the staff members left together, leaving the victim and the other staff member. The victim claimed that the staff member raped her.
After this incident, the victim returned to a camp dining hall. She did not report what happened to anyone at the camp or make any complaint regarding the assault until several months later. When confronted with the allegation, the assailant initially denied the sexual encounter but later claimed the encounter was consensual.
The victim and her father sued the church defendants, claiming they were responsible for the rape on the basis of negligence in their hiring, retention, and supervision of the staff member. In addition, the complaint alleged the defendants negligently failed to provide the victim with a safe environment when it conducted the Game. Plaintiffs also alleged that, as a result of defendants’ negligence, the victim suffered severe emotional distress. A trial court dismissed the claims against the church defendants, and the plaintiffs appealed.
The appeals court began its opinion by noting that negligence requires proof that a defendant owed the plaintiff a duty of reasonable care, and a breach of that duty. The court agreed with the plaintiffs that the church defendants owed the victim a duty of care:
We hold that camps and their employees have a duty to their campers to exercise the same standard of care that a person of ordinary prudence, charged with the duty of supervising campers, would exercise under the same circumstances. Moreover … this duty of care is relative to the camper’s maturity. Thus, the foreseeability of harm to the individual camper is the relevant test which defines the extent of the duty to safeguard campers from the dangerous acts of others.
The plaintiffs insisted that the church defendants breached this duty of care in the following ways: (1) the Game occurred in a wide, heavily wooded area; (2) the Game occurred late at night; (3) adult camp staff participated in the Game with minor campers; and (4) the executive director, assistant director, and camp director did not supervise the Game.
But, the court pointed out, there were several facts supporting the church defendants’ claim that they did not breach a duty of care:
At the time the Game was played, the victim was 16 years old. Defendants specifically restricted the Game to senior high campers and required them to be with a partner while playing the Game for safety purposes. In addition, adult camp counselors and staff members were present as participants in and supervisors of the Game. These procedural safeguards adequately establish that defendants acted reasonably in their supervision of the Game, particularly in light of the maturity level of the senior high campers who participated in it. Thus, defendants did not breach their duty to the victim by conducting the Game.
The plaintiffs also claimed that the church defendants were negligent because they failed to adequately train the staff member who raped the victim. Specifically, they alleged that defendants (1) failed to have written rules prohibiting relationships between staff and campers; (2) failed to teach the assailant and staff that they should never be alone with a camper; and (3) failed to communicate that certain types of interactions with campers were prohibited. To support their allegations, the plaintiffs submitted an affidavit from a summer camp consultant and author of a book explaining the best practices for camp staff. The affidavit states:
The policies and procedures [of defendants’ camp] are below the standard of care applicable to a summer camp and do not conform to industry best practices. They do not include a clear statement prohibiting a staff member from being alone with a camper, and they demonstrate a disregard for the principle that at least two staff members must be present when working with campers. There was a clear lack of training and ongoing culture of improving and learning with an emphasis on the safety of children or the inappropriateness of staff to camper relationships.
The court noted that the consultant’s opinion was based “solely on his review of the camp’s written policies and procedures,” and that “several of defendants’ staff members testified that they were orally instructed that two staffers must be present at all times when dealing with campers and that they were also warned to be very careful about any physical or romantic relationships with campers.” Most importantly, the assailant himself submitted an affidavit in which he stated that he knew his conduct with the vicitm was “against camp policies,” and “inappropriate and prohibited.” In summary, while the consultant’s affidavit “may create an issue of fact regarding whether defendants had an adequate written policy regarding sexual relationships between camp staff and campers, it does not establish that no such policy existed. On the contrary, the undisputed evidence is that camp staff members were made aware that sexual relationships with campers were prohibited.”
The court noted that prior to his employment, the assailant provided a personal disclosure indicating he had no criminal convictions, that he had never been dismissed, suspended, or asked to resign from a job, and that he had never had a complaint lodged against him for sexual molestation, abuse, or harassment. Additionally, the church defendants checked the National Sex Offender Registry to ensure he was not disqualified from employment. Defendants also received a favorable recommendation in a telephone interview with a trusted reference. Finally, the assailant was hired in 2007 and his employment was very positive that summer. Based on the prior investigation, and his positive performance in 2007, he was re-hired for the summer of 2008 (the summer that the rape occurred).
The court concluded:
Taken together, this undisputed evidence demonstrates as a matter of law that defendants acted reasonably in its training and hiring of the assailant and that his conduct which harmed the victim was unforeseeable by defendants … . Defendants did not breach their duty of care to the victim by failing to maintain a safe environment at the camp. There was no evidence which would have allowed defendants to anticipate the assailant’s actions towards the victim or take additional reasonable steps to prevent them. Since there are no genuine issues as to any material facts, the trial court properly granted defendants’ motion for summary judgment.
What This Means For Churches:
This case is instructive, for it illustrates the kinds of precautions that churches, camps, and youth-serving charities can take to satisfy their duty of care in the selection of youth workers and the supervision of youth activities. In summary, the court concluded that the church defendants had not breached their duty of care to the victim, and therefore were not responsible on the basis of negligence for the staff member’s conduct, because of the following factors:
The church defendants restricted the Game to senior high campers.
Participants in the Game were required to be with a partner.
Adult camp counselors and staff members were present as participants in, and supervisors of, the Game.
While the camp’s written policies and procedures may have been inadequate, several staff members testified they were orally instructed that two staffers must be present at all times when dealing with minor campers.
Adult camp staffers were orally warned to avoid any physical or romantic relationships with minor campers.
The church defendants used a written application when selecting adult camp staff, which asked applicants to disclose (1) any criminal convictions; (2) if they had ever been dismissed, suspended, or asked to resign from a job; and (3) if they had ever had a complaint lodged against them for sexual molestation, abuse, or harassment.
The church defendants checked the National Sex Offender Registry to ensure adult camp staffers were not registered sex offenders.
The church defendants received a favorable recommendation in a telephone interview with a trusted reference.
The assailant had a track record. He had been hired for the previous camp season, giving the church defendants an opportunity to assess his fitness and suitability for working with minors. His performance was exemplary, with no hint of misconduct. Nowlin v. Moravian Church in America, 745 S.E.2d 51 (N.C. App. 2013).
Court rules injuries sustained during off-site sleepover are not church’s responsibility.
Richard R. Hammar
A Connecticut court ruled that a church was not responsible for injuries sustained by a minor during an all-night “sleepover” while the group was visiting an off-site recreational facility. The victim’s parents sued the church, claiming that their daughter’s injuries were caused by the church’s “negligence, carelessness and omissions.” In particular, they claimed that the church failed to provide and supervise its own personnel in protecting the youth involved in the sleepover, and failed to supervise the recreational facility’s personnel. A state appellate court dismissed the negligence claims against the church.
Failure to Supervise Church Personnel
The court quoted section 320 of the Restatement (Second) of Torts (a respected legal treatise):
One who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control.
For the duty set forth in this section to apply, “the circumstances under which a person takes custody of another must be such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him.” Here, the parents “have not alleged such circumstances. They have not alleged how the circumstances deprived their then-sixteen year old daughter of her normal power of self-protection or subjected her to association with persons likely to harm her.”
The court cautioned that “the duty of an adult to protect a child from harm is enhanced when the child is of tender years or is otherwise incapable of managing his own affairs … . What constitutes reasonable care is contextual—the extent and type of supervision required of young elementary school pupils is substantially different from reasonable care for college students.”
Failure to Supervise the Recreational Facility’s Personnel
As to the alleged failure by church personnel to monitor the recreational facility’s personnel, the court noted that the parents “do not allege that the church: (a) knew or had reason to know that it had the ability to control the conduct of [the facility], and (b) knew or should have known of the necessity and opportunity for exercising such control.”
What This Means For Churches:
This case demonstrates that churches will not necessarily be liable for injuries that occur to adolescent minors at off-site facilities in the course of sleepovers and other church activities. However, liability may exist in cases involving young children, or if the church signs a contractual document in which it assumes risks of injuries or agrees to indemnify and hold harmless the facility where an injury occurs. There have been many cases in which churches were found liable for injuries to youth at off-site venues solely on the basis of a contractual agreement signed by the church as a condition to using the facility. Church leaders should have legal counsel review any contractual documents before agreeing to the use of a recreational facility by church youth. Granja v. Middlebury Church, 2012 WL 5860318 (Conn. Super. 2012).
In a case of direct relevance to the legal duty of churches to employ security guards, the Virginia Supreme Court ruled that the Commonwealth of Virginia was not legally responsible for the murder of 32 students by an armed assailant on campus property because the massacre was not reasonably foreseeable.
At approximately 7:30 a.m. on April 16, 2007, the Virginia Tech University Police Department received a call that an "incident" had occurred in a dormitory. The specifics of what happened were unknown. When officers arrived, they found two gunshot victims, a male and a female. Although officers from the university police department were the first on the scene, the municipal police department led the investigation.
During the investigation, police came to believe that they were investigating an isolated incident that posed no danger to others and that the shooter had fled the area. They did not believe that a campus lockdown was necessary.
At the crime scene, police learned that the female victim's boyfriend was a gun enthusiast and identified him as a person of interest. The police located the boyfriend at 9:45 a.m. As police spoke with him they received word that there were "active shots" in a Virginia Tech building.
The president of Virginia Tech learned of "a shooting" at approximately 8 a.m. and called a meeting of a group of administrators tasked with campus safety, named the University Policy Group, to assess the situation and handle the release of information. Shortly after 8 a.m., the president spoke with the chief of the Virginia Tech Police Department, and learned that a female and a male student had been shot, at least one of whom was dead, that the shootings were likely domestic in nature, and that the shooter apparently had left the campus.
The Policy Group convened around 8:30 a.m. During this meeting, the president learned that the police were on the lookout for the female victim's boyfriend as a person of interest. One of the group's members notified the governor's office at approximately 8:45 a.m. of what had happened but indicated that the information was not releasable because Virginia Tech was working on a press release. The e-mail to the governor's office stated "Not releasable yet. One student dead, one wounded. Gunman on loose. State police are involved. No details available yet."
Virginia Tech wanted to notify the next of kin before releasing the information to the public. The president instructed a Policy Group member to compose a campus notice, and following revisions and technical problems with the computer system, it was sent out by campus-wide "blast e-mail" at 9:26 a.m. The notice stated that "a shooting incident occurred … earlier this morning. Police are on the scene and investigating" and advised students to be alert for anything suspicious.
At approximately 9:45 a.m. the mass shooting in another campus building began. At 9:50 a.m. a second campus-wide "blast e-mail" was sent stating that "a gunman is loose on campus. Stay in buildings until further notice. Stay away from all windows." Police later identified Seung-Hui Cho as the shooter. It was later determined that he shot and killed 32 persons, and wounded 17 others, before committing suicide.
The families of two of the victims sued the Commonwealth of Virginia, the president of Virginia Tech, and several other persons (the "defendants") for wrongful death. The plaintiffs claimed that the defendants had a duty to warn students of criminal acts and that their failure to do so in a timely manner was the cause of most of the deaths and injuries.
The defendants argued that they had no duty to warn students since the massacre was not reasonably foreseeable. A jury returned a verdict in favor of the plaintiffs and awarded $4 million to each family. On appeal, the Virginia Supreme Court reversed the trial court's ruling and dismissed all claims against the defendants, concluding that "the facts in this case do not give rise to a duty to warn students of the potential for third party criminal acts."
The Virginia Supreme Court's Ruling
The court began its decision by noting that "as a general rule, a person does not have a duty to warn or protect another from the criminal acts of a third person," and that "this is particularly so when the third person commits acts of assaultive criminal behavior because such acts cannot reasonably be foreseen." The court concluded:
Here … there simply are not sufficient facts from which this court could conclude that the duty to protect students against third party criminal acts arose as a matter of law. In this case, the defendants knew that there had been a shooting in a dormitory in which one student was critically wounded and one was murdered. They also knew that the shooter had not been apprehended. At that time, the defendants did not know who the shooter was, as law enforcement was in the early stages of its investigation of the crime. However, based on representations from three different police departments, Virginia Tech officials believed that the shooting was a domestic incident and that the shooter may have been the boyfriend of one of the victims. Most importantly, based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others … . Based on the limited information available to the defendants prior to the shootings … it cannot be said that it was known or reasonably foreseeable that students would fall victim to criminal harm. Thus, as a matter of law, the defendants did not have a duty to protect students against third party criminal acts.
What This Means For Churches:
This case is important for the following reasons.
1. Impact on other courts
While only binding on state courts in the Commonwealth of Virginia, this case will be "persuasive" authority in other jurisdictions because it represents one of the few cases to address the liability of schools for deaths and injuries caused by armed shooters on their premises.
2. Liability based on foreseeability
The court applied the general rule that landowners generally are not liable for the acts of armed shooters on their premises unless such acts are reasonably foreseeable. The Restatement (Second) of Torts, a respected legal treatise, states the general rule as follows:
[A property owner] is not liable where he neither knows nor should know of the unreasonable risk… . He is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate. Section 314A, comment e.
Similarly, Restatement (Second) of Torts § 344 (comment f), provides:
Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.
In summary, according to the Virginia Supreme Court and the Restatement (Second) of Torts, the foreseeability of an unreasonable risk of criminal conduct is a precondition to imposing a duty on a property owner to protect others from that risk. It is important to note that
criminal conduct of a specific nature at a particular location is never foreseeable merely because crime is increasingly random and violent and may possibly occur almost anywhere, especially in a large city. If a [property owner] had a duty to protect people on his property from criminal conduct whenever crime might occur, the duty would be universal. This is not the law. A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Whether such risk was foreseeable must not be determined in hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred. Lefmark Management Company v. Old, 946 S.W.2d 52 (Tex. 1997).
Notable Quote
"[W]hat protective measures should be pursued to protect against a mass murderous assault truly defy exact delineation, because how can one know which measures will be effective against a degenerate, a psychopath or a psychotic?" Lopez v. McDonald's Corporation, 238 Cal.Rptr. 436 (Cal. App. 1987)
In deciding if criminal conduct on a landowner's premises was foreseeable, the courts generally have examined the following factors:
whether any criminal conduct previously occurred on or near the property
how recently and how often similar crimes occurred
how similar the conduct was to the conduct on the property
what publicity was given the occurrences to indicate that the landowner knew or should have known about them.
Each of these factors is summarized below.
(1) Other crimes have occurred on the property or in its immediate vicinity
Criminal activity occurring far from a landowner's property bears less relevance because crime rates often vary significantly within a large geographic area. This is not to say that evidence of remote criminal activity can never indicate that crime is approaching a landowner's property. But such evidence must show that the risk of criminal conduct on the landowner's property is not merely increasing, but has reached a level as to make crime likely. One court explained foreseeability as follows: "It does not necessarily follow that the prior similar criminal activity must have taken place at the premises; it is required only that the criminal act or acts occurring near the premises in question give notice of the risk that crime may travel to the premises of the business owner."
(2) How recently and often similar crimes occurred on or near the property
Foreseeability also depends on how recently and how often criminal conduct has occurred in the past. The occurrence of a significant number of crimes within a short time period strengthens the claim that a particular crime was foreseeable. On the other hand, the complete absence of previous crimes, or the occurrence of a few crimes over an extended time period, negates the foreseeability element.
To illustrate, the courts have found a criminal act to be foreseeable when similar crimes occurred on or near the property in question (1) ten times within three years; (2) 394 times within two-and-a-half years; (3) 40 times within one year; (4) 85 times within three or four years; (5) seven times within one year; and (6) 75 to 100 incidents within three years.
On the other hand, the courts have concluded that a criminal act was not foreseeable in several cases, including the following: (1) an apartment owner was not liable for a criminal assault on a tenant because no violent crimes had occurred at the premises; (2) sexual assault on a female customer of a parking ramp was unforeseeable in light of only 17 previous crimes over a 10-year period; (3) a bank could not foresee an assault at one of its ATMs based on two previous crimes within the eight preceding years; (4) an assault in a grocery store was not foreseeable because no robberies or assaults had ever occurred in the store; (5) "because there are no reports of prior similar crimes occurring on the Wal-Mart Supercenter parking lot, the crime was unforeseeable"; (6) a cab company could not foresee an employee's criminal act based upon one prior incident in a 20-year period.
(3) Similarity of previous crimes
The previous crimes must be sufficiently similar to the crime in question to place the property owner on notice of the specific danger. To illustrate, one court found that the stabbing of a guest at an apartment complex was not foreseeable from four prior incidents of vandalism and the theft of a refrigerator.
The prior crimes need not be identical. A string of assaults and robberies in an apartment complex make the risk of other violent crimes, like murder and rape, foreseeable. On the other hand, a spate of domestic violence in the complex does not portend third-party sexual assaults or robberies.
To be sure, this factor is often difficult to apply because, as one court observed, "criminal activity is not easily compartmentalized." In addition, property crimes may facilitate personal crimes. For example, a burglar who breaks into a home to steal property may decide to assault a person who is discovered inside. On the other hand, vandalism to automobiles in an apartment complex's parking lot generally does not suggest the likelihood of sexual assault.
(4) Publicity given to prior crimes
The publicity surrounding the previous crimes helps determine whether a property owner knew or should have known of a foreseeable danger. Actual notice of past incidents strengthens the claim that future crime was foreseeable. However, unreported criminal activity on the premises is no evidence of foreseeability. Previous similar incidents cannot make future crime foreseeable if nobody knows or should have known that those incidents occurred. One court noted that "property owners bear no duty to regularly inspect criminal records to determine the risk of crime in the area. On the other hand, when the occurrence of criminal activity is widely publicized, a property owner can be expected to have knowledge of such crimes."
In summary, these factors (proximity, timing, similarity, and publicity) must be considered together in determining whether criminal conduct is foreseeable. The frequency of previous crimes necessary to show foreseeability lessens as the similarity of the previous crimes to the incident at issue increases. The frequent occurrence of property crimes in the vicinity is not as indicative of foreseeability as the less frequent occurrence of personal crimes on the landowner's property itself. The court must weigh the evidence using all the factors.
"Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated. Reasonable anticipation is that expectation created in the mind of the ordinarily prudent and competent person as the consequence of his reaction to any given set of circumstances. If such expectation carries recognition that the given set of circumstances is suggestive of danger, then failure to take appropriate safety measures constitutes negligence. On the contrary, there is no duty to guard when there is no danger reasonably to be apprehended. Negligence is gauged by the ability to anticipate. Precaution is a duty only so far as there is reason for apprehension. Reasonable apprehension does not include anticipation of every conceivable injury. There is no duty to guard against remote and doubtful dangers." Shearman and Redfield on Negligence.
If a church receives a threat of an attack by an armed assailant, this will immediately elevate foreseeability toward certainty, triggering a corresponding duty on the part of the church to implement the most stringent safeguards. Depending on the circumstances, this may require the cancellation of church services. It is imperative that church leaders coordinate the church's response with local enforcement agencies.
3. Other considerations
Most churches will not be legally liable for deaths and injuries caused by armed assailants on their premises because such violent acts ordinarily are not reasonably foreseeable. To be sure, there are exceptional cases in which such acts are foreseeable, but this will be the exception rather than the rule. As a result, most churches should not base their decisions regarding armed guards and other security measures on a desire to reduce legal liability, and the recent decision by the Virginia Supreme Court underscores this conclusion. That said, there are reasons other than the avoidance of liability why church leaders may consider implementing measures to respond to armed assailants, and these include theological and moral considerations. To illustrate, many church leaders and congregations, guided and informed by their theological values, feel compelled to take steps to protect human life from acts of violence whether or not they have a legal duty to do so. In responding to the risk of armed assailants, there are several factors for church leaders to consider, including the following:
Church shootings, and other violent crimes on church premises, are rare.
The law imposes upon any place of public accommodation, including a church, a duty to protect occupants against foreseeable criminal acts. The level of protection is directly proportional to the degree of foreseeability. Many courts assess foreseeability on the basis of the following factors: (1) whether any criminal conduct previously occurred on or near the property; (2) how recently and how often similar crimes occurred; (3) how similar the previous crimes were to the conduct in question; and (4) what publicity was given the previous crimes to indicate that the church knew or should have known about them. If shootings or other violent crimes on church property are highly foreseeable based on these factors, then a church has a heightened duty to implement measures to protect occupants from such acts.
In evaluating which measures to implement in order to discharge a legal or moral duty to protect occupants, church leaders should consider the affordability, effectiveness, and acceptability of a measure before implementing it.
Church leaders should consult with local law enforcement professionals, the church insurance agent, and legal counsel, in making decisions regarding which protective measures to implement. These same persons should also review the church's crisis response plan.
Contact other churches and other places of public accommodation in your community to see what measures they have enacted to protect occupants against shootings and other violent crimes. Examples include schools, malls, libraries, restaurants, stores, sports facilities, theaters, and concert halls. This research will help church leaders ascertain the "community standard," which is an important consideration in deciding if a property owner was negligent.
Note that even the most stringent protective measures would not deter a dedicated assailant from entering church property and firing at parishioners. In fact, in some cases involving shootings on church property, the church implemented what seemed to be reasonable precautionary measures. However, no measures will foil an armed and dedicated assailant, especially if that person plans on taking his or her own life.
While it is not possible for churches to prevent acts of violence on their premises, it is possible to deter such acts in some cases, and to contain the damage and destruction when an incident erupts. Commonwealth v. Peterson, 2013 WL 5833262 (Va. 2013).
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.
Courts generally refuse to recognize these claims.
Richard R. Hammar, J.D., LL.M., CPA
Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “nonreligious” counseling.
Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.
A Connecticut court ruled that the First Amendment prevented it from resolving a woman’s claims that the church and its pastor were responsible for injuries she sustained when she fell backward and hit her head on the floor while participating in a healing service. A church conducted a weekly “healing service” that was open to the public. A woman (the “plaintiff”) attended one of these services and was injured when she fell backward while the church’s pastor was praying for her. The plaintiff described the service as follows:
At these services the church’s pastor anoints and prays over each person by having each person come to the front of the church. The pastor anoints the person’s forehead and prays over them. Often, people will fall back in a relaxed state as the pastor prays over them. This is sometimes called “resting in the Spirit.” There are always catchers, men who stand behind the person being prayed over. The catcher catches the person before they hit the floor and places them gently on the floor until they wake up again.
Although the plaintiff expected that a catcher would be placed behind her while she fell backward to ensure she would not fall onto the floor, she was not caught from behind. Her head struck the floor, resulting in severe and painful injuries.
The plaintiff sued the church, claiming that her injuries were caused by the church’s failure to exercise the degree of care and skill ordinarily and customarily used by churches performing healing services. Specifically, the plaintiff alleges that the church was negligent in the following ways:
failure to have attendees seated or kneeling while being prayed over;
failure to provide a safe, soft surface for attendees, including the plaintiff, to fall to, if and when they fell or “rested in the Spirit”;
failure to warn attendees, including the plaintiff, about the possibility of injury while “resting in the Spirit”;
failure to promulgate and enforce rules, regulations, standards and protocols for attendees, such as the plaintiff;
failure to adequately train and supervise the “catchers” at the healing service;
failure to choose “catchers” who were physically and mentally fit to exercise their duty as “catchers;”
failure to choose an appropriate number of “catchers” for the healing service; and,
failure to utilize that degree of care and skill or diligence ordinarily exercised by charismatic churches.
The plaintiff also asserted that the pastor of the church was guilty of “clergy malpractice” for failing to ensure that the healing service was conducted in a safe manner.
negligence
The church asked the court to dismiss the case on the ground that the court was barred by the First Amendment guaranty of religious freedom from deciding whether healing services are conducted in a negligent manner. The plaintiff insisted that the court could resolve her claims because “there is nothing in the allegations of the complaint nor [the] facts of the incident that could possibly contemplate the examination of worship or spirituality.” A state appeals court agreed with the church and dismissed the case. It observed:
The present case clearly involves issues of religious doctrine and practice, and the court does not have jurisdiction to resolve this dispute. The plaintiff’s allegations stem from an injury that she suffered while voluntarily participating in a healing service …. She alleges that she was injured after she approached the altar, was prayed over, and “rested in the spirit,” causing her to fall backward and hit the floor with the back of her head. These claims are based on the church’s allegedly negligent performance of the healing ritual. The performance of a religious healing ritual certainly falls under the types of doctrines and practices which the First Amendment is designed to protect.
The plaintiff argues that First Amendment protections do not apply because the church’s allegedly tortious conduct was not religious in nature. She claims that her allegations deal merely with simple negligence and that “there is nothing in the allegations of the complaint nor facts of the incident that could possibly contemplate the examination of worship or spirituality.” This argument, however, fails to acknowledge that the incident giving rise to the plaintiff’s complaint occurred during a religious healing ritual. It would be improper to completely remove the incident from the religious context in which it occurred. Thus, despite the plaintiff’s argument that the church’s alleged omissions during the healing ritual are not religious in nature, the subject matter of the complaint clearly involves issues of spirituality and religious worship.
The court acknowledged that the First Amendment did not bar the civil courts from resolving lawsuits seeking to hold churches responsible for the molestation of children by clergy and lay workers, but it concluded that those cases, unlike the present case, did not involve behavior that was directly associated with religious doctrine or practice. It observed: “In those cases, the plaintiffs’ claims stem from allegations of intentional tortious conduct—the sexual abuse of minors by members of the clergy—which have no connection whatsoever to religious doctrine or practice …. The plaintiffs’ [claims] could proceed because analysis of such claims would not require impermissible delving into issues of worship and spirituality. In contrast, in the present case, the plaintiff alleges that the church was negligent in failing to establish adequate safety precautions for voluntary participants during a healing ritual service …. The facts of the clergy sex abuse cases are distinct from the present case, where the conduct complained of is clearly ecclesiastical in nature.”
clergy malpractice
The plaintiff alleged that the pastor “failed to exercise that degree of care and skill ordinarily and customarily used by ministers performing … healing services under all the facts and circumstances.” The court observed: “Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.”
The appeals court noted that “courts throughout the United States have uniformly rejected claims for clergy malpractice under the First Amendment because such claims would necessarily entangle the court in the examination of religious doctrine, practice, or church polity.” In dismissing the plaintiff’s clergy malpractice claim, the court observed:
For a court of law to determine the plaintiff’s claims, it would be required to ascertain whether the church performed within that level of skill commonly applied under the given circumstances by the average prudent clergy member. Such analysis, however, would necessarily involve evaluating the religious practices at issue. To evaluate the plaintiff’s claims, the court would need to define the appropriate standard of care and determine whether the clergy acted in accordance with that standard of care. Devising guidelines and protocols for clergy members presiding over religious services, however, would entangle the court with issues of religious doctrine and practice, which is exactly the type of conduct prohibited by the First Amendment.
What This Means for Churches:
This case is important for two reasons. First, it illustrates that churches that conduct healing services will not necessarily be liable for injuries that occur to participants who fall and are injured. Second, it demonstrates the continuing refusal by the courts to recognize clergy malpractice claims. Kubala v. Diocese, 2011 WL 2436680 (Conn. Super. 2011).
This Recent Development first appeared in Church Law and Tax Report, May/June 2012.
Court dismisses woman’s motion to sue church over injuries
Richard R. Hammar
Key point 7-20.1. In most states, whether a church is liable for injuries occurring on its premises will depend on the whether the victim is an invitee, a licensee, or a trespasser. Churches, like any property owner, owe the highest degree of care to invitees, a lesser degree of care to licensees, and a very minimal degree of care to trespassers. As a result, it is more likely that churches will be liable for injuries to persons who meet the definition of an “invitee.”
* A Michigan court ruled that a church was not responsible for injuries sustained by a woman who tripped on a speed bump in the church parking lot. A woman (the “plaintiff”) tripped on a speed bump in a church parking lot. It was dark and the plaintiff was in a hurry. Although she had driven over the speed bump several times in the past and knew it was there, she did not see it on the evening of her injury because of the darkness. The plaintiff sued the church, and the church responded by asking the court to dismiss the lawsuit on the ground that the speed bump was open and obvious and that it did not create an unreasonable risk of harm. The plaintiff insisted that she was not arguing the speed bump was unreasonably dangerous, just that it was not open and obvious because it was not painted in a contrasting color and the lot was too dark for her to see it. A trial court agreed with the church and dismissed the case.
A state appeals court affirmed the trial court’s ruling. It concluded: “A premises possessor owes a duty to use reasonable care to protect invitees from an unreasonable risk of harm caused by dangerous conditions on the premises unless the dangers are open and obvious. Where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee …. Plaintiff admitted she knew the speed bump was there. She was aware of the darkness. Under the current case law, the condition was therefore open and obvious to her.” Rorie v. St. Mary Roman Catholic Church, 2010 WL 877545 (Mich. App. 2010).
A New York court ruled that a school was not liable for injuries sustained by a five-year-old child who was injured when he fell from monkey bars in the school's playground during recess.
At the time of the accident, there were approximately 100 students on the playground with six teachers' aides to supervise them. One teacher's aide was specifically assigned to supervise the monkey bars upon which the victim was playing at the time of the accident. The victim's parents sued the school, claiming that their child's injuries were attributable to the school's negligent supervision of the children on the playground and in permitting the victim to use playground equipment that was inappropriate for a five-year-old.
The school asked the trial court to dismiss the case, but the court ruled that there was sufficient evidence of negligence to let the case proceed to trial. The school appealed, and a state appeals court reversed the trial court's ruling and dismissed the case.
The appeals court began its opinion by noting that "schools have a duty to adequately supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision." It concluded, however, that there was so little evidence of negligent supervision that the case had to be dismissed. It concluded that the school 'demonstrated that it provided adequate supervision during recess and, in any event, that the accident occurred in such a manner that it could not reasonably have been prevented by closer monitoring, thereby negating any alleged lack of supervision as the proximate cause of the victim's injuries."
The court also noted that the school had submitted evidence demonstrating that the playground equipment was appropriate for the victim's age group, and was not defective.
What This Means for Churches. Generally speaking, 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.
However, as this case illustrates, churches, like schools, are not "guarantors" of the safety of children on their premises. They have a duty of using reasonable care in the supervision of activities in which children are engaged. So long as they exercise reasonable care, they will not be negligent and therefore they will not be responsible for injuries occurring to children.
In this case, the court concluded that the school had provided adequate supervision of the children participating in recess on the school playground, and therefore it was not responsible for the victim's injury. Troiani v. White Plains City School District, 882 N.Y.S.2d 519 (N.Y. App. 2009).
This Recent Development appeared in the March/April 2010 edition of Church Law & Tax Report.
A Kansas court ruled that a church was not liable for the use of reasonable physical force by an usher in restraining a woman during a church service who was making threats against the pastor.
It's critical for church leaders to note this ruling because it shows the level of control they can have regarding a disruptive person. Churches do not have to tolerate persons who disrupt religious services. Church leaders can ask a court to issue an order barring the disruptive person from the church's premises. If the person violates the order, he or she may be removed from church premises by the police, and may be found to be in contempt of court.
In Kansas, a church member ("Esther") had a dispute with her church regarding a stained glass window committee of which she was a member. After the church removed her from the committee she resigned her membership in the church. Esther continued to make numerous contacts by phone and letter with the leadership and members of the church. The tone of the messages varied from apologetic to abusive. Most of the messages concerned Esther's belief that church leaders, especially the pastor, had lied about her.
Many of the letters appear to have been sent to the entire congregation. Some of the contacts could be taken as threatening or, at least, disturbing. For example, on one occasion Esther went to the church to confront the pastor. They had a brief conversation and then the pastor asked her to leave. Esther got upset and yelled at the pastor that she hated him and hoped he would go to hell, and she hit him three times on the arm. She then left.
A few months later she showed up at church on a Sunday morning just as a worship service was concluding. Four deacons and ushers formed a barricade to prevent her from following them into the sanctuary. She apparently tried, unsuccessfully, to push past them. She then yelled at the pastor through the sanctuary doors that he had lied about her. When the pastor did not respond, Esther turned and began yelling to church members who were still standing in the lobby in order to rebuke them for not following scripture and for not helping her. An usher ("Tim"), who had some military experience, was concerned by Esther's anger and was not sure what she might attempt to do. He used his military experience to grab her in a way that would cause brief pain but would not cause any permanent injury. As soon as she agreed to leave, Tim let go of her. He held her arms for about 15 to 20 seconds. Esther did not have any bruises and needed no medical care as a result of the incident.
Following this incident the church sought a restraining order prohibiting Esther from entering church property or contacting staff or members of the church. Esther counterclaimed by asserting that Tim, the usher, had committed battery against her while attempting to restrain her and remove her from the church. The trial court dismissed the battery claim, and Esther appealed.
A state appeals court began its opinion by defining battery as "the unprivileged touching or striking of another with the intent that the contact be harmful or offensive." The court rejected Esther's contention that Tim should have known that touching her as he did was an offensive act:
This mischaracterizes his testimony. He did agree that he does not "ordinarily grab women because that would be offensive." But the situation here was hardly a "normal" or "ordinary" situation. At the time of the alleged battery, Esther was not a member of the church. It appeared to Tim that others were in danger. He "didn't know what she was capable of, she was out of control. She kept screaming and kept trying to get to the pastor. She kept forcing herself up to people to get to him."
Esther did not verbally threaten anyone, but Tim thought "her actions showed otherwise." Importantly, at that time, he knew she had hit the pastor during an earlier encounter and was generally aware of the nature and existence of the dispute between her and the pastor. He thought some force was necessary because she "was screaming so loudly, and I did ask her, but just asking her was not going to get her out of here."
The court noted that the church's bylaws specified that ushers were to assist in maintaining "a worshipful atmosphere in the church," and, among other duties, were to "take care of any disruption or emergency situation during services" and restore "the sanctuary to physical orderliness following each service."
Against the background of the peculiar facts here presented, it was not error for the trial court to conclude that Tim's belief that his job was to "help keep the peace in the church" and to "step up to calm the situation down, and diffuse the situation" if someone became disorderly. In short, his belief that some force was necessary to terminate Esther's intrusion was reasonable, as was his belief that a further request would be useless. She admitted that she was angry and shouting. And the amount of force used was reasonable—a brief 15- to 20-second restraint causing no injury.
What this means for churches
Many churches have encountered disruptive individuals. In many cases, church ushers are the first responders, but they often are unsure what actions are appropriate and may be fearful of legal reprisals if physical force is exerted. This case illustrates that physical force may be legally justified in such cases, if reasonable in light of all the circumstances. Obviously, no two cases will be identical, and there may be legitimate debate over what is "reasonable" in a particular case. Unfortunately, these decisions are not made following an extended time of contemplation, but rather spontaneously in the midst of a crisis. Here are some options for church leaders to consider:
(1) Call the police. This often is the best option.
(2) Some churches use a police officer as a security guard during worship services. The officer will be able to confront a disruptive person with minimal to no liability for the church.
(3) If someone is threatening to inflict physical harm or to disrupt a worship service, and the church does not have a security guard, then immediate intervention by church staff may be necessary. Physically restraining such a person should always be viewed as a last resort. More than one person should be involved in the restraint so that unfounded allegations of brutality can be rebutted.
(4) In some cases church leaders may be able to avoid such incidents by obtaining a restraining order from a local court.
(5) Ushers should periodically receive training on these issues.
First Church v. Nowak, 209 P.3d 764 (Kan. App. 2009).
Consider taking steps to make your parking lot safer.
Richard R. Hammar, J.D., LL.M., CPA
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 Washington court ruled that a church was not legally responsible for the death of a three-year-old child who was run over and killed by a vehicle that was pulling into a church parking lot. A church had a small parking lot with one row of angled parking spaces separated from the church building by a driveway. On the day of the accident, a mother was dropping her young children off at vacation bible school. She pulled into one of the angled parking spaces. She let her older children get out first and then helped her three-year old son (the “victim”) out of his car seat and onto the asphalt parking lot next to the driver side of her vehicle.
At the same time, a van driven by another woman entered the parking lot and came to a screeching halt to let the victim’s older siblings cross the driveway and enter the church. The victim’s mother, concerned by the noise of screeching breaks, left the victim next to her vehicle and went to check on her other children. After watching them safely cross the driveway and enter the church, she returned to the victim and discovered that he had moved approximately 15 to 20 feet away from her vehicle. Meanwhile, the van driver proceeded to drive toward the victim. The victim’s mother recognized the danger her son was in, and tried to catch up with him. As she ran toward him she saw him enter one of the vacant parking spaces just as the van driver pulled into the same space. The van struck and fatally injured the victim.
The victim’s parents sued the church, alleging that its negligence caused their son’s death. Specifically, they claimed that the church had been negligent in the following respects:
The parking spaces in the church parking lot were two feet shorter than the length prescribed by the city zoning ordinance.
The parking lot was too narrow to allow both angled parking and two-way traffic.
The church failed to post speed limit signs in the parking lot limiting the speed to a safe five miles per hour.
The parking lot lacked speed bumps.
The parking lot lacked a crosswalk.
The court concluded that the victim’s tragic death was not attributable to any negligence on the part of the church. It noted that a plaintiff in a negligence case must prove that “but for the defendant’s negligence, the injury would not have occurred,” or “put another way, there must be a direct link between the ways in which the defendant was negligent and the manner in which the plaintiff was injured.” This standard was not met, the court concluded:
There is no evidence that two-way traffic or parking space depth had anything to do with the van hitting [the victim] …. Perhaps, had the victim been trapped in the parking space with nowhere else to go, the depth of the space might have mattered, but no one was parked on either side of the space into which [the van] pulled. The experts also stated that the church should have used traffic devices like signs, speed bumps, and a crosswalk to raise drivers’ awareness and alert them to the dangers of hitting children in the area. But the evidence shows that [the van driver] braked to avoid hitting the [victim’s older siblings]. She came to a full stop even without a crosswalk. One wonders what sign would do a better job of alerting drivers to the presence of children than being forced to brake suddenly to avoid hitting two children. There is no evidence to suggest these measures would have prevented [the accident] ….
An accident reconstruction engineer testified at his deposition that the faded stripes designating parking spaces were too faint for the victim to see, thereby leading him to believe that it was a safe walking area. He further testified that, had the area been properly marked, the victim would have walked a different way and would have been more visible to [the van driver]. But the idea that clearly marked white lines would have somehow prevented a young child from walking into the space where [the van driver] hit him or made him more visible to her is pure speculation. [the engineer] did not provide any factual support for his assertion that had the area been better marked the accident would not have occurred.
Similarly, the court rejected the parents’ claims that the lack of a speed limit sign, and speed bumps, amounted to negligence: “Nothing suggests that a five mile per hour speed limit sign or any other slowing device would either have resulted in [the van driver] driving only five miles per hour or ensured that the victim … went in a direction that would have lead him to safety. In fact, nothing explains why the victim was incapable of getting out of the way or speeding up or why he chose to walk into the very same empty parking spot that the van driver chose to pull into when there was no one parked on either side of that spot. These were very unfortunate accidents of fate and not directly attributable to the church’s failure to establish a five mile per hour speed limit.”
Application. An accident such as this could happen in the parking lots of most churches. While a church may not be liable for an accident that would have occurred regardless of the care it exercised, this does not mean that churches do not need to take affirmative steps to make their parking lots safe, for a church is potentially liable for parking lot accidents that would not have occurred but for its failure to implement appropriate safety measures.
What safety measures should a church consider? First and foremost, church leaders should check with their local zoning agency to ensure that all of the requirements of the zoning ordinance are being met. These may include speed limit signs, speed bumps, crosswalks, sizing, and adequate lighting. Another good idea is to check with your public school district, and other youth-serving charities, to see what measures they have instituted to make their parking lots safe. Yi v. Kim, 2008 WL 115814 (Wash. App. 2008).
This Recent Development first appeared in Church Law & Tax Report, September/October 2009.
A church may be held liable for a child’s injuries despite a lack of evidence of how they occurred.
Richard R. Hammar, J.D., LL.M., CPA
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.
The Mississippi Supreme Court ruled that a church could be liable for a serious injury sustained by a two year old child while in the custody of a church-operated day care center, though the exact cause of the accident was uncertain since no adult witnessed it. A two-year-old child (the “victim”) sustained a significant laceration to her face, from her cheek down to her jaw, while in the custody of a church day care center. The injury resulted in multiple reconstructive surgeries and left the child with a permanent scar. The exact circumstances under which the victim was injured are unclear, as no adult witnessed the accident.
One of the day-care workers stated in a deposition that she was talking with a parent who had come to the day care to retrieve her child when she heard the victim cry out. When she turned around, the victim was bleeding from the mouth, obviously in need of medical assistance. The victim was rushed to the emergency room, but the hospital staff determined the extent of the injuries was too severe, and the emergency room too ill-equipped, to properly treat the child. As a result, the victim was transferred to a hospital in another city where reconstructive surgery was performed. In addition to the soft-tissue injuries, the victim sustained maxillary trauma which resulted in two of her teeth being loosened from the socket. A maxillofacial surgeon surgically removed those teeth and fitted the victim with a dental implant.
The victim told her mother that one of the boys in the day care had “stomped on her face.” One of the surgeons who had operated on the victim agreed that her injuries were consistent with a strong blow to the face, or a hard blow to the head. The church argued that the victim had somehow fallen. The child’s mother sued the church, claiming that it had been negligent in supervising the victim. A trial court granted the church’s motion for summary judgment on the ground that no reasonable jury could find the church to have been negligent. The mother appealed.
The state supreme court reversed the summary judgment in favor or the church, and ordered the case to proceed to trial. The court acknowledged that “a school is not expected to insure children’s safety, but it must exercise the ordinary care of a reasonable person under similar circumstances.” In addition, the level of supervision that is required depends on the age of the children in a church’s custody. The younger the child, the greater the duty of supervision. The court concluded: “Should the jury find that the day care director breached her duty when she did not keep the children in sight for two or three minutes, the jury could reasonably find for the victim …. A jury must decide what constitutes proper and adequate supervision for a two-year old child. Therefore, whether or not the child care director met the appropriate standard of care required for a two-year-old child must be determined by a jury.”
Application. This case illustrates two important points. First, a church may be liable for injuries to minors even without clear evidence of how the injuries occurred. Second, a church is not a guarantor of the safety of children. Rather, it has a legal duty to exercise reasonable care in the supervision of its programs and activities. This duty is enhanced when younger children are involved. This court concluded that a church might be liable, on the basis of negligent supervision, for injuries to a two-year-old child that occurred in a church child care facility when the director turned her back on the children for two minutes. Todd v. Church, 993 So.2d 827 (Miss. 2008).
This Recent Development first appeared in Church Law & Tax Report, September/October 2009.
Court rules school not liable for 15-passenger van fatality.
Richard R. Hammar, J.D., LL.M., CPA
Key Point Many churches own 15-passenger vans that are used to carry passengers on church-approved trips. The safety of these vehicles has been questioned in a number of safety advisories issued by the National Highway Transportation Safety Administration (NHTSA). Church leaders should be familiar with the risk that these vehicles pose, and take steps to manage that risk.
A federal court in Washington ruled that a school could not be liable for the death of a 15-year-old student while traveling in a 15-passenger van on a field trip that was not under the supervision or control of the school. A group of nine high school students were traveling to another city as part of the Upward Bound Program. The van hit black ice, the driver of the van lost control and the van rolled. During the rollover, two students sustained fatal injuries. The families of one of the deceased victims (a 15-year old girl) sued the school, claiming that it negligently supervised the victims by allowing them to travel in a 15-passenger van, and that it negligently failed to warn the victim or her parents of the dangers of riding in a 15-passenger van. The school argued that it was not legally obligated to supervise students not in its custody or control.
The Upward Bound Program is a federally funded program, organized and administered by Columbia Basin College (“CBC”), which targets high school students who generally would be the first students in their family to attend college or students from economically disadvantaged families. CBC employees visit various high schools and recruit students into the program. At the time of her death, the victim was on a field trip sponsored by CBC through its Upward Bound Program. The District approved the victim’s absence from school so that she could attend the field trip. The Upward Bound Program employees transported the victim, and others, in a 15-passenger van that day.
The victim’s parents presented evidence that use of a 15-passenger van was dangerous and improper for transporting high school students. They alleged that the school failed to ensure that its students who were participating in the Upward Bound Program were protected against traveling in an unsafe 15-passenger van. The school, however, asserted that use of 15-passenger vans for the transportation of students is perfectly legal, and that there are no federal or state restrictions that would prevent the use of these vans to transport high school students. The school asked the court to dismiss the lawsuit.
15-passenger vans
The court rejected the school’s request to dismiss the case. It conceded that there was no evidence that the use of the 15-passenger van was in violation of state or federal law, but it concluded that the parents had produced “sufficient evidence supporting their theory that the vans utilized for the field trip had known safety problems” to avoid a dismissal of their claims. The school’s liability for allowing students to ride in a 15-passenger van would have to be decided by a jury.
Negligent supervision
The parents claimed that the school was responsible for their daughter’s death on the basis of negligent supervision. The school asserted that even if 15-passenger vans presented known dangers, it was not legally obligated to supervise the victim or any of the other students because they were not in its custody or control at the time of the accident.
The court observed:
Schools are charged with the responsibility of supervising children under their control during the time that they are at school under the doctrine of “in loco parentis.” This duty to supervise and protect students is based on the assumption that the school has direct control of the student and the parent does not during the time the student is at school. A duty of reasonable care is imposed by law on the school to take certain precautions to protect the pupils in its custody from dangers reasonably to be anticipated. Responsibility of a school to supervise students is not limited to school hours, school property, or school curricular activities. The duty to supervise also extends to school sponsored extracurricular activities under the control of the school and within its scope of authority. To qualify as school sponsored, the activity must be within the scope of the school’s authority and the school must exercise control over the activities.
The basic premise for fault in a custodial supervision situation is that a school has the power to control the conduct of its students while they are in school or engaged in school activities, and with that power goes the responsibility of reasonable supervision. As noted by school, “it stands to reason that when the student is not in the district’s custody and control then the district does not stand in the shoes of the parent and does not have the power to control the conduct of the student.”
The court conceded that the school approved the victim’s absence from school so that she could attend the field trip, but it concluded that there was no evidence that it had control over the Upward Bound Program or the transportation related to the programs activities. The Upward Bound Program employees transported the victim, and others, in the 15-passenger van on the day of the accident. The school “did not exercise or assume control or supervision over the Upward Bound Program in general or the CBC planned and organized field trip. CBC was solely responsible for administering the Upward Bound Program, the school did not have any authority to make decisions regarding the program, and CBC exercised and assumed control and supervision over and arranged the transportation for the Upward Bound Program field trip.”
The court concluded that the school “had no authority to direct how the students would be transported on the Upward Bound Program field trips,” and therefore it could not be liable for the victim’s death on the basis of negligent supervision. It granted the school’s request to dismiss this claim.
Failure to warn
The parents claimed that the school was negligent for failing to warn its students and their parents of the dangers of traveling in a 15-passenger van. The court concluded that the parents produced sufficient evidence supporting their theory that 15-passenger vans have known safety problems. But, the court ruled that the school had no legal duty to warn the victim or her parents of the dangers associated with 15-passenger vans since the victim was not in the custody of the school when she participated in the Upward Bound Program field trip. As such, “the school did not have a legal duty to protect or keep her safe while she participated in the field trip. Because no legal duty existed, the school is not liable, as a matter of law, for failing to warn of alleged risks associated with 15-passenger vans.”
Application. This case is significant for two reasons. First, it contains an excellent analysis of the liability of a school, or church, for off-campus trips. Such trips are common, especially for church youth groups. As the court noted in this case, when a parent transfers custody of a minor child to a school, the school acts “in loco parentis” (in the place of the parent), and this means that it must exercise the same care that a parent would exercise in the supervision and protection of the child until custody is returned to the parent. This duty extends to activities that are off of school property that are “under the control of the school and within its scope of authority.” The very same reasoning applies to churches.
Second, the court concluded that the parents had presented sufficient evidence supporting their theory that the 15-passenger van utilized for the field trip had known safety problems to avoid a dismissal of their claims. Here is a recognition, by a federal court, of the potential dangers associated with these vehicles. However, the court concluded that the school could not be liable on the basis of negligent supervision for allowing students to ride in such a vehicle, or for failing to warn students and parents of the risks associated with these vehicles, since the victim was not in the custody of the school when she participated in the field trip. Campos v. Prosser School District, 2008 WL 4587298 (E.D. Wash. 2008).
This Recent Development first appeared in Church Law & Tax Report, July/August 2009.
Woman Sues Church for Injury Sustained at Family Retreat
Court ruled that the church had adequately warned of the risk of injury.
Richard R. Hammar, J.D., LL.M., CPA
Key Point 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 Arizona court ruled that a church was not legally responsible for injuries sustained by a minor during a church retreat since the church had adequately warned of the risk of injury. A mother and her 14-year-old daughter (the “victim”) attended a three day “family retreat” hosted by a church at a public campground. On the first day of the retreat, church leaders told the campers that climbing a mountain immediately adjacent to the campground was “prohibited,” that campground personnel had instructed them “not to climb the mountain,” and that campers who chose to do so would proceed “at their own risk.” Additionally, each camper was given a written list of rules for the retreat that provided: “Campers are not allowed to go out of the camp boundaries,” “mountain climbing is not permitted without proper supervision,” and “parents are responsible for their children.” The adjacent mountain was not part of the campground.
The victim’s parents sued the church and campground claiming that they were liable for their daughter’s injuries because they had negligently failed to warn of a dangerous condition and had failed to provide adequate supervision.
On the second day of the retreat, the victim and several other girls went to the mountain and climbed until they reached an area where they could sit and take photographs. The victim’s mother saw her on the mountain and waved to her, but she did not tell her to stop climbing or to come down. As the girls descended the mountain, a rock was dislodged and rolled onto the victim. An adult from another hiking party lifted the rock off of her, and she was taken by helicopter to a hospital.
The victim’s parents sued the church and campground claiming that they were liable for their daughter’s injuries because they had negligently failed to warn of a dangerous condition and had failed to provide adequate supervision. A trial court dismissed the lawsuit on the ground that the victim had “engaged in an activity she had been warned against by defendants.” The parents appealed.
On appeal, the parents argued that the defendants negligently supervised the victim and did not take reasonable steps to prevent her from climbing the mountain. The court disagreed: “Generally, parents are responsible for protecting their children and third parties may become responsible only after they have assumed responsibility for their care.
Here, the defendants had not assumed responsibility for [the victim’s] care. Indeed, the church explicitly stated in its written rules for the retreat that parents would be responsible for their children and ‘constant parent supervision will allow us to have a successful camp for all.’
Moreover, to the extent the [parents] argue the defendants should have physically restrained minor campers or set up a physical barricade to prevent them from climbing the mountain, that would have created an unreasonable burden on the defendants and would have also been unnecessary in light of their several warnings against climbing the mountain …. In sum, the defendants adequately warned the campers through both verbal prohibitions and written admonishments that climbing the mountain was a dangerous activity.” 2008 WL 2756505 (Ariz. App. 2008).
This Recent Development first appeared in Church Law & Tax Report, November/December 2008.
KEY POINT 6-08 State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.
* An Arkansas court ruled that a church was not liable on the basis of gross negligence for injuries to a young child who was pushed off a piece of playground equipment by another child. A mother was required to sign a release when she enrolled her 3-year-old daughter (the "victim") in a church's preschool program. The release specified that the church would be liable only for gross negligence. The victim was injured when she was shoved off a piece of elevated playground equipment by a 3-year-old boy. The mother sued the church, claiming that it was responsible for her daughter's injuries on the basis of its gross negligence in failing to adequately supervise children playing on the elevated equipment. A trial court dismissed the case on the ground that the church had not been grossly negligent. A state appeals court affirmed this ruling. It defined gross negligence as "the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another," and concluded that the church's acts did not satisfy this definition. It concluded: "Under this analysis, we cannot say that the trial court erred by granting summary judgment on the grounds that there was no evidence of an intentional failure on the part of the daycare to perform a manifest duty. There was evidence that the three-year-old who pushed [the victim] off of the playground equipment had behavioral problems involving aggression toward daycare personnel and other children, but there was nothing to show that these problems were so unusual or severe that there was a manifest duty on the part of the daycare to segregate the boy from the other children during supervised play."
The court referred to an earlier case in which a school was found not to have been grossly negligent as a result of a bus driver's failure to prevent a girl from being raped by a male student. The court in the previous case concluded:
We cannot say that [the bus driver's] conduct rose to the level of gross negligence or reckless indifference. There is no evidence showing that he intentionally failed to perform a manifest duty in reckless disregard of the consequences as affecting the life of [the victim] nor that he intentionally performed an act of an unreasonable character in disregard of a risk to [the victim] that was known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow …. The [victim alleged that the bus driver] was grossly negligent or recklessly indifferent because he knew that [the assailant] was a problem student that he had to keep his eye on and failed to do so. However, [the victim] failed to provide any evidence that such a failure was in any way intentional …. [The victim] also asserted that [the driver] was grossly negligent or recklessly indifferent because of his knowledge of an incident during the prior year when Mary complained to Baum that another student, Kenny, had improperly touched her. Appellants contended that such earlier incident put him on notice that inappropriate sexual conduct had occurred on the bus. However, there was no evidence of an intentional failure to perform a manifest duty or intentional performance of an act with disregard of a known or obvious risk as a result of the earlier incident. Appellant does not cite any authority, and we know of none, that holds that an incident involving another student during the previous year establishes that a failure to observe or respond to an unobserved incident a year later rises to the level of gross negligence or reckless indifference. Appellants have failed to provide evidence to support the allegation that Baum intentionally failed to perform a manifest duty or act with disregard of a known or obvious risk on the day the incident occurred with regard to James. Applying our standard of review of summary-judgment cases to the present case, we hold that there exists no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law on the issues of gross negligence and reckless indifference. Doe v. Baum, 72 S.W.3d 483 (Ark. 2004).
Application. This case is important because of the court's definition of gross negligence. Church leaders should be familiar with the concept of gross negligence, since such behavior not only exposes a church to punitive damages in most states, but it also exposes members of the church board to personal liability. While the definition of gross negligence varies slightly from state to state, this court stressed the necessity of intentionality in failing to perform a duty to protect others from injury. While the church's preschool workers may have been inattentive, and even negligent, in their supervision of the young children on the elevated playground equipment, their conduct did not rise to the level of an intentional failure to perform their duty of care in supervising the children. On the other hand, it is possible, if not likely, that church board members who refuse to implement a policy for the screening of children's workers would be deemed grossly negligent in the event that a registered sex offender is hired to work with children and later molests one or more of them. The board's refusal to implement such a policy might well be deemed by a jury to constitute an intentional breach of the duty of care the church owes to children, thereby exposing the board members to individual liability. The same might be true if a church board allows minors to be transported to an off-campus activity in a fully loaded church-owned 15- passenger van. In either case, the actions of the church board might be deemed to be grossly negligent, thereby eliminating the limited immunity from personal liability that is otherwise enjoyed by uncompensated board members of nonprofit corporations. 2007 WL 1277900 (Ark. App. 2007).
Churches Not Liable for Safety of Students When They Leave Premises
Church’s duty to protect ends when a child leaves the physical custody of the church.
Richard R. Hammar, J.D., LL.M., CPA
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 ruled that a school has no legal duty to protect students against criminal assaults after they leave school property, and as a result a school was not responsible for injuries suffered by a high school student who was assaulted by another student while on his way home. A 15- year-old high school student was on his way home from school when he was assaulted by a fellow student on a subway platform. The victim sued his school, claiming that it was negligent in failing to provide “adequate security and to protect students from foreseeable criminal activity.” The court noted that when physical custody and control over a child 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.” As a result, “when a student is injured off school premises, there can generally be no breach of a duty that extends only to the boundaries of school property. Under the circumstances of this case, the [school] may not be held liable for the plaintiff’s injuries.”
Application. This case is significant because it demonstrates that schools, and churches, are not necessarily responsible for injuries to minors that occur off of church property and outside the context of any official program or activity. The court concluded that the school’s duty to protect the plaintiff only extended “to the boundaries of school property.” Stagg v. City of New York, 833 N.Y.S.2d 188 (N.Y.A.D. 2007).
