Personal Injuries on Church Property or During Church Activities

Legal Developments

Are Churches Responsible for Injuries by Outside Groups on Its Property?

Yes, if church maintains control of premises, court rules.

Richard R. Hammar, Attorney, CPA
Bio

Key point: A church can be responsible for injuries that occur on its premises while being used by an outside group, if it maintains "control" over the premises.

Can a charity be legally responsible for an injury occurring on its premises while being used by an outside group? That was the question addressed by a Louisiana court in a recent decision. A charity permitted an outside group to use its facility for a Christmas party. During the party, a woman suffered serious injuries when she fell on a slippery floor. As a result of her injuries the woman underwent surgery for a complete hip replacement. She later sued the charity, claiming that it was responsible for her injuries because it had retained control over the premises during the party. She claimed that the floor was unreasonably slippery, and this dangerous condition caused her to fall. One witness testified, "It was obvious that floor was slippery. It was just waxed or something. I mean it wasn't dirty. It was clean. Probably too clean."

The charity asked the court to dismiss the case, but its request was denied. On appeal, a state appeals court suggested that there was sufficient evidence that the charity retained control over its premises during the party to send the case to a jury. The court began its opinion by acknowledging that a property owner may be legally responsible for injuries that occur on its premises when they are under its custody or control. The court suggested that the charity had retained control over its premises during the Christmas party on the basis of the following factors: (1) the charity was responsible for setting up tables for the party; (2) the charity provided a custodian during the entire party; and (3) the charity was responsible for opening the premises at the beginning of the party and locking the premises at the conclusion of the party. The charity's custodian admitted that he had cleaned the floor prior to the party and that he was on duty and responsible for cleaning the floor during the party.

This case illustrates the legal risks that churches and other charities face when they allow outside groups to use their property. All too often a church inadvertently retains "control" over its facilities even when they are being used by an outside group. And, with control comes responsibility. Aufrichtig v. Progressive Men's Club, 634 So.2d 947 (La. App. 2 Cir. 1994).

See Also: Premises Liability

Legal Developments

Liability for Asbestos Exposure on Church Property

Church not responsible for potential future asbestos-related health problems.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-01-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Key point: A church cannot be responsible for a child’s alleged increased risk of developing asbestos-related health problems associated with exposure to asbestos during church activities without observable physical problems associated with such exposure.

• A Kentucky court dismissed a lawsuit brought by parents against a church alleging that their children had an increased risk of cancer and other diseases as a result of their exposure to asbestos in church. The parents had 2 children who attended preschool, kindergarten, and church activities at their church. The parents sued their church seeking money damages (including punitive damages) for the church’s “negligent infliction of mental distress.” They claimed that the church negligently caused them to suffer “mental distress” as a result of their children’s exposure to asbestos on church property. In dismissing this claim the court noted that in order for the parents to recover for negligent infliction of emotional distress they are required to show some physical contact to themselves that caused the mental distress. The court concluded that “as the parents have not alleged that they were exposed to asbestos, they do not satisfy the contact requirement and cannot maintain a negligence claim for mental distress.” The court then addressed the parents’ claim that the church was legally responsible as a result of the children’s increased risk of disease caused by the presence of asbestos on church property. The parents claimed that even though the children did not presently manifest any physical symptoms from their alleged asbestos exposure, they should be able to maintain an action for increased risk of future illness. The parents relied on an affidavit from a medical doctor who stated that “the exposure to airborne asbestos fibers sustained by the [children] subjects them to an increased risk of contracting an asbestos-related malignancy, especially mesothelioma and lung cancer.” In rejecting this basis of liability, the court observed: “Given the [parents’] admission that they can prove only that the children possibly might contract an asbestos-related disease in the future, which risk they cannot quantify, it is apparent that damages for the increased risk would be based on conjecture or speculation. An award of damages based on speculation is not permitted …. [I]t must be shown by medical testimony that causation is probable and not merely possible. The [parents] cannot maintain an action … for increased risk of future consequences.” Michaels v. William T. Watkins Methodist Church, 873 S.W.2d 216 (Ky. App. 1994).

See Also: Premises Liability

© Copyright 1995, 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 m86 c0195

Legal Developments

Woman Slips on Icy Church Stairs

Court rules that church can be sued for injuries.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-09-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Key point: A church may be responsible for injuries occurring on church premises due to snow accumulation if the snow was either accumulated in an unnatural manner or negligently removed.

• An Illinois appeals court ruled that a church could be sued for injuries sustained by a member who fell down snow and ice covered stairs on church premises. The victim went to her church at around 6:30 p.m. on a January evening to practice with her rock band, Romantic Fever, in the church basement. A member of the church board served as the band’s manager. The building is reached by a number of wooden stairs. The stairs have a handrail down the middle, but not on the sides. The victim left the church at 10 p.m. following the band rehearsal. As she faced the bottom of the stairs looking down, she could see a mixture of ice and snow on the right side of the steps to a depth of between one-half inch and three inches. Snow had been thrown to the left side of the stairs over the handrail and this side was impassable. The victim proceeded down the stairs and slipped on the first or second step. She fell down the rest of the stairs, injuring her back. She did not know the source of the snow on which she slipped, and did not know who had partially removed the snow from the steps. When asked whether anything about the stairs themselves contributed to her fall, she stated that there was no handrail down the right side and that the steps were warped. The board member noticed snow on the church steps on several occasions during the day of the accident. He discussed the problem with the pastor who was “very perturbed” that the snow was not being cleared within a reasonable time and was not being cleared to his satisfaction. The pastor expected complete snow removal, meaning edge to edge on the steps. Before the accident, the board member had talked with the church custodians (a husband and wife) about this problem and conveyed the minister’s feelings about complete snow removal. It was the custodians’ duty to remove snow from the stairs. The board member said following the accident that “had the snow removal been taken care of, this wouldn’t have occurred.” One the custodians stated that she had moved snow on the church stairs from one side to another on the day of the accident, but did not clear it completely. The woman sued the church, and a trial court threw the case out on the basis of the church’s motion for summary judgment. The woman appealed, and a state appeals court reversed the trial court’s decision and ordered the case to proceed to trial. The court observed that “there is generally no duty to remove natural accumulations of ice and snow” and that “[t]he mere removal of snow leaving a natural ice formation underneath does not constitute negligence.” However, a church or other property owner can be legally responsible for injuries in at two situations: (1) snow is removed in a negligent manner, or (2) “an injury occurred as the result of snow or ice produced or accumulated by artificial causes or in an unnatural way, or by the defendant’s use of the premises.” The court continued:

Here, there is sufficient evidence in the record from which a trier of fact could conclude that [the church] created or permitted to exist an unnatural accumulation of snow and ice on the steps. [The victim] testified that the snow had been removed from one side of the stairs and thrown over the handrail onto the other side. A jury could thus conclude that the ice on which [the victim] fell was caused by runoff from the snow piled on the other side of the stairs …. [The church] contends that [the victim] failed to show affirmatively that there was a “nexus” between the snow on the left side of the stairs and the ice on which [she] fell …. [T]he snow was piled on the left side of the stairs, separated from the opposite side by only a double handrail. It is reasonable to conclude that the ice on which [the victim] slipped came from the snow piled on the other side of the stairs.

The court rejected the church’s claim that there was no evidence that it was responsible for the accumulation of snow on the left side of the stairs. The court noted that “there was ample evidence from which a jury could conclude that [the church’s] agents were responsible for the unnatural accumulation of snow on the stairs.” It referred to the fact that the board member testified that the custodians were primarily responsible for snow removal at the church, and that volunteer groups at the church or church members themselves would occasionally remove some snow. There was no evidence that anyone not connected with the church ever removed snow from the church steps. Moreover, the court concluded, “even if we accepted the tenuous conclusion that some unknown person completely unconnected with the church gratuitously undertook to remove the snow from the steps, a question of fact would still exist concerning whether the church was chargeable with knowledge of the unnatural accumulation on the steps and would thus be liable on this basis.” The board member testified that he was aware of the situation prior to the date of the accident and had brought it to the attention of other church officials. Even if the church or its agents did not create the condition, “a jury could still find that it had knowledge of the condition and failed to correct it.” The court also ruled that the trial court erred in not considering the victim’s assertion that the church had been negligent in not constructing handrails on the sides of the stairway and in failing to correct the warped condition of the stairs. Graff v. St. Luke’s Evangelical Lutheran Church, 625 N.E.2d 851 (Ill. App. 2 Dist. 1993).

See Also: Premises Liability

© Copyright 1994, 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 m86 c0594

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Legal Developments

Woman Killed Crossing Street to Attend Mass

Court rules that church had no duty to control traffic.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-07-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Key point: A church is not necessarily responsible for injuries occurring to members who are struck by vehicles when crossing a street to access a parking lot.

• The Rhode Island Supreme Court ruled that a church was not responsible for the death of a parishioner who was killed when she was struck by a vehicle while crossing a street to enter a parking lot. Three adult members of a Catholic church drove to the church to attend midnight mass on Christmas Eve. As was the practice of many parishioners, they parked their car in a small parking lot across the street from the church. The parking lot was owned by a neighboring commercial establishment, but church members were allowed to use the parking lot during church services by common consent. The parking lot was separated from the church by a public street. After mass ended, the three members left the church and proceeded to cross the street to reach their car in the parking lot. While in a crosswalk they were struck by a vehicle driven by a drunk driver. One of the members was killed, and another received severe and permanent injuries. On prior occasions the church had asked the city police to provide a traffic officer to control traffic after church services. The police occasionally provided officers in response to the church’s requests if any were available. At no time did the church have a contract with the police to provide traffic officers. No representative of the church had asked the police to provide a traffic officer on the night of the accident. A lawsuit was brought against the church by the injured member and the estate of the member who was killed (the “plaintiffs”). The plaintiffs claimed that the church was responsible for the accident on the basis of the following factors:

  • The church owed members a duty to control traffic on the street in question because it knew that a large number of parishioners crossed the street to reach a parking lot. The plaintiffs stressed that the church did not have adequate parking facilities available on its property.
  • The church voluntarily assumed a duty to patrol traffic by its past conduct of occasionally contacting the police and requesting the assignment of traffic officers.

A trial court dismissed the lawsuit against the church, and the plaintiffs appealed. The Rhode Island Supreme Court upheld the trial court’s dismissal of the lawsuit. The court noted that “the generally accepted rule” is that a landowner has no duty to protect another from intentional or criminal acts of third parties that occur on a public street or highway. This rule is based on 3 considerations: (1) a landowner has no right or ability to control public streets since they are neither owned nor possessed by the landowner; (2) the landowner has no control over the third party who commits the intentional or criminal act; and (3) the protection of the general public “is a duty allocated to the government.” The court observed:

[T]he duty to control traffic has traditionally rested squarely with the government. Historically the control of traffic flow on public ways has been a function carried on by the government in discharge of its obligation for the public health, safety, and welfare …. This factor weighs heavily against the imposition of a duty on an abutting landowner to control traffic. [Further], the church had no control over the property on which the injury occurred. The facts clearly establish that plaintiffs’ injuries occurred not on the church’s premises but on [a public street]. Because one may not control land owned or possessed by another, the church had no right of control over [the street] which is a public way …. This factor also weighs against imposing a duty on an abutting landowner ….

The fact that a landowner may request public traffic control on a public street does not vest in that landowner the personal right or obligation to control such a public way. Consequently, the church’s request for public traffic control would not confer on the church any authority or obligation to control a public highway ….

Traffic control is inherently and traditionally a governmental function and not a burden to be placed upon the private citizenry. Having no duty itself to control traffic, neither would the church have a duty to contact the police and request the stationing of a traffic officer [on the street in question].

In rejecting the plaintiffs’ claim that the church had a duty to control traffic on the adjoining street because it provide in adequate on-site parking for its parishioners, the court observed: “Neither the lack of adequate parking nor the foreseeability that many parishioners would park in the nearby lot requiring them to cross [the street] warrants the imposition of a duty to control traffic on a public highway.” The court also rejected the plaintiffs’ claim that the church assumed a duty to control traffic on the adjoining street by previously requesting the police to provide traffic control officers on a number of occasions:

[W]hether or not the church had followed a practice of requesting aid from the police, however sporadically or frequently, no such duty could be assumed by an abutting landowner …. [A]n abutting landowner, such as a theater, a department store, a restaurant, or any other entity that may from time to time attract large numbers of patrons may have a significant interest in the condition of traffic on abutting highways. However, this interest cannot be transformed into a duty of control by a landowner’s requests to municipal or other governmental authorities to perform duties that are wholly governmental in nature.”

This decision, while limited to the state of Rhode Island, will be useful precedent to churches in other states that own (or utilize) parking lots across public streets. Ferreria v. Strack, 636 A.2d 682 (R.I. 1994).

See Also: Premises Liability – Defenses

© Copyright 1994, 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 m86 c0494

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Legal Developments

Man Suffers Heart Attack During Aerobics Class

Athletic club found not legally responsible.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-03-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Key point: A church will not necessarily be liable for the death of an adult participant in an aerobics class.

• The New York Court of Appeals ruled that an athletic club was not legally responsible for a fatal heart attack suffered by a participant in an aerobics class. This case will be of interest to churches that conduct similar programs. An adult male suffered a heart attack during an aerobics class at a fitness center, and died within a few minutes. His widow sued the center, claiming that it was guilty of negligence. Specifically, she alleged that the center was negligent in the following ways: (1) in how it conducted the aerobics class; (2) in the manner in which emergency treatment was performed on the deceased before the rescue squad arrived; (3) in failing to adequately evaluate the deceased’s medical profile form properly and to screen and test him properly to determine whether he was at risk for strenuous exercise; (4) in failing to have a supply of oxygen in the room where the decedent was participating in an aerobics class; and (5) in failing to have an instructor trained in cardiopulmonary resuscitation conduct the aerobics class on the day of the decedent’s fatal heart attack. The center defended insisted that it had not been negligent, and pointed to the following procedures that it had followed: (1) it relied on the medical training and experience of a registered nurse in the planning of the aerobics class; and (2) aerobics instructors were trained to call 911 immediately and to send someone to the first floor to direct the emergency personnel to the aerobics class. A trial court dismissed the lawsuit on the ground that the center had established that it was not negligent as a matter of law. The widow appealed, and the New York Court of Appeals (the highest level state court in New York) upheld the trial court’s dismissal of the case. The court noted that the widow failed to introduce sufficient evidence that her husband’s death was attributable to the center’s negligence. It observed that “at best, [the widow] put forth the opinions of medical and health club experts which are conclusory” and insufficient to establish negligence. This case suggests that a church that conducts an aerobics class will not be legally responsible for fatal heart attacks suffered by participants in such a class, so long as it exercises reasonable care. The New York Court of Appeals defined reasonable care in this case as reliance by the fitness center on the medical training and experience of a registered nurse in the planning of the aerobics class and the training of aerobics instructors to call 911 immediately in the event of an emergency and to send someone to the first floor to direct emergency personnel to the aerobics class. The court did not agree with the widow that reasonable care also should have included screening the deceased to determine whether he was at risk for strenuous exercise, having a supply of oxygen in the aerobics room, and having an instructor trained in cardiopulmonary resuscitation conduct the aerobics class. However, it is possible that courts in other states may conclude that “reasonable care” involves more than the New York court suggested, and for this reason churches in other states should not assume that the minimal precautions accepted by the New York court would be sufficient. Putrino v. Buffalo Athletic Club, 624 N.E.2d 676 (N.Y. 1993).

See Also: Negligent Supervision

© Copyright 1994, 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 m86 c0294

Legal Developments

Church Not Responsible for Parking Lot Injuries

Employees were not aware of slippery conditions.

Richard R. Hammar, Attorney, CPA
Bio

Key point: Churches ordinarily cannot be responsible for snow or ice-related slips and falls in their parking lots unless they were aware of a dangerous condition and had a reasonable opportunity to correct it.

A New York appellate court ruled that a church was not legally responsible for injuries sustained by a woman who slipped on a patch of ice in the church parking lot.

The woman had attended a meeting of a local community group on the church's premises. On her way to her car, she slipped and fell on a patch of snow-covered ice and sustained serious injuries. She sued the church. The court ruled that the church was not responsible for the accident, since it was not aware of the ice and snow accumulation (no church employees were present at the time of the meeting) and the church did not have a reasonable opportunity to remove the snow and ice.

The icy condition developed only two hours before the accident, and the snow (that concealed the ice) began falling only 15 minutes prior to the accident. Under these circumstances the court concluded: "[The church] as the owner of the premises, had a duty to exercise reasonable care under the circumstances. In order to impose liability upon [the church] there must be evidence that it knew, or in the exercise of reasonable care should have known, that an icy condition existed in its parking lot. Additionally, a party in possession or control of property is afforded a reasonable time after the cessation of the storm or temperature fluctuation which created the dangerous condition to exercise due care in order to correct the situation."

There simply was not sufficient time in this case for the church to have removed the snow or ice prior to the accident, and accordingly the church was not legally responsible for the woman's injuries. Byrd v. Church of Christ, 597 N.Y.S.2d 211 (A.D. 3 Dept. 1993).

See Also: Premises Liability

Legal Developments

Church Not Responsible for Injuries from Fall

Decision overturns earlier jury verdict.

Richard R. Hammar, Attorney, CPA
Bio

Key point: Church members injured on church premises are not necessarily entitled to money damages, even if the injury was due to the church's failure to comply with a safety code.

A Minnesota appeals court concluded that a church was not responsible for injuries sustained by a member who tripped on a dark stairway. A member left a Sunday morning worship service to use the restroom, which was located in the church basement. To reach the restroom, the member had to go the church basement, cross the fellowship hall, ascend three uneven stairs, and walk down a hall. When the member went to the basement, the lights were on and she had no difficulty reaching the restroom. However, when she left the restroom, all the basement lights were off and the basement was completely dark. The member attempted to find her way back upstairs. Although there was a light switch in the hall leading to the restroom, the member could not find it because of the darkness. When she reached the three uneven stairs that led to the fellowship hall, she tripped and sustained serious injuries.

The member later sued the church, alleging that her injuries were caused by the church's negligence. She relied on a state fire code requiring all exits to be illuminated when a building is occupied. A jury agreed that the church was responsible for the woman's injuries, and the church appealed.

A state appeals court reversed the trial court's decision, and ordered a new trial. The court agreed that the state fire code requires exits to be illuminated when a building is occupied, but it concluded that this could not be a basis for finding the church negligent. It observed:

"It is well-settled law that in an action for neglect of duty, it is not enough for the [victim] to show that the defendant neglected a duty imposed by statute, and that he would not have been injured if the duty had been performed, but that he must also show that the duty was imposed for his benefit, or was one which the defendant owed to him for his security."

The court concluded that the church's violation of the state fire code could not establish its responsibility for the member's injuries, since the member's injuries were not "a hazard against which the fire code was designed to protect."

The court emphasized that the fire code was designed to prevent fires rather than to prevent falls, and accordingly it could not be used to establish the church's negligence. Further, the court noted that "evidence of the church's negligence was minimal. [The member] did not establish that the lights were turned off by a person for whose negligence the church could be held vicariously liable." As a result, the court reversed the trial court's decision, and ordered a new trial. Thies v. St. Paul's Evangelical Lutheran Church, 489 N.W.2d 277 (Minn. App. 1992). [PCL12B]

See Also: Premises Liability

Legal Developments

Member Sues Unincorporated Church

He was injured while repairing the church’s sound system.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1992-11-01Recent Developments

Taxation – Church Property

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

• The South Carolina Supreme Court ruled that a church member could sue his unincorporated church for injuries sustained while repairing the church sound system, but he could not recover more than the $200,000 “cap” allowed by state law. The member volunteered to enter the church attic to repair the sound system. While in the attic, he fell through the ceiling and landed on a concrete floor some ten feet below. His injuries required him to miss work for nearly a year. The victim sued his church, pastors, and church board members, alleging that they were all negligent and responsible for his injuries. A jury awarded him $300,000, and the defendants appealed. A state appeals court reversed the jury’s award and the case was appealed on to the state supreme court. The supreme court ruled that the injured member could sue his church, even though it was unincorporated. However, the court refused to permit the injured member to sue the pastors and church board members personally. It based its decision on a South Carolina statute that prevents individual members from being sued personally unless it is established that they acted “in a reckless, willful, or grossly negligent manner.” Since the injured member had failed to prove that the pastors and board members had acted recklessly or with gross negligence, these individuals could not be personally liable. Finally, the court reduced the jury’s award from $300,000 to $200,000 on the basis of a South Carolina statute that provides: “Any person sustaining an injury or dying by reason of the tortious act … of an employee of a charitable organization, when the employee is acting within the scope of his employment, may only recover in any action brought against the charitable organization in an amount not exceeding two hundred thousand dollars.” The court concluded that a church fit “squarely within the definition of a charitable organization” for purposes of this law. This case illustrates the importance of the South Carolina “charitable immunity” law which prohibits charities (including churches) from being sued for more than $200,000. It also illustrates that unincorporated churches may be sued in South Carolina by their members as a result of injuries sustained during church activities. Crocker v. Barr, 409 S.E.2d 368 (S.C. 1992).

See Also: Unincorporated Associations | Charitable Immunity

© Copyright 1992, 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: m77 m86 c0692

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Legal Developments

Injuries in Church Parking Lots

A woman sued a church after slipping and falling on their icy parking lot.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1992-11-01Recent Developments

Taxation – Church Property

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

• A Pennsylvania appeals court ruled that a Catholic church and diocese were not responsible for the injuries sustained by a woman who slipped and fell on an icy church parking lot. The woman, who was attending the church to participate in a bingo game, alleged that the parking lot was covered with a sheet of ice and also 5 inches of new snow. She alleged that the church had been negligent in failing to “implement some remedial measure (placing salt or ashes, warning visitors of the presence of ice, or barricading the icy area),” and accordingly the church was responsible for her injuries. A trial court ruled in favor of the church, and the woman appealed. A state appeals court agreed that the church was not responsible for the woman’s injuries. It observed:

[A]n owner or occupier of land is not liable for general slippery conditions, for to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere. Snow and ice upon a pavement create merely a transient danger, and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition …. [I]n order to recover for a fall on an ice or snow covered sidewalk, a plaintiff must prove (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.

The court concluded that the injured woman had failed to satisfy this test, and accordingly the church was not responsible for her injuries. The woman raised another interesting argument on appeal. She claimed that the trial court had improperly refused to exclude from the jury 3 individuals who were members of other churches within the diocese. The woman alleged that these 3 jurors (1) were biased in favor of the church, (2) had a “financial interest” in the outcome of the case, and (3) were subject to “moral intimidation” by the diocese that “nullified their oaths as jurors.” The appeals court concluded that the 3 jurors were not biased. It observed: “Courts in this Commonwealth have long held that a juror is not incompetent merely because he and one of the parties are members of the same religious denomination …. [M]embership in congregations associated with a general religious denomination do not give the jurors a sufficient interest in the outcome of the litigation to render [them biased].” Harmotta v. Bender, 601 A.2d 837 (Pa. Super. 1992).

See Also: Premises Liability | Cases Finding Denominations Not Liable

© Copyright 1992, 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 m86 m40 c0692

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Legal Developments

Member Sues Unincorporated Church for Injuries

This issue was addressed in a recent case.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-09-01 Recent Developments

Unincorporated Churches

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

• Can a member of an unincorporated church sue the church for injuries received on church property? That was the issue addressed by the Texas Supreme Court in a recent case. A member of a Congregational church was taking her minor son to a church child-care program. As she entered the educational building (on the church premises), she slipped and fell, resulting in injuries to her back. She later sued the church, alleging that her injury was caused by the church’s negligence. Specifically, she alleged that the church had been negligent in permitting the tile floor in the educational building to become slippery from moisture, and in failing to warn her of the dangerous condition. The victim had been a member of the church for 4 years, and she was on the church’s administrative board. At the time of the accident, the church was unincorporated (it incorporated a few years after the accident). A trial court dismissed the lawsuit against the church, concluding that an unincorporated church could not be sued by one of its own members. It further ruled that the church could not be liable for the injuries on the ground that it incorporated after the accident. The victim appealed this decision. A state appeals court agreed with the trial court’s decision, and the victim appealed the case to the Texas Supreme Court. In a significant opinion, the court ruled that a member of an unincorporated church who is injured because of the negligence of other members can sue the church for money damages. The court acknowledged that the longstanding rule in Texas had been that the members of an unincorporated church could not sue the church for injuries inflicted by fellow church members. It noted that this historic rule was based on the notion that the members of unincorporated churches are engaged in a “joint venture” and that the negligence of one is imputed to all the others, including a fellow member who is injured by the negligence. The court repudiated this rule, noting that it had been abandoned by most other states. The court concluded: “Why should a church member be precluded from suing an association in tort when a paid workman would be allowed to maintain an action for the very same injury … ? We are unable to discern a defensible reply to this query. Consequently, we hold that a member of an unincorporated charitable association is not precluded from bringing a negligence action against the association solely because of the individual’s membership in the association. Any assets of the unincorporated charitable association, held either by the association or in trust by a member of the association, may be reached in satisfaction of a judgment against the association.” The court avoided the issue of the personal liability of individual members of unincorporated churches for the negligence or misconduct of other members. It simply noted that this lawsuit had not named any individual church members as defendants and accordingly there was no need to address this broader issue. It did mention, however, that “protection is afforded by the simple act of incorporation.” In other words, members of unincorporated churches can eliminate any question as to their personal liability for the deeds of fellow church members simply by ensuring that their church is incorporated. Two members of the court issued a concurring opinion predicting that the court’s decision could lead to greater personal liability for the members of unincorporated churches. Why? Because “by abolishing imputed negligence and creating liability between members the liability of individual members could be increased.” The two concurring justices expressed their view that the members of an unincorporated church should not be personally liable for the actions of other members without active participation in those actions. Finally, a dissenting justice warned that the court’s decision “greatly expands the potential personal liability for the hundreds of thousands of volunteers across this state that selflessly give of their time in [charitable] activities.” The dissenting justice also effectively refuted the court’s observation that most states have abolished the historic rule that the members of unincorporated churches cannot be personally liable for the conduct of their fellow members. In fact, “a majority of jurisdictions follow the rule that a member of an unincorporated association injured due to the tortious conduct of another member cannot sue the association …. The court may have wrongly implied that the rule exempting unincorporated associations from liability is a waning doctrine. In fact, most jurisdictions still adhere to it.” The dissenting justice concluded: “The unfortunate but unavoidable result of today’s decision is that some churches across this state will discontinue a wide range of beneficial services currently rendered for their members’ benefit, frequently free of charge, so as to limit their liability. This is but one of the many disruptive and deleterious effects that today’s result may inflict upon Texas’ volunteer community, all of which the Court apparently ignored in its zeal to abolish the imputed negligence doctrine.” Cox v. Thee Evergreen Church, 1992 WL 148116 (Tex. 1992).

See Also: Unincorporated Associations

© Copyright 1992, 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: m77 m58 m86 c0592

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Legal Developments

Injuries Occurring on Church Premises During Use by Outside Groups

An Indiana court makes an important ruling.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Can a church be legally responsible for an injury occurring on its premises while being used by an outside group? Yes, concluded an Indiana appeals court in an important ruling. Many churches permit outside organizations to utilize their facilities on a short-term basis. Common examples include scouting organizations, and aerobics and craft classes. In the Indiana case, a Catholic church permitted a local community group to use its facilities for an annual one-day celebration. The event was advertised in the church bulletin, and included a religious ceremony. After the ceremony, guests were ushered into another room for a reception where refreshments were served. While refreshments were being served, volunteers disassembled the tables and chairs in the room where the ceremony occurred. Although the guests were asked to proceed to the reception immediately following the ceremony, a few guests remained behind to socialize. As one of these guests proceeded to the reception area a few minutes later, she tripped and fell over some of the disassembled tables. She later sued the church. The church claimed that it was not responsible for the guest’s injuries since it had not retained any control over its facilities while they were being used by the community group for its celebration. The church also pointed out that the group was permitted to use the facilities without charge, that it was responsible for cleaning up the facilities following its activities, and that the church did not retain any control over the facilities during the celebration. A trial court refused to dismiss the lawsuit against the church, and the church appealed. The appeals court noted that “the church is correct in observing that control of the premises is the basis of premises liability.” However, the court concluded that there was ample evidence of control by the church. It observed:

Thus, the question becomes whether the church retained sufficient control over the festivities to justify imposing liability upon it for injuries to the invited guests. [The priest] testified … that if he chose to do so, he could have decided not to allow the [community group] to hold their function there; that there was a janitor on the premises to make sure the buildings were locked; that the [organization] was not in charge of securing the premises; that the church placed an announcement in the church bulletin regarding when and where the celebration was to take place; that the church conducted a religious ceremony as a part of the celebration; and that he would not say that the church relinquished control over the property. This testimony was enough to create an issue of fact as to whether the church retained control over the premises.

This case illustrates the legal risks that churches face when they allow outside groups to use their property. All too often, a church inadvertently “retains control” over its facilities even when they are being used by an outside group. And, with control comes responsibility. St. Casimer Church v. Frankiewics, 563 N.E.2d 1331 (Ind. App. 1990).

See Also: Premises Liability

© Copyright 1992, 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 m86 c0392

Legal Developments

Denominations’ Liability for Injuries Occurring on Church Property

Who is liable when someone is injured on church property?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-03-01 Recent Developments

Denominations – Legal Liability

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

• A Pennsylvania court addressed the issue of a denomination’s liability for an injury occurring on an affiliated church’s property. A young child was injured in 1984 when a tombstone fell on her in a cemetery owned by a Lutheran church. The child’s parents sued the Lutheran Church in America (LCA) along with the Central Pennsylvania Synod of the Lutheran Church in America. The parents claimed that the LCA and Synod were legally responsible for the injury since the church that owned the cemetery had closed in 1971 and title to its assets had reverted to the LCA and Synod. As owners of the property, the LCA and Synod were responsible for the child’s injuries on the basis of their “negligent maintenance” of the cemetery. The parents relied on the following paragraph in the LCA Constitution (and a similar paragraph in the Synod Constitution):

A synod may declare a congregation within its jurisdiction defunct if such congregation has disbanded, or it has ceased to maintain religious services according to the tenets and usages of the Lutheran Church, or if its membership has so diminished in numbers of financial strength as to render it impractical for such congregation to fulfill the purposes for which it was organized, or to protect its property from waste and deterioration. In such case, or if a congregation departs from membership in this church without the consent of a convention of the synod, all property of the congregation, real, personal and mixed, shall vest in the synod, its successors or assigns.

The local church that established the cemetery voted in 1971 to merge with another Lutheran church. All of the church’s assets were transferred to the new church. A trial court concluded that the LCA and Synod were not responsible for the child’s injuries, since ownership of the cemetery had passed to the new church rather than to the LCA or Synod. The case was appealed to a state appeals court, which also ruled in favor of the LCA and Synod. The appeals court observed:

In order to predicate liability against the Synod and the LCA, evidence was necessary to show that these two hierarchical church entities had the right to control the manner in which cemetery property was maintained. This required evidence of either (1) an actual transfer of property from the congregation to the hierarchical church body, or (2) clear and unambiguous documentary evidence or conduct on the part of the congregation evincing an intent to create a trust in favor of the hierarchical church body. The claim against the LCA and the Synod is based upon the contention that [the local church] closed its doors and that its assets thereupon passed to the Synod and the LCA. It is based upon the general rule of law that a congregation belonging to a hierarchical membership cannot sever itself from the parent body without forfeiting its assets. However, this rule of law is not without exceptions. Thus, the local congregation and the parent church body may agree that the local church property is to remain subject to ownership and control by the local congregation. The general rule has no application, moreover, where two congregations of the same hierarchical body join by merger. In cases of merger, title to congregational assets passes to the surviving corporation. In the instant case, it is clear that [the local church] did not forfeit title to its assets to the parent bodies. [The two local churches] were joined by merger into one congregation … and title to the assets [of the one local congregation] passed to the surviving congregation.

The court emphasized that the LCA and Synod could not become owners of local church property unless they specifically declared a local church to be defunct. The LCA and Synod never took this step since there was no need to do so in light of the merger of the local churches. The court concluded: “Because [the local church] did not sever its relationship with the Synod or LCA, but merged with another Lutheran church of the same synod, its assets were not forfeited to a parent body but passed to the surviving congregation by merger. It is the surviving body which controlled those assets on the date of the [child’s] unfortunate accident and to which [the parents] must look for damages in the event negligent maintenance of the cemetery is found to be related causally to such injuries.” This case is important for a couple of reasons. First, it indicates the legal effect of a merger. The liabilities of a church that merges with another church can become the liabilities of the new church. This is an important consideration that must be kept in mind when contemplating any merger. Second, it illustrates the potential liability of a religious denomination for the obligations of a local church that has closed. Many denominations have provisions in their constitutions or bylaws specifying that title to a defunct local church reverts to the parent denomination. This case indicates that such provisions may result in liability on the part of the parent denomination for the obligations of the defunct church. While this may not be the case in the event of a merger, church leaders must recognize that mergers are relatively uncommon. It is far more common for a local church to simply close its doors than to merge with another congregation. Denominational leaders need to be aware of the legal liabilities they may be assuming in such cases. A review of denominational constitutions and bylaws would be appropriate. This case suggests that this liability can be avoided if the reversion of a defunct church’s property to a denomination is conditioned on some act by the denomination (such as a formal declaration or ruling that the local church is defunct, as was required by the LCA Constitution). Kelly v. Lutheran Church in America, 589 A.2d 1155 (Pa. Super. 1991).

See Clergy—removal, McElroy v. Guilfoyle, 589 A.2d 1082 (N.J. Super. 1990).

See Also: Denominational Liability

© Copyright 1992, 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: m40 c0292

Legal Developments

Unincorporated Churches and Members’ Lawsuits

Can an unincorporated church be sued by a member?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-03-01 Recent Developments

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

• A South Carolina appeals court ruled that a member of an unincorporated church could not sue his pastor and members of the church board for injuries he suffered in an accident on church property. A member volunteered to maintain the sound system of his church. He was injured when he fell from some loose rafters in the church attic while attempting to remove some wire. A trial court ruled in favor of the victim, and awarded him $300,000 in damages. The pastor and church board appealed, and a state appeals court dismissed the lawsuit against them. The appeals court concluded that all members of an unincorporated church have “equal ownership of the equitable title to the property including the right of occupancy and possession.” The accident victim, pastor, and board members, along with the other members of the church, “are cotenants with respect to the right of possession or occupancy of the church premises.” The court continued: “The simple issue then is whether the [pastor and board], who owned the right of possession of the property as cotenants with [the victim] and the other members of the congregation, owed a duty to their cotenants to inspect the unfloored portion of the attic to determine if there were any loose rafters …. We hold that a cotenant does not owe his cotenant a duty to so inspect for latent defects.” This case illustrates a potential consequence of the unincorporated form of organization—inability of a church member to sue for monetary damages on account of an injury occurring on church property. Crocker v. Barr, 397 S.E.2d 665 (S.C. App. 1990).

See Officers, directors, and trustees, Benjamin Plumbing, Inc. v. Barnes, 470 N.W.2d 888 (Wis. 1991).

See Also: Unincorporated Associations

© Copyright 1992, 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: m77 m58 m29 m56 c0292

Posted:

Legal Developments

Church Responsibility for Minor’s Injuries during Church Activities

Churches may be liable for injuries sustained at events they sponsor.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-01-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Can a church be legally responsible for injuries sustained by a minor who fell out of a tree during a church picnic? No, concluded the Illinois Supreme Court. The minor (a 15-year-old boy) and his parents attended a church picnic at a nearby lake. There was a rope swing attached to a tree which was used to swing into the lake. The boy had been to the lake many times before, and had used the rope swing on several occasions. He was aware that the rope occasionally would become entangled in branches after being released by the person jumping from the swing. When the rope became entangled, someone had to climb the tree to untangle it. On the day of the accident, the victim used the rope swing several times while his parents watched some 20 feet away. After some 10 swings, the rope became entangled in branches, and the victim climbed the tree to untangle it. On his way down, the victim fell to the ground, and received injuries that left him a quadriplegic. The boy’s parents, an associate pastor of the church, and several picnickers saw him use the swing and climb up the tree. No one attempted to stop him, but his parents and the associate pastor cautioned him to be careful. The boy and his parents sued the church (and the owner of the property where the picnic occurred). The lawsuit alleged that the church negligently failed to provide adequate supervision of the picnic area, and failed to warn the boy of the dangerous conditions existing on the property. A trial court and state appeals court both rejected the church’s request to be dismissed from the case. The church appealed the case to the state supreme court, which ordered the church dropped from the lawsuit. The supreme court emphasized that a church or any other organization cannot be legally responsible for injuries to a minor that are caused by obvious conditions. It observed: “There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child …. It is well settled that if the condition [causing an injury] presents obvious risks which children would be expected to appreciate and avoid, there is no duty to remedy that condition. The rationale for this rule is that, since children are expected to avoid dangers which are obvious, there is no reasonably foreseeable risk of harm.” The court further observed: “We cannot ignore the fact that [the victim] was a 15-year-old youth … who acknowledged in a deposition that he was aware of the risk of falling. On one occasion, plaintiff in fact saw a person who had climbed the tree fall approximately three feet and catch himself on the tree’s lower branches.” In concluding, the court noted: “While we are not unsympathetic to the tragedy of [the boy’s] accident, we are obliged to defer to the authority established by this court in the area of negligence actions. Based on our review of law in this area, we conclude that the risk of falling out of the tree was an obvious danger which [the boy] was reasonably expected to understand and appreciate.” Logan v. Old Enterprise Farms, Ltd., 564 N.E.2d 778 (Ill. App. 1990).

See Unincorporated churches, Foster v. Purdue University, 567 N.E.2d 865 (Ind. App. 1991).

See Also: Negligence as a Basis for Liability – Defenses

© Copyright 1992, 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 m58 m86 c0192

Posted:

Legal Developments

Members’ Lawsuits Against Unincorporated Organizations

Can an unincorporated organization be sued by one of its members?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-01-01 Recent Developments

Unincorporated Churches

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

• An Indiana state court ruled that a member of an unincorporated nonprofit organization cannot sue the organization for injuries sustained during an organization activity. An 18-year-old university freshman became a member of a fraternity. While participating in a fraternity party he consumed an excessive amount of alcohol, removed his clothing, climbed atop a brick wall and dove head first onto a concrete patio (thinking it to be a pool). He broke his neck and was rendered a quadriplegic. He sued his fraternity, claiming that it had been negligent in providing alcohol to persons under the legal drinking age, and in failing to provide adequate supervision of activities at the party. A trial court dismissed the lawsuit, and the victim appealed. A state appeals court upheld the dismissal of the lawsuit against the fraternity. It based its decision on the “general rule in Indiana that a member of an unincorporated association cannot sue the association for the tortious conduct of another member. As the members are engaged in a joint enterprise, each member has a right to exercise control over the operations of the association. The negligence of a single member is imputed to all other members of the association.” The court relied squarely upon a decision of the state supreme court refusing to permit an injured church member from suing his unincorporated church. The court rejected the fraternity member’s argument that the general rule should not be applied to a new member of an unincorporated association (he was a freshman), or to any association whose membership changes significantly from year to year. 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. Foster v. Purdue University, 567 N.E.2d 865 (Ind. App. 1991).

See Also: Unincorporated Associations

© Copyright 1992, 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: m77 m58 m86 c0192

Posted:

Legal Developments

Lawsuits Against Unincorporated Churches

Can a member of an unincorporated church sue her church?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1991-09-01 Recent Developments

Unincorporated Churches

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

• Can a member of an unincorporated church sue the church for injuries received on church property? That was the issue before a Texas appeals court. A member of a Congregational church was taking her minor son to a church child-care program. As she entered the educational building (on the church premises), she slipped and fell, resulting in injuries to her back. She later sued the church, alleging that her injury was caused by the church’s negligence. Specifically, she alleged that the church had been negligent in permitting the tile floor in the educational building to become slippery from moisture, and in failing to warn her of the dangerous condition. The victim had been a member of the church for 4 years, and she was on the church’s administrative board. At the time of the accident, the church was unincorporated (it incorporated a few years following the accident). A trial court dismissed the lawsuit against the church. It concluded that an unincorporated church could not be sued by one of its own members. It further ruled that the church could not be liable for the injuries on the ground that it incorporated after the accident. The victim appealed this decision. A state appeals court agreed with the trial court’s decision. The court acknowledged that Rule 28 of the Texas Rules of Civil Procedure permits unincorporated associations to be sued directly, but it concluded that this rule did not permit members of an unincorporated church to sue the church on the basis of injuries caused by the negligence of fellow church members or agents. The court observed:

[T]he law prohibits a member of an unincorporated association from bringing a cause of action for negligence against the association. It has been held that the members of an unincorporated association are coprincipals, and generally, such an association cannot be held liable to one of its members for the wrongful act of another member or agent of the association. The rationale for this rule is that the injured member and the association are regarded as coprincipals, and the tortfeasor [i.e., the person causing the injury] as their common agent. Consequently, the wrongful conduct of the agent is imputed to the plaintiff for purposes of his action against the association …. In this case, [the victim] has alleged that, as a direct result of the negligence or gross negligence of the pastor and employees of the church, she was injured. In other words, she alleges that the church, in its operation of the day care center, failed to provide a reasonable standard of care. Based on such allegations, we find any negligence alleged against fellow members and agents of the association are imputed [to the victim], thus leaving her in the untenable position of attempting to sue herself. Therefore, we hold that the trial court did not err in determining that [she] lacked standing to bring suit against the church because she was a member.

The court rejected the victim’s claim that the church could be sued because it incorporated after the accident. It noted that a “successor corporation” is liable only for the lawful debts and obligations of the former organization. And, since the former unincorporated church was not liable for the victim’s injuries, then there was no liability for the successor church corporation to assume. Cox v. Thee Evergreen Church, 804 S.W.2d 190 (Tex. App. 1991).

Unincorporated Associations

See also the feature article in this newsletter entitled The Personal Liability of the Members of an Unincorporated Church for the Church’s Liabilities.

© Copyright 1991, 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: m77 m86 m58 c0591

Legal Developments

Injured Board Member Sues Church

A court allowed the case to proceed.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1991-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• A church board member who was seriously injured when he fell off a ladder while installing a ceiling fan in the church sued both the pastor and church. The board member agreed to donate and install ceiling fans at the church free of charge when it became apparent that the air conditioning system no longer worked. While installing a fan at an elevation of more than 20 feet, he fell of the ladder and was injured permanently. The board member claimed that the pastor and church were legally responsible for his injuries under Illinois law. A trial court dismissed the lawsuit, and the board member appealed. A state appeals court rejected the board member’s claim that the church and its pastor were negligent in inadequately supervising the work or failing to provide proper equipment. The court observed: “[I]t is well-established that a landowner is not liable for injuries resulting from open and obvious dangers on the premises, including the open and obvious danger of falling from high places. We determine that [the board member’s] attempt to install the ceiling fans in the church’s high ceiling by positioning his ladder in the church pews was an open and obvious danger, and his injuries are therefore not recoverable from the defendants under the Premises Liability Act.” However, the court concluded that the board member had presented enough evidence to sue the church for a violation of the state “Structural Work Act,” which protects any person employed or engaged on a ladder while undertaking the repair of a building. The court ordered the case to proceed to trial on this basis. Coates v. W.W. Babcock Co., 560 N.E.2d 1099 (Ill. App. 1990).

Negligent Supervision

© Copyright 1991, 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 m86 m29 c0391

Legal Developments

Injuries During Church Activities

A New York court recently dismissed a woman’s lawsuit.

Richard R. Hammar, Attorney, CPA
Bio

A New York court dismissed a lawsuit brought against a church by a woman who was injured during a church-sponsored activity. The woman and her husband attended a "country fair and barbecue" sponsored by her church. Following dinner, the couple took a raft ride on a nearby lake. After the ride, they were directed to walk on a back lawn area to return to the front of the church building. Closing time for the fair was 7:30PM, and since that time was approaching, workers were closing the various booths and exhibits. As the woman walked up a sloping lawn around the outside of a large tree, she slipped and fell, injuring her leg. She claimed that she slipped on ice cubes that were on the ground. Her husband testified that he saw ice cubes and crushed ice on the ground just before his wife fell.

The church asked the trial court to dismiss the lawsuit, but this request was denied. The church appealed, and a state appeals court dismissed the case. The court concluded that "plaintiff was required to demonstrate … that the condition was caused by [the church's] agents or existed for a sufficient period of time to require [the church] to have corrected it." Since the woman offered no evidence that an agent of the church caused the ice to be discarded on the lawn, or that the ice had been on the lawn for an unreasonable amount of time without being corrected, the lawsuit had to be dismissed. Torani v. First United Methodist Church, 558 N.Y.S.2d 272 (A.D. 3 Dept. 1990).

Premises Liability

Posted:

Legal Developments

Injuries to Church Volunteers

A court recently ruled that a volunteer could sue his church.

Richard R. Hammar, Attorney, CPA
Bio

A New York court ruled that a volunteer who was injured while trimming a tree on church property could sue the church.

In response to requests by the pastor (both from the pulpit and in the church bulletin) for volunteers to trim trees on the church property, some 75 men gathered on a Saturday morning. At one point, one of the men was on a ladder cutting off a 30-foot limb with a chain saw. When the limb was cut through, it whipped around and struck the ladder, knocking the man to the ground and injuring him seriously.

He sued several of the other volunteers, and the church, claiming that they had been negligent in failing to stabilize the limb adequately, in failing to warn him of the need for safety equipment, and in failing to provide him with adequate safety equipment. A trial court dismissed the lawsuit, and the victim appealed.

A state appellate court agreed that the fellow volunteers were not liable: "As fellow volunteers, [they] owed no duty to warn [him] of dangers or to provide him with safety equipment or to devise a safer, better way of performing the task at hand. At most, these volunteers owed each other a duty of reasonable care under the circumstances in the manner in which they performed their task … The fact that the entire plan might have been ill-conceived does not mean that any individual performed his assignment negligently."

However, the court ruled that the church should not have been dismissed from the lawsuit: "As a landowner, [the church] owed a duty of reasonable care under the circumstances to prevent foreseeable injury to [the victim]. Here, defendant church, through its pastor, solicited its parishioners to turn out for a work detail to trim trees, a potentially dangerous activity.

It is undisputed that in response to [the pastor's] pleas for volunteers, up to 75 men participated in this work detail. The church provided some equipment and a few bottles of 'altar wine' for refreshment.

[The pastor] testified that he was present during all the activity, that he definitely wanted this particular limb trimmed …. No safety devices were provided, nor was professional supervision provided. An accident of the kind herein could be found to be foreseeable under such circumstances." Under these facts, the court concluded that the victim had presented enough evidence as to the church's alleged negligence to submit the case to a jury. Lichtenthal v. St. Mary's Church, 561 N.Y.S.2d 134 (N.Y. Sup. 1990).

Negligent Supervision

Legal Developments

Churches’ Liabilities for Minors’ Drowning Deaths

A court found a seminary legally responsible for a boy’s death.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1991-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• A Pennsylvania state appeals court ruled that a seminary was responsible for the drowning death of a 12-year-old boy. The victim was swimming with a group of altar boys from a Catholic church at a seminary-owned pool. The victim’s mother sued the seminary, alleging that it had been negligent in allowing the boys to use the pool without a qualified lifeguard on duty. At the time of the drowning, the pool was under the supervision of a priest. The jury concluded that both the seminary and church were negligent, and it awarded more than $1 million in damages. The seminary appealed, and a state appeals court upheld the jury’s award. The court observed that “it is clear that [the evidence] was sufficient to support the jury’s finding that the seminary had breached a duty owed to the minor decedent. The seminary, as owner of the pool, had a duty to exercise those precautions which a reasonably prudent owner would have taken to prevent injury to those persons whom it knew or should have known were using the pool …. A jury could have found, in view of the evidence, that the seminary knew or should have known that its pool was being used by children and that it failed to exercise reasonable care to prevent injury to them.” The court further observed that “it was for the jury to determine whether the seminary had been negligent in failing to take reasonable precautions to prevent access to its pool when a competent lifeguard was not present and whether the seminary could reasonably rely upon [the priest] to supervise the activities of the boys while they were using the pool.” This case illustrates the important principle that churches and religious organizations may be liable for negligent supervision if they do not have an adequate number of trained adults supervising a youth activity. The mere presence of adult supervision will not be enough in some cases. Those adults must in fact be qualified to supervise the activity in question and to respond to emergencies that may occur. Rivera v. Philadelphia Theological Seminary, 580 A.2d 1341 (Pa. Super. 1990).

Negligent Supervision

© Copyright 1991, 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 m86 c0391

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