Off-Property Injuries

A New York court ruled that a public high school cannot be liable for injuries occurring to students after they leave school property.

Richard R. Hammar, Attorney, CPA

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State: New York
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

Church Law & Tax Report

Off-Property Injuries

A New York court ruled that a public high school cannot be liable for injuries occurring to students after they leave school property.

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 public high school cannot be liable for injuries occurring to students after they leave school property. A 15-year-old boy was on his way home from school when he was assaulted by a fellow high school student while exiting a subway. The boy’s parents sued the high school their son attended, as well as the board of education, claiming that they were negligent in failing to provide “adequate security and to protect students from foreseeable criminal activity.” In dismissing the parents’ lawsuit, the court observed: “A school’s duty is coextensive with, and concomitant with, its physical custody and control over a child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases. As a result, where a student is injured off school premises, there can generally be no [negligence, since a school’s duty of care] extends only to the boundaries of school property.”

Application. Many adolescents have been injured after leaving church property. A common example is a car accident involving a car containing one or more members of a church youth group. This case suggests that a church may not be liable for such injuries since the church’s duty of care extends only to its own property or, presumably, to off-campus church-sponsored activities. Note that this case represents a decision by a New York appellate court that may or may not be followed in other jurisdictions. Stagg v. City of New York, 833 N.Y.S.2d 188 (N.Y.A.D. 2007).

Legal Developments

Risk of Injury on Church Property

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

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Church Property, Personal Injuries on Church Property or During Church Activities, Schools

Church Law & Tax Report

Risk of Injury on Church Property

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

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

Key point 7-20.4. A variety of defenses are available to a church that is sued as a result of an injury occurring on its premises.

* A New York court ruled that a boy who was injured when a large hole on a schoolyard basketball court caused him to fall and injure himself could not sue the school because the danger was open and obvious. Many churches have basketball courts or recreational equipment on their property that is used by neighborhood children during the week. Church leaders often are concerned about potential liability to the church for injuries that occur to minors using the church’s facilities, and wonder how this risk may be reduced or eliminated. Some wonder if the risk is too great to justify the use of recreational facilities. A recent case in New York is instructive. A 14-year-old boy was injured while playing basketball with several friends at a schoolyard owned by a public school. A hole in the surface of the basketball court caused him to fall. The boy estimated that the hole was two feet wide and two inches deep. He testified that he generally played basketball twice a week at one of several locations including the location where he was injured. He further testified that he had been playing basketball at the schoolyard where the injury occurred for approximately 40 minutes prior to the accident. The boy’s parents sued the school, claiming that it was responsible for their son’s injuries on the basis of negligence.

A trial court rejected the school’s request that the case be dismissed, and the school appealed. A state appeals court ruled that the trial court erred in not dismissing the case. It concluded: “A person who voluntarily participates in a sport or recreational activity is deemed to consent to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. This includes those risks associated with the construction of the playing surface and any open and obvious condition on it …. [The school established that it was entitled to have the case against it dismissed] by demonstrating that the victim voluntarily participated in the basketball game and that the hole in the surface of the court constituted an open and obvious condition.” Casey v. Garden City Park-New Hyde Park School District, 837 N.Y.S.2d 186 (N.Y.A.D. 2007).

Legal Developments

Monetary Awards for Injury Lawsuits

A Louisiana court ruled that a $55,000 jury verdict in favor of an elderly woman who fell and broke her hip as a result of a defective floor mat was not unreasonably low.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Personal Injuries on Church Property or During Church Activities

Church Law & Tax Report

Monetary Awards for Injury Lawsuits

A Louisiana court ruled that a $55,000 jury verdict in favor of an elderly woman who fell and broke her hip as a result of a defective floor mat was not unreasonably low.

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

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 Louisiana court ruled that a $55,000 jury verdict in favor of an elderly woman who fell and broke her hip as a result of a defective floor mat was not unreasonably low. A 71-year-old church member (the “plaintiff”) was attending her church for Sunday services. As she was walking from a Sunday school building to the main sanctuary she stepped through the threshold of the double doors leading out of the school building and placed her foot on a mat located just outside the doorway. She alleged that the heel of her shoe became stuck in a hole in the mat, causing her to fall to the ground. As a result of the fall, she sustained a broken hip and a blow to the head.

The plaintiff sued her church, claiming that its negligence in installing a dangerous mat caused her injury. An expert witness called by the plaintiff to testify on her behalf at the trial considered the mat unreasonably dangerous in normal use because it presented a hazard to people wearing high heels, as is common for women attending church services. He testified that the mat would be more appropriate for industrial use where footwear can be controlled. The expert analyzed the size of the holes in the mat and the plaintiff’s shoe and determined that the heel of the shoe wedged perfectly in the hole, causing her fall.

The church’s expert testified that the mat was not unreasonably dangerous. He described the mat as a “debris mat,” one that automatically cleans particles of grit off the bottom of the shoe and necessarily has holes in it for drainage purposes. He testified that the plaintiff must have stepped through the threshold sideways in order for her heel to fit the shape and direction of the drainage holes in the mat.

The evidence also showed that the mat was a commonly used doormat and had been in place for perhaps as long as twenty years without incident. Nevertheless, at least one church employee viewed the mat as dangerous and had removed it from the doorway more than once. He testified that someone always came behind him and put the mat back where the plaintiff fell.

A trial court determined that the plaintiff was 45% negligent, and the church was 55% negligent. It awarded the plaintiff $55,000 in damages. A state appeals court ruled that the church as 100% negligent, but affirmed the $55,000 verdict. It concluded: “We have reviewed the medical evidence as well as the testimony of the plaintiff as to the effects of her injuries. While the amount of general damages awarded in this case is certainly modest, we do not find the award to be inadequate or an abuse of the [jury’s] discretion. Accordingly, we affirm the $55,000.00 general damage award.” Mouhot v. Twelfth Street Baptist Church, 949 So.2d 668, 2006-1283 (La. App. 2007).

Legal Developments

Church Liability for Injuries on Property

A Michigan court ruled that a church was not liable for injuries a woman sustained since it was an open and obvious hazard that should have been recognized.

Richard R. Hammar, Attorney, CPA

Bio

State: Michigan
Categories: Personal Injuries on Church Property or During Church Activities

Church Law & Tax Report

Church Liability for Injuries on Property

A Michigan court ruled that a church was not liable for injuries a woman sustained since it was an open and obvious hazard that should have been recognized.

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

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 liable for injuries a woman sustained when she tripped on an elevated step to exit a pew, since the step was marked with yellow tape and was an open and obvious hazard that should have been recognized. A woman (the “plaintiff”) attended a benefit concert at a church. The floor of the pew row in which plaintiff sat was a step higher than the adjoining aisle, and the edge of the step was marked with yellow tape. The plaintiff stepped into the pew without incident, but at the conclusion of the concert, some two hours later, she stood to leave the church. She forgot that a step existed at the end of the pew row, stumbled into the aisle, and sustained injuries. The plaintiff sued the church, claiming that she was an “invitee” while on the church’s premises, and that the church failed to maintain the premises in a reasonably safe condition and to warn of the unsafe condition. A trial court dismissed the lawsuit, and the plaintiff appealed.

Whether a church is liable for injuries occurring on its premises depends in most states on the victim’s status as an invitee, a licensee, or a trespasser. Churches, like any landowner, owe the highest degree of care to invitees, a lesser degree of care to licensees, and a very minimal degree of care to trespassers. Invitees are persons who are invited to enter onto a landowner’s premises, and generally include church members and others who attend scheduled church services and activities. The court noted that a landowner “has a duty to exercise reasonable care to protect an invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” However, the duty to protect an invitee “does not extend to a condition from which an unreasonable risk of harm cannot be anticipated, or from a condition that is so open and obvious that an invitee could be expected to discover it for himself.”

Deciding if a dangerous condition is open and obvious “depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered the danger upon casual inspection.” The court concluded that “this danger was open and obvious, and presented no special aspects that might make it unreasonably dangerous …. Plaintiff admitted that the step was marked with yellow tape on the day the accident occurred. She contended that the tape had been darkened with wear, but admitted that the tape existed …. The marking on the step was sufficient to render any potential danger posed by the step open and obvious.” The court also stressed that the plaintiff admitted that she had stepped into the pew row without incident. The condition was therefore known to plaintiff, and “she could be expected to appreciate the danger of tripping as she approached the step after the concert concluded.”

The plaintiff’s final argument was that even if the step was an open and obvious condition, “special aspects” made it unreasonably dangerous. The court disagreed, noting that to be unreasonably dangerous “there must be something unusual about the step’s character, location, or condition that gives rise to an unreasonable risk of harm.” The plaintiff claimed that the lack of adequate lighting made the condition unreasonably dangerous. However, the court noted that despite the level of light the plaintiff was aware of the step, “having traversed it on her way into the pew.” Holman v. Church, 2007 WL 292979 (Mich. App. 2007).

Resource. We have developed a series of “checklists” that your church can use to reduce the risk of injuries on your premises or during your activities. You can order them by visiting our online bookstore (ChurchLawandTax.com). Click on the “Risk Management and Safety and Inspection Checklists” heading.

Legal Developments

Release Forms Usefulness

Release forms should not be relied upon, and certainly should not be viewed as a substitute for sound risk management.

Richard R. Hammar, Attorney, CPA

Bio

Church Law & Tax Report

Release Forms Usefulness

Release forms should not be relied upon, and certainly should not be viewed as a substitute for sound risk management.

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

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 court in the Virgin Islands ruled that a release form signed by a mother of a minor child who attended a church-operated school did not absolve the school from liability for injuries the child sustained when injured during an after-school program. A minor (the “victim”) was injured when he was karate kicked by another student during an after-school program at a church-operated private school they both attended. The victim’s mother sued the church and school (the “church defendants”), claiming that they were responsible on the basis of negligent supervision for her son’s injuries.

The church defendants claimed that they could not be held liable for the victim’s injuries since his mother had signed a release form at the start of the school year absolving them of any liability. The release, signed by the mother, stated:

In making application for my child it is my desire to have him complete the school year. It is also my understanding that the policy of the school is to make no refunds on registration fees. I also give permission for my child to take part in all school activities, including sports and school sponsored trips away from the school premises, and absolve the school from liability to me or my child because of any injury to my child at school or during any school activity.

The church defendants insisted that the form signed by the mother was an enforceable release of any future claims that she or her child might have for injuries sustained, including those due to negligence, while at the school or during any school activity. Both the mother and the church defendants agreed that a release must be clear and unequivocal to provide protection to the church defendants for their negligence. They disagreed, however, whether the release form the mother signed was sufficiently clear and unequivocal and whether the specific term negligence must be used.

The court concluded that the release form was “ambiguous on the issue of whether it releases the liability of the school … for negligence in the supervision of the after-school program.” It noted several reasons for finding the clause to be ambiguous, or susceptible to at least two different interpretations:

First, although there are circumstances where an “any or all liability” provision has been interpreted to protect a party from actions based on the party’s own negligence, such a determination relied on other language within the agreement or circumstances that made the intent clear from the context …. Second, the release only purports to protect the school … not its agents or employees. While the release form may be read to protect all such entities, that is neither the only permissible reading, nor the most reasonable …. Third, the release is susceptible to at least two interpretations on the nature of the negligence covered by the agreement. While the church defendants urge that if the release was construed to exclude coverage of their negligence it would be “meaningless because the school is not otherwise liable where it is not negligent,” this interpretation of the law is not comprehensive. The first interpretation, admittedly, is that the release protects the school from actions based on its own future negligence. A second reading is that the release only protects the school from actions based on an individual theory of active negligence; there is no mention of the agents or employees of the school and thus an imputed negligence theory premised on their actions may be outside the scope of this agreement. Finally, it is unclear whether an injury purportedly suffered during an after-school program would qualify as “at school or during any school activity.” While it is possible that such an agreement may cover any activity on school grounds regardless of time, it is equally possible that the agreement covers only activities occurring during the school day.

The court concluded that the release form was not enforceable.

Application. What is the significance of this case to church leaders? It illustrates that release and assumption of risk forms are disfavored by the courts and will be narrowly construed. Such forms should not be viewed as a solution to legal risks. The courts will avoid such agreements whenever possible, often in unexpected ways. As this case illustrates, they may be invalidated on the basis of ambiguity. Such forms should not be relied upon, and certainly should not be viewed as a substitute for sound risk management. Churches should never use release or assumption of risk agreements that are not prepared or reviewed by legal counsel. Joseph v. Church of God (Holiness) Academy, 2006 WL 1459505 (V.I. Super. 2006).

Legal Developments

Personal Injuries on Church Property and During Church Activities

Key point 7-20.1. In most states, whether a church is liable for injuries occurring on

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

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.'
Premises Liability

An Ohio court ruled that a church was not responsible for injuries sustained by a woman who slipped on a wet floor and broke her leg while attending a wedding reception on church property since the wet condition was an obvious risk. A woman (the 'victim') was seated with friends and family at a wedding reception in a church. While on her way to the restroom, she stepped in some liquid, slipped and fell. She did not see the liquid on the floor, but three witnesses did see it. No one saw an actual spill occur or any cup or ice discarded on the floor, but the area was wet from the spilling of beverages being carried from the serving area and had been wet for most of the evening. One witness claimed that she had seen liquid on the floor for 45 minutes to an hour before the victim slipped. However, no one suggested prior to the victim's fall that the wet condition was a hazard, or expressed any apprehension about passing through the area.

None of the witnesses informed anyone from the church of the wet condition, nor did they warn the victim of the wet floor when she set off for the restroom although they were aware of the condition. The victim claimed that she had not been looking where she was walking, but had been focused on the restroom. Therefore, she did not know what liquid she had slipped in, the size of the puddle, the exact location, how long it had been there, or if anyone from the church had been aware of it. In fact, she only believed it to be liquid because her dress was wet after the fall.

The victim sued the church, claiming that it was responsible for her injuries on the basis of negligence. A trial court dismissed the lawsuit, and the victim appealed. A state appeals court began its opinion by noting that the victim was a 'business invitee' since she was on church premises by the implied invitation of the church. In general, a landowner 'owes a duty to an invitee to use ordinary care for the invitee's safety, and to keep the premises in a reasonably safe condition (and to use ordinary care to provide notice of any concealed dangers of which the owner of the premises has knowledge, or which by using ordinary care should have been discovered).' However, 'an owner is under no duty to protect its customers from dangers known to the customer, or otherwise so obvious and apparent that a customer should reasonably be expected to discover them and protect herself from them.'

The rationale behind this 'open and obvious doctrine' is that 'the open and obvious nature of the hazard itself serves as a warning, and allows the owner to expect visitors to discover the danger and take appropriate actions to protect themselves.' The presence of wet floors 'is a frequently encountered condition that a reasonable person would be expected to recognize and exercise caution to protect herself from.' The court concluded, 'Although the room was darkened, the other [witnesses] spotted the liquid. The victim … conceded that her view was not obstructed and she merely failed to look where she was walking. Thus, she is alone among her witnesses in failing to observe this wet condition, and by her own admission, this was due to her own inattentiveness. Simply put, the fact that she stepped in an obviously wet spot because she was not looking makes it irrelevant whether the liquid had been on the floor for 45 minutes or 45 seconds, she would have slipped and fallen either way ….The open and obvious nature of the liquid obviates a duty.'

Application
. In many cases, a church's liability for injuries occurring on its premises will depend on the victim's status. It is 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. However, this case demonstrates that churches generally will not be liable for injuries to invitees resulting from hazards that are 'open and obvious.' Andamasaris v. Annunciation Greek Orthodox Church, 2005 WL 313691 (Ohio App. 2005).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 1

The Colorado Supreme Court ruled that a small business owner was not liable on the basis of negligent supervision for an employee’s sexual molestation of a 12-year-old girl.

Richard R. Hammar, Attorney, CPA

Bio

State: Colorado
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

The Colorado Supreme Court ruled that a small business owner was not liable on the basis of negligent supervision for an employee's sexual molestation of a 12-year-old girl occurring on business premises on a day when the business was closed. While this case did not involve a church, the court's conclusions will be instructive to any employer. An owner of a dry cleaning business (Josh) hired a male employee (Steve), and later promoted him to the position of manager. As manager, Steve had keys to the premises and was responsible for operating the business, which included opening and closing the store. However, Steve did not have authority to bring third parties to the business during non-working hours.

On a Sunday morning when the store was closed, Steve told a neighbor that he was going into work to provide a carpet cleaner with access to the premises, and he asked if the neighbor's 12-year-old girl (the "victim") could accompany him. The neighbor agreed, and Steve took the victim to the store. While there, he took the victim to a back office where he locked the door and sexually assaulted her. Steve was later prosecuted and convicted for felony child molestation, and was sentenced to prison. The victim's parents sued Josh, the owner of the store, claiming that he was liable for Steve's behavior on the basis of negligent supervision.

A trial court found that Josh was negligent in his supervision of Steve and awarded damages. The court cited testimony from three former women employees who told Josh that Steve had sexually harassed and fondled them during business hours. The young women related several instances where, during business hours, Steve asked them to perform sexual acts as well as touched their breasts and buttocks. All three quit their positions and told Josh of the episodes. Additionally, one of the employee's mothers called Josh and warned him of civil liability.

The state supreme court reversed the trial court's ruling, and dismissed the negligent supervision claim. The court noted that "to establish liability, the plaintiff must prove that the employer has a duty to prevent an unreasonable risk of harm to third persons to whom the employer knows or should have known that the employee would cause harm." The court conceded that an employer may be liable on the basis of negligent supervision for actions of an employee outside of the scope of employment, but it concluded that the employee's acts must be "so connected with the employment in time and place" that the employer "knows that harm may result from the employee's conduct and that the employer is given the opportunity to control such conduct." The court concluded that the victim failed to produce any evidence that Josh knew or should have known that Steve would bring a 12 year-old girl, with no connection to the dry cleaners, to the store when it was closed and then sexually assault her there. The court acknowledged that there was substantial evidence that Josh knew of Steve's proclivities to engage in lewd and sexual behavior with the female employees on the premises during business hours, but this knowledge did not suggest that he was a risk of molesting minors on store premises when the business was closed.

The court rejected the victim's claim that Josh's knowledge of Steve's lewd conduct with both employees and customers created a duty of care to all women and girls who came on the premises regardless of whether he could anticipate their presence. It noted, "The victim has undoubtedly suffered great harm from the assault in this case. However, we do not embrace a theory of negligent supervision that would be an open invitation to sue an employer for the intentional torts of an employee founded upon a generalized knowledge of that employee's prior conduct. We emphasize that an employer is not an insurer for violent acts committed by an employee against a third person."

Application
. This case is instructive for a couple of reasons. First, it illustrates that employers (including churches) have a duty to supervise any employee or volunteer whom they know to be a threat of harm to others. Church leaders should recognize that allowing a person who has engaged in sexual misconduct in the past to have unrestricted and unsupervised access to church property and activities exposes the church to possible liability in the event the person commits a similar act. Second, the case demonstrates that an employer, including a church, may be liable on the basis of negligent supervision for the sexual assaults of its employees that occur outside of the normal scope of employment if they are "so connected with the employment in time and place" that the employer "knows that harm may result from the employee's conduct and that the employer is given the opportunity to control such conduct." As this case illustrates, this liability may extend to acts committed on church property "after hours" or on days when the church is closed. Keller v. Koca, 111 P.3d 445 (Colo. 2005).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 2

A North Carolina court ruled that the parents of a 12-year-old boy were not liable for injuries the youth director sustained.

Richard R. Hammar, Attorney, CPA

Bio

State: North Carolina
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker's acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.
Negligence as a Basis for Liability

A North Carolina court ruled that the parents of a 12-year-old boy who negligently collided with a church's youth director while skiing were not liable for injuries the youth director sustained.

A youth group from a Florida church went on a skiing trip to West Virginia. At the same time, a youth group from a North Carolina church was on a trip to the same ski resort. A 12-year-old boy (Nathaniel) with the North Carolina group had no previous skiing experience. Upon arriving at the ski slope, Nathaniel and a friend went skiing on a beginner slope. An experienced adult skier from the North Carolina church supervised the two boys. Later that day, an adult supervisor (Linda) of the Florida youth group was instructing an inexperienced teenage skier how to ski on the beginner slope. After Linda and the young skier reached the bottom of the beginners' slope, she gave the young lady the "thumbs up" sign indicating she had done a good job. As she was finishing the motion, Nathaniel skied into her from behind. Linda had not seen him coming.

Just prior to the accident, Nathaniel was skiing the beginners' slope with a friend. His adult supervisor was skiing behind them. While skiing the "bunny slope," Nathaniel hit an icy patch and became "out of control," which caused him to ski faster. Although Nathaniel tried to avoid hitting Linda, he collided with her. Linda suffered a broken leg and a displaced broken hip. She remained in the hospital for five days, underwent two surgeries, had a steel plate placed in her leg, attended a rehabilitation clinic for two weeks, had to have around the clock care for seven weeks, and had to use a walker, cane, or crutches for over a year.

Linda sued the Nathaniel's parents, claiming that their negligence, combined with Nathaniel's negligence, caused her injuries. She argued that the parents were negligent because they sent their child on a ski trip knowing that he had never skied, without providing him ski lessons that were available and would have made him a much safer skier. Had Nathaniel received ski lessons, he would have been taught to sit down when out of control and the collision would have been avoided. The trial court dismissed all claims against the parents, and Linda appealed.

The appeals court ruled that "the failure to take a ski lesson prior to skiing for the first time on the beginners' slope does not constitute negligence." It continued, "There are several ways in which a person may learn how to ski-trial and error or another person may provide instruction. Indeed, at the time of Linda's accident, she was instructing an inexperienced teenager on how to ski. Similarly, Nathaniel was skiing with an experienced adult skier on the beginner slope, who was also supervising the boys. Moreover, [the church's youth director] testified that upon their arrival at the ski resort, they had been instructed on safety and respect on the slopes by the company with whom the church contracted to coordinate the ski trip." Frank v. Funkhouser, 609 S.E.2d 788 (N.C. App. 2005).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 1

A Texas court ruled that a church was not liable for injuries suffered by a teenager who broke his neck during a youth activity.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Personal Injuries on Church Property or During Church Activities

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.
Negligence as a Basis for Liability

A Texas court ruled that a church was not liable, on the basis of negligent supervision, for injuries suffered by a teenager who broke his neck during a youth activity. A church's youth pastor (Pastor Kevin) organized a back-to-school activity for the church's teenagers, which included a game of "capture the flag." During this game, played in a church member's hay pasture, a 15-year-old boy (the victim) broke his neck while trying to take the flag from two other teenage boys who were holding onto the flag and carrying it toward their team's base. The victim's parents sued the church, claiming that it had been negligent in supervising Pastor Kevin and that its negligence caused the injury. The trial court ruled that the church had not been negligent, and the victim's parents appealed.

A state appeals court agreed with the trial court that the church was not negligent. It referred to the senior pastor's testimony, in which he recounted how he had carefully checked the references for Pastor Kevin and the training he had received in preparation to be a church youth minister. Pastor Kevin had been instructed on providing recreational activities for teenagers during his seminary education. Part of this training focused on providing a safe environment for church youth activities. During the three years while Pastor Kevin was youth minister for the church, he continued his training to improve his performance as a youth minister. The senior pastor asserted that Pastor Kevin had done an outstanding job as youth minister for the church, and explained that he regularly supervised games and other recreational activities for the church's teenagers. Even the victim's parents conceded during their testimony that Pastor Kevin had been a good youth minister for the church. All of the other witnesses at trial testified to the good job that Pastor Kevin did in handling all of his responsibilities as a youth minister. No one offered an opposing view, or suggested that the church was negligent in its supervision of Pastor Kevin.

The court concluded that there was no evidence suggesting that the church had negligently supervised Pastor Kevin, and therefore the lawsuit had to be dismissed. Lynch v. Pruitt Baptist Church, 2005 WL 736998 (Tex. App. 2005).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 2

The Pennsylvania Supreme Court upheld the involuntary manslaughter conviction of the driver of a 15-passenger van who fell asleep at the wheel.

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Personal Injuries on Church Property or During Church Activities

Key point. Drivers of church vehicles may be criminally liable for involuntary manslaughter if they operate a vehicle in a grossly negligent or reckless manner that results in the death of one or more persons.

The Pennsylvania Supreme Court upheld the involuntary manslaughter conviction of the driver of a 15-passenger van who fell asleep at the wheel while transporting 21 children, causing an accident in which two children were killed and many more seriously injured.

At 5 p.m. on a sunny afternoon, an adult male (Steve) was driving a Ford 15-passenger van when, by his own admission, he fell asleep. He claimed he awoke just before the van collided with another vehicle, causing it to veer sharply to the right and hit an embankment. The van rode up the embankment, flipped, and came to rest on its passenger side. At the time of the collision there were 24 occupants in the van, including 21 minors. All but one of the minors was under the age of 12. Two of the children were killed in the crash, and numerous others were taken to hospitals with injuries. Because the van had only 15 passenger seats, some of the 23 passengers were crowded into seats while others were seated on the floor. An investigation by an accident reconstruction expert revealed that, at the time of the collision, none of the passengers was restrained by a seatbelt and the van was traveling at 78 miles per hour (23 miles over the posted speed limit of 55 miles per hour).

Steve was charged with several crimes, including two counts of involuntary manslaughter. A trial judge dismissed the manslaughter charges on the ground that the state had failed to demonstrate the recklessness or gross negligence necessary to support such a charge. The state appealed.

Pennsylvania law defines involuntary manslaughter as follows: "A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." Most states define involuntary manslaughter in the same way. The sole issue in this case was whether the state produced sufficient evidence that the children's deaths were the result of an act undertaken in a reckless or grossly negligent manner. The state insisted that falling asleep at the wheel constituted grossly negligent or reckless behavior, "especially while driving a van full of children—indeed, a van severely overloaded with children, at least some of whom were not seated in the van's seats, much less protected by safety restraints." The risks resulting from this reckless behavior "should have counseled strict compliance with the traffic laws and yet Steve compounded his initial recklessness by intentionally driving at an excessive rate of speed directly before he fell asleep."

The court ruled that Steve could be prosecuted and convicted for involuntary manslaughter. It concluded:

A motor vehicle can be a dangerous instrumentality. Driving is a correspondingly heavily regulated privilege, both as to licensure and the rules of the road, the regulation being a necessary concomitant of the dangers to self and others inherent in driving. The danger increases with the speed at which a vehicle is operated, since speed both reduces reaction times and heightens the consequences of any collision. The danger also may increase if other safety measures are ignored—whether those measures involve vehicle maintenance, internal safety features such as seating capacity or restraints, or the rules of the road. No driver can get behind the wheel without an acute awareness of the "responsible post of duty" he is assuming ….

We need not resolve the question of whether falling asleep alone is enough to raise a jury question of recklessness, since the state proved additional circumstances which revealed a conscious disregard of the serious risk involved here. Steve allowed himself to fall asleep despite the fact that he was driving a van filled with children. The presence of these children would have led a prudent person to be extra-cautious; far from acting cautiously, however, his van was filled to over-capacity and, in addition, the children were not secured with safety belts. Steve elected to drive at an excessive rate of speed—at least 23 miles beyond the 55 m.p.h. speed limit—at the time he allowed himself to fall asleep. Each of these additional factors, beyond the mere fact of falling asleep at the wheel, increased the risk of collision, injury, and death. Moreover, each was a circumstance within Steve's knowledge and control. Viewed in their totality, the circumstances here reveal a pattern of conscious disregard for circumstances that placed the lives of these children in increasing danger. Accordingly, we hold that the state proved a prima facie case of two counts of involuntary manslaughter so as to warrant submission of those charges to a jury.

Application
. This case illustrates two important points. First, gross negligence or recklessness while driving a church vehicle may result in criminal liability for involuntary manslaughter if a person is killed. Second, the court concluded that gross negligence and recklessness were proven, in part, by driving a 15-passenger van overloaded with children at an excessive rate of speed. Anyone who drives church vehicles, especially with minors on board, should be familiar with the ruling. Commonwealth v. Huggins, 836 A.2d 862 (Pa. 2004).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 1

A Michigan court ruled that a church was liable on the basis of negligent supervision for injuries sustained by a small boy.

Richard R. Hammar, Attorney, CPA

Bio

State: Michigan
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

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.
Negligence as a Basis for Liability

A Michigan court ruled that a church was liable on the basis of negligent supervision for injuries sustained by a small boy who slipped and fell off of a piece of exercise equipment on the church's property. A young boy (the "victim") attended a church-based head start program. One day, when the class was outdoors, the victim wandered away from the other children to play on the monkey bars. He was not noticed by the teacher's assistant assigned to his class. While playing on the monkey bars, the victim fell and broke his arm. His mother sued the church, claiming that her son's injury was caused by the church's negligent supervision. A trial court dismissed that case, concluding that the victim's fall and injury "did not occur as a result of any negligence of any individual." A state appeals court concluded that there was enough evidence of negligence that the case should not have been dismissed. The court observed, "A teacher owes a duty to exercise reasonable care over students in his or her charge …. The evidence showed that three teachers were on the playground. The victim wandered away from the group unnoticed by the assistant assigned to his class, climbed on the monkey bars, fell and was injured. There was no evidence that the other teachers were supervising him. Such evidence was sufficient to create a question as to the issue of negligent supervision. It is plausible that the victim would not have wandered off from the group or at least not gone on the monkey bars unsupervised had there been proper supervision."

One judge dissented from the court's ruling. Calling the case a "frivolous action," he observed, "Here, three adults were supervising fifteen children at the time of the accident. The ratio required by the state Department of Consumer and Industry Services is one caregiver present for every ten children …. The child's sudden and unexpected action of losing his grasp of the monkey bars was a true accident. The child fell off the playground equipment owned by the church. There's no allegation of any defect in the equipment. This is an accident. The incident did not occur as a result of any negligence of any individual." The dissenting judge also noted that the church was not guilty of negligence since "greater supervision would not have prevented the victim from losing his grasp of the monkey bars."

Application
. This case illustrates the difficulty often encountered by the courts in applying the principle of negligent supervision. It is true that churches have a duty to exercise reasonable care with regard to the supervision of minors in their custody, and a breach of that duty constitutes negligent supervision for which the church may be liable should an injury occur. However, it is often difficult to define the term "reasonable care." This case is a good example. The evidence showed that no amount of supervision would have prevented the victim from falling from the monkey bars, and so it is difficult to disagree with the trial court's conclusion that the church was not negligent. Daniels v. New St. Paul Tabernacle Church, 2003 WL 1984453 (Mich. App. 2003).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 3

A California court ruled that a church was not responsible on the basis of either “premises liability” or negligent supervision for injuries suffered by a volunteer worker.

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

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.
Negligence as a Basis for Liability

A California court ruled that a church was not responsible on the basis of either "premises liability" or negligent supervision for injuries suffered by a volunteer worker who fell while on a ladder repainting the church.

A church building needed repainting. A church member ("Jerry") had been self-employed doing maintenance and repair work for many years, and had done previous maintenance work at the church on a volunteer basis. Because of Jerry's experience, the pastor asked him to repaint the building as an unpaid volunteer. Jerry agreed, but told the pastor that the building must first be sandblasted to remove the old paint. The pastor agreed to supply a sandblaster. Jerry, who had used a sandblaster more than 50 times in the past, asked the pastor to supply scaffolding for him to use while sandblasting. The pastor said the church could not afford scaffolding, but offered to provide a ladder instead. Jerry had never sandblasted from a ladder before, but knew other people safely did so, and agreed. Jerry informed the pastor that he would need assistants, including someone to hold the ladder, and asked the pastor for permission to hire the men who usually worked with him. The pastor again responded by saying that the church did not have the funds to pay for these workers, and said that he would ask fellow church members to help out. Jerry agreed to this arrangement. A short time later, Jerry showed up at the church to perform the sandblasting. The church supplied a sandblaster, ladder, and three workers. One worker put the sand in the sandblaster. The others were to hold the ladder. While Jerry was sandblasting the church building from atop the ladder, the pressure from the sandblaster moved the ladder away from the building and he fell, sustaining injuries. He assumed that the ladder fell because the two workers had let go of it.

Jerry sued his church claiming that it was liable for his injuries on two grounds: (1) "premises liability" (the church, as the owner of the premises, was liable for injuries caused by dangerous conditions on its property, and allowing unskilled workers to assist Jerry constituted a dangerous condition); and (2) negligent supervision. The trial court dismissed the case, concluding that there was no evidence that the church controlled the work and there was therefore no duty owed to Jerry to provide a safe worksite. The case was appealed.

premises liability

The appeals court concluded that the church could not be liable for Jerry's injuries on the basis of premises liability since it was Jerry, and not the church, that maintained control over the sandblasting operation. The court concluded,

It is undisputed that Jerry was an experienced sandblaster. It does not appear that the pastor even knew sandblasting was required. The pastor was not at the jobsite. Jerry admitted he was the only person at the jobsite who gave direction to [the two volunteers who were holding the ladder]. While Jerry may have believed he was not supervising the work of [the two volunteers], there is no dispute that he, and no one else, gave direction to [the volunteers] at the jobsite. Jerry, and no one else, told [them] to hold the ladder so he would not fall …. The pastor and Jerry agreed the work would be done with a church-provided sandblaster, on a church-provided ladder, with church-provided volunteer assistants. Jerry agreed to perform the work under those conditions and directed the assistants as he felt necessary at the worksite. The evidence is undisputed that the church did not control [the volunteers] at the worksite; Jerry did. Therefore, he cannot pursue a claim against the church for [premises liability] based on [the volunteers'] conduct at the worksite.

negligent supervision

Jerry alleged that the church was liable for his injuries on the basis of negligent supervision because it knew or should have known that the volunteers who held the ladder had poor judgment and would act with reckless disregard for his safety, and failed to sufficiently investigate the volunteers before assigning them to the work. The court rejected this basis of liability, noting that "holding a ladder is unskilled work" and that Jerry produced no evidence showing that the volunteers "were somehow incapable of properly holding the ladder." Further, Jerry admitted that the volunteers had held the ladder correctly for a significant length of time prior to the accident. The mere fact that Jerry fell "is not sufficient to show that the volunteers let go of the ladder because they were somehow incapable of the job and the church should have known it." Amarra v. International Church of the Foursquare Gospel, 2003 WL 254023 (Cal. App. 2003).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 5

The Iowa Supreme Court ruled that a school could be sued by the father of a ninth-grade boy who had been sent home alone on a bus after being caught smoking

Richard R. Hammar, Attorney, CPA

Bio

State: Iowa
Categories: Personal Injuries on Church Property or During Church Activities, Schools

Key point 10-06. A church may be legally responsible on the basis of negligent selection for injuries resulting from the acts of a minister or other worker not involving sexual misconduct.
Negligence as a Basis for Liability

The Iowa Supreme Court ruled that a school could be sued by the father of a ninth-grade boy who had been sent home alone on a bus after being caught smoking a cigarette in a hotel room while on an out-of-town school band trip. It is every youth pastor's nightmare to have a minor on an out-of-town trip who flagrantly violates the rules. In some cases, minors are sent home. Such a decision may expose a church to legal risk, no matter how justified it may seem. Consider a recent case involving a public school in Iowa. The school adopted a "zero tolerance" policy concerning students' use or possession of tobacco, alcohol, and drugs. A ninth grader was caught with cigarettes while on an out-of-town school band trip in Texas, and was taken to a Greyhound bus station at midnight and placed on a bus for the trip home. The trip included stops and layovers in Dallas, Tulsa, Kansas City, Des Moines, and Iowa City. A teacher remarked that "if we hadn't acted on it, I'm afraid that we would have had other rules broken, possibly more serious rules, possibly more serious consequences."

The youngster survived the 1,100-mile journey, but his distraught father sued the school for "negligent endangerment" and other alleged wrongs. The boy's father never challenged school officials' right to punish his son for his misbehavior. He insisted, however, that in exercising its disciplinary function, the school and its employees breached a duty of due care for his son's safety and were guilty of negligent supervision. The school asserted that it had a wide latitude in disciplining students, especially while on field trips, and that its actions were a legitimate exercise of discipline. It noted that school field trips often present greater, not lesser, challenges to school officials trying to maintain order and discipline than do the relatively orderly confines of a school.

Application
. This case suggests that sending a minor home while participating on a church-sponsored out-of-town trip may expose a church to liability, no matter how dangerous or unacceptable the minor's behavior may be. Other, less restrictive, options must be considered. These would include (1) sending the child home accompanied by two adults; (2) asking the minor's parents to come and take him or her home; (3) calling the local public school administration to find out what policies they follow in similar cases. Ette v. Lin-Mar Community School District, 2002 WL 31828114 (Iowa 2002).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 1

An Ohio court ruled that an indemnification clause in a “facility use agreement” required a charity that used a nonprofit camp to reimburse the camp for any legal judgments or settlements arising out of injuries occurring at the camp.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

• 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.

* An Ohio court ruled that an indemnification clause in a "facility use agreement" required a charity that used a nonprofit camp to reimburse the camp for any legal judgments or settlements arising out of injuries occurring at the camp. A child ("Kyle") attended a week-long summer camp for childhood cancer patients sponsored by the American Cancer Society (ACS) at a Girl Scouts campground. Children were not charged a fee for attending the camp. The campground in question is owned by a regional entity of the Girl Scouts, and is frequently used by other groups for a fee pursuant to a "facility use agreement." At the time of the camp that Kyle attended there were 92 campers, 28 counselors, and 10 camp staff members on the premises. The Girl Scouts provided the horses to camp participants. While engaged in horseback riding at the camp, Kyle was involved in an accident that resulted in serious injuries. He died from his injuries a few months later. His parents sued the Girl Scouts, claiming that it was responsible for Kyle's death on the basis of its negligence. The Girl Scouts filed a cross claim against the ACS. Kyle's parents eventually settled all their claims out of court against both organizations. The Girl Scouts then sued the ACS, seeking a refund of its share of the settlement and payment of its attorneys' fees. The Girl Scouts relied on provisions in the facility use agreement that obligated the ACS to defend the Girl Scouts in the event of any claim, and "indemnify" the Girl Scouts for any judgment or settlement it paid as a result of injuries occurring during the use of the campground by the ACS. A trial court ruled in favor of the Girl Scouts, and ordered the ACS to pay the entire settlement amount plus an additional $120,000 of attorneys' fees incurred by the Girl Scouts in defending against the lawsuit. The ACS appealed.

The court began its opinion by noting that indemnification "is the right of a party, who has been compelled to pay what another should have paid, to require reimbursement. It arises from a contract, either express or implied." That is, an indemnification clause is a clause obligating one party to pay any judgment or settlement assessed against another party. Such clauses are usually included in facility use agreements, and specify that organizations using the landowner's property must indemnify the landowner against any expenses incurred as a result of accidents occurring on the property. The ACS insisted that the indemnification provision in the facility use agreement did not apply to Kyle's injury because horseback riding was "outside the scope" of this provision. The indemnification clause stated:

ACS agrees to indemnify, defend, and hold [the Girl Scouts] harmless from and against any and all claims, damages, demands, actions, duties, causes of action, judgments, costs, (including attorney fees), controversies and liabilities whether known or unknown, fixed or contingent, arising out of contract, tort or otherwise, in law or in equity, asserted by third parties (including but not limited to ACS participants) for damage to person or property, including but not limited to, consequential or incidental damages arising out of or related to: (a) ACS's failure to perform any and all of its obligations or liabilities under the Agreement or under any other agreement; (b) CF's use of the camp facility; (c) the negligent, willful or intentional acts/omissions of ACS or any of its agents, employees, invitees, or licensees; (d) the failure of ACS or any of its agents, employees, invitees or licensees to comply with all applicable federal, state and local laws, ordinances, statutes, regulations and rules, including but not limited to discrimination laws, the Americans with Disabilities Act (ADA) and environmental laws.

ACS claimed that horseback riding was not a "use" of the camp, but rather was a "service," and therefore the indemnification clause did not apply. The court disagreed, "The plain language of [the agreement] states that ACS agrees to indemnify and hold [the Girl Scouts] harmless from and against any and all claims … asserted by third parties for damage to person or property …. Giving the language [its] commonly understood meaning, we conclude that [it] contemplates indemnification by ACS for claims asserted by third parties, including its participants such as the decedent herein, for injuries to decedent's person which are related to ACS's use of the camp facility …. Horseback riding by ACS participants is within ACS's use of the camp facility. Therefore, the indemnification provision is applicable."

ACS also claimed that the indemnification clause was an attempt by the Girl Scouts to avoid liability for its own negligent acts, and was therefore unenforceable as against public policy. The court noted that "an agreement may exculpate a person from negligence only where the language doing so is clear and unambiguous." ACS insisted that the facility use agreement "does not contain clear and unambiguous language indemnifying the Girl Scouts for its own negligence." Again, the court disagreed. It noted that "exculpatory clauses" that seek to avoid liability for one's own negligence are not necessarily contrary to public policy so long as they are clear and unambiguous, and the parties have roughly the same bargaining power. The court concluded that the Girl Scouts and ABS were both "sophisticated long-standing corporations" equal in bargaining position, and therefore the indemnification clause was enforceable. The court conceded that the clause did not specifically mention "negligence," but it did identify "any and all" claims relating to ACS's use of the camp, whether the negligence was perpetrated by Girl Scouts or not.

The ACS argued that Kyle's accident was caused by the Girl Scouts' "willful and wanton misconduct," and so the indemnification clause did not apply. The court agreed that "one may not contractually relieve oneself for responsibility for acts constituting willful and wanton misconduct." It concluded that the evidence was not adequate to determine if the Girl Scouts engaged in such conduct, and so it sent the case back to the trial court for further consideration.

Application
. This case demonstrates the legal significance of indemnification clauses. Churches that use the property of another organization for recreational or any other use are sometimes asked to sign a facility use agreement, and church leaders are often surprised to learn that the church is responsible for any costs incurred by the facility owner during the church's use of its facility even if those costs are a result of the facility's own negligent acts. The court in this case acknowledged that indemnification clauses cannot relieve a facility owner of liability for its willful and wanton conduct. This is a common limitation recognized in many states. But, willful and wanton conduct is a difficult standard to prove, which means that in most cases a church will be called upon to pay any damages associated with injuries occurring during its use of another facility, even if those injuries were caused by the negligence of the facility owner. Weiner v. American Cancer Society, 2002 WL 1265575 (Ohio 2002).

© Copyright 2003 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 c0503

Legal Developments

Personal Injuries on Church Property or During Church Activities

The Michigan Supreme Court ruled that nonmembers who visit churches for noncommercial reasons are “licensees” to whom churches owe a minimal duty of care.

Richard R. Hammar, Attorney, CPA

Bio

State: Michigan
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

Key point 7-20.01 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."

The Michigan Supreme Court ruled that nonmembers who visit churches for noncommercial reasons are "licensees" to whom churches owe a minimal duty of care making it less likely that churches will be liable for injuries occurring to such persons while on church premises. A woman ("Paula") was injured when she tripped over a concrete tire stop in a church's parking lot. She was visiting the church to attend a Bible study. Paula sued the church, alleging that it negligently placed the tire stops and failed to provide adequate lighting in the parking lot. A jury ruled in favor of the church on the ground that Paula was a "licensee" rather than an "invitee" and therefore the church owed her a minimal duty of care. The state supreme court accepted an appeal of the case "to determine the proper standard of care owed to individuals on church property for noncommercial purposes." The court began its opinion by noting that Michigan, like most states, recognizes three categories for persons who enter upon the land or premises of another: (1) trespasser, (2) licensee, or (3) invitee. Each of these categories corresponds to a different standard of care that is owed to those injured on the owner's premises. As a result, a landowner's duty to a visitor depends on that visitor's status. The court provided the following summary of the duty owed by a landowner to each category of visitor:

A "trespasser" is a person who enters upon another's land, without the landowner's consent. The landowner owes no duty to the trespasser except to refrain from injuring him by "willful and wanton" misconduct.

A "licensee" is a person who is privileged to enter the land of another by virtue of the possessor's consent. 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. Typically, social guests are licensees who assume the ordinary risks associated with their visit. The final category is invitees.

An "invitee" is "a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make [it] safe for [the invitee's] reception." 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. Thus, an invitee is entitled to the highest level of protection under premises liability law. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if the owner: (a) knows of, or by the exercise of reasonable care would discover, the condition and should realize that the condition involves an unreasonable risk of harm to such invitees; (b) should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect invitees against the danger.

The court concluded that persons who visit churches for noncommercial purposes should be regarded as licensees to whom a church owes a lower duty of care. It observed,

We conclude that 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 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. With regard to church visitors, we [conclude] that such persons are licensees …. The solicitation of entirely voluntary donations by a nonprofit organization is plainly not a commercial activity. Accordingly, a church providing an opportunity for voluntary donations during a religious service that are in no way required to attend the service, i.e., passing a collection plate, does not transform one who attends the church service and elects to make a donation from a licensee into an invitee. Indeed, we imagine that many religious individuals would find it offensive to have their voluntary donations to a church regarded as part of a business or commercial transaction, rather than as a gift intended to aid in various religious good works.

Application. 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 visitors to churches as licensees rather than invitees. However, the court cautioned that many states have adopted section 332 of the Restatement of Torts (a respected, but nonbonding legal text), that defines "invitee" to include "a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." The court acknowledged that this language "creates an invitee status that does not depend on a commercial purpose." However, the court declined to adopt this definition. Stitt v. Holland Abundant Life Fellowship, 614 N.W.2d 88 (Mich. 2000).

Boy Scouts of America Sued for Scoutmaster’s Negligence

Court rules that organization is not responsible for man’s activities.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1997-05-01

Personal Injuries-on Church Property or During Church Activities

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

• Key point. National churches cannot be responsible for injuries occurring in the course of a local church’s activities unless it has the authority to control those activities.

The Utah Supreme Court ruled that the local and national offices of the Boy Scouts of America were not legally responsible for a scoutmaster’s negligence. A boy scout troop conducted its weekly meetings in a church. One evening, following a scout meeting, the scoutmaster’s 13-year-old son asked if he could drive home. The scoutmaster agreed, and sat in the front passenger seat while his son drove the car. As the car left the parking lot, three scouts on roller blades grabbed onto the back of the car. The scoutmaster shouted to the boys to let go, but they just laughed at him. He then instructed his son to “drive slowly.” About one block from the church, one of the boys fell when he tried to move from the back to the side of the car. The rear right tire of the car rolled over his head. The victim’s parents later sued the local and national BSA offices, claiming that they were responsible for the scoutmaster’s negligence in allowing his son to drive the car. The parents relied on the following evidence:

(1) an application for volunteers to become scoutmasters or hold other leadership positions which is submitted to the hosting church as well as the local and national BSA offices

(2) an application for boys to join the boy scouts in which the BSA represents that the boy “is joining more than four million members of the BSA,” that “major departures from BSA methods and policies” by community sponsors “are not permitted,” and that “[l]eadership is restricted to qualified adults”

(3) activity permit and health record forms prepared by BSA for use by local troops to use

(4) portions of BSA publications directing scoutmasters to wear specific uniforms and BSA patches

(5) portions of BSA handbooks and guides for scoutmasters prohibiting certain dangerous activities and specify certain rules for transporting scouts

(6) local and national BSA insurance policies covering scoutmasters

(7) an application for permission to raise funds that a troop would submit to its local council

(8) portions of the scoutmaster’s deposition indicating that he received some scoutmaster training from the local BSA organization

The court concluded that this evidence failed to demonstrate sufficient “control” over the scoutmaster by either the local or national BSA offices, and so the case had to be dismissed. It observed:

[The materials submitted by the parents] confirm that the day and time of troop meetings are set by the troop committee and that the community sponsor, through the troop committee, “is responsible for leadership, the troop meeting place, and related materials for troop activities.” Even though the materials suggest that “a good troop meeting” usually includes certain general activities, such as opening and closing ceremonies, skills development activities, and games or contests, they also make clear that the scoutmaster is responsible for planning the specific content of individual troop meetings. Accordingly, we conclude that the BSA’s broad suggestions and guidelines are insufficient as a matter of law to demonstrate the BSA’s or the [local] Council’s right to control the day-to-day operation of regular troop meetings.

The court then proceeded to address separately the following issues:

Training of scoutmasters. The court concluded that whatever training activities the scoutmaster received from the local or national offices was “insufficient to establish the BSA’s or the Council’s right to control [his] activities at regular troop meetings …. [W]hile the BSA and the Council influence the result to be achieved by regular troop meetings, these entities do not control the day-to-day operation of troop meetings.”

Uniforms and patches. The court ruled that “wearing of uniforms and patches is insufficient to create a material factual dispute as to the BSA’s and the Council’s right to control scoutmaster activities at regular troop meetings in light of the overall organizational structure adopted by the BSA.”

Group insurance. The fact that the local or national BSA offices provide umbrella insurance coverage for volunteers “has no bearing on whether the BSA or the Council retain the right to control [his] day-to-day activities at regular troop meetings.”

Rules and guidelines on transporting scouts. The court concluded that BSA’s rules and guidelines on transporting scouts failed to demonstrate the necessary right to control a scoutmaster’s transportation of scouts to and from troop meetings.

First, the rules and guidelines are obviously directed to outings and trips apart from regular troop meetings. Second, they do little more than set forth minimum qualifications and rules that are largely coextensive with state law and common sense. For instance, the BSA Health and Safety Guide provides the following “general guidelines”: (i) Drivers must obey state and local speed limit laws; (ii) drivers must possess a valid driver’s license and be at least eighteen years of age; (iii) a driver must have a commercial driver’s license to transport fifteen or more passengers in a single vehicle; (iv) daily trips must not exceed twelve hours and must be interrupted with frequent stops; (v) seat belts must be used; (vi) passengers must ride only in the cab of a truck; (vii) passengers should not ride on the rear deck of station wagons; (viii) all driving, except short trips, should be done in daylight; (ix) adequate property damage and liability insurance must be carried; and (x) vehicles must not travel in convoys. Noticeably absent from [the parents’] evidence is any indication that the BSA or the Council has a policy governing when and how a scoutmaster is to transport scouts home from regular troop meetings. As a result, we conclude that such activity is left entirely to the discretion of the scoutmaster or the community sponsor. We therefore fail to see how these minimum qualifications and rules amount to a right to control the manner and method of [a scoutmaster’s] conduct in connection with troop meetings any more than would a franchisor’s minimum contractual requirements that its franchisee be duly licensed and comply with applicable law.

Annual charter renewals. The court noted that BSA issues an annual renewable charter to the community sponsor (the church in this case) which then owns and operates a troop, organizes a troop committee, and selects the scoutmaster. The court observed: “it is apparent that the BSA and the Council act in a chartering and advisory capacity and do not retain the right to control day-to-day troop operations.”

The court concluded that “the basis for the right [of control] must be evident from the facts as they exist. [The parents] cannot establish the basis for the right by merely speculating that under a different organizational structure the BSA and the Council could have retained the right to control scoutmasters at regular troop meetings. Such speculation is insufficient to create a genuine issue of material fact for purposes of a summary judgment motion.

The court stressed that its decision was “in accord with the vast majority of jurisdictions which have held as a matter of law that … neither the BSA nor a local council has a right to control the conduct of scoutmasters in connection with troop activities that are not directly sponsored or supervised by the BSA or a local council.” The court referred to similar rulings in Illinois, Maryland, Missouri, New York, Rhode Island, and Washington.

Application. This case is relevant to any national or regional church organization that operates a children’s program. It illustrates that a national or regional organization will not necessarily be legally responsible for every injury that occurs during a local activity-unless it has the authority to control that activity. The court rejected the legal significance of the many ways the national BSA is connected to its local troops and scoutmasters. Glover v. Boy Scouts of America, 923 P.2d 1383 (Utah 1996). [Denomina tional Liability]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m40 c0397

Legal Developments

Charitable Immunity Law

In some states, charities are immune from lawsuits by beneficiaries.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1997-05-01

Personal Injuries-on Church Property or During Church Activities

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

• Key point. Some states protect charities from being sued by the beneficiaries of their services who are injured or damaged as a result of those services. The fact that a charity in such a state carries liability insurance will not necessarily affect its immunity from liability.

A New Jersey court dismissed a lawsuit brought against a church by a person injured on church premises on the basis of a state charitable immunity law that immunizes charities from liability for injuries sustained by “beneficiaries”. A Greek Orthodox congregation conducted an annual festival designed to introduce the community to the Greek Orthodox faith and the Hellenic culture. A resident of the community, who was not a member of the church, attended the festival and was seriously injured when he slipped on a sidewalk as he was leaving. He sued the church, claiming that the church’s negligence in maintaining and supervising its property caused his injuries. The church asked the court to dismiss the case on the basis of a New Jersey “charitable immunity” law specifying that “[n]o nonprofit corporation … organized exclusively for religious, charitable, educational or hospital purposes shall … be liable to respond in damages to any person who shall suffer damages from the negligence of any agent or servant of such corporation … where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation ….” The trial court dismissed the case on the ground that the patron was a “beneficiary” of the church and accordingly the church could not be liable for his injuries. The patron appealed, claiming that the festival was a commercial, fund-raising event that was not entitled to the protection of the charitable immunity law. An appeals court disagreed. In language that will be useful to other churches seeking to demonstrate the religious purpose of related activities, the court quoted from a 1939 decision:

Although a church’s main purpose may be to provide a place of worship and spiritual guidance, [its] function is not so narrowly confined. It is not limited to sectarian teaching and worship. In the modern view, exercises designed to aid in the advancement of the spiritual, moral, ethical and cultural life of the community in general are deemed within the purview of the religious society. A social center is now commonly regarded as a proper adjunct of the local church-conducive to the public good, as well as advantageous to the congregation. Bianchi v. South Park Presbyterian Church, 8 A.2d 567 (N.J. 1939).

The court concluded that the church’s annual festival furthered its religious purposes: “Without doubt, the church here was engaged in the performance of the charitable objectives it was organized to advance, inasmuch as it was attempting to demonstrate to the community the rich traditions of the Greek Orthodox Church and the importance of the Hellenic culture in the orthodox religion as expressed through Greek food and dance.” The fact that the patron paid for a dinner at the festival did not change his status as a beneficiary of the church’s religious mission. Further, the fact that the patron may not have felt that he was a beneficiary of the church’s religious mission is not relevant, since the test is whether or not the church was engaged in the performance of its religious or charitable purposes at the time of the injury.

Application. This case certainly is significant to churches in New Jersey, or in those other jurisdictions that recognize a similar form of charitable immunity. The court’s broad definition of charitable immunity will be helpful to churches in such states in avoiding liability for unintended injuries. But churches in all states will benefit from the court’s broad definition of “religious purposes.” The court insisted that such purposes cannot be relegated to religious worship, but must also encompass many other forms of religious expression. Such a definition will be useful to churches that operate programs or ministries in addition to conventional worship services. To illustrate, if the “religious” nature of such a program or ministry is challenged by governmental agencies in the context of zoning, property taxes, or some other law or regulation, a church can refer to cases such as this in support of a broad definition of religion. Loder v. The Church, 685 A.2d 20 (N.J. Super. 1996).[Negligence as a Basis for Liability]

Legal Developments

Intervening Cause and Injuries on Church Property

Churches may not be liable for negligence if the injuries result from a third party’s criminal activity.

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1997-05-01

Personal Injuries-on Church Property or During Church Activities

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

• Key point. Churches may be relieved from liability for their negligence if an injury results from an “intervening cause.”

A Georgia court ruled that a public school was not legally responsible for the murder of a child who was released by school officials prior to the end of the school day. While the case involved a school, it will be relevant to churches as well. The school had a written policy addressing early dismissals of students. The policy specified that no student could be released prior to the end of the school day without the consent of a parent. On the day of the murder, the school received two calls from a person with a male voice requesting that the victim be released early. The caller was informed that this was not possible without the consent of a parent. A short time later the school received a call from a person identifying herself as the victim’s mother. This person requested that the victim be released early due to a “family emergency.” A school secretary authorized the early release of the victim based on this call, and on her way home the victim was abducted and murdered. The victim’s parents sued the school , claiming that it was responsible for their daughter’s death as a result of its negligent supervision. A state appeals court ruled that the school was not liable for the girl’s death. The court conceded that the school may have been negligent, but it concluded that this negligence was not the cause of the girl’s death. Rather, the death was caused by an unforeseeable “intervening cause”-the criminal activity of an outsider-which relieved the school from liability. The court observed: “Generally, an intervening criminal act of a third party, without which the injury would not have occurred, will also be treated as the [cause] of the injury thus breaking the causal connection between the defendant’s negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendant’s conduct.” The court noted that (1) school officials had no reason to suspect that the murderer posed a risk of harm to the victim; (2) school officials were aware of no threats ever directed to the victim by the murderer or anyone else; (3) no student had ever before been abducted or assaulted after being released before the end of the school day; and (4) the victim expressed no concern for her safety. Based on this evidence, the court concluded that “it was not foreseeable that [the victim] would be murdered after being released from school early.” The court concluded that even if the school had been negligent in properly supervising the victim, its negligence “did nothing more than give rise to the occasion which made her injuries possible.” The murder was caused by the intervening criminal act.

Application. Many churches have released children from organized activities prior to the dismissal of an adult worship service. This case illustrates two important points. First, such “early releases” can create significant risks of harm to minors which may result in a lawsuit charging the church with negligent supervision. Second, while in many cases the church will be liable for injuries occurring under such circumstances, this is not always the case. For example, a church may not be liable for injuries caused by an unforeseeable intervening criminal act. Perkins v. Morgan County School District, 476 S.E.2d 592 (Ga. App. 1996). [Negligence as a Basis for Liability]

Legal Developments

Member Barred from Suing Charity

Man had suffered injuries on the premises of the unincorporated charity.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1997-03-01

Unincorporated Churches

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

• Key point. The members of an unincorporated organization ordinarily cannot sue the organization for injuries they sustain on its premises or during its activities.

An Indiana court ruled that a member of an unincorporated charity was barred from suing the charity for injuries that he suffered on its premises. The member was injured while diving in a lake on the charity’s premises. He sued the charity to recover damages for his injuries, claiming that his injuries were due to the charity’s negligence. A state appeals court ruled that the member was barred from suing the charity on the basis of the general rule that members of unincorporated associations cannot sue their association. The court referred to an earlier Indiana Supreme Court case that explained the rationale for this rule:

The theory of the general rule is that the members of an unincorporated association are engaged in a joint enterprise. The negligence of each member in the prosecution of that enterprise is imputable to each and every other member so that the member who has suffered damages through the … conduct of another member of the association may not recover from the association for such damage. It would be akin to the person suing himself as each member becomes both a principal and an agent as to all other members for the actions of the group itself. Calvary Baptist Church v. Joseph, 522 N.E.2d 371 (Ind. 1988).

The victim claimed that the unincorporated charity should be treated like a corporation because of its relationship with a national charity. He noted that the local charity collected dues for the national charity; the national charity establishes rules governing the operation of local affiliates; and the national charity exercises supervisory authority over local affiliates. The victim claimed that these facts demonstrate that the local charity should be considered an “extension” of the national charity and that the corporate status of the national charity should be “imputed” to the local charity. The court rejected this argument, noting that it could not find a single case supporting the theory that “because the national organization is incorporated the local should be treated as an extension of the national for purposes of imputed corporate existence.” The court continued: “The state alone can incorporate such an association, and the mere fact that a benevolent organization of a local nature has received a so—called charter from the central or governing body of the [organization] with which it desires to affiliate does not constitute it a corporation.”

The victim also claimed that he was not subject to the general rule (that members cannot sue an unincorporated association) because his membership had expired as a result of his failure to pay his dues. The court disagreed, noting that the bylaws of the national organization specified that members are not automatically dismissed for failing to pay dues. Rather, membership is revoked for nonpayment of dues only after the dues have been in arrears for one year or upon two—thirds vote of the local membership. Since neither event had occurred, the member’s status had not been affected by his failure to pay dues. As a result, the victim was a member on the day of his injury, and therefore was barred from suing the charity.

What is the significance of this case to church leaders? Simply this-church leaders must recognize that one of the consequences of the unincorporated form of organization in many states is that church members injured during church activities cannot sue their church for money damages. This may seem like an advantage as far as the church is concerned. But, this is small consolation to a member who suffers severe injuries during a church activity. Such a result often comes as a shock to the injured member, and to other members. This case also will be helpful to denominational offices that are sued for the liabilities of local affiliated churches or programs. The court’s finding that such relationships do not result in any “imputed” corporate status to the local affiliate will be a useful precedent. Benevolent and Protective Order of Elks v. Mooney, 666 N.E.2d 970 (Ind. App. 1996). [ Unincorporated Associations]

Legal Developments

Woman Injured on Church Property Sues

The church allowed a choral guild to use its facilities rent-free.

Richard R. Hammar, Attorney, CPA

Bio

State: Alabama
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1997-03-01

Personal Injuries-on Church Property or During Church Activities

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

• Key point. Churches are not necessarily liable for injuries suffered by persons who enter onto church premises as part of an outside group’s activities.

An Alabama court ruled that a church was not responsible for injuries suffered by a woman who was on church premises as part of a choral guild that used the church’s premises on a rent—free basis. The woman was injured when the metal risers on which she was standing collapsed. The choral guild’s director had obtained permission from the church to use its facilities for rehearsals. The woman sued the church, claiming that she was an “invitee” who was owed the highest duty of care, and that the church breached this duty by allowing the choral guild to use defective risers. A court disagreed. It defined an invitee as “one who enters the land of another, with the landowner’s consent, to bestow some material or commercial benefit upon the landowner.” The landowner owes an invitee a duty “to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to the landowner but that are hidden or unknown to the invitee.” On the other hand, a “licensee” is a person who “enters the land of another with the landowner’s consent or as the landowner’s guest, but without a business purpose.” A landowner owes a licensee a lower standard of care. It must “abstain from willfully or wantonly injuring the licensee and avoid negligently injuring the licensee after the landowner discovers a danger to the licensee.” Stated differently, “the licensee’s entrance on the land carries with it no right to expect the land to be made safe for his reception, but he must assume the risk of whatever may be encountered. Once he is there, the law only requires the landowner to refrain from wantonly, maliciously or intentionally injuring him; in other words, the landowner is not liable unless he does some act which goes beyond mere negligence.” The court concluded that the injured woman was a licensee rather than an invitee since she was on the church’s premises for the benefit of the choral guild. The court observed that “any benefit bestowed upon the church was merely incidental; the church received no payment from the guild for use of its facilities.” The court acknowledged that the metal risers had collapsed on one prior occasion when being used by the guild, and that this incident had been reported to the church. This did not make the church liable for the woman’s injuries, the court concluded, since the church had not breached the duty it owed to a licensee:

Although the risers had collapsed while being used by the guild [six months prior to the woman’s injuries] and the church was made aware of this, the risers had been used on at least three other occasions without incident before [the woman’s accident]. Further, the risers were assembled, tested for safety, and used by members of the guild after the [previous] incident. From these facts, one could not conclude that the risers posed a danger of which the church was aware, or that the church consciously did some act or omitted a duty that it knew would probably result in an injury. Davidson v. Highlands Church, 673 So.2d 765 (Ala. App. 1995). [Premises Liability]