Arizona

Legal Developments

Church Found Not Liable for Serious Injuries to an HVAC Worker

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

Richard R. Hammar, Attorney, CPA
Bio

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

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

Background

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

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

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

No evidence of negligence by the church

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

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

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

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

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

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

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

What this means for churches

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

No deduction for donating labor

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

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

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

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

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

Legal Developments

The Limitations of Church Insurance

A church’s insurance policy’s exclusion for assaults and batteries precluded coverage, rules a federal appeals court.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-16.7. A liability insurance policy provides a church with a legal defense to lawsuits claiming that the church is responsible for an injury, and it will pay any adverse settlement or judgment up to the limit specified in the policy. Liability insurance policies exclude a number of claims. For example, some policies exclude injuries based on criminal or intentional acts and claims for punitive damages. A church has an obligation to promptly notify its insurer of any potential claim, and to cooperate with the insurer in its investigation of claims.

A federal appeals court ruled that a church's insurance policy's exclusion for assaults and batteries precluded any coverage for both a minister's acts of child molestation and the church itself.

Diocese seeks indemnification

The Roman Catholic Diocese of Phoenix settled four lawsuits for alleged sexual abuse by its priests after which the Diocese filed a declaratory judgment action in a federal district court in Arizona seeking entitlement to indemnification under its excess liability indemnity policy.

The policy excluded coverage for claims that alleged assault and battery:

THIS INSURANCE DOES NOT APPLY—
(a) to liability of any insured for assault and battery committed by or at the direction of such insured except liability for Personal Injury or Death resulting from any act alleged to be assault and battery for purpose of preventing injury to persons or damage to property.

The court construed the insurance policy's assault and battery exclusion to apply only to the offending priest, not the Diocese, and concluded that "the best reading of the assault and battery clause is that 'such insured' means the insured who committed or directed the assault and battery." The district court therefore concluded that the exclusion did not foreclose coverage of the sexual abuse claims against the Diocese.

Coverage excluded both insured and coinsured

On appeal, the insurer argued that because the assault and battery exclusion precluded coverage for "any insured"—and because "such insured" refers back to "any insured"—the assault and battery exclusion categorically excluded coverage for both the insured who committed the assault and battery as well as an innocent coinsured such as the Diocese.

A federal appeals court agreed with the insurer's reading of the exclusion. It concluded that "if any one of the insureds violates the exclusion, no other insureds can recover."

What this means for Churches

Our research shows that sexual abuse of minors remains one of the most common reasons that churches end up in court.

What comes as a shock to many church leaders is that the church's insurance policy may not provide coverage for such claims due to the common exclusion of intentional or criminal acts. To be sure, this exclusion clearly would apply to the perpetrator who has engaged in intentional or criminal acts. But in most of these cases, the church has not committed any intentional or criminal act. It is sued for negligence, either in the selection or supervision of the offender. Does the policy's exclusion for intentional or criminal acts apply to negligence claims against the church?

Incredibly, many courts, like the court in this case, have concluded that it does. Other courts have reached the sensible conclusion that an exclusion for intentional or criminal acts does not apply to a church's alleged negligence.

A church insurance company's interpretation of the application of the intentional and criminal acts exclusion to negligence claims against a church is a question of immense importance. If the insurer takes the position that the exclusion precludes coverage of negligence claims against a church, then the church will be required to retain and compensate legal counsel in the defense of the claim, and pay any settlement or adverse judgment.

The takeaway point is this: Church leaders should seek a clarification from their insurance company regarding the interpretation of an intentional or criminal acts exclusion in the 'church's insurance policy. And, this is one of the most important clarifications that a church should obtain when shopping for insurance. Interstate Fire & Casualty Company v. Roman Catholic Church of Diocese, 761 F.3d 953 (9th Cir. 2014).

Legal Developments

Spouse’s Presence May Not Nullify Clergy-Penitent Privilege

A conversation may be protected even if a third party is present.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Spouse’s Presence May Not Nullify Clergy-Penitent Privilege

A conversation may be protected even if a third party is present.

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

Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

An Arizona court ruled that a conversation between a minister and a counselee may be covered by the clergy-penitent privilege even if the counselee’s wife is present. A woman contacted her pastor and informed him that her husband had confessed to her that he had sexually molested their minor daughter. The pastor met with the couple, and during this meeting the husband again confessed to the molestation. The husband was indicted on several counts of molestation of a child. The state gave notice that it intended to introduce the testimony of the pastor at trial. The husband filed a motion to suppress the testimony of the pastor “as privileged communications between communicant and clergy.” The trial court agreed that the conversation with the pastor was privileged, and that it had not been waived by the presence of the wife. The state appealed.

A state appeals court agreed with the trial court that the privilege had not been waived by the wife’s presence. It noted that the Arizona clergy privilege statute states that “a person shall not be examined as a witness in the following cases … a clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.”

The court noted that the privilege can be waived if a third person is present during a conversation between a minister and penitent on the ground that “confidentiality could not be intended with respect to communications that the speaker knowingly allowed to be overheard by others foreign to the confidential relationship.” However, this rule does not apply “when the presence of a third party does not indicate a lack of intent to keep the communication confidential.” The court added that the key question in such cases is “whether the communicant reasonably understood the communication to be confidential notwithstanding the presence of third parties.”

Applying these principles the court concluded that the clergy-penitent privilege was not waived in this case by the wife’s presence:

There is no evidence that the husband later disclosed the conversation with the pastor to an individual not present during the confession. The meeting took place in private. The husband received assurances from the pastor, in accordance with church policy, that their conversation would remain confidential. On these facts, the presence of the wife is not evidence of conduct inconsistent with a desire to maintain the privilege. The wife was not a foreign and uninterested third party. The husband’s conduct giving rise to this case and his participation in the repentance process through the church had a direct effect upon his wife. His statements to the pastor in his wife’s presence were made in furtherance of the confession and repentance process, and do not amount to “conduct inconsistent with observance of the privilege.” On this record, given the marital relationship and the spouse’s interest in her husband completing the repentance process, we do not believe the spouse’s presence constitutes an implied waiver of the privilege.

The court noted that courts in other states had reached similar conclusions when confronted with the question whether waiver should apply when a third party is present during the confession. And, while some courts have reached the opposite conclusion, the third party in these cases “was someone other than the communicant’s spouse and usually not a person the communicant could appropriately rely upon to keep statements confidential.”

The court rejected the state’s argument that the husband waived the privilege by confessing to his wife before meeting with the pastor. It observed: “Although the husband made statements to his wife in advance of confessing to the pastor, his wife was not a foreign third party. She sat through the entirety of her husband’s private confession with the pastor, and her participation was considered by the pastor and her husband as confidential. The pastor viewed part of his duties as helping both of them and their marriage, and the wife’s presence during the confession was permitted in furtherance of this purpose. Additionally, it would be inconsistent to hold that the wife’s presence during the actual confession with the pastor did not waive the privilege but that her husband’s statements to her prior to the privileged communication did result in waiver. Finally, the clergy-penitent privilege did not arise until the husband confessed to the pastor.”

Application. This case is significant for two reasons. First, it demonstrates that the presence of a third party during a confidential counseling session between a pastor and penitent will not necessarily prevent the conversation from being protected by the clergy-penitent privilege if “the presence of a third party does not indicate a lack of intent to keep the communication confidential.”

Second, the court concluded that the clergy-penitent privilege in this case was not nullified by the husband’s confession to his wife prior to meeting with the pastor, since the privilege did not arise until the husband confessed to his pastor, and prior to that time there was no privilege to waive. State v. Archibeque, 221 P.3d 1045 (Ariz. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2011.

Legal Developments

Keeping a Secret

Counselee’s disclosure of information to third party may waive the clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Keeping a Secret

Counselee’s disclosure of information to third party may waive the clergy-penitent privilege.

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

Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

An Arizona court ruled that a criminal defendant waived the clergy-penitent privilege by sharing incriminating information that he had divulged to his pastor in a confidential counseling session. An adult male (the “defendant”) sexually molested his 8-year-old stepdaughter and a second child. She disclosed the abuse to her mother’s sister, who immediately informed the child’s mother. The mother and her child moved out of the home. Distraught that his wife had left him, the defendant contacted his pastor. The two met in the pastor’s office where the defendant disclosed that adults had forced him to engage in sexual activities when he was a teenager and that he was doing the same thing to his stepdaughter. The pastor, unsure of whether he was legally obligated to report this disclosure, called another pastor who informed him that he was required to report. That same day the pastor drove the defendant to the police station to turn himself in. The pastor was questioned privately by a detective, and disclosed the defendant’s confession. The defendant was taken into custody that day. While in prison awaiting trial, the defendant called his wife and admitted to the molestation, and informed her that he had confessed to their pastor.

The defendant was charged with two felony counts of child molestation, and was convicted in part because of the pastor’s testimony regarding the confession. The court concluded that the clergy-penitent privilege had been waived, and therefore the pastor was free to testify about his conversation with the defendant. The defendant was sentenced to two 10-year terms, to run consecutively. He appealed his conviction, claiming that the privilege had not been waived and therefore the pastor should not have been allowed to testify.

The clergy-penitent privilege

The Arizona clergy-penitent privilege states that a member of the clergy “shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a member of the clergy.” Because the privilege belongs to the communicant, the “clergyman may not disclose the communicant’s confidences without the communicant’s consent.”

The court rejected the prosecutor’s argument that the pastor could testify about the defendant’s confession because his conversation with the defendant was not privileged:

There is evidence in the record indicating defendant’s confessions were directed to the pastor in his capacity as a spiritual leader. The pastor knew the defendant for eight years, married defendant and [his wife], and counseled the parties when they were experiencing troubles at the beginning of their marriage. Additionally, defendant testified that he contacted the pastor after the molestation allegations because his family was falling apart and he did not know what to do. Consequently, because defendant contacted the pastor in his capacity as a spiritual leader in the course of the pastor’s obligations in the church, we agree the parties’ conversation was privileged.

To allow a plaintiff to sue additional defendants after a default judgment would potentially allow the plaintiff to collect multiple damages for the same injury.

Child abuse reporting

The Arizona child abuse reporting law makes every citizen a mandatory reporter of child abuse. However, with regard to clergy, it provides:

A member of the clergy … who has received a confidential communication or a confession in that person’s role as a member of the clergy … may withhold reporting of the communication or confession if the member of the clergy … determines that it is reasonable and necessary within the concepts of the religion. This exemption applies only to the communication or confession and not to personal observations the member of the clergy … may otherwise make of the minor.

Waiver of the privilege through disclosure to third parties

The court noted that the clergyman-penitent privilege, like other privileges, “is susceptible to implied waiver through conduct inconsistent with the maintenance of conversational privacy.” Waiver may occur through “any course of conduct inconsistent with observance of the privilege.” As a result, “a minister maybe allowed to testify as to the communications made to him when the one making the privileged conversation tells the facts and substance of his communications with the minister to third parties.”

The court concluded that the defendant waived the privilege when he disclosed to his wife that he had told the pastor about the molestations:

After the defendant disclosed the molestations to his pastor, and during a recorded confrontation call [from prison] the defendant again admitted to sexually molesting [his stepdaughter]. He said that [the child] was not lying about the molestations …. The defendant said he said he was sick, needed help, and that he planned on turning himself in to police. He told his wife that he had told the pastor about the molestations because he wanted to be in trouble for his actions. He also told his wife, referring to the pastor, “Don’t you know that by law he’s gotta go down and tell ’em what I told him?”

The court concluded:

The defendant’s conduct shows he did not intend for his communications with the pastor to be privileged because he told his wife that he had told the pastor about the molestations. The defendant told his wife that he had told the pastor about the molestations. He also acknowledged that the pastor had to report the molestations to authorities. Because the defendant’s conduct was inconsistent with the maintenance of confidentiality … the defendant waived the clergyman-penitent privilege.

The court rejected the defendant’s argument that he did not waive the clergy-penitent privilege by making statements to his wife, because communications between spouses are protected by the “spousal privilege.” The court, in rejecting this argument, observed: “Statements by a party to a third person revealing the content and fact of otherwise privileged communications can amount to an implied waiver of the privilege.”

Application. In Arizona, as in many other states, a conversation between a minister and a counselee is protected by the clergy-penitent privilege only if it is made privately with no third persons present. Some state clergy-penitent privilege statutes extend the privilege to conversations in the presence of a third person who is present “in furtherance of the communication.” Obviously, it is essential for ministers to be familiar with the text and application of their state’s clergy privilege. The clergy privilege statutes of all 50 states are quoted in full in Appendix 2 to the fourth edition of Richard Hammar’s text, Pastor, Church & Law.

The court also addressed another question of first impression: Is the clergy-penitent privilege waived when a pastor shares with his or her spouse the substance of a previous confidential conversation with another person? The court concluded that the privilege is not preserved under these circumstances despite the possible application of the husband-wife or spousal privilege. While statements made between spouses generally are privileged, and therefore are not admissible in court, the spousal privilege does not preserve the clergy-penitent privilege when the substance of a conversation between spouses relates to confidential information shared with the minister-spouse in the course of counseling another person. State v. Baca, 2009 WL 5156236 (Ariz. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2011.

Legal Developments

Minister Sanctioned for Failure to Follow State Marriage Requirements

Familiarize yourself with state laws regarding marriage.

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only "ordained" or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

An Arizona court ruled that a marriage between a man and woman was legally valid despite their failure to record their marriage license as required by state law, and, that the only consequence of this omission was criminal sanctions (a misdemeanor) against the minister who performed the marriage ceremony. An adult male (Dennis) was charged with bigamy, a class five felony. The state offered evidence at trial showing that Dennis married a woman in 1990, and while still married to this wife married a second woman in 2000. Dennis obtained a marriage license on the same day that he married his second wife. They both signed it following a wedding ceremony, as did the minister who officiated at the ceremony and two witnesses. The minister handed the license to Dennis at his request, but Dennis never recorded the license. He insisted that he could not be guilty of bigamy since he never entered into a second marriage due to the fact that the marriage license was not recorded as required by state law. A jury found Dennis guilty of bigamy, sentenced him to three years of supervised probation following a 15-day prison sentence.

An appeals court affirmed Dennis's conviction. It noted that to convict a person of bigamy the state "must prove that a person knowingly has married another person, and that the accused would have had a valid subsequent marriage under Arizona civil law but for his or her earlier, ongoing marriage." The court noted that Arizona law specifies that "a marriage license shall be signed by both persons married, two of the witnesses to the marriage ceremony and the person who solemnized the marriage, who shall return the signed marriage license to the clerk of the superior court for recording." The court agreed with Dennis that Arizona law requires that a marriage license be recorded, but pointed out that "nothing in that or any other pertinent statute establishes what effect, if any, the failure to record has on the validity of a marriage." It concluded that a failure to record a marriage license does not affect the validity of the marriage. Rather, the only consequence is the potential criminal liability for the minister who performed the defective ceremony:

Notably, the requirement that a marriage license be filed and recorded is directed at the official who solemnizes a marriage, not the parties to the marriage. And, the only express sanction for the failure to file and record the license is likewise directed exclusively at the official (official who has failed to record license commits class two misdemeanor). Together those provisions suggest that the legislature intended to enforce the recording requirement by creating incentives for the relevant official to carry out that duty—rather than by invalidating the marriage altogether, a sanction that would, under most circumstances, impose significant legal consequences on the marrying parties for a mere ministerial oversight. We therefore … reject Dennis's claim that the mere failure to record a marriage license invalidates the marriage.

Application. This case illustrates an important point. Under the laws of most states, procedural defects associated with a marriage ceremony do not invalidate the legal validity of the marriage. Rather, the consequence for such defects is criminal sanctions on the officiating minister. As a result, it is imperative for ministers to be familiar with the legal requirements that pertain to marriages in their state. This is especially true for new ministers, and for ministers who have recently moved to another state. State v. Guadagni, 178 P.3d 473 (Ariz. App. 2008).

This Recent Development first appeared in Church Law & Tax Report, January/February 2009.

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Legal Developments

Woman Sues Church for Injury Sustained at Family Retreat

Court ruled that the church had adequately warned of the risk of injury.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Woman Sues Church for Injury Sustained at Family Retreat

Court ruled that the church had adequately warned of the risk of injury.

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

Key Point A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.

An Arizona court ruled that a church was not legally responsible for injuries sustained by a minor during a church retreat since the church had adequately warned of the risk of injury. A mother and her 14-year-old daughter (the “victim”) attended a three day “family retreat” hosted by a church at a public campground. On the first day of the retreat, church leaders told the campers that climbing a mountain immediately adjacent to the campground was “prohibited,” that campground personnel had instructed them “not to climb the mountain,” and that campers who chose to do so would proceed “at their own risk.” Additionally, each camper was given a written list of rules for the retreat that provided: “Campers are not allowed to go out of the camp boundaries,” “mountain climbing is not permitted without proper supervision,” and “parents are responsible for their children.” The adjacent mountain was not part of the campground.

The victim’s parents sued the church and campground claiming that they were liable for their daughter’s injuries because they had negligently failed to warn of a dangerous condition and had failed to provide adequate supervision.

On the second day of the retreat, the victim and several other girls went to the mountain and climbed until they reached an area where they could sit and take photographs. The victim’s mother saw her on the mountain and waved to her, but she did not tell her to stop climbing or to come down. As the girls descended the mountain, a rock was dislodged and rolled onto the victim. An adult from another hiking party lifted the rock off of her, and she was taken by helicopter to a hospital.

The victim’s parents sued the church and campground claiming that they were liable for their daughter’s injuries because they had negligently failed to warn of a dangerous condition and had failed to provide adequate supervision. A trial court dismissed the lawsuit on the ground that the victim had “engaged in an activity she had been warned against by defendants.” The parents appealed.

On appeal, the parents argued that the defendants negligently supervised the victim and did not take reasonable steps to prevent her from climbing the mountain. The court disagreed: “Generally, parents are responsible for protecting their children and third parties may become responsible only after they have assumed responsibility for their care.

Here, the defendants had not assumed responsibility for [the victim’s] care. Indeed, the church explicitly stated in its written rules for the retreat that parents would be responsible for their children and ‘constant parent supervision will allow us to have a successful camp for all.’

Moreover, to the extent the [parents] argue the defendants should have physically restrained minor campers or set up a physical barricade to prevent them from climbing the mountain, that would have created an unreasonable burden on the defendants and would have also been unnecessary in light of their several warnings against climbing the mountain …. In sum, the defendants adequately warned the campers through both verbal prohibitions and written admonishments that climbing the mountain was a dangerous activity.” 2008 WL 2756505 (Ariz. App. 2008).

This Recent Development first appeared in Church Law & Tax Report, November/December 2008.

Legal Developments

Recent Developments in Arizona Regarding Clergy Removal

An Arizona court ruled that it was barred by the first amendment from resolving a dispute between a church and a priest concerning the termination of the priest’s employment, but it could enforce a church’s judgment authorizing an award of damages to the priest if it could do so without becoming “entangled” in church doctrine.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-07-01

Clergy-Removal

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

• Key point. The civil courts are prohibited by the first amendment guaranty of religious freedom from resolving lawsuits brought by dismissed clergy challenging their dismissals, especially if the resolution of such a dispute would require consideration of ecclesiastical matters.

• Key point. A small minority of courts are willing to review claims of wrongful dismissal by ministers if no inquiry into religious doctrine is required.

An Arizona court ruled that it was barred by the first amendment from resolving a dispute between a church and a priest concerning the termination of the priest’s employment, but it could enforce a church’s judgment authorizing an award of damages to the priest if it could do so without becoming “entangled” in church doctrine. An Orthodox priest in Yugoslavia emigrated to the United States to escape persecution. A bishop appointed him as priest of a local church. Under the constitution of the diocese, the bishop appoints and removes priests. However, the president of the local congregation terminated the priest’s employment with the church and ordered him to vacate the church parsonage. When the priest and his wife refused to move, the church had the police remove them from the property. An “ecclesiastical court” of the diocese determined that the church had not observed the diocese’s constitution in removing the priest. It ordered the church to pay the priest the amount of money it owed him from the date of his illegal termination. When the church failed to pay the priest the amount mandated by the ecclesiastical court, the priest filed a civil lawsuit alleging that the church wrongfully breached his employment contract and failed to implement the decision of the ecclesiastical court. The priest also claimed that the church wrongfully cut off his utilities in an attempt to force him out of the parsonage, and did not return to him all of the personal belongings that he left in the parsonage.

Breach of Employment Contract

A state appeals court ruled that the first amendment prevented it from resolving the priest’s breach of contract claim:

The first amendment guarantees that both individuals and churches have the “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church, 344 U.S. 94 (1952) …. The interaction between a church and its pastor is an essential part of church government. In particular, “a minister’s employment relationship with his church implicates internal church discipline, faith, and organization, all of which are governed by ecclesiastical rule, custom, and law.” Lewis v. Seventh Day Adventists Lake Region Conference., 978 F.2d 940 (6th Cir.1992). Thus, civil courts must abstain from deciding ministerial employment disputes or reviewing decisions of religious judicatory bodies concerning the employment of clergy, because such state intervention would excessively inhibit religious liberty. Accordingly, “secular courts will not attempt to right wrongs related to the hiring, firing, discipline or administration of clergy.” Higgins v. Maher, 258 Cal. Rptr. 757 (1989). The first amendment prohibits civil adjudication of [the priest’s] breach of contract claim because his claim challenges church decisions involving the hiring and firing of its clergy. Review of [the] contract claims would have involved the trial court in matters of “internal church discipline, faith, and organization.” Thus, the trial court correctly dismissed these contract claims.

Wrongful termination of utilities, failure to return personal property

The court also concluded that it was barred by the first amendment from resolving the priest’s claims that his utilities had been improperly cut off, and that the church had failed to return all the personal belongings he had left in the parsonage. It ruled that these claims were “too intimately connected with matters of church discipline to allow civil review”; were “too close to the peculiarly religious aspects of the transaction to be segregated and treated separately as simple civil wrongs”; and arose as “inseparable parts of a process of divestiture of priestly authority.” The court concluded: “[T]the alleged actions of cutting off the … utilities and taking [the] belongings were inseparable parts of the process of divesting [the priest] of his priestly authority. While the alleged acts may have been improper, they occurred as [the church] attempted to remove the [priest and his] belongings from the church premises after the church terminated [the priest].”

Enforcing the decision of the ecclesiastical court

The court concluded that the first amendment did not prohibit it from enforcing the decision of the ecclesiastical court. It noted that “because churches, including their local congregations and hierarchy, exist and function within the civil community, they are as amenable as other societal entities to rules governing property rights, torts and criminal conduct.” The court further observed:

When civil or property rights are involved, courts may entertain disputes within religious organizations even if some ecclesiastical matters are incidentally involved. Such disputes, however, cannot be heard by a civil court if the court must resolve underlying controversies over religious doctrine and practice in order to decide the case. Setting the amount of [the priest’s] damages in conformity with the ecclesiastical decision would not constitute a review of that decision, nor would it involve deciding issues of ecclesiastical doctrine or belief. The doctrine of ecclesiastical abstention does not apply where the dispute can be resolved without inquiry into religious law or polity. The court may decide the dispute if the methods of resolution avoid entanglement in questions of ecclesiastical doctrine or belief.

The court noted that the ecclesiastical court had determined that the priest was entitled to salary and benefits from the time the church terminated his employment. A determination of this amount “would only involve computation of [his] salary and the value of his housing, utilities, benefits and unpaid vacation time.” The fact that the court might have to examine church documents “concerning what compensation was promised and previously paid … would not preclude this inquiry,” since a court may “interpret provisions of religious documents involving property rights and other nondoctrinal matters as long as the analysis can be done in purely secular terms.” The court concluded that “analyzing church records to determine the amount of salary and benefits … could be done in purely secular terms, particularly where the ecclesiastical court already specified the period of time for which payment should be made.”

Application. This case confirms the general rule that the civil courts cannot resolve disputes involving the employment of clergy. The court extended this prohibition to collateral disputes arising from a decision to terminate a minister’s employment, since such matters are inseparable from the underlying dispute. The court did recognize a limited exception to these rules. A civil court may resolve contract or property claims by clergy if two conditions are met: (1) the contract or property claim is not inseparably linked to the church’s decision to divest the minister of his or her position or authority; and (2) the contract or property claim can be resolved by the civil court without reference to church doctrine (a limited review of church documents is permitted). Dobrota v. Free Serbian Orthodox Church, 952 P.2d 1190 (Ariz. App. 1998). [Termination, Judicial Resolution of Church Disputes]

© Copyright 1999 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: m31 m47 c0499

Legal Developments

Recent Developments in Arizona Regarding Marriage and Divorce

An Arizona court upheld the validity of a marriage despite a number of technical violations of state law.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-11-01

Marriage and divorce

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

• Key point. Marriages generally are recognized as legally valid in a couple’s state of residence even though performed in another state or country, so long as the marriage was valid where performed.

• Key point. A marriage is not necessarily void because a technical requirement is not met.

An Arizona court upheld the validity of a marriage despite a number of technical violations of state law. A couple was issued a marriage license by a county clerk. While on vacation in Puerto Rico, the couple exchanged vows in a marriage ceremony performed by the pastor of a local church. The couple, the pastor, and two witnesses signed the marriage license after the ceremony. The couple then returned to Arizona, continued to reside there as husband and wife, and had one child. A few years later, the wife asked a court to annul the marriage on the following grounds: (1) the marriage was invalid in both Arizona and Puerto Rico because neither the Arizona marriage license nor any other was ever filed or recorded in either jurisdiction; (2) the marriage was solemnized by a Puerto Rican pastor rather than a duly licensed or ordained Arizona pastor; and (3) the couple went to a foreign country for solemnization of their marriage to evade Arizona marriage laws. The trial court agreed with the wife and granted an annulment. The husband appealed, and a state appeals court rejected each of the wife’s grounds for invalidating the marriage.

Failure to return the marriage license to the county clerk

The husband insisted that the marriage license remained in his wife’s sole possession from the date of the ceremony, and that she told him it had been properly filed. As a result, the marriage should not be invalidated because of the failure to file the license. The court concluded that it was not necessary to address the husband’s argument, since the failure to return the marriage license to the county clerk did not invalidate the marriage. The court quoted from the state law defining the requirements of a valid marriage:

A valid marriage is contracted by a male person and a female person with a proper marriage license in the presence of an official and two witnesses who participate in a ceremony conducted: (1) By a person authorized to solemnize marriages who signs and files the marriage license with the clerk of the superior court. (2) In the presence of at least two witnesses of lawful age who sign the marriage license.

The court concluded that “all of these statutory requirements were satisfied here except for the admitted failure of the pastor to file the marriage license with the clerk of the superior court, a class two misdemeanor …. That failure alone, however, does not invalidate the marriage.” The court continued:

It is frequently provided by statute that a person solemnizing a marriage shall make a return thereof to a specified officer of the county in which the marriage takes place; and a failure to observe such a statute is made an offense punishable criminally. Other statutes impose a penalty on the officer to whom the return is made for a failure to record it. Such return and record are primarily for the benefit of the parties … and a failure or deficiency in the return or record does not affect the validity of the marriage.

Effect of a nonresident pastor performing a marriage ceremony

The trial court ruled that the marriage of two Arizona residents in Puerto Rico by a Puerto Rican pastor was not legally valid in Arizona. It noted that Arizona law specifies that “[a] marriage contracted within this state is not valid unless … [it] is solemnized by a person authorized by law to solemnize marriages.” Among those authorized to solemnize marriages are “[d]uly licensed or ordained clergymen.” The trial court concluded that because a Puerto Rican pastor, rather than a duly licensed or ordained Arizona clergyman, solemnized this marriage, it is invalid. Once again, the appeals court disagreed, noting simply that the statute “is expressly limited to marriages solemnized within this state and does not apply to this marriage.”

Foreign marriages designed to evade state law

As is the case in many states, Arizona law specifies that “[m]arriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state.” However, the same statute specifies that such marriages are invalid when “parties residing in this state … evade the [marriage] laws of this state … by going to another state or country for solemnization of the marriage.” The trial court concluded that the marriage was invalid because the couple were married in Puerto Rico in order to evade Arizona law. The appeals court rejected this conclusion, noting that “not only is the record devoid of anything suggesting that the parties went to Puerto Rico to evade Arizona marriage laws, it also contains unequivocal evidence to the contrary.” The court pointed out that the wife’s own testimony revealed that the couple had traveled to Puerto Rico for a vacation.

Application. This case addresses a couple of points of interest to all clergy:

The court concluded that the failure to comply with a technical requirement of a state marriage law will not necessarily invalidate the marriage. In this case, neither the pastor who performed the foreign marriage nor the couple themselves filed a marriage license with the county clerk back in Arizona. The court rejected the wife’s claim that this failure invalidated the marriage. Quite to the contrary, the only legal effect of noncompliance with this requirement was the pastor’s own potential criminal liability.

Clergy often are asked to perform marriages for couples who are residents of another state. For example, a member of a church moves to another state and becomes engaged, and wants to be married in her “home church”. Is such a marriage legally valid in the other state? Yes, concluded the court in this case. It relied on a state law specifying that “marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state.” Many states have a similar law. You can call the office of your county clerk to find out if your state has such a law. Barbosa—Johnson v. Johnson, 851 P.2d 866 (Ariz. App. 1993). Performance of Marriage Ceremonies

© Copyright 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: m55 c0698

Legal Developments

Recent Developments in Arizona Regarding Schools

A bankruptcy court in Arizona ruled that a Catholic high school could not withhold a former student’s academic transcript as a result of her failure to pay her school bill.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-03-01

Schools

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

• Key point. Many courts have ruled that a church school’s policy of not releasing academic transcripts to former students who have not paid their school bill cannot be applied to a student who has declared bankruptcy since doing so would violate the right of a bankrupt debtor to be free from attempts to recover debts.

A bankruptcy court in Arizona ruled that a Catholic high school could not withhold a former student’s academic transcript as a result of her failure to pay her school bill. A student attended a Catholic high school for her sophomore year and part of her junior year. She transferred to a public high school but her parents failed to pay a $1,000 balance owed to the Catholic high school. During her senior year, her parents asked the Catholic high school for her academic transcript which was required for her graduation. The school refused, and informed the parents that the transcript would not be released until the school bill was paid. The student’s parents, who recently had declared bankruptcy, sought a court order compelling the Catholic school to release the transcript. They argued that one of the protections of bankruptcy is protection from any attempts by creditors to recover their debts, and this protection was violated by the school’s refusal to release the transcript until the school debt was paid. The Catholic school argued that an educational institution has a right to withhold a student’s transcripts if the student has not met his or her financial obligations. The school also argued that any court order compelling the school to turn over the transcript would create a “substantial burden on the exercise of religious rights” in violation of the first amendment.

The court noted that “a large number of cases stand for the proposition that a college or educational institution violates the [ban on attempts to recover debts from a bankrupt debtor] if the institution withholds a debtor’s transcripts because the debtor is in default on a pre—petition debt. An educational institution’s stated policy of withholding transcripts from a defaulting student is a debt collection mechanism.” The court relied on an Ohio case with almost identical facts. In the Ohio case, a bankruptcy judge ruled that a school could not withhold the high school transcripts of a debtor’s minor son until the debtor paid the debt owed to the school district. The Ohio court concluded that the collection of the debt through the coercive action of withholding transcripts violates the ban on attempts to recover debts.

The court concluded:

In the case at bar [the Catholic school] is withholding the high school transcripts of the debtors’ minor daughter in an attempt to collect the pre—petition debt incurred by the debtors. The court finds and concludes that [such] actions violate the [ban on debt collection] because the educational institution is attempting to collect on a pre—petition debt after the commencement of the bankruptcy case.

The court rejected the school’s claim that its efforts to collect the debt were protected by the first amendment guaranty of religious freedom since collection of school debts was necessary in order for the school to continue providing religious education. The court noted that this was not a sufficient burden on religious exercise to merit protection under the constitution or federal law.

Application. While the court’s decision reflects the conclusion of most courts that have addressed this issue, some courts have reached the opposite conclusion. To illustrate, a bankruptcy court in Pennsylvania ruled that a university could withhold a student’s academic transcript without violating the bankruptcy court’s ban on any attempts by creditors to recover their debts, until the school bill was paid in full. Najafi v. Cabrini College, 154 B.R. 185 (E.D. Pa. 1993). Church schools should recognize that a refusal to provide a transcript to a former student until all school bills are paid may be impermissible if (1) the student has filed for bankruptcy, and (2) the courts in your state have ruled that the application of such a policy to a bankrupt debtor violates a bankruptcy court’s ban on efforts to recover debts. Scroggins v. Roman Catholic Church of Diocese of Phoenix, 209 B.R. 727 (D. Ariz. 1997). [Government Regulation of Private Schools]

© Copyright 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: m65 m05 c0298

Legal Developments

Pastor Sued for Disclosing Confidential Information

Court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor’s disclosure of confidential information shared with him by a church member.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Ministers who disclose confidential information obtained during counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of a number of grounds, including malpractice, invasion of privacy, defamation, and infliction of emotional distress.

An Arizona court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor's disclosure of confidential information shared with him by a church member. A woman (the "victim") was referred to a pastor for counseling because of his many years of counseling experience. The victim met with the pastor for help with emotional problems following the breakup of an affair with another pastor with whom she had lived for nine months.

The victim later joined the counseling pastor's church, and continued to meet with him for counseling, relating to him highly personal and private matters including her feelings of guilt about having had an inappropriate relationship with the other pastor, and the fact that her father had a sexual relationship with her brother's wife. The victim's sister attended the same church, and married the pastor's son.

During premarital counseling the sister informed the pastor that her father had once embraced her in an "uncomfortable way." The marriage between the sister and the pastor's son deteriorated after the sister learned that her husband was having an affair with another woman. When the pastor's son publicly blamed his wife for the breakup of their marriage, the victim met with the pastor to defend her sister and to present evidence showing that the husband (the pastor's son) was the one who had been unfaithful.

With his wife present, the pastor told the victim that her sister was "screwed up" because she had been molested by their father, and suggested that he would reveal his knowledge of the affair between the victim and her former pastor if she and her sister did not drop their accusations against his son.

The pastor's wife told the victim to "stop lying" about her son because "we know things about your family." The next day the pastor and a church administrator had a conversation in which the pastor described the discord between the victim (and her sister) and his family. He also told the administrator that there were "incest problems" between the victim's father and his children, and that he had learned this information during his counseling sessions with the victim and her sister.

During a Wednesday evening church service, the pastor "marked" the victim and her sister as causing division in the church, and stated that their family was "incestuous" and "dysfunctional." The victim and her sister sued the pastor and the church on a number of grounds, including invasion of privacy, defamation, malpractice, and breach of fiduciary duty. The court's ruling is summarized below.

Civil court intervention in internal church disputes

The pastor and church defended themselves by insisting that the dispute was an internal church matter over which the civil courts have no jurisdiction. They noted that the pastor was motivated by a "biblical admonition" when he brought the victim and her sister's conduct to the attention of the congregation, and that their only real harm was the termination of their relationship with the church and its members. The court rejected these defenses, concluding that the general rule of judicial non—intervention in internal church disputes did not apply in this case "because this dispute can be resolved without inquiry into religious law and polity." The court continued:

We need not consider the "marking" ritual nor its origins in resolving these issues. [The pastor] revealed confidences from his counseling sessions with [the victim and her sister] and threatened to publicize [the victim's] involvement with [her former pastor]. He divulged confidences of [the victim and her sister] to his wife, mother, sister, and the church administrator and also relayed false information to them. There was no evidence that this conduct was part of the observance of the church's religious practices or beliefs; thus, the doctrine of ecclesiastical abstention has no bearing here …. That the injuries occurred in a religious setting does not render them noncompensable, nor does it deprive the court of jurisdiction.

Malpractice for disclosing confidential information

The pastor relied on several cases rejecting clergy malpractice claims because of first amendment concerns about determining a standard of care for pastors. The court concluded that:

Those cases are not applicable here because the claim submitted to the jury was for therapist malpractice, not clergy malpractice, and was based on a psychological therapist's duty not to disclose confidential information revealed in counseling sessions. [The victim's] claim arose, not out of any duty [the pastor] owed them in his capacity as their pastor, but rather out of his duty as a therapist or counselor to refrain from acting in a manner that carried a foreseeable and unreasonable risk of harm to the person being counseled.

Although we have found no Arizona cases in which the disclosure of confidential information by a counselor served as the basis of a malpractice claim, other jurisdictions have recognized causes of action arising from disclosures of confidences by providers of counseling services …. Arizona has long acknowledged and protected the confidential nature of relationships between physicians and their patients, and more recently between psychologists and other behavioral health providers and their clients, including counselors and "marriage therapists." The purpose behind these privileges is "to enhance the effective diagnoses and treatment of illness by insuring that a person requiring professional attention will not be deterred by fear that his physical or mental condition may become public, thereby subjecting him to embarrassment or humiliation."

The pastor insisted that the therapist—patient privilege only applies to licensed counselors and therapists, and that pastors should not be held to the same standards. Once again, the court disagreed:

One who holds himself out and undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. At trial [the victim] presented expert testimony that mental health therapists and counselors have a duty not to disclose confidential information, with certain limited exceptions, and that this duty applies to both pastoral and professional counselors, whether licensed or not. In Arizona, mental health counselors are not required to be licensed …. In sum [the pastor and church] offer no good reason for insulating a counselor from liability for betraying clients' confidences to their detriment merely because the counselor is a clergy member and unlicensed, and the counseling as well as wrongful disclosure takes place in a religious setting.

Here [the victim] testified that she was referred to [the pastor] for counseling to help her through emotional difficulties and depression "because of his 40 years' counseling experience," that she made an appointment with him for that purpose, and that she met with him in his office at the church.

During [her] first counseling session [the pastor] used a chart to determine her level of self—esteem and concluded it was very low and she needed to raise it. [He] also discussed ways for [her] to deal with her feelings of guilt about her relationship with [her former pastor]. The inclusion of biblical passages on the chart did not convert the session into religious counseling, especially when the purpose of the meeting was not to provide her with religious or spiritual guidance, the church's precepts and practices were not part of the counseling, and [the victim] was not a church member when she sought help from [the pastor].

What this means for churches

The importance of this case cannot be overstated. It demonstrates that pastors who disclose confidential information shared with them in counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of malpractice, invasion of privacy, breach of fiduciary duty, and infliction of emotional distress.

As this case illustrates, this conclusion may apply even when pastors share confidential information in order to discipline a member for violating church standards. The point is this-would members disclose confidential information if they suspected that their pastor would report it to the church board or congregation in order to discipline them? Clearly, the answer is "no."

Therefore, it is essential for pastors to refrain from disclosing information obtained during confidential counseling sessions-even if it relates to a person's qualifications or eligibility for membership. Of course, the church board can still discipline the individual, but not on the basis of any information shared with the pastor in the course of a confidential counseling session. Another alternative is for a pastor to obtain the permission of the counselee to share confidential information with the board or with some other person. If this permission is obtained (in writing), this will serve as a defense in the event that the pastor is later sued for disclosing the information.

Finally, note that the court suggested that in limited contexts pastors may not be subject to legal liability for disclosing confidential information obtained during a counseling session-because they are serving as pastoral counselors rather than as secular counselors or therapists. Facts supporting this limited exception, according to this court, include the following:

  1. the counselee did not seek out the pastor as a counselor for relief of emotional difficulties;
  2. the pastor did not engage in psychotherapeutic techniques, testing, or diagnoses;
  3. the purpose of the counseling was to provide religious or spiritual guidance;
  4. the church's precepts and practices were part of the counseling; and
  5. the counselee was a church member.

    6. Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).

Legal Developments

Child Safety and Church Liability

Churches usually legally responsible for accidents only if negligence is proven.

Richard R. Hammar, Attorney, CPA
Bio

• Key point: Churches are not guarantors of the safety of children who participate in their programs. Ordinarily, they are legally responsible for injuries to children only if they were negligent in selecting the worker who caused the injury or in supervising the activity during which the injury occurred.

• An Arizona court ruled that a church was not responsible for injuries suffered by a 4-year-old child at the church's child care facility. A 4-year-old child broke his leg while in the care child care center operated by a church. The injury occurred when the child fell while running, although no employee of the child care center actually saw the boy fall. The boy's parents later sued the church, claiming that their son's injuries were a direct result of the church's negligence in failing to adequately supervise children. Specifically, they alleged that the church has a legal duty to watch and supervise children within its care, and that this duty was breached "as no one saw [the boy] as he fell." The parents also argued that the church was liable on the basis of a legal doctrine ("res ipsa loquitur") that imposes liability on another when (1) someone is injured in a way that ordinarily does not occur without negligence, (2) the injury is caused by a product or on premises within the exclusive control of another, (3) the victim is unable to show the specific circumstances that caused the injury. A trial court dismissed the lawsuit and the parents appealed. The appeals court affirmed the trial court's dismissal of the case. First, the court ruled that the church was not liable on the basis of negligent supervision. It quoted from an earlier decision of the Arizona Supreme Court recognizing that adults supervising the actions of children are not automatically liable for their injuries:

To hold that [a teacher] had to anticipate [a student's] act and somehow circumvent it is to say that it is the responsibility of a school teacher to anticipate the myriad of unexpected acts which occur daily in and about schools and school premises, the penalty for failure of which would be financial responsibility in negligence. We do not think that either the teacher or the district should be subject to such harassment nor is there an invocable legal doctrine or principle which can lead to such an absurd result. Morris v. Ortiz, 103 Ariz. 119, 121, 437 P.2d 652, 654 (1968).

The court quoted from another case involving an attempt to find a child care center liable for a child's injuries: "While supervisors of a day nursery are charged with the highest degree of care toward the children placed in their custody, they are nevertheless not the absolute insurers of their safety and cannot be expected or required to prevent children from falling or striking each other during the course of normal childhood play." The court insisted that "a short absence from supervision of a child is not the proximate cause of the child's injury if the supervisor's presence and attention would not have prevented the injury." The court concluded: "[The boy] slipped out of view of the caregiver for a few seconds at most. No evidence has been presented that he would not have been injured had he been in the caregiver's sight." Accordingly, the parents "have failed to present any evidence to support an inference that the caregiver's supervision, whether negligent or not, proximately caused [the boy's] broken leg."

The court also ruled that the doctrine of res ipsa loquitur did not apply in this case, since it was clear that the boy's injuries were caused by a fall. The court gave the following examples of cases in which child care centers (some of them church-operated) were sued on the basis of this doctrine for injuries to children without any apparent explanation or cause:

Case 1: A 25-month old child sustained a skull fracture while being attended in a bowling alley nursery. The child's parents provided evidence of exposed pipes of a drinking fountain in the play area and evidence of inadequate supervision, together with evidence indicating that the child could not cause such an injury. The court ruled that the facility could be sued on the basis of res ipsa loquitur.

Case 2: An 11-week old child had a broken arm when picked up from a day care center. The evidence established several potentially dangerous conditions that could have injured their child and no evidence indicated the child could have possibly caused the injury. The court ruled that the facility could be sued on the basis of res ipsa loquitur.

Case 3: An 11-week old child had a broken arm when picked up from a day care center. The evidence established several potentially dangerous conditions that could have injured their child and no evidence indicated the child could have possibly caused the injury. The court ruled that the facility could be sued on the basis of res ipsa loquitur.

Case 4: A preschool child left in a nursery sustained a serious injury to his eye. The supervisor told his mother she was not sure how the injury occurred. The parents' lawsuit in this case was dismissed for failure to state a claim under res ipsa loquitur because the mere allegation of an "unusual" injury was not sufficient to infer negligence without evidence of "some act for which the defendant is responsible" that was not performed. The mere occurrence of an injury was insufficient to infer negligence.

Case 5: A 2-year-old child left in a church nursery during services sustained a severe eye injury while supervised by two adults. Neither witnessed the injury nor observed any unsafe condition. The court in this case concluded that res ipsa loquitur did not apply because "the circumstances testified to do not create any clear inference that the accident would not have happened if the [adult workers] had not been negligent."

There is one further aspect of this case that is worth noting. The parents also alleged that the church was guilty of negligently treating their son following the injury. While the court did not directly address this claim (for procedural reasons), it did note that Arizona has a "Good Samaritan" statute that provides some legal protection to those who provide emergency medical care to others. The statute reads: "Any … person who renders emergency care … shall not be liable for any civil or other damages as the result of any act or omission by such person rendering the emergency care, or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured persons." Many other states have similar laws. Their purpose is to encourage persons to render emergency medical aid, and not refrain from doing so out of a fear of legal liability. Ward v. Mount Calvary Lutheran Church, 873 P.2d 688 (Ariz. App. Div. 1 1994). 12A3

See Also: Negligent Supervision

© 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 m11 m86 c0395

Legal Developments

Reporting Child Abuse

Can a reporter be sued if the abuse did not actually occur?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

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

• Can a person who reports suspected child abuse be sued if it is later determined that the abuse did not actually occur? That was the issue before an Arizona appeals court. A mother began taking her 5-year-old son to a counselor. The mother later informed the counselor that her 3-year-old daughter had described being molested by her father. Based on this information, the counselor reported the alleged child abuse to state authorities. The father was indicted on two felony counts, but the charges were later dismissed. The father then sued the counselor for actual and punitive damages. A trial court dismissed the lawsuit, and the father appealed. A state appeals court agreed with the trial court that the counselor could not be sued for making a report of child abuse. It noted that counselors are “mandatory reporters” under Arizona law, meaning that they have a legal obligation to report child abuse if they have “reasonable grounds” that it has occurred. The court concluded that the counselor did have reasonable grounds that abuse had occurred, based on the conversation with the child’s mother, even though the counselor had not conducted an independent investigation. The court observed that the child abuse reporting statute “does not contemplate that a person must fully investigate the suspected abuse before making a report,” and that “we do not believe that our legislature intended persons with knowledge of alleged child abuse to conduct their own investigation to decide whether enough evidence of abuse exists to warrant a report.” The court also noted that the child abuse reporting statute specifies that a person who has reasonable grounds to make a report “shall be immune from any civil or criminal liability” unless the person acts with “malice”. The state child abuse reporting statute defines “malice” as “a wish to vex, annoy or injure another person, or an intent to do a wrongful act.” The court concluded that the counselor in this case was not guilty of malice, and accordingly she was entitled to immunity from legal liability for filing her report. It noted that there was no evidence that the counselor’s report had been motivated by any malice toward the father or that the counselor “bore any ill will toward the father.” This case is relevant to church workers. Most if not all state child abuse reporting laws provide a “qualified immunity” to persons with reasonable grounds for reporting abuse. This means that the reporter cannot be legally liable for reporting the abuse so long as he or she did not act maliciously. This is a very difficult standard to prove. This case suggests that reasonable grounds to report child abuse may exist solely on the basis of one other person’s (in this case, the mother’s) disclosure of an incident of abuse. L.A.R. v. Ludwig, 821 P.2d 291 (Ariz. App. 1991).

See Also: Failure to Report Child Abuse

© 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: m10 c0692

Legal Developments

Personal Injuries – Part 2

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA
Bio

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).

© 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 c0390

Legal Developments

Zoning – Part 2

Church Law and Tax 1990-03-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1990-03-01 Recent Developments

Zoning

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

• An Arizona state appeals court ruled that county officials acted properly in prohibiting a church from using a warehouse that it constructed without a special use permit. The church purchased 40 acres of land, obtained a valid building permit from the county and made various improvements. Later, without obtaining a building permit, the church constructed a large, steel-sided building for use in printing and distributing King James versions of the Bible to persons worldwide. The 40 acres were zoned for rural use, but one of the permitted uses of the land was as a “public assembly for religious worship.” The county claimed that the church’s warehouse was in essence a “manufacturing” operation which was allowable only upon the issuance of a special use permit, and that without a permit the warehouse was a “nuisance” and its use could be prohibited by law. A trial court upheld the county’s action, and the church appealed. The church raised three arguments on appeal: (1) the warehouse was a permitted “place of religious worship” rather than a manufacturing operation; (2) the warehouse was a permitted “accessory use” of the church; and (3) the county’s action violated the constitutional guaranty of religious freedom. The state appeals court rejected all three arguments. As to the first claim, the court concluded that the warehouse was not a “place of religious worship” according to the “common, plain, natural and accepted” meaning of those words, but rather was a manufacturing operation. As to the second claim, the court simply ruled that the church had failed to raise it in the trial court and therefore could not raise it on appeal. As to the third claim, the court observed that it the first amendment guaranty of religious freedom “does not preclude government activity such as building and zoning regulations as applied to religious organizations.” In responding to the church’s argument that its religious beliefs “prohibit it from seeking state permission to operate its God-commanded ministry,” the court noted that the church had obtained a permit to build its sanctuary. It observed: “We are at a loss to understand why such religious beliefs should not by the same token prohibit it from seeking state permission to build its place of worship, which is equally a ‘God-commanded ministry.'” Cochise County v. Broken Arrow Baptist Church, 778 P.2d 1302 (Ariz. App. 1989).

© 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: m82 c0290

Legal Developments

Child Abuse

Church Law and Tax 1989-11-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1989-11-01 Recent Developments

Child Abuse

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

• The Arizona legislature recently enacted a law designed to reduce the risk of sexual molestation of children by public school employees. The law demonstrates the importance of adequately “screening” employees who will have access to minors (see the two-part feature article in the last two issues of Church Law & Tax Report). Here is what the law requires: (1) All new employees must be fingerprinted, and a “fingerprint check” must be conducted to determine any previous criminal activity. (2) All employees must certify on forms provided by their employing school that they have never been convicted of or pleaded guilty to any of the following crimes either in Arizona or in any other state, and that they are not presently awaiting trial for any such offenses: sexual abuse of a minor, incest, first or second degree murder, kidnapping, arson, sexual assault, sexual exploitation of a minor, contributing to the delinquency of a minor, commercial sexual exploitation of a minor, felony offenses involving distribution of marijuana or narcotic drugs, burglary, robbery, any dangerous crime against children, child abuse, sexual conduct with a minor, or molestation of a minor. (3) Prior to hiring any new employee, a schools must make a documented, good-faith effort to contact previous employers in order to obtain information regarding the applicant’s fitness for employment (a prior employer cannot be sued for its evaluations unless it knowingly makes false statements with an intent to cause harm to the applicant). Ch. 115, Laws 1989.

© Copyright 1989, 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: m10 c0689

Legal Developments

Immigration

Church Law and Tax 1989-11-01 Recent Developments Immigration Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1989-11-01 Recent Developments

Immigration

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

• Can Immigration and Naturalization Service agents lawfully attend church services with hidden microphones for the sole purpose of tape recording the services in an attempt to determine whether or not the churches were violating immigration law? That was the issue before a federal appeals court in a recent case. In early 1984, the Immigration and Naturalization Service (INS) initiated an undercover investigation of the “sanctuary movement” (an effort by a loosely knit group of clergy and lay people to aid refugees from El Salvador and Guatemala). Several INS agents wearing “body bugs” (hidden microphones) infiltrated four Arizona churches (three Presbyterian and one Lutheran) without search warrants or even probable cause to believe that the surveillance of the churches would uncover evidence of criminal activity. The agents attended and secretly tape recorded several services and Sunday School classes. When this covert surveillance was later disclosed, the four churches sued the INS and the United States government, claiming that the government’s actions violated the church’s constitutional rights to freely exercise their religion and to be free from unreasonable searches and seizures. A trial court dismissed the lawsuit, and the churches appealed. The federal appeals court ruled that the churches could sue the government for violating their constitutional right to freely exercise their religion. The court noted that the churches had in fact suffered actual injury—”for example, they allege that as a result of the surveillance of worship services, members have withdrawn from active participation in the churches, a Bible study group has been canceled for lack of participation, clergy time has been diverted from regular pastoral duties, support for the churches has declined, and congregants have become reluctant to seek pastoral counseling and are less open in prayers and confession.” If the churches could prove these allegations, the court concluded, “they would have established that the surveillance of religious activity has directly interfered with the churches’ ability to carry out their religious mission.” The court rejected the government’s claim that its “sovereign immunity” prevented it from being sued. However, the court also rejected the churches’ claim that their constitutional right to be free from “unreasonable searches and seizures” had been violated by the INS agents’ conduct. The court acknowledged that the right to be free from unreasonable searches and seizures “protects reasonable expectations of privacy” but this principle does not apply to “church worship services open to the public.” The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989).

© Copyright 1989, 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: m48 c0689

Posted:

Legal Developments

Immigration

Church Law and Tax 1989-09-01 Recent Developments Immigration Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1989-09-01 Recent Developments

Immigration

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

• A federal district court in Arizona ruled that the Immigration and Naturalization Service (INS) acted properly in seizing a van owned by the Tucson Ecumenical Council. At the time the van was seized, it was being used by a local clergyman to transport three Guatemalan citizens in violation of federal law. Vehicles so used are subject to seizure and forfeiture so long as the person operating the vehicle knows that the alien or aliens being transported are in the United States in violation of immigration law. The court rejected the Council’s contention that the aliens were lawfully in the United States. The court concluded: “The fact that [the clergyman] acted as a matter of conscience and moral conviction and with no intent to do specific harm to any person, group or society is abundantly clear … but that does not mean he did not know he was violating the law. It only means that in following the dictates of his conscience he was willing to violate secular law in order to obey moral law. With the freedom to make that choice, as I believe he did, comes the consequences of the act demanded by that secular law. In this case it is forfeiture.” Tucson Ecumenical Council v. Ezell, 704 F. Supp. 980 (D. Ariz. 1989).

© Copyright 1989, 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: m48 m90 c0589

Posted:

Legal Developments

Clergy – Part 3

Removal

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1989-03-01 Recent Developments

Clergy – Removal

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

• How many votes does it take to remove a pastor from office? That was the issue before an Arizona state appeals court in a recent decision. The pastor of a Baptist church was killed in a traffic accident in 1985, and a new pastor was quickly selected. Certain members of the congregation became dissatisfied with the new pastor, and a special church business meeting was called to determine whether or not he should be discharged. Of the 26 members who attended the meeting, 18 voted to discharge the pastor and 8 did not vote. The church bylaws specified that “a pastor may be terminated by the church congregation … but only if … the vote equals or exceeds three-fourths of the voting members present.” The pastor refused to acknowledge that the vote resulted in his dismissal, since less than “three-fourths of the voting members present” had voted to dismiss him (18 is only 70% of 26). Several disgruntled members of the congregation disagreed with this interpretation, and petitioned a court for a ruling recognizing that the congregational vote had resulted in the dismissal of the pastor. The members argued that the phrase “three-fourths of the voting members present” should be interpreted to mean three-fourths of the individuals who actually cast votes at the business meeting rather than three-fourths of all members actually present and eligible to vote. Since all 18 of the persons who actually voted at the meeting voted to dismiss the pastor, 100% of the votes were cast in favor of dismissal. A trial court rejected the members’ argument, and agreed with the pastor that the phrase “three-fourths of the voting members present” meant three-fourths of the members present and eligible to vote (whether they voted or not). The members appealed the ruling to a state appeals court, which agreed with the trial court that the pastor had not been lawfully dismissed in the meeting in question. The court relied on Robert’s Rules of Order, which had been adopted by the church (in its bylaws) as the governing body of parliamentary procedure. The following excerpt from Robert’s Rules of Order was quoted by the appeals court in support of its decision in favor of the pastor: “Assume, for example, that at a meeting of a society with a total membership of 150 and a quorum of 10, there are 30 members present, of whom 25 participate in a given counted vote. Then, with respect to that vote: a two-thirds vote is 17; a vote of two-thirds of the members present is 20; a vote of two-thirds of the entire membership is 100 …. Regarding these bases for determining a voting result, the following points should be noted—voting requirements based on the number of members present, while possible, are generally undesirable. Since an abstention in such cases has the same effect as a negative vote, these bases deny members the right to maintain a neutral position by abstaining. For the same reason, members present who fail to vote through indifference rather than through deliberate neutrality may affect the result negatively.” According to this language, concluded the court, the phrase “three-fourths of the voting members present” meant three-fourths “of the individuals present and eligible to vote.” Accordingly, the pastor had not been dismissed by the congregational vote since less than three-fourths of the members present and eligible to vote had voted to dismiss him. Blanton v. Hahn, 763 P.2d 522 (Ariz. App. 1988).

© Copyright 1989, 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: m31 m13 m34 m16 c0289

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