Snow and Ice on Church Property

Failure to clear church property can result in unexpected liabilities.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1991-03-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Failure to remove snow and ice from church property can result in unexpected liabilities. The Montana Supreme Court upheld a jury’s award of more than $400,000 to a young woman who was injured when she slipped and fell on an icy church sidewalk. The woman had arrived at the church at 6AM to perform volunteer work. Several inches of snow had fallen during the night, but she entered the church without difficulty. While she was in the church, the church janitor shoveled the sidewalks. Usually, he applied salt shoveled sidewalks to prevent ice accumulation, but on this occasion he did not. By 9AM, the woman had completed her activities, and exited the building. As she left, she noticed that the sidewalk had been shoveled, and she started to walk towards her car. The sidewalk was level for several feet, and she had no difficulty negotiating it. However, the last several feet of the sidewalk sloped sharply downward where 2 steps had been replaced by a “slope” to enable handicapped and elderly individuals to enter the church more easily. There were no railings at any point along the sidewalk. As the woman was descending this slope, she slipped and fell, landing on her head and neck. As a result of her injuries, she had to undergo 5 operations to her cervical spine. She sued the church, alleging that it had been negligent in the construction and maintenance of the sidewalk, and that it had failed to warn her of the dangerous condition. A trial court ruled in the woman’s favor, and the church appealed to the state supreme court. The church argued that it was not responsible for “natural accumulations” of snow and ice, that it had no duty to warn of a danger that was clearly apparent to a reasonable person, and that the sidewalk was not negligently constructed or maintained. The court concluded that “a property owner may be held liable for falls on accumulations of ice and snow where the hazard created by the natural accumulation is increased or a new hazard is created by an affirmative act of the property owner. Even where such a condition is actually known or obvious, a property owner may be held liable if he should have anticipated that injuries would result from the dangerous condition.” The court concluded that the church janitor’s act of shoveling the sidewalk without applying any salt left the sidewalk covered with a “sheen of ice” that constituted a new hazard different from the natural accumulation of snow and ice that existed previously. It was this hazard, along with the dangerous slope of the sidewalk (without a railing), that constituted negligence on the part of the church. This case demonstrates the risks that churches face in not adequately responding to snow and ice accumulations on their property, and in maintaining steeply “sloped” sidewalks. There is little doubt that this tragic injury could have been avoided had salt been applied to the shoveled sidewalk, and had the church constructed a railing along the steep portion of the sidewalk (or constructed it in such a way that the slope was more gradual). These are important considerations for churches to keep in mind. Davis v. Church of Jesus Christ of Latter Day Saints, 796 P.2d 181 (Mont. 1990).

© 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 c0291

Legal Developments

Injuries Sustained on Church Property

A court ruled that a member of an unincorporated church could not sue.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1991-03-01 Recent Developments

Unincorporated Churches

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

• A Pennsylvania court ruled that a member of an unincorporated church cannot sue the church for injuries sustained on church property. A church member was injured when she slipped and fell while leaving Christmas services. She sued her church, alleging that the church board had been negligent in failing to provide adequate lighting, handrails, and stripes on the stairs where the accident occurred. In dismissing the lawsuit, the court observed: “The law in Pennsylvania is clear: the members of an unincorporated association are engaged in a joint enterprise, and 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 tortious conduct of another member of the association may not recover from the association for such damages.” The court concluded that the victim “was a member of the association and thus any negligence of her fellow members is imputed to her and she cannot recover in tort …. [The victim] was a member of the church, an unincorporated association, at all times material to this case. As a member of the association … the decision not to place a handrail, lights, and stripes on the stairway is attributed to her. She cannot recover in tort because any negligence of the board is attributable to her.” What is the significance of this case? It illustrates that members of unincorporated churches may not be able to sue their church for injuries they sustain on church property or during church activities. Zehner v. Wilkinson Memorial United Methodist Church, 581 A.2d 1388 (Pa. Super. 1990).

Legal Developments

Charitable Immunity Laws

Such a law recently prevented a church from being sued.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1991-03-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• In a significant ruling, a New Jersey appeals court ruled that a state “charitable immunity” law prevented a church from being sued by the family of a boy who was injured seriously while attending a church day camp. A Baptist church operated a summer day camp for grade school children that was designed to “integrate biblical truth into the lives of children through formal teaching and informal activities such as crafts and games.” A boy was injured while participating in a camp activity. While his parents had registered him in the camping program, neither the parents nor the boy attended the church or had any other contact with it. The parents sued the church, alleging that their son’s injuries were caused by the church’s negligence. The church asked the court to dismiss the lawsuit against it on the basis of a state “charitable immunity” law that prevented charitable organizations from being sued on the basis of negligence by “beneficiaries” of their charitable activities. The New Jersey statute specifies: “No nonprofit corporation … organized exclusively for religious, charitable [or] educational … purposes shall … be liable to respond in damages to any person who shall suffer damage 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 rejected the church’s request to dismiss the case, and the church appealed. A state appeals court agreed with the church that the charitable immunity statute prevented the victim’s parents from suing the church, and accordingly it dismissed the lawsuit against the church. The court observed that the statute provides legal immunity to nonprofit organizations with respect to injuries caused to their “beneficiaries” by their agents or representatives. The court concluded that these two requirements were satisfied in this case. Clearly, the church was a nonprofit religious organization. And second, the victim was a beneficiary. The court reasoned that one is a beneficiary who participates in an activity of a charity that furthers its charitable objectives. Since the victim was participating in a camp that existed to further the religious objectives of the church, he was a beneficiary of the church and therefore could not sue it on the basis of its alleged negligence. In defending the statute, the court observed: “The principle of charitable immunity was deeply rooted in the common law of New Jersey. The principle is premised on the fact that charitable associations are created to pursue philanthropic goals and the accomplishment of those goals would be hampered if they were to pay tort judgments in cases similar to this matter …. [A] person who makes a charitable contribution expects his donation to further the goals of the organization, and not to be used to satisfy lawsuits which bear no direct relationship to those goals.” The court also emphasized that the charitable immunity statute reflects the inapplicability of the “respondeat superior” doctrine to charitable organizations. This is a very significant observation. Most lawsuits against churches are based on the respondeat superior doctrine, which makes employers legally responsible for the misconduct and negligence of their agents and employees. This doctrine is based on one fundamental consideration—employers can allocate the cost of the injuries and damages that their agents cause by simply increasing the price of their products. While this principle may have merit in the context of commercial corporations that have the ability to increase the price of their products to pay for the negligence of their workers, it has no application whatever to a church that has no “product” to sell. Hopefully, more courts will see this vital distinction. There are other states that have charitable immunity laws. Rupp v. Brookdale Baptist Church, 577 A.2d 188 (N.J. Super. 1990).

Legal Developments

Personal Injuries – Part 1

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1990-09-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• An Illinois state appeals court ruled that a church and a parent denomination were not legally responsible for a pastor’s homosexual assault of three boys. A Methodist pastor allegedly molested three boys. The boys’ parents sued the pastor, his church, and the Central Illinois Annual Conference of the United Methodist Church, claiming that the boys had suffered severe emotional damage. The parents claimed that the church and the president of the church board were liable for the pastor’s conduct on the basis of “respondeat superior” (a legal theory under which an employer generally is legally responsible for the misconduct of employees committed within the course of their employment). The parents claimed that the Conference negligently assigned the pastor to the church, knowing of a prior homosexual assault on another boy several years earlier. A trial court dismissed the “respondeat superior” claims against the church, president of the church board, and the Conference, but it allowed the case to proceed to trial on other theories of liability. The pastor settled with the victims for $225,000, and jury returned a verdict against the Conference in the amount of $450,000 ($150,000 per boy) on the basis of its alleged negligence. The parents and the Conference appealed. The parents claimed that the respondeat superior claim against the Conference should not have been dismissed, and the Conference claimed that the verdict against it should be reversed. A state appeals court affirmed the trial court’s dismissal of the respondeat superior claim against the Conference, agreeing that the pastor’s assault constituted a deviation from the pastor’s “scope of employment” with the Conference. Since the assault did not occur within the scope or course of the pastor’s employment, it could not be imputed to the Conference. The court also dismissed the negligence verdict against the Conference, but ordered a new trial on this issue. It is significant to note that the court observed that “the jury could well have determined that the Conference took adequate precaution in having [the pastor] counseled and should not have been held to have reasonably foreseen that [he] would be likely to commit the acts of sexual assault.” What is the significance of this case to churches and denominations? First, it is another in a long line of court rulings that have summarily concluded that churches and denominations are not liable on the basis of “respondeat superior” for the sexual misconduct of clergy, since such conduct is clearly outside the scope of any employment or agency relationship. Second, the case suggests that churches and denominations may be legally responsible on the basis of “negligent hiring” or “negligent retention” if they hire or retain a minister after learning that he or she was guilty of sexual misconduct in the past. However, the court emphasized that mere knowledge of previous incidents of sexual misconduct does not automatically create legal liability. Liability for negligent hiring or retention requires that the actions of the church or denomination created a foreseeable and unreasonable risk of harm to others. For example, if there is knowledge of only an isolated incident many years before, without any known repetition, then a jury might conclude that a church or denomination was not “negligent” in hiring or retaining such a person. Similarly, a jury might conclude that a minister who has undergone extensive counseling for previous incidents of sexual misconduct does not present a foreseeable and unreasonable risk of harm to others. Of course, a jury might also conclude that the church or denomination was negligent under such circumstances. Obviously, a church or denomination that has no knowledge of a minister’s previous misconduct ordinarily cannot be legally responsible on the basis of negligent hiring or retention for injuries that he inflicts. Churches and denominations that are considering hiring a minister after learning of previous incidents of sexual misconduct must consider several factors, including (1) the nature and severity of the previous misconduct; (2) the frequency of the previous misconduct; (3) how long ago the misconduct occurred; (4) whether the minister received counseling; (5) the competency and effectiveness of any counseling received; (6) the likelihood that the minister will repeat the same type of misconduct now; (7) the possibility of legal liability if a jury concludes, on the basis of all the evidence, that the church or denomination was negligent in hiring the minister. The same considerations apply if a church or denomination learns of previous incidents of misconduct after hiring a minister, since a jury might conclude that the organization was negligent in retaining the individual. Churches and denominations that decide, after evaluating the evidence, to hire or retain clergy after learning of previous incidents of sexual misconduct must recognize that they are assuming a significant legal risk. They should take steps to reduce the risk of repeat behavior. Such steps might include professional counseling and assessment, periodic evaluation by church officials, and limiting certain “high-risk” activities. Mt. Zion State Bank v. Central Illinois Conference of the United Methodist Church, 556 N.E.2d 1270 (Ill. App. 1990).

© Copyright 1990, 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 c0690

Legal Developments

Personal Injuries – Part 1

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1990-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Is a church responsible for the homosexual rape of a 6-year-old boy occurring on church property during Sunday School? That was the issue before an Ohio state appeals court in a significant ruling. The boy attended a Sunday School class of about 45 first and second graders at a Nazarene church. One adult female teacher was present on the day of the rape along with two teenage volunteers (one male and one female). During “story time,” the victim became disruptive, and the teacher allowed the male volunteer to “take him back and color” in an unused room. The adult teacher did not check on the boy for the remainder of the Sunday School session. The boy’s mother alleged that the male volunteer took her son to an unused room, slapped him into submission, raped him, and threatened to hurt or kill him if he “told anyone.” The boy and his mother later sued the church, the pastor, the Sunday School teacher, and the alleged rapist and his parents. The lawsuit sought money damages for personal injuries, emotional distress to the mother, loss of services, and medical and psychological expenses. With regard to the church, the lawsuit alleged that the boy’s injuries were a result of the church’s “negligent supervision” of its agents, and that the church had “willfully, wantonly and recklessly placed [the alleged rapist] in a position of control and supervision of the child, causing the aforesaid injuries.” The pastor and Sunday School teacher were sued personally for negligent supervision and negligently allowing the alleged rapist to have custody of the boy. A trial court awarded a “summary judgment” in favor of the church, and its pastor and Sunday School teacher. The victim and his mother appealed this judgment, and a state appeals court affirmed the trial court’s ruling. The appeals court noted that the church and its pastor and teacher were being sued for negligence, and it observed that “legal liability for negligence is based upon conduct involving unreasonable risk to another, which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under the same or similar circumstances. The established test of negligence is the conduct of a reasonably prudent man in like circumstances. [N]egligence does not consist of failing to take extraordinary measures which hindsight demonstrates would have been helpful.” The court further observed that a church is “not an insurer of the safety” of persons on its premises, but rather has only a “duty of ordinary care to avoid injury consistent with [existing] facts and circumstances.” Did the church and its pastor and teacher violate this duty of ordinary care toward the victim and his mother? No, the court concluded. It emphasized that the victim and his mother “have presented no evidence that [the church or its pastor or teacher] knew, or in the exercise of reasonable diligence should have known of or anticipated a criminal sexual assault by [the alleged rapist] upon another.” The victim and his mother placed great significance upon evidence that “a similar incident had occurred several years earlier.” In rejecting the relevance of this evidence the court observed simply that “there is no evidence that the church or its agents knew, or in the exercise of diligence, should have known of such prior activity.” Finally, the court noted that the victim and his mother cited no legal authority in support of their position. As a result, the appeals court upheld the summary judgment in favor of the church and its pastor and teacher. This ruling is significant for a number of reasons. First, it illustrates that churches are not “guarantors” or insurers of the safety of children (or adults) on their premises. They are legally responsible only for those injuries caused by a breach of their duty or ordinary care. Second, the appeals court’s ruling affirmed the trial court’s summary judgment in favor of the church and its pastor and teacher. The significance of a summary judgment cannot be overstated, since it represents a decision that the prevailing party is entitled to win as a matter of law without the necessity of a jury trial. The court in essence says that reasonable minds could not disagree as to the outcome of the case, and therefore it should be disposed of summarily. Such a ruling is an especially strong statement of the merits of the prevailing parties’ position. Clearly, it is a much stronger vindication of the position of the church and its pastor and teacher than a jury verdict in their favor. Third, the court hinted that its decision might have been different had the church (or its pastor or teacher) been aware of prior incidents of molestation by the alleged rapist. The court’s ruling was based squarely on the assumption that no such knowledge existed. Fourth, it is interesting that the church was not found negligent in having only one adult supervisor for a class of 45 first and second graders. Other churches should not take comfort in this aspect of the court’s ruling, for it is entirely possible that courts in other states would find such a low teacher-pupil ratio to be evidence of negligence. Finally, note that the court did not rule in favor of the alleged rapist or his parents. The liability of these persons will be decided by a jury. It will be interesting to see if the jury finds the alleged rapist’s parents responsible for the boy’s injuries. Any further developments in this case will be reported in future editions of Church Law & Tax Report. Bender v. First Church of the Nazarene (Ohio App. unpublished opinion 1989).

Legal Developments

Personal Injuries – Part 2

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1990-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Can a church be sued by the parents of a 17-year-old boy who was injured severely in a church van accident? Yes, ruled the Arizona Supreme Court. The boy was injured when a church van in which he was a passenger accidentally drove off the road and overturned. Among other things, his back was broken in two places requiring two 20-inch steel rods to be permanently inserted in his back. He could walk with difficulty, was incontinent, and could not stoop, squat, bend, sit, or stand for extended periods of time. The boy’s parents sued the church on the basis of two theories of liability—”negligent infliction of emotional distress” and “loss of consortium.” The court rejected the first claim since it requires that a parent witness an injury to a closely-related person. However, the court ruled that the parents could recover damages for “loss of consortium,” which it defined as “a loss of capacity to exchange love, affection, society, companionship, comfort, care and moral support.” The court concluded that parents can sue a church for loss of a child’s consortium if “the child suffers a severe, permanent and disabling injury that substantially interferes with the child’s capacity to interact with his parents in a normally gratifying way.” Note that the parents’ loss of consortium claim was independent from their child’s claim for recovery for his own damages. In summary, injuries to a child may result in a recovery not only by the child, but also by his or her the parents. Pierce v. Casas Adobes Baptist Church, 782 P.2d 1162 (Ariz. 1989).

Legal Developments

Court Agreed a Member of an Unincorporated Church Cannot Sue the Church for Damages Sustained Because of the Negligence of Another Church Member

Can a member of an unincorporated church sue the church for damages sustained because of

Richard R. Hammar, Attorney, CPA

Bio

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

Can a member of an unincorporated church sue the church for damages sustained because of the negligence of another church member? No, concluded the Indiana Supreme Court.

The member had been seriously injured while repairing a church roof when he fell off of a ladder that had been negligently positioned by another member. The injured member sued the church for damages, and the church defended itself by arguing that an unincorporated church cannot be sued by one member for injuries resulting from the negligence of another member.

The state supreme court agreed with the church's position, observing that the rule "followed by the majority of jurisdictions is that a member of an unincorporated association injured due to the conduct of another member cannot sue the association." This rule, noted the court, is based on the principle that "the members of an unincorporated association are engaged in 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 tortious 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."

The court acknowledged that a few states had changed this rule with respect to "large unincorporated associations … having a hierarchy of structure that drastically changes the relationship of members to the association and the control that a member has in its affairs." However, such an exception to the general rule clearly did not apply to a local church. Further, the court acknowledged that the state legislature had enacted a law providing that unincorporated associations could be sued directly.

But this law, concluded the court, "did not change the general rule in Indiana, still adhered to by most jurisdictions, that members of an unincorporated association cannot sue the association for tortious acts of one or more of its members." As a result of this decision, members of unincorporated churches in Indiana cannot sue their church for injuries sustained because of the negligence of other members. In many cases, they will be left without any legal remedy at all.

This certainly is a matter that should be considered seriously by any church wishing to remain unincorporated. Such churches should apprise their members that if they are injured during any church activity because of the actions of another member, they probably will have no legal right to compensation or damages from the church or the other members.

Calvary Baptist Church v. Joseph, 522 N.E.2d 371 (Ind. 1988)

Legal Developments

Court Concluded That a Member of an Unincorporated Church Cannot Sue the Church for Injuries Sustained While Repairing a Church Sound System

Can a member of an unincorporated church sue the church for injuries sustained while repairing

Richard R. Hammar, Attorney, CPA

Bio

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

Can a member of an unincorporated church sue the church for injuries sustained while repairing a church sound system? No, concluded a South Carolina appeals court.

A church member was seriously injured when he fell from the church's attic onto a concrete floor while attempting to repair a speaker system at the request of the church board. The court concluded that the injured member could not sue either the church or the board members in their official capacity.

It explained its ruling as follows: "Members of an unincorporated association are engaged in a joint enterprise, and 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 to his person, property, or reputation through the tortious conduct of another member of the association may not recover from the association for such damage, although he may recover individually from the member actually guilty of the tort.

The reason for this rule, as it is sometimes stated by the courts, is that since the negligence of the tortfeasor member is imputable to the member who has sustained the damage or injury as a result of such tort, the latter may not sue himself for his own negligence." The court acknowledged that some states have enacted laws that permit persons to sue an unincorporated association directly. However, it noted that such laws also treat unincorporated associations as "legal entities" and "expose only the assets of the association to liability."

South Carolina law, on the other hand, does not treat unincorporated churches as "legal entities" and specifically allows any judgment against an unincorporated association to be paid out of the personal assets of individual members. As a result, the court concluded that "a member of a voluntary unincorporated association … cannot maintain an action in tort against the association for injuries suffered by the member because of the negligence of fellow members."

This case illustrates the potential risk faced by members of unincorporated churches who are injured in the course of church activities, particularly if the church has not obtained adequate liability insurance.

Crocker v. Barr, 367 S.E.2d 471 (S.C. App. 1988)

Legal Developments

Court Ruled Member Could Recover Damages Against Church If He Could Establish That the Church Had Breached a Duty of Care

Can a church be liable for injuries sustained by a member shortly after leaving a

Richard R. Hammar, Attorney, CPA

Bio

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

Can a church be liable for injuries sustained by a member shortly after leaving a church retreat in an emotionally disturbed condition? That was the issue before a New York state court.

The member left the retreat in an "emotionally unstable condition" with the knowledge of the church, lay down on a set of railroad tracks, and lost both legs when he was hit by an oncoming train. The member sued the church, arguing that it had been remiss in allowing him to leave the retreat in a state of "severe psychological distress."

The church asked the court to dismiss the lawsuit on the ground that the member had failed to state a claim upon which relief could be granted since (1) there was no evidence that the church had acted improperly, and (2) the lawsuit violated the constitutional guaranty of religious freedom.

The court rejected the church's request, noting that the member could recover damages against the church if he could establish that the church had breached a duty of care toward him.

Alba v. Long Island Railroad Co., and St. Cecilia's Roman Catholic Church, 528 N.Y.S.2d 39 (1988)

Legal Developments

Court Concluded Church Was Responsible for Injuries Sustained by a Volunteer Worker

Can a church be legally responsible for injuries sustained by a volunteer worker who was

Richard R. Hammar, Attorney, CPA

Bio

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

Can a church be legally responsible for injuries sustained by a volunteer worker who was injured severely while helping to paint a church's fellowship hall? Yes, concluded a Wisconsin appeals court.

The volunteer was painting a steam pipe using a stepladder that was owned by the church and that had been placed on a drop cloth. Following the accident, the victim was taken to a hospital where he was diagnosed as comatose and partially paralyzed, and was placed on a life support system. Several weeks later, he had "regressed to a very primitive, vegetative level."

A lawsuit was brought against the church, and a jury determined that the victim and the church had each been 50 percent negligent, and awarded damages accordingly. The church appealed from this decision, arguing that the evidence had not conclusively established that the victim had fallen from the stepladder, and, even if it had, that the fall was due to a defect in the ladder and drop cloth. On appeal, the state appeals court disagreed with the church: "[E]xpert medical testimony indicated that injuries of the type … sustained could not usually be caused by someone falling on level ground …. Evidence also indicated that the ladder and drop cloth were a substantial factor in causing the fall …. [T]wo experts testified that the ladder [was unsafe] because it was warped and twisted, with bowed treads, loose joints and other defects, with the result that 'the ladder becomes rickety, teetery, when you get on it,' and could move suddenly, surprising someone on it … [and] that 'the front legs slipped and will slide on the drop cloth.'"

Another expert witness testified that "the ladder and drop cloth combination would be a substantial factor in someone falling off." In light of this testimony, the court ruled that the jury had properly concluded that the church was negligent "in the materials it provided to [the victim]." Kluever v. Evanglical Reformed Immanuels Congregation, 422 N.W.2d 874 (Wisc. App. 1988)

Legal Developments

Court Ruled That a Charitable Organization Could Be Held Responsible for Injuries Sustained by a Child Who Fell Off a Slide

An Illinois court ruled that a charitable organization could be held responsible for injuries sustained

Richard R. Hammar, Attorney, CPA

Bio

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

An Illinois court ruled that a charitable organization could be held responsible for injuries sustained by a child who fell off a slide. The slide was over six feet high, had no handrail going up the steps, and had a loose and slippery handrail around the platform at the top. Metal and concrete footings at the base of the slide were exposed.

A child fell from the slide and was severely injured. The state appeals court ruled that the charitable organization that owned the slide could be found liable for both negligence and willful and wanton misconduct, if, as the lawsuit alleged, on prior occasions other children had fallen from the slide due to its defective and dangerous condition, and that the charity was aware of the slide's condition and of the prior accidents, but took no corrective action. Scarano v. Town of Ela, 520 N.E.2d 62 (Ill. App. 1988)

Legal Developments

Court Ruled That a Quadriplegic Student Could Not Sue Church Officials for Failing to Obtain Adequate Insurance

The Kansas Supreme Court ruled that a student who was rendered a permanent quadriplegic as

Richard R. Hammar, Attorney, CPA

Bio

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

The Kansas Supreme Court ruled that a student who was rendered a permanent quadriplegic as a result of injuries sustained while playing football for a church-operated high school could not sue church officials for failing to obtain adequate insurance coverage.

The victim alleged that the school and church officials had been negligent in "failing to properly insure students for injury incurred as a result of school activities and in failing to properly advise and inform students and their parents … of the insurance protection provided to students."

In rejecting this claim, the court cited a state law making the purchase of liability insurance coverage by public schools discretionary rather than mandatory. Such a law, reasoned the court, applied "by implication" to private schools as well. Since private schools were not required to purchase insurance, they could not be liable for failure to have enough coverage to cover catastrophic losses.

"We feel sympathy for the severe injuries suffered by this plaintiff," concluded the court. "However, there are dangers and risks inherent in the game of football and those who play the game encounter these risks voluntarily. It is fundamental that before there can be any recovery in tort there must be a violation of a duty owed by one party to the person seeking recovery …. It is clear under the facts of this case that no … duty existed to properly insure or to advise the plaintiff regarding medical insurance purchased by the defendants for the plaintiff." Wicina v. Strecker, 747 P.2d 167 (Kan. 1987)

Legal Developments

Court Permitted Student to Sue His Church-Operated High School for Injuries in Football Game

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

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

A New York court permitted a student injured in an intramural tackle football game sponsored by a church-operated high school to sue his school.

The game was an annual, informal contest between students that was officiated by instructors from the school. No protective equipment was provided. The injured student alleged that the school failed to properly supervise the game and to provide the necessary protective equipment.

The court concluded that the evidence was "sufficient to allow a jury to conclude that the failure to equip [the injured student] with shoulder pads was a proximate cause of his resulting injury." The court also rejected the school's claim that the student should not be allowed to recover since he had voluntarily "assumed the risk" of injury by playing tackle football without pads.

While this may be true where participants "expressly" assume a risk, it is not necessarily true, in the State of New York, when there is only an "implied" assumption of risk. Voluntary participation in an athletic contest, without more, amounts to only an implied assumption of risk that is not a complete bar to recovery in the event of an accident. It is, however, a factor to be considered in assessing fault. Locilento v. John A. Coleman Catholic High School, 523 N.Y.S.2d 198 (1987)

Legal Developments

Court Ruled Church Had No Duty to Warn or Take Precautionary Measures

A child was injured on church property when he tripped on one of several bricks

Richard R. Hammar, Attorney, CPA

Bio

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

A child was injured on church property when he tripped on one of several bricks surrounding the base of a large tree. While it was dark outside, there was sufficient light from outdoor floodlights to permit the victim and other children to play football.

A Florida appeals court ruled in favor of the church, on the ground that "we do not think that a tree with a surrounding brick border constitutes a dangerous condition or concealed peril," and accordingly "there was no duty on the part of the church to warn or take other precautionary measures, such as installing better lighting." Grajeda v. Winter Springs Community Evangelical Congregational Church, 509 So.2d 384 (Fl. App. 1987).

Legal Developments

Religious Order and Archdiocese Not Liable for Injuries Caused by Nun’s Negligence

A young mother was seriously injured when a car she was driving was struck by

Richard R. Hammar, Attorney, CPA

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

A young mother was seriously injured when a car she was driving was struck by a car driven by a member of the Sisters of Mount Carmel (a religious order).

The victim sued the driver, the order, and the Archdiocese of New Orleans, for negligence. A Louisiana appeals court held that the order and the Archdiocese were not liable for the injuries caused by the sister's negligence, since she "was not on an errand for her religious order or the Archdiocese at the time of the accident." Mattingly v. State Department of Health, 509 So.2d 82 (La. App. 1987).

Legal Developments

Churches Can Be Responsible for Injuries Suffered by a Member

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

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

Can a synagogue be legally responsible for injuries suffered by a member who tripped over a plastic runner covering an aisle?

Yes, concluded an Indiana appeals court. The court noted that the liability of landowners (including churches and synagogues) for injuries suffered on their premises depends on whether the victim was a "licensee" or an "invitee."

One who enters premises for his or her own "convenience, curiosity, or entertainment" is a licensee and cannot recover for injuries caused by negligent maintenance of the premises. On the other hand, persons who are invited to enter upon premises for a purpose for which the premises are held open to the public or for business dealings with the owner of the premises are "invitees" who may recover for such injuries.

The court concluded that members who attend activities at a church or synagogue are invitees under this test, since they are invited to enter the premises for the purposes for which they are held open to the public. Accordingly, a church or synagogue has a duty to protect them against negligent conditions on the premises, including improperly maintained runners. Fleischer v. Hebrew Orthodox Congregation, 504 N.E.2d 320 (Ind. App. 1987).

Legal Developments

Church Liability for Injuries Sustained by Volunteers

A church member of an unincorporated church who was injured while volunteering his time to

Richard R. Hammar, Attorney, CPA

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

A church member of an unincorporated church who was injured while volunteering his time to repair the church roof could sue the church for injuries he sustained, ruled an Indiana appeals court, The court acknowledged that its decision was contrary to the majority rule that unincorporated churches cannot be sued by members for negligence. Joseph v. Calvary Baptist Church, 500 N.E.2d 250 (Md. App. 1986).