A Church Loses Land to a Family That Maintained It for Years

A long list of multiple uses and actions performed by the plaintiffs over decades showed the property became theirs through “adverse possession.”

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Church Property

Key point 7-18. Churches can lose a portion of their property to a neighboring landowner as a result of “adverse possession,” if the neighbor openly and adversely occupies church property for the length of time prescribed by state law.

A Connecticut court ruled that a church lost property it owned as a result of adverse possession.

Background

Since 1997, a family (the “plaintiffs”) maintained a property in Connecticut that a church believed it owned. The plaintiffs performed all routine maintenance and landscaping, provided upgrades, and paid all property taxes and insurance. The plaintiffs also rented out the property to different parties at various times and collected the rent.

The types of maintenance, repairs, upgrades, and landscaping performed by the plaintiffs was extensive. They made improvements to the siding, windows, and electric system; drilled a new well; replaced a shower enclosure; replaced the roof twice; paved the driveway; replaced the oven and range; replaced flooring; replaced the furnace; remodeled the kitchen; and installed a new septic system.

Proving adverse possession

Based on the evidence list above, a court ruled that the church lost ownership of the property due to adverse possession. The court explained:

The law of adverse possession is well-established. [Connecticut law] establishes a fifteen-year statute of repose on an action to oust an adverse possessor. “The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner.”

“The legal significance of the open and visible element [of adverse possession] . . . requires a [court] to examine the extent and visibility of the claimant’s use of the . . . property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own. In general, exclusive possession can be established by acts . . . as would ordinarily be exercised by an owner in appropriating the land to his own use and the exclusion of others. Thus, the claimant’s possession need only be a type of possession which would characterize an owner’s use. It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.”

“It is true . . . that it is not essential to the establishment of title by adverse user that a claim of ownership be made; title may be acquired even though the possessor knows that he is occupying wholly without right; all that is necessary to prove is that there was a user as of right, that is, one in disregard of any rights of the holder of the legal title.” . . . “Hostile occupancy implies lack of consent[.] . . . As a general proposition, to satisfy the hostility requirement of adverse possession, a claimant’s possession of the disputed land, from its inception, must be without permission, license or consent of the owner and must continue to be so throughout the required fifteen year period.”

The court noted that one of the plaintiffs provided an affidavit setting forth facts to establish each of the elements of adverse possession:

[The plaintiff] swore to over 24 years of exclusive use of the property together with a very explicit list of work at the property to demonstrate exclusive use. This use was of the sort that would have [been] ordinarily performed by an owner and would have been open and obvious to anyone looking at the property.

Additionally, the church did not present any evidence refuting what the plaintiffs stated.

The court concluded that the plaintiffs “have presented evidence which clearly and positively proves all of the elements of adverse possession.” It found in favor of the plaintiffs, determining them to be “the rightful owners of the property by virtue of the doctrine of adverse possession.”

What this means for churches

This case illustrates an important point. Churches may lose title and ownership of some—or even all—of their property by adverse possession if another party uses the church’s property openly and in defiance of the church’s interest.

More about Adverse Possession

Learn more about adverse possession in the Legal Library.

Also see how an Indiana court ruled against a church in a different adverse possession case, which involved a discrepancy over a property line between a church and a neighboring landowner. The court emphasized the four clear and convincing elements that could lead to loss of land through adverse possession.

In many cases, a church loses ownership of property through adverse possession because it fails to object to another’s substantial use of its property. This often will include maintaining the property (i.e., mowing the yard, shoveling snow, erecting a fence, and so on), making repairs to the property, paying for insurance, and paying taxes.

Note that the adverse use must be for a period of time specified by state law. This can be as few as 5 years, but it is more commonly 10, 15, or 20 years.

Freedman v. Teachers Coll., Colum. Univ., 2021 WL 6551965 (Conn. App. 2021)

Legal Developments

Churches Sued for Damages to a Neighboring Property

Landowners may face liability if their actions result in environmental damage to neighboring properties.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Church Property

Key point. A church should understand three things about liability for environmental damages to a neighboring property: (1) such damages often are excluded from coverage under conventional liability insurance policies; (2) churches should not acquire property by purchase or gift without conducting an environmental site assessment; (3) churches might be protected by satisfying certain requirements under the Comprehensive Environmental Response, Compensation, and Liability Act.

A Connecticut appeals court ruled that two churches jointly owning property could be responsible for environmental damage they caused to a neighboring property due to a leaking fuel tank.

Background

A man (the plaintiff) purchased residential property in 2004. In preparation for his purchase, he hired a home inspection company to perform an inspection. The inspector noted that there was minor oil seepage from an oil tank in the plaintiff’s basement, and that there was a strong odor of fuel oil.

Since 1951, two neighboring churches (the defendants) have jointly owned property abutting the plaintiff’s property. In 2006, the defendants removed a 550-gallon underground oil tank located approximately four feet from the plaintiff’s property. They replaced it with a 275-gallon above-ground steel tank, which was placed in their building’s basement.

After heavy rains in the spring of 2009, a neighbor noticed oil coming from a pipe that carried excess water from the plaintiff’s basement sump pump to the walkway in front of the plaintiff’s house. The neighbor called the fire department, which shut off the sump pump.

Eventually, the Connecticut Department of Energy and Environmental Protection (department) became involved. The supervising environmental analyst for the department’s remediation division conducted an investigation of potential contamination of the defendants’ property.

The department completed a limited subsurface investigation report in which it noted that it had found the presence of fuel oil in the soil and in the groundwater of the properties.

The report concluded that the oil being released from the sump pump in the plaintiff’s basement originated from the underground oil tank that had been removed from the defendants’ property. The report also concluded that it could not rule out a secondary source for the soil contamination in the plaintiff’s basement.

The department requested that the defendants retain an environmental consultant to assist in further investigation and remediation of contamination on the properties.

The defendants hired a local environmental contractor to excavate the area where the underground storage tank had been located. In 2011, the contractor removed approximately ten tons of contaminated soil and placed it under a polyethylene cover on the paved driveway of the plaintiff’s property.

The defendants also hired another firm to investigate the properties and develop a remediation plan. The defendants hired the company that had removed their underground tank to remediate the contaminated soil. The company excavated soil from a depth of approximately eight feet, beginning at the location of the former oil tank.

Evidence of soil contamination, including odors and elevated organic vapor readings, was noted from approximately five and one-half feet to eight feet below the ground throughout the excavation area. Soil samples were collected, however, and testing of the samples confirmed the existence of distilled home heating oil, a type of fuel oil, in excess of the department’s remediation criteria. The company concluded that there remained significant concentrations of petroleum in the soil near the plaintiff’s home and garage. The company further concluded:

the source of the contamination under the home and in the soil adjacent to the home and garage was the defendants’ former underground oil tank,

it would take tens of years for the petroleum to degrade to a safe level, and

the cost of excavation and disposal of the remaining contaminated soil could exceed the value of the plaintiff’s property.

The Plaintiff sues the churches for ongoing contamination

The defendants declined to pay for any additional remediation costs, including those recommended by the department.

In 2016, the plaintiff sued the defendant churches for the ongoing contamination of the soil, groundwater, and the basement on the plaintiff’s property. Following several days of testimony by environmental experts, a jury returned a verdict in favor of the defendants.

The plaintiff immediately appealed. A state appeals court reversed the trial court’s ruling and ordered the case to proceed to a new trial. It reasoned that the trial court’s decision was “clearly erroneous and . . . legally unsound.”

What this means for churches

This case illustrates the potential liability a landowner faces if its actions result in environmental damage to neighboring properties. Here are a few things church leaders should do or keep in mind.

Find out if your church has coverage for environmental damage

Environmental damages often are excluded from coverage under conventional liability insurance policies, meaning that a landowner may be responsible for some or all costs of remediation. Check with your church’s insurer to see if this coverage can be provided.

Don’t purchase or accept a gift of land without an environmental site assessment

Churches should not acquire property by purchase or gift without conducting an environmental site assessment to determine if contamination is present. In general, this assessment provides answers to many of the questions regarding potential cleanup costs and environmental liability associated with contaminated properties. Potential buyers of a contaminated site may reduce their liability if the appropriate environmental site assessments are performed prior to purchase.

Phase I of an environmental site assessment aims to identify recognized environmental conditions that may be further investigated through a phase II assessment. If the phase I assessment does not identify any recognized environmental conditions, a phase II assessment is not needed. If a phase I assessment identifies any recognized environmental conditions, a phase II assessment may be conducted.

Understand the “innocent landowner defense”

Historically, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as Superfund), the current or former owner of a contaminated property could be held responsible for the property’s cleanup, based solely on current or prior ownership (i.e., the contamination is noted in the chain of title). As a result, parties that wanted to purchase contaminated properties were often concerned about incurring Superfund liability once they acquired the property.

To address this concern, CERCLA was amended in 1986 and 2002 to create an “innocent landowner defense.” However, the 2002 CERCLA amendments clarified the “innocent landowner defense” to require the landowner to meet a set of continuing obligations.

CERCLA distinguishes three types of innocent landowners. The one most relevant to churches pertains to purchasers who acquire property without knowledge of contamination and who have no reason to know about the contamination.

However, note that persons desiring to qualify as innocent landowners must perform “all appropriate inquiries” prior to purchase and cannot know, or have reason to know, of contamination in order to have a viable defense as an innocent landowner. The 2002 amendments amended the innocent landowner defense by elaborating on the “all appropriate inquiries” requirement.

In some cases churches will be protected by the innocent landowner defense to environmental contamination claims, but this assumes that they satisfy the “continuing obligations” and “all appropriate inquiries” requirements. These are highly technical matters for which legal counsel is essential. Crouzet v. First Baptist Church, 239 A.3d 321 (Conn. App. 2020)

Legal Developments

Victim May Sue Religious School and Its Leaders for Failing to Report Abuse, Court Says

A negligence claim can proceed on evidence that religious leaders failed to follow state reporting laws.

Richard R. Hammar

State: Connecticut
Categories: Child Abuse Reporting

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.

A Connecticut court ruled that a religious school could be sued by a victim of child abuse on the ground that school officials were aware of the abuse but failed to report it to the state.

A kindergarten student at the school was sexually assaulted on multiple occasions by an older student. The sexual assaults occurred at the school. The school knew that the offender had previously been accused of assaulting another student at the school.

The victim reported the assault to her kindergarten teacher, who did not take any action. The victim spoke to a psychotherapist after her parents noticed she had stopped eating. The victim explained to the psychotherapist that she had been sexually assaulted by another student.

The victim’s mother reported the abuse to a religious leader with oversight of the school, but he failed to report it in the manner mandated by Connecticut law. The mother next reported the abuse to the school’s principal who did not report the sexual assault until the mother insisted a report be filed.

The victim sued the principal and the religious leader, claiming that they were mandatory child abuse reporters and that their failure to report the abuse allowed the offender to continue molesting her.

A state court rejected the defendants’ request to dismiss the claims against them, but the court declined by primarily addressing the religious leader with oversight of the school:

To the extent that the victim claims that the [religious leader] is liable for negligence for failing to report the sexual assault, the victim has sufficiently alleged this claim. The victim alleges that the religious leader operates the school and supervises the teachers and other administrators of the school. Specifically, the victim alleges that he sets the school’s policies and procedures and further supervises its daily operations. He also allegedly hired other administrators and teachers at the school and recruited students. These allegations are sufficient to maintain an action against the defendants for negligence.

What this means for churches

Eight states have enacted laws that create civil liability for failure to report child abuse. In these states, victims of child abuse can sue adults who failed to report the abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law.

The text of each of these eight statutes is set forth below.

1. Arkansas

“A person required by this chapter to make a report of child maltreatment or suspected child maltreatment to the Child Abuse Hotline who purposely fails to do so is civilly liable for damages proximately caused by that failure.” Arkansas Code § 12-18-206.

2. Colorado

Any person who is a mandatory reporter of child abuse and who willfully fails to report known or reasonably suspected incidents of abuse “shall be liable for damages proximately caused thereby.” Colorado Statutes § 19-3-304(4)(b).

3. Iowa

“Any person, official, agency or institution, required . . . to report a suspected case of child abuse who knowingly fails to do so or who knowingly interferes with the making of such a report . . . is civilly liable for the damages proximately caused by such failure or interference.” Iowa Code § 232.75(2).

4. Michigan

“A person who is required by this act to report an instance of suspected child abuse or neglect and who fails to do so is civilly liable for the damages proximately caused by the failure.” Michigan Compiled Laws § 722.633 sec. 13(1)(3).

5. Montana

“Any person, official, or institution required by law to report known or suspected child abuse or neglect who fails to do so or who prevents another person from reasonably doing so is civilly liable for the damages proximately caused by such failure or prevention.” Montana Code § 41-3-207(1).

6. New York

“Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.” New York Social Services Law § 420.

7. Ohio

“Whoever violates division (A) of this section [i.e., mandatory child abuse reporters] is liable for compensatory and exemplary damages to the child who would have been the subject of the report that was not made. A person who brings a civil action or proceeding pursuant to this division against a person who is alleged to have violated division (A)(1) of this section may use in the action or proceeding reports of other incidents of known or suspected abuse or neglect, provided that any information in a report that would identify the child who is the subject of the report or the maker of the report, if the maker is not the defendant or an agent or employee of the defendant, has been redacted.” Ohio Revised Code § 2151.421(N).

8. Rhode Island

“Any person, official, physician, or institution who knowingly fails to perform any act required by this chapter or who knowingly prevents another person from performing a required act shall be civilly liable for the damages proximately caused by that failure.” Rhode Island General Laws § 40-11-6.1.

Key point. Persons who are mandatory child abuse reporters in Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio and Rhode Island can be sued by victims of child abuse for failure to comply with state child abuse reporting requirements. These lawsuits may be brought in some states many years after the failure to report.

It is possible that other state legislatures will enact laws giving victims of child abuse the legal right to sue mandatory reporters who failed to comply with their reporting obligations.

It is also possible that the courts in some states—such as the one here in this Connecticut case—will allow victims to sue mandatory reporters for failing to report child abuse even if no state law grants them the specific right to do so. Courts may perhaps even permit victims to sue those who are not mandatory reporters. These potential risks must be considered when evaluating whether or not to report known or suspected incidents of child abuse.

A few courts have ruled that clergy who are mandatory child abuse reporters under state law can be personally liable for monetary damages for failing to report abuse even if no statute explicitly granting such a right exists.

But several other courts have ruled that victims of child abuse have no legal right to sue a mandatory or permissive reporter who knew of the abuse but failed to report it. According to these courts, any legal remedy must be provided by the legislature.

Doe v. Abusahyounn, 2018 Conn. Super. LEXIS 3383 (Conn. Super. 2018).

Court Rules Religious School Can Be Sued for Child’s Bullying

Church Law and Tax Report Court Rules Religious School Can Be Sued for Child’s Bullying

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

Church Law and Tax Report

Court Rules Religious School Can Be Sued for Child’s Bullying

Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.

A Connecticut court ruled that a church school could be sued by the parents of a minor student who has been a victim of bullying by an older student. A minor student at a church-operated school was injured when he was assaulted by another student at school. The victim’s parent sued the school and diocese, claiming that the assault was caused by the negligence of the school in the following ways:

(1) it knew, or in exercise of due care should have known, that the assailant posed a risk to other students but failed to remedy the situation;

(2) it knew, or should have known, that the assailant had a history of threats and violence and posed a danger to others in the school, yet failed to exercise reasonable caution and take appropriate measures to prevent the assailant from acting violently;

(3) it failed to enforce its student behavior and disciplinary measures and rules in its student handbook, in one or more of the following respects:

• it failed to implement its policy of requiring the assailant to use appropriate language and actions toward the victim in violation of the rules set forth on page three of the Parent/Student Handbook;

• it failed to make the assailant serve detention in violation of the rules set forth on page three of the Parent/Student Handbook after the victim notified his teachers and the school principal that the assailant had bullied him and engaged in disruptive behavior;

• it failed to follow its policy of suspending or expelling the assailant from school after the victim notified his teachers and the school principal that the assailant was bullying him in violation of the provisions set forth on page four of the Parent/Student Handbook; and

• it failed to follow its policy of suspending or expelling the assailant after the victim notified his teachers and the school principal that the assailant was physically and verbally threatening, harassing, and abusing him in violation of the provisions set forth on page four of the Parent/Student Handbook; and

(4) it failed to adopt or enforce policies against bullying in violation of state of Connecticut policies against bullying as set forth under state law.

The court dismissed the defendants’ motion to dismiss the case. It concluded that the victim had presented enough evidence of the defendants’ negligence to allow the case to proceed to trial.

What This Means For Churches:

This case is important since it represents one of the first cases to address a religious organization’s potential liability for acts of bullying. The court concluded that the school could be liable on the basis of negligence, and that negligence could be demonstrated by proof that the school failed to comply with several relevant policies in its policy manual pertaining to student safety. The lesson is clear—churches and schools that have adopted policies for the protection of minors must be diligent in complying with those policies, since a failure to do so may constitute negligence. Nasuta v. Diocesan Corporation, 2014 WL 5472087 (Conn. Super. 2014).

Legal Developments

Release Form Not Enforceable Due to Lack of Clarity

Male severely injured in Habitat for Humanity bike race successfully sues organization for negligent conduct.

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

Church Law and Tax Report

Release Form Not Enforceable Due to Lack of Clarity

Male severely injured in Habitat for Humanity bike race successfully sues organization for negligent conduct.

Key point 10-16.6. A release form is a document signed by a competent adult that purports to relieve a church from liability for its own negligence. Such forms may be legally enforceable if they are clearly written and identify the conduct that is being released. However, the courts look with disfavor on release forms, and this has led to several limitations, including the following: (1) release forms will be strictly and narrowly construed against the church; (2) release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents’ signature does not prevent minors from bringing their own personal injury claim after they reach age 18; (3) some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy; and (4) release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

A Connecticut court ruled that a “release form” signed by a participant in a charity-sponsored bicycle race was not legally enforceable. An adult male suffered catastrophic and life-altering injuries while participating in a cross-country bicycle trip sponsored by Habitat for Humanity (the “defendant”) to raise funds. His parents, as his legal guardians (the “plaintiffs”), sued the defendant, claiming that their son’s injuries were caused by its negligence in organizing and conducting the event.

The defendant organized, promoted, and sanctioned the annual fundraising cycling event, which required all participants to cycle across the entire country during a time period of approximately nine weeks. Despite having a history of injuries and deaths during prior events, the defendant made the decision to organize, promote, and sanction another event. The defendant was in control of the event and was responsible for taking the necessary precautions to provide for the safety needs of the bicycle riders. The defendant was responsible for selecting “trip leaders” with sufficient skill, maturity, knowledge, and training to appropriately and safely coordinate the event. The defendant was also responsible for properly evaluating prospective participants and for making sure that all participants had a sufficient skill level to safely participate.

The defendant scheduled the cyclists to ride 50 to 70 miles per day with only 1 day of rest out of 35 days of travel. On the day of the accident, the plaintiffs’ son was one of two cyclists riding at the rear of the group as monitors. A van normally travelled at the end of the group with its emergency blinkers flashing, but on the day of the accident, it was transporting a participant to a nearby hospital. When the plaintiffs’ son noticed that his partner was no longer behind him, he crossed the highway and was struck by a car, sustaining serious injuries.

The defendant asked the court to dismiss the lawsuit on the ground that the plaintiffs’ claims were “barred due to their son’s signing of a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement,” which provided:

I agree, for myself, my heirs, executors and administrators, to not sue and to release, indemnify and hold harmless Habitat for Humanity of Greater New Haven, its affiliates, officers, directors, volunteers and employees and all sponsoring businesses and organizations and their agents and employees, from any and all liability, claims, demands and causes of action whatsoever, arising out of my participation in the Challenge and related activities—whether it results from the negligence of any of the above or from any other cause. I agree not to make a claim against or sue Habitat for Humanity or other sponsors or affiliated organizations for injuries or damages related to bicycling and/or other activities during the Challenge.

The court concluded that this release agreement was invalid on the basis of a lack of clarity, and public policy.

Lack of clarity

The court noted that “unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts. It must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility.”

The court also noted that “terms must be unambiguous as well as understandable. This does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent. The question is whether an ordinary person of reasonable intelligence would understand that, by signing the agreement, he or she was releasing the defendants from liability for their future negligence.”

In addition to being understandable, a release form must be conspicuous:

“Conspicuous,” with reference to a term, means so written, displayed or presented that a reasonable person against which it is to operate ought to have noticed it … . The court agrees with the plaintiffs that the agreement does not meet the level of clarity … . Here, the mere use of the word “negligence of any of the above,” within the text of a lengthy sentence consisting of multiple interrelated clauses, does not rise to the level of clarity required to enforce an exculpatory agreement against an individual. The language waiving the plaintiffs’ right to sue the defendant for the defendant’s negligence is not conspicuous, as no effort has been made to set the word negligence off from the rest of the text. Furthermore, the particular paragraph in which the provision appears is not set off by headings or any other marker from the remainder of the two-page agreement. The court concludes that a reasonable individual reading such an agreement would not be sufficiently informed that he or she is waiving the right to sue the defendant for its own negligent conduct. On the face of the agreement, it is insufficiently clear or explicit to be enforceable.

What This Means For Churches

A release form is a document signed by a competent adult that purports to relieve a church from liability for its negligence. The courts look with disfavor on release forms, and this has led to several limitations, including the following:

Release forms will be strictly and narrowly construed against the church.

Release forms will not be enforced if they are ambiguous.

Release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents’ signature does not prevent minors from bringing their own personal injury claim after they reach age 18. However, churches should not allow a minor child to participate in any church activity (such as camping, boating, swimming, hiking, or some sporting events) unless the child’s parents or legal guardians sign a form that (1) consents to their child participating in the specified activity; (2) certifies that the child is able to participate in the event (e.g., if the activity involves boating or swimming, the parents or guardians should certify that the child is able to swim); (3) lists any allergies or medical conditions that may be relevant to a physician in the event of an emergency; (4) lists any activities that the parents or guardians do not want the child to engage in; and (5) authorizes a designated individual to make emergency medical decisions for their child in the event that they cannot be reached. Lewis v. Habitat for Humanity, 2012 WL 386391 (Conn. Super. 2013).

Legal Developments

Church Not Responsible for Teen Sleepover Injury

Court rules injuries sustained during off-site sleepover are not church’s responsibility.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax Report

Church Not Responsible for Teen Sleepover Injury

Court rules injuries sustained during off-site sleepover are not church’s responsibility.

Richard R. Hammar

A Connecticut court ruled that a church was not responsible for injuries sustained by a minor during an all-night “sleepover” while the group was visiting an off-site recreational facility. The victim’s parents sued the church, claiming that their daughter’s injuries were caused by the church’s “negligence, carelessness and omissions.” In particular, they claimed that the church failed to provide and supervise its own personnel in protecting the youth involved in the sleepover, and failed to supervise the recreational facility’s personnel. A state appellate court dismissed the negligence claims against the church.

Failure to Supervise Church Personnel

The court quoted section 320 of the Restatement (Second) of Torts (a respected legal treatise):

One who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control.

For the duty set forth in this section to apply, “the circumstances under which a person takes custody of another must be such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him.” Here, the parents “have not alleged such circumstances. They have not alleged how the circumstances deprived their then-sixteen year old daughter of her normal power of self-protection or subjected her to association with persons likely to harm her.”

The court cautioned that “the duty of an adult to protect a child from harm is enhanced when the child is of tender years or is otherwise incapable of managing his own affairs … . What constitutes reasonable care is contextual—the extent and type of supervision required of young elementary school pupils is substantially different from reasonable care for college students.”

Failure to Supervise the Recreational Facility’s Personnel

As to the alleged failure by church personnel to monitor the recreational facility’s personnel, the court noted that the parents “do not allege that the church: (a) knew or had reason to know that it had the ability to control the conduct of [the facility], and (b) knew or should have known of the necessity and opportunity for exercising such control.”

What This Means For Churches:

This case demonstrates that churches will not necessarily be liable for injuries that occur to adolescent minors at off-site facilities in the course of sleepovers and other church activities. However, liability may exist in cases involving young children, or if the church signs a contractual document in which it assumes risks of injuries or agrees to indemnify and hold harmless the facility where an injury occurs. There have been many cases in which churches were found liable for injuries to youth at off-site venues solely on the basis of a contractual agreement signed by the church as a condition to using the facility. Church leaders should have legal counsel review any contractual documents before agreeing to the use of a recreational facility by church youth. Granja v. Middlebury Church, 2012 WL 5860318 (Conn. Super. 2012).

Legal Developments

Invalid Church Business Meetings

Pastor tries to sue church for violating bylaws.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Church Business Meetings

Church Law & Tax Report

Invalid Church Business Meetings

Pastor tries to sue church for violating bylaws.

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

Key point 2-04.2. Some courts are willing to resolve disputes over the termination of clergy if they can do so without any inquiry into religious doctrine.

A Connecticut court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving a pastor’s claim that his employing church’s decision to dismiss him was invalid, since it could resolve the claim on the basis of neutral principles without any inquiry into church doctrine. A church officer issued a “notice of call” that called a special meeting of the congregation on a specified date. The notice stated that the purpose of the meeting was to vote on several issues, including whether the church should remain an active congregation and whether to reduce the pastor to part-time status. During the meeting, the moderator asked the pastor to leave the meeting as they were going to discuss his employment. A member then moved to terminate the pastor’s contract and to authorize the church council to hire an interim pastor and to search for a part-time pastor. A vote was taken, and 27 voted in favor of the motion, 10 voted against it and three abstained.

The pastor asked a court for a “declaratory judgment” that the church meeting was in violation of the church’s bylaws and Robert’s Rules of Order, and that would reinstate him as pastor. The pastor claimed that the congregational meeting was defective in the following respects:

The meeting improperly conducted business outside the “notice of call” in violation of the church’s bylaws. Specifically, the meeting was not called to terminate the pastor’s employment.
The motion to terminate his employment was in violation of the bylaws since he was improperly barred from participating in the meeting as a member of the congregation.
The vote on the motion did not pass by the two-thirds majority required by the bylaws because the pastor was improperly barred from the proceedings and had he been permitted to vote, he would have voted against the motion or would have abstained, thereby rendering the total number of votes less than the two-thirds majority needed to pass the motion.
The party who seconded the motion to bring to a vote the termination of the pastor’s contract was not a church member, and Roberts’ Rules of Order provides that only members may make or second motions.

The church filed a motion to dismiss the pastor’s complaint. It asserted that the First Amendment guaranty of religious freedom protects the right of religious institutions to decide matters of faith, doctrine, and church governance without interference from any governmental agency, including the courts, and that a minister’s employment relationship with his or her church implicates internal church discipline, faith, and polity, all of which are governed by ecclesiastical custom and law. As a result, the church said, the courts lack jurisdiction over employment disputes such as the one involved in this case.

The pastor insisted that, despite the fact that he was employed as the church’s minister, he was not asking the court to apply ecclesiastical rules or religious doctrine, or determine “who will preach from the pulpit.” Instead, he was asking the court to apply secular law to the actions of the church to determine if it acted within its authority to terminate his employment. The pastor conceded that if the church terminated his employment based on an alleged “qualitative deficiency” or even for no reason at all, the court would lack jurisdiction. However, the pastor claimed that the purported act of the church in terminating his employment was not authorized by a proper vote of the congregation and hence was a nullity.

The church countered that, notwithstanding the pastor’s procedural claims, the ministerial exception bars claims that a religious institution failed to follow its own procedures and bylaws in terminating a religious employee.

The court concluded:

The issues raised by the pastor’s complaint include: (1) whether the vote terminating his contract was taken at a meeting duly warned to consider that issue; (2) whether the motion to terminate his contract was properly seconded and, therefore, properly before the meeting; and (3) whether barring him from attendance at the meeting and preventing him from voting on the motion violated his rights as a member of the defendant non-stock corporation. The court finds that the resolution of these issues would not require the court to intrude upon the defendant’s exclusive right to decide matters pertaining to doctrine or its internal governance or organization. Resolution of these issues involve questions of corporation law and the application of Robert’s Rules of Order, not the application of religious doctrine or matters of governance outside the jurisdiction of the court. Under the neutral-principles approach … the court may analyze the defendant’s bylaws and constitution in resolving the dispute …. The court finds that it has jurisdiction to reach the merits of the pastor’s claims and to apply “the ordinary principles which govern voluntary associations” to resolve the dispute.

What This Means For Churches:

Most courts have refused to get involved in internal church disputes regarding the dismissal of ministers on the ground that any intervention would violate the First Amendment guaranty of religious freedom. However, some courts have ruled that the First Amendment does not preclude them from resolving employment disputes between churches and ministers if they can do so on the basis of neutral principles, such as nondoctrinal language in a church’s governing documents. Despite the Connecticut court’s ruling, the recent decision by the United States Supreme Court affirming the ministerial exception may preclude such judicial forays into employment decisions involving ministers. The Supreme Court observed:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. United Congregational Church, 2011 WL 5842378 (Conn. Super. 2012).

Legal Developments

Clergy Malpractice Claims

Courts generally refuse to recognize these claims.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Clergy Malpractice, Personal Injuries on Church Property or During Church Activities

Church Law & Tax Report

Clergy Malpractice Claims

Courts generally refuse to recognize these claims.

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

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “nonreligious” counseling.

Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.

A Connecticut court ruled that the First Amendment prevented it from resolving a woman’s claims that the church and its pastor were responsible for injuries she sustained when she fell backward and hit her head on the floor while participating in a healing service. A church conducted a weekly “healing service” that was open to the public. A woman (the “plaintiff”) attended one of these services and was injured when she fell backward while the church’s pastor was praying for her. The plaintiff described the service as follows:

At these services the church’s pastor anoints and prays over each person by having each person come to the front of the church. The pastor anoints the person’s forehead and prays over them. Often, people will fall back in a relaxed state as the pastor prays over them. This is sometimes called “resting in the Spirit.” There are always catchers, men who stand behind the person being prayed over. The catcher catches the person before they hit the floor and places them gently on the floor until they wake up again.

Although the plaintiff expected that a catcher would be placed behind her while she fell backward to ensure she would not fall onto the floor, she was not caught from behind. Her head struck the floor, resulting in severe and painful injuries.

The plaintiff sued the church, claiming that her injuries were caused by the church’s failure to exercise the degree of care and skill ordinarily and customarily used by churches performing healing services. Specifically, the plaintiff alleges that the church was negligent in the following ways:

failure to have attendees seated or kneeling while being prayed over;
failure to provide a safe, soft surface for attendees, including the plaintiff, to fall to, if and when they fell or “rested in the Spirit”;
failure to warn attendees, including the plaintiff, about the possibility of injury while “resting in the Spirit”;
failure to promulgate and enforce rules, regulations, standards and protocols for attendees, such as the plaintiff;
failure to adequately train and supervise the “catchers” at the healing service;
failure to choose “catchers” who were physically and mentally fit to exercise their duty as “catchers;”
failure to choose an appropriate number of “catchers” for the healing service; and,
failure to utilize that degree of care and skill or diligence ordinarily exercised by charismatic churches.

The plaintiff also asserted that the pastor of the church was guilty of “clergy malpractice” for failing to ensure that the healing service was conducted in a safe manner.

negligence

The church asked the court to dismiss the case on the ground that the court was barred by the First Amendment guaranty of religious freedom from deciding whether healing services are conducted in a negligent manner. The plaintiff insisted that the court could resolve her claims because “there is nothing in the allegations of the complaint nor [the] facts of the incident that could possibly contemplate the examination of worship or spirituality.” A state appeals court agreed with the church and dismissed the case. It observed:

The present case clearly involves issues of religious doctrine and practice, and the court does not have jurisdiction to resolve this dispute. The plaintiff’s allegations stem from an injury that she suffered while voluntarily participating in a healing service …. She alleges that she was injured after she approached the altar, was prayed over, and “rested in the spirit,” causing her to fall backward and hit the floor with the back of her head. These claims are based on the church’s allegedly negligent performance of the healing ritual. The performance of a religious healing ritual certainly falls under the types of doctrines and practices which the First Amendment is designed to protect.

The plaintiff argues that First Amendment protections do not apply because the church’s allegedly tortious conduct was not religious in nature. She claims that her allegations deal merely with simple negligence and that “there is nothing in the allegations of the complaint nor facts of the incident that could possibly contemplate the examination of worship or spirituality.” This argument, however, fails to acknowledge that the incident giving rise to the plaintiff’s complaint occurred during a religious healing ritual. It would be improper to completely remove the incident from the religious context in which it occurred. Thus, despite the plaintiff’s argument that the church’s alleged omissions during the healing ritual are not religious in nature, the subject matter of the complaint clearly involves issues of spirituality and religious worship.

The court acknowledged that the First Amendment did not bar the civil courts from resolving lawsuits seeking to hold churches responsible for the molestation of children by clergy and lay workers, but it concluded that those cases, unlike the present case, did not involve behavior that was directly associated with religious doctrine or practice. It observed: “In those cases, the plaintiffs’ claims stem from allegations of intentional tortious conduct—the sexual abuse of minors by members of the clergy—which have no connection whatsoever to religious doctrine or practice …. The plaintiffs’ [claims] could proceed because analysis of such claims would not require impermissible delving into issues of worship and spirituality. In contrast, in the present case, the plaintiff alleges that the church was negligent in failing to establish adequate safety precautions for voluntary participants during a healing ritual service …. The facts of the clergy sex abuse cases are distinct from the present case, where the conduct complained of is clearly ecclesiastical in nature.”

clergy malpractice

The plaintiff alleged that the pastor “failed to exercise that degree of care and skill ordinarily and customarily used by ministers performing … healing services under all the facts and circumstances.” The court observed: “Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.”

The appeals court noted that “courts throughout the United States have uniformly rejected claims for clergy malpractice under the First Amendment because such claims would necessarily entangle the court in the examination of religious doctrine, practice, or church polity.” In dismissing the plaintiff’s clergy malpractice claim, the court observed:

For a court of law to determine the plaintiff’s claims, it would be required to ascertain whether the church performed within that level of skill commonly applied under the given circumstances by the average prudent clergy member. Such analysis, however, would necessarily involve evaluating the religious practices at issue. To evaluate the plaintiff’s claims, the court would need to define the appropriate standard of care and determine whether the clergy acted in accordance with that standard of care. Devising guidelines and protocols for clergy members presiding over religious services, however, would entangle the court with issues of religious doctrine and practice, which is exactly the type of conduct prohibited by the First Amendment.

What This Means for Churches:

This case is important for two reasons. First, it illustrates that churches that conduct healing services will not necessarily be liable for injuries that occur to participants who fall and are injured. Second, it demonstrates the continuing refusal by the courts to recognize clergy malpractice claims. Kubala v. Diocese, 2011 WL 2436680 (Conn. Super. 2011).

This Recent Development first appeared in Church Law and Tax Report, May/June 2012.

Legal Developments

Understanding the Clergy-Penitent Privilege

Not all conversations with a pastor are protected against future disclosure.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut

Church Law & Tax Report

Understanding the Clergy-Penitent Privilege

Not all conversations with a pastor are protected against future disclosure.

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.

The Connecticut Supreme Court ruled that statements made by family members in their pastor’s office were not protected by the clergy-penitent privilege since the circumstances precluded any reasonable expectation of confidentiality. A 14-year-old girl (the “victim”) resided with her mother and stepfather (the “defendant”). One afternoon, while the victim and defendant were watching a movie together at home, the defendant sexually molested the victim. The victim later entered her mother’s bedroom, curled up on the floor, and began crying. After several inquiries from her mother, the victim told her what the defendant had done. The mother immediately called the church. When a pastor returned her call, she repeated the victim’s allegations to him and they agreed that she and her daughter should come to the church and that the pastor would help them confront the defendant. After joining the meeting, the defendant initially denied any wrongdoing (“we were just fooling around”), but later admitted that the victim’s account was correct. The following day, the victim’s allegations were reported to the department of children and families (the “department”) and to the police.

The defendant was later charged with two felony counts. At his trial, the court permitted the pastor to testify concerning the defendant’s confession. The trial court found that statements made by the defendant in the pastor’s presence were not protected against disclosure by the clergy-penitent privilege because they were neither confidential nor made in the context of seeking religious or spiritual guidance or comfort from the pastor. The defendant was convicted and sentenced to 20 years in prison. The defendant appealed.

The state supreme court noted that, unlike in the family counseling sessions that the pastor occasionally conducted in his pastoral capacity, he did not begin this meeting by identifying the meeting as a family counseling session or explaining that statements made during the meeting would remain confidential. Rather, the meeting began when the defendant asked “What’s going on?” and the victim’s mother responded by asking whether he had touched the victim inappropriately. The meeting proceeded with the mother repeatedly asking the defendant whether he had touched the victim in certain ways. The defendant initially denied the accusations, but eventually admitted to them. At that point, the pastor asked the defendant whether he had anything to say to the victim. The defendant offered a curt apology, bringing the meeting to a close.

The pastor testified that he did not offer any other advice or suggestions during the meeting. Rather, pursuant to the mother’s request, he saw his role as offering his support and just “sitting there to listen to what the two of them had to say, basically.” The following day he informed the mother that either she or he would need to report the victim’s allegations to law enforcement or the state within twenty-four hours, because, as a pastor, he was a mandated child abuse reporter.

The Connecticut clergy-penitent privilege provides:

A clergyman, priest, minister, rabbi or practitioner of any religious denomination accredited by the religious body to which he belongs who is settled in the work of the ministry shall not disclose confidential communications made to him in his professional capacity in any civil or criminal case or proceedings preliminary thereto … unless the person making the confidential communication waives such privilege herein provided.

The supreme court agreed with the trial court that the statements the defendant made to the pastor were not privileged because they were not confidential. It based this conclusion on two considerations:

First, it is undisputed that the meeting lacked many of the indicia of confidentiality that characterize traditional individual and family counseling sessions. The pastor never stated that the meeting was confidential. After he and the defendant arrived, he allowed his office door to remain open throughout the meeting …. Additionally, under the circumstances, the defendant could not reasonably have believed that the mother and victim would keep his admissions in confidence because she interrogated the defendant in order to obtain an admission from him, rather than engaging in any sort of private reconciliation process typical of family counseling.

Second, the record does not support the defendant’s assertion that the meeting was the sort of family counseling session that might implicate the clergy-penitent privilege. Aside from agreeing to host the meeting in his office and bringing the defendant there, there is no indication in the record that the pastor assumed a leadership role. He did not schedule the meeting to begin or end at a set time, establish any ground rules, open the conversation or draw it to a close; indeed, the defendant did not even know the reason he had been called to the pastor’s office. In short, the pastor did not imbue the meeting with any of the trappings of a family therapy arrangement.

Rather, it is undisputed that the mother requested the meeting, selected the location, initiated the confrontation, and ultimately succeeded in persuading the defendant to admit to his inappropriate conduct. Furthermore, there is no indication in the record that the defendant ever spoke directly to the pastor about his conduct toward the victim, or that the pastor spoke to him about his behavior. At most, he simply tried to help the mother remain calm. Accordingly, he served more as a neutral bystander to an ad hoc confrontation than as an active facilitator of a family therapy session, and there is no reason why his mere presence should transform the defendant’s admissions into privileged communications.

We therefore conclude that the trial court properly determined that, because the defendant lacked a reasonable expectation that his inculpatory statements would be held in confidence, he failed to establish that the clergy-penitent privilege protected those statements from disclosure. Accordingly, we conclude that the pastor’s testimony was properly admitted.

What This Means For Churches:

Not all conversations with a pastor are protected against future disclosure in court by the clergy-penitent privilege. While the definition of this privilege varies slightly from state to state, it is generally acknowledged that only confidential communications made to a pastor acting as a spiritual advisor can be privileged. Some states prevent the privilege from applying to conversations made in the presence of third parties, either because they are not confidential, or speaking to a pastor in the presence of third parties amounts to a waiver of the privilege. It is essential for pastors to be familiar with their state law to be sure they understand the significance of a third party being present when speaking with another. State v. Mark R., 17 A.3d 1 (Conn. 2011).

This Recent Development first appeared in Church Law and Tax Report, March/April 2012.

Legal Developments

Religious Freedom Prevents Court from Resolving Pastor/Agency Dispute

Pastor’s claim that a denominational agency acted unfairly in refusing to circulate his resume goes unresolved by court.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Clergy - Selection

Church Law and Tax Report

Religious Freedom Prevents Court from Resolving Pastor/Agency Dispute

Pastor’s claim that a denominational agency acted unfairly in refusing to circulate his resume goes unresolved by court.

Richard R. Hammar

Key point 2-01.4. The selection of a minister is an ecclesiastical decision that the civil courts ordinarily will not review—even when it is alleged that a church failed to follow its own internal procedures in the selection of a minister, or the selection process was discriminatory.

* A Connecticut court ruled that the First Amendment guaranty of religious freedom prevented it from resolving a pastor’s claim that a denominational agency acted improperly in refusing to circulate his resume to churches in need of a pastor. An ordained pastor (the “plaintiff”) sought employment through the services of a regional denominational agency (the “regional church”). The regional church does not ordain ministers, but it recognizes ordinations performed by member churches. It also provides placement services for ordained ministers by enabling congregations in need of a pastor to obtain information on available ordained ministers. Over time, the regional church became concerned about the plaintiff’s fitness for the ministry. It decided to “flag” his profile and decided not to circulate it to congregations seeking ministers. The plaintiff sued the regional church on several theories of liability including breach of an implied contract, defamation, emotional distress, and fraud. A trial court dismissed the case on the basis of the First Amendment guaranty of religious freedom, and the plaintiff appealed. A state appeals court agreed that the case had to be dismissed. It noted:

In this case, each claim in the plaintiff’s complaint arises out of his relationship with a religious organization. The gravamen of each of the plaintiff’s claims is that the defendant did not assist him in obtaining employment as an ordained minister but rather harmed him by withdrawing its recognition of his ordination. The central question presented is whether the disputes require the court to interpret and to apply religious doctrine and practices or whether the dispute is simply a controversy that involves church officials but to which neutral principles of secular law can be applied without need to inquire into ecclesiastical matters. On a reading of the complaint, it is apparent that the plaintiff’s claims arise primarily from the defendant’s decision to withdraw its recognition of the plaintiff’s ordination and to refuse to circulate his resume to churches.

Actions based on contract law centering on employment disputes between clergy and religious institutions can be litigated in civil courts only if neutral principles of law can be applied without entanglement with religious considerations. A church may make enforceable promises. Courts, however, may not inquire into matters whose enforcement would require “a searching and therefore impermissible inquiry” into church doctrine. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 723. In this case, the plaintiff’s claim centers around a dispute involving the regional church’s selection of candidates whom it will assist in obtaining ecclesiastical employment. The plaintiff contends that he satisfied the requirements set forth by the regional church and therefore was qualified to have the regional church assist him in obtaining ecclesiastical employment. He contends, however, that the regional church “blacklisted” him based on his theological perceptions. Resolution of this claim would involve an impermissible inquiry into the defendant’s internal procedures and its judgment regarding the qualifications of clergy, as well as the plaintiff’s objective qualifications for employment opportunities through the regional church. The reasonableness of alleged promises and reliance thereon cannot be decided without inquiry into such matters. The First Amendment precludes governmental interference with the selection of clergy.

In rejecting the plaintiff’s defamation claim, the court concluded: “Simply put, the gravamen of the dispute is the decision of a religious organization not to recommend the plaintiff for a position in the ministry. The defamation claim cannot be entertained in isolation from the dispute over fitness for the clergy, and there is no overwhelming counterbalancing consideration. The defamation claim was appropriately dismissed.”

In responding to the plaintiff’s assertion that the regional church’s failure to circulate his resume amounted to fraud, the court observed: “At the center of this count is the plaintiff’s claim that he was harmed by the regional church’s failure to circulate his resume and failure to assist him in procuring interviews for pastorate positions at churches affiliated with the regional church. Generally, courts will not interfere in canonical or ecclesiastical controversies regarding clergymen’s employment at a church. The selection or assignment of clergy, and the removal, termination, or suspension of a pastor or clergy member are generally ecclesiastical matters with which civil courts cannot interfere.”

The court also rejected the plaintiff’s emotional distress claim, noting that it could not be resolved without impermissibly delving into church doctrine and governance.

The court concluded:

In sum, this case implicates the ability of the regional church to operate within its own sphere, according to its own methods, and without judicial interference as to its employment recommendations for one of its ministers. The conduct complained of occurred in the context of, or was germane to, a dispute over the plaintiff’s fitness or suitability for his ordination to continue to be recognized and whether his resume should be circulated to churches associated with the regional church. If a court were to decide the issues raised in his complaint, it would necessarily inquire into the church’s decisions regarding its internal management and decisions as to whether a person is suited for the clergy. If a reviewing court did not agree with the procedure used and the effects therefrom in holding the church liable, the court would be imposing secular law and disciplinary action on church practice and procedure. If members of religious organizations could freely pursue their doctrinal grievances in civil courts, or legislatures could pass laws to inhibit or enhance religious activities, ecclesiastical liberty would be subjected to governmental interference and the unmolested and unobstructed development of opinion and belief which the First Amendment shield was designed to foster could be secularly undermined.

Application. Many national and regional denominational agencies have established placement services that typically involve the posting of resumes of ministers seeking employment on a dedicated website. Some denominational leaders have wondered if such services expose them to a risk of liability. There are two possible ways that such websites can expose the sponsoring denominational agency to liability. First, some may argue that the posting of a minister’s resume on a placement website amounts to an official “endorsement” of the minister that makes the sponsoring denomination liable for any misconduct the minister commits while serving a church that based its decision to employ the minister on his or her inclusion on the placement website. This risk is common to all professional organizations that provide a directory of professionals. Examples include bar and medical association websites. The risk in such cases can be managed by using a conspicuous and appropriate disclaimer which, among other things, identifies the service as a mere directory and not as an endorsement of listed individuals.

Second, as this case illustrates, denominational agencies that sponsor job placement websites may be sued if they refuse or fail to post the resume of a minister who is in good standing. This case suggests that this risk is reduced as a result of the First Amendment’s prohibition of civil court intervention in church employment decisions.

Note, however, that liability remains a possibility if a denominational agency posts the resume of a minister on a job placement website, or in any other manner circulates it among churches looking for a new pastor, without disclosing previous disciplinary action. For example, assume that an ordained minister is defrocked due to an incident of adultery, that his ordination was later reinstated following a restorative process, that the denomination’s placement service circulates the minister’s resume but fails to disclose the prior misconduct and termination of ordination, that a church employs the minister without knowledge of the prior misconduct, and that the minister later has a sexual affair with one of his parishioners in the course of a counseling relationship. The argument can be made in such a case that the denomination’s concealment of the minister’s prior misconduct amounts to negligence, and that the denomination would therefore be liable for future acts of sexual misconduct by this minister. This risk would be reduced if the denominational placement service’s posting for the minister noted that he had been defrocked for adultery, and was later reinstated in the ministry following a restorative process. Such disclosures should not be made without a minister’s consent, which can be obtained as a condition of the restoration of his or her status as an ordained minister. Thibodeau v. American Baptist Churches, 994 A.2d 212 (Conn. App. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold 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. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Evidence of Subsequent Corrective Action

Evidence of remedial action taken after an event is generally not admissible in court.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key Point Generally, evidence of corrective or remedial actions taken after an accident or injury are not admissible in evidence to prove negligence, since this would discourage persons from correcting dangerous conditions.

A Connecticut court ruled that a sexual abuse victim could not obtain copies of all sex abuse training materials used or distributed by a Catholic diocese in a lawsuit he brought against the diocese. A Catholic diocese was sued by a person (the "plaintiff") who allegedly was sexually abused by a priest in 1978. The plaintiff requested copies of "any and all sexual abuse training materials" that were "distributed or utilized within the diocese." The plaintiff claimed that post-1978 materials were relevant since they would tend to show preventative actions that could have been taken in 1978 and before, and that they would "tend to show later corrective action and that at some point the diocese was assuming responsibility for discovering and preventing such wrongdoing."

Connecticut Rule of Evidence § 4-7(a) provides that "evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event." The court explained that "the rule barring evidence of subsequent repairs in negligence actions … presupposes that to admit evidence of subsequent repairs to an identified hazardous condition as proof of negligence penalizes the defendant for taking remedial measures. This discourages [persons] from repairing hazards, thereby perpetuating the danger. This policy fosters the public good by allowing persons to repair hazards without providing proof of negligence."

The court concluded that in this case the rule "prohibits evidence which tends to show subsequent preventative actions that could have been taken in 1978 and before; or which tends to show later corrective action …. Later sexual abuse training materials do not appear to be reasonably calculated to lead to the discovery of admissible evidence."

Application. Victims of sexual misconduct often subpoena sexual abuse training materials in lawsuits brought against a church or other entity in which the misconduct occurred. This case suggests that churches may be able to object to such requests on the ground that they seek evidence of subsequent corrective action that is generally inadmissible in a negligence lawsuit. 2008 WL 4925980 (Conn. Super. 2008).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

Off-Premises Sexual Misconduct

Employer not liable for employees’ off-premises sexual assault.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Off-Premises Sexual Misconduct

Employer not liable for employees’ off-premises sexual assault.

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

Key point. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

A federal court in Connecticut ruled that an employer could not be liable for an employee’s unforeseeable, off-premises sexual assault even though the employee’s employment application disclosed a prior conviction for statutory rape. An adult male (“Michael”) applied for a position at a FedEx Kinko’s store. On his employment application, he disclosed that he had been convicted of a felony. Specifically, he wrote: “1989 equivalent to statutory rape.” During a pre-employment interview, Michael explained that when he was 18 years old, he had been arrested after the father of his 17-year-old girlfriend learned of their sexual relationship.

After the interview, a store manager submitted Michael’s name for a background check by General Information Services (“GIS”). Pursuant to an agreement between FedEx Kinko’s and GIS, GIS searched for Michael’s felony convictions within seven years from the time of the employment application. This search did not reveal that he had a 1989 conviction for unlawful sexual contact with minor boys in the State of Maine. As a result, Michael passed the background check, and therefore, GIS rated him as suitable without further information. He was hired by FedEx Kinko’s as a production operator.

Shortly after he was hired, Michael met a female customer (Ms. Doe) and her two minor sons. He spoke with the mother about his computer skills, and gave her a calling card for his personal computer-repair services business. Ms. Doe told Michael that she needed help with her home computers and gave him her home address. She understood that his computer-repair business was unrelated to the business of FedEx Kinko’s.

During the next nine months, Michael visited the Doe home for the purpose of repairing computers for the family. He also provided some unpaid math tutoring to the two Doe sons, and offered to take them kite flying. One day, Ms. Doe left Michael alone with her two sons while she went to the grocery store. While she was out of the house, the younger son was sexually assaulted by Michael. That same day, the victim told his mother what had happened, and she immediately called the police. Michael was thereafter arrested.

Ms. Doe sued FedEx Kinko’s, alleging that it was legally responsible for Michael’s acts on the basis of negligent hiring. FedEx Kinko’s insisted that it could not be liable since Michael’s acts all occurred off of its premises and they were not related to his employment.

The court noted that “the first essential element of a negligence cause of action is the existence of a duty of care owed by a defendant.”

It noted that Restatement (Second) of Torts § 317 (a respected legal treatise) provides that an employer has no duty to control the conduct of an off-duty employee “except when the complained-of conduct occurs on the employer’s premises, utilizes property of the employer’s, or the employer knows or has reason to know that it can control the employee and recognizes the necessity of so doing.” The court noted that these exceptions “reflect that a duty may only be imposed on the employer where the harm is foreseeable and there exists the ability and necessity for the employer to control the employee.”

Ms. Doe asserted that FedEx Kinko’s had a duty because it had been informed of Michael’s previous statutory rape conviction. The court disagreed:

Despite the fact that Michael had informed FedEx Kinko’s that he had a prior conviction for conduct equivalent to statutory rape, FedEx Kinko’s could not foresee that hiring him as a production manager, a position that does not entail intimate contact with members of the public or vulnerable individuals, would gain access to a family’s home and the opportunity to sexually abuse a child. The conversation between Ms. Doe and Michael concerning his skills and her computer needs led to her hiring him and allowing him into her home. However, this communication concerned subjects extrinsic to his performance as a FedEx Kinko’s employee and could not be anticipated. Similarly, FedEx Kinko’s could not reasonably foresee that hiring Michael would lead to his interaction with the Doe children absent the presence of the parents or another supervisory adult. There is no evidence that FedEx Kinko’s should have known that it could have controlled his behavior off-site or that it should have recognized the necessity of doing so.

Application. This case is relevant for the following reasons:

First, the court concluded that FedEx Kinko’s could not be liable for Michael’s sexual misconduct on the basis of negligent hiring, despite his admission on his employment application that he had a prior statutory rape conviction, since liability based on negligent hiring requires foreseeable harm and it was not foreseeable that Michael, in his position as a production manager, would have the opportunity to molest minors.

Second, it is worth noting that FedEx Kinko’s conducted a national criminal records check on Michael that did not pick up his prior felony conviction because it only checked records within seven years of the date of the employment application. This underscores a common limitation of many criminal records searches. By only examining records for a specified number of years, they are omitting potentially relevant information that might suggest that an applicant poses a risk of harm to others. It is for this reason that church leaders should not select any criminal records search service without an understanding of all the limitations that apply. Once the limitations are known, a church can check with several other charities (the local public school district, scouting organizations, and other youth serving charities) to determine which criminal records search services they utilize, and how far back to these other services examine criminal records, and in which states? By aligning your practice to that of other reputable charities you are helping to demonstrate that you acted with reasonable care and were not negligent.

Third, the court referenced the general rule that employers cannot be legally responsible for the acts of their employees off of the employer’s premises except in limited situations. These include off-premises injuries caused by an employee utilizing employer-owned property (such as a vehicle), or those situations in which an employee poses a foreseeable risk of harm to others and the employer “has reason to know that it can control the employee and recognizes the necessity of so doing.” Doe ex rel. Doe v. Federal Exp. Corporation, 571 F.Supp.2d 330 (D. Conn. 2008).

This Recent Development first appeared in Church Law & Tax Report, March/April 2009.

Legal Developments

Church Employee Fired After Raising Objections to Financial Policies

Court rules that woman can sue church for violation of public policy and emotional distress.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Compensation and Benefits, Employment Practices

Key Point 8-22. In most states, employees who are hired for an indefinite period are considered "at will" employees. This means that the employment relationship may be terminated at will by either the employer or employee, with or without cause, and with or without notice. The courts and state legislatures have created a number of exceptions to the at will employment rule. These exceptions limit the right of an employer to terminate an at will employee. Employees who are hired for a specific term are not at will employees, and they may be terminated only if the employer has "good cause."

Key Point 8-25. Employers often evaluate some or all of their employees on a periodic basis. Such evaluations can help employees be more productive, but they also can be used as evidence of discrimination if an employee who is a member of a protected class under a state or federal employment law is terminated despite average or above-average evaluations.

A Connecticut court ruled that a church employee who was dismissed from employment could sue the church for violation of public policy and emotional distress, but not negligence or blacklisting.

A church hired a woman (the "plaintiff") as the director of its school. She was employed in this position for six years. In her last annual performance evaluation the church rated her as satisfactory and did not provide any indication that it was unhappy with her job performance.

Shortly after this performance evaluation was prepared, the plaintiff expressed an objection to the church's use of a tuition increase to make improvements to the church. She informed church leaders that it was improper for the church to tell the children's parents that the tuition increase would be utilized by the school when actually it was being used for the general use of the church. The church dismissed the plaintiff as an employee a few days after she raised her objection. The plaintiff sued the church on the following four grounds:

Negligence per se

The plaintiff claimed that the church was liable on the basis of the legal principle of "negligence per se" for violating a state law providing that "no individually identifiable information contained in the personnel file … of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee."

Under the doctrine of negligence per se, a person who violates a statute can be sued for monetary damages if (1) the purpose of the statute is to protect the interest of the plaintiff, individually, as opposed to the public; (2) the statute must clearly apply to the conduct of the defendant; (3) the defendant must violate the statute; and (4) the violation of the statute must cause the plaintiff's injury.

The plaintiff claimed that the church violated the statute by failing to implement proper policies to prevent its employees from disclosing confidential information contained in her personnel file, and that this violation amounted to negligence per se since she was within the class of persons protected by the statute. The court disagreed, noting that the statute did specifically authorize private lawsuits as a remedy for its violation.

Blacklisting

The plaintiff also sued the church for "blacklisting" her. Specifically, she claimed that the church "propagated to potential employers her name and false information concerning her with the intent and for the purpose of preventing her from securing employment with potential employers." Once again, the court concluded that no statute authorized private lawsuits by victims of blacklisting, and it declined to create such a remedy.

Violation of public policy

The plaintiff claimed that her termination violated public policy since it was based on her objection to what she believed to be an unethical practice of her employer. In particular, she alleged that it was a violation of public policy for a church (1) to mislead persons concerning the intended use of the funds it solicits, and (2) to solicit payment with a promise that the payment will result in one receiving a better product, knowing that it is not the case.

The church insisted that neither of these public policies was violated by the plaintiff's dismissal, or even related to her dismissal. The court refused the church's request to dismiss this claim.

Emotional distress

The plaintiff claimed that the church negligently inflicted emotional distress upon her in its termination process when it falsely accused her, in writing, of misconduct, including falsely accusing her of conduct constituting theft, embezzlement, and falsification of records and repeated dishonesty.

She claimed to have been further emotionally distressed "as there was a reasonable chance that she will be compelled to confront the false reasons given by the church for her termination to future employers, when they ask her concerning the reasons for her separation from employment."

She also claimed that she was emotionally distressed because the church negligently waited until after the start of the school year to terminate her employment knowing that it would be more difficult for her to obtain subsequent employment. The church asked the court to dismiss the plaintiff's emotional distress claim because its conduct in the termination process was not unreasonable. The court denied this request.

In summary, the court permitted the plaintiff to pursue her third and fourth claims against the church. 2007 WL 2570443 (Conn. Super. 2007).

See also "Compensation," Trinity Baptist Church v. Howard, 869 N.E.2d 1225 (Ind. App. 2007), in the Legal Developments section of this website.

Legal Developments

Child Care Licensing Requirements

Church-operated after school programs may be subject to licensing requirements imposed by state law.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Schools

Church Law & Tax Report

Child Care Licensing Requirements

Church-operated after school programs may be subject to licensing requirements imposed by state law.

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

Key point. Church-operated after school programs may be subject to licensing requirements imposed by state law.

* A Connecticut court ruled that a church-operated after school program was not subject to a license requirement under state law. A church received a notice from a public health agency informing it that its after-school program for children constituted “an illegal child day care center” since it was operating without a license. The church’s program was an after school program that focused on children at risk. It provided a variety of services, including homework help, that were designed to provide friendship, positive discipline, hope, and meaning for the children.

State law requires child day care centers to be licensed, and defines a child day care center as “any organization that provides care to more than twelve related or unrelated children outside their own homes on a regular basis.” There are a few exceptions to the license requirement, including “recreation operations such as … boys’ and girls’ clubs, church-related activities, scouting, camping or community-youth programs.” The agency insisted that the church’s child care program was not eligible for this exemption, since “circle time for reading aloud, creative projects, weekly meetings for discussion and occasional trips to museums or other places of interest are not primarily recreational activities for children.”

The church sued the state, claiming that its after school program was exempt from licensure. First, it argued that child day care centers have historically been viewed as being limited to programs for children who are not attending school, and not to after school programs that provide services to school-age children. The court rejected this argument on the ground that the licensing law defined child care centers broadly enough to include after school programs.

Second, the church argued that its after school program was exempt because it was a church-related activity. The court acknowledged that church-related programs were exempt from licensure, but concluded that this exemption did not apply to the church in this case because its after school program “has no religious connotation whatsoever. It is church-related only in that the church feels that a part of its mission is to provide such recreational opportunities to young people in its area, and in that it is physically housed in the church’s building. There is no religious instruction, and many of the children who participate are not from families who are members of the church.”

Third, the church argued that its after school program was exempt from licensure as a church-related “recreational operation.” The state had concluded that the after school program’s “circle time for reading aloud, creative projects, weekly meetings for discussion and occasional trips to museums or other places of interest are not primarily recreational activities for children.” The court found this to be an excessively narrow interpretation of the law that was “clearly erroneous.” It noted that “one cannot escape the conclusion that [the state] viewed the concept of recreation as activity in which the using of one’s mind is not a significant component. In this benighted view, sports and games would quite clearly qualify, but reading, discussing, visiting museums and other activities of the mind apparently would not.”

The court did not disagree with the state’s conclusion that to be exempt, an after school program must be primarily recreational in nature. It did disagree, however, “that a program with components that might also be viewed as educational cannot still be primarily recreational in nature.” The court concluded: “The only sensible way to read a requirement that recreational programs with educational components must be licensed is that to the extent that they involve significant periods of formal instruction, they cross the line from learning by exposure to stimuli such as art, books, dance, museums and the like and into the realm of pedagogy. At that point, it can fairly be said, a program is no longer primarily recreational, but rather has become an instructional or educational program.”

The court concluded: “A review of the activities of [the after school program] reveals nothing that exceeds the bounds of the recreational. Although time is set aside for homework, this was presented merely as an opportunity to do such work on one’s own at the church, rather than waiting until arriving home in the evening, and the alternative projects were presented only as activities to stimulate the minds of those who had no homework assignments. In short, [the after school program] is a recreational operation that is exempt from licensure.”

Application. Many churches have started after school programs for children in their community. Many others are considering such a program. This case demonstrates that such programs may be subject to licensure requirements under state law. It is imperative for church leaders to determine whether such a program must be licensed. This should be done before the program is implemented. As this case illustrates, licensure laws typically contain one or more exemptions that may apply to church-based after school programs. Of special interest was the church’s conclusion that the program in this case did not qualify for exemption as a church-related activity since it had “no religious connotation whatsoever,” and was church-related “only in that the church feels that a part of its mission is to provide such recreational opportunities to young people in its area, and in that it is physically housed in the church’s building. There is no religious instruction, and many of the children who participate are not from families who are members of the church.” This characterization would not be true for some church-operated after school programs that make religious instruction an integral component. Episcopal Church of St. Paul v. Galvin, (Conn. Super. 2006).

Legal Developments

Breach of Fiduciary Duty

Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister.

Richard R. Hammar, Attorney, CPA

Bio

State: Colorado
Categories: Denominations - Legal Liability, Fiduciary Duty, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Breach of Fiduciary Duty

Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister.

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

Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on First Amendment considerations.

* A Connecticut court ruled that a priest and archdiocese were not liable on the basis of a breach of a fiduciary duty for the priest’s sexual relationship with an adult woman since no fiduciary duty arose under the circumstances. A 40-year-old woman (the “plaintiff”) with a long history of psychiatric and emotional problems sought out the “advice, counsel and friendship” of a priest. At the time, the priest was serving as an associate priest at a local church and was also an employee of the archdiocese. The plaintiff did not engage in formal counseling with the priest; rather, their relationship involved mainly recreational activities such as home visits, lunch and dinner dates, shopping trips, walks on the beach and trips to see movies. According to the plaintiff, the priest provided her emotional, spiritual and friendly support and that her “whole relationship” with him was one of counseling. At some point during their association, the priest became aware of her emotional problems and, nevertheless, engaged in a sexual relationship with her. The plaintiff alleged that she eventually ended the sexual aspect of their relationship after which the priest terminated all involvement with her.

The plaintiff sued the priest claiming that a fiduciary duty arose by virtue of the priest-parishioner relationship, and the priest breached this duty when, despite knowledge of her emotional problems, he engaged in “a close physical and intimate relationship” with her. The plaintiff also sued the archdiocese, claiming that it breached its duty to supervise the priest. Specifically, the plaintiff alleged that the archdiocese “knew or should have known that the priest had engaged in inappropriate behavior with the plaintiff” and, as a result, the archdiocese was liable for the priest’s breach of a fiduciary duty. A trial court dismissed the claims against the priest and archdiocese, and the plaintiff appealed.

Breach of a fiduciary duty

The appeals court defined a fiduciary or confidential relationship as “a relationship that is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.” The court acknowledged that “various state and federal courts” have concluded that a clergy-parishioner relationship may constitute a fiduciary relationship, but in each of those cases “something more than a general clergy-parishioner relationship was present.” For example, “the existence of a formal pastoral counseling relationship between a clergy member and a parishioner has been deemed significant in determining whether a fiduciary relationship was created. The court summarized the following precedent:

Colorado. (1) Court found that a fiduciary relationship existed between a clergyman and plaintiff, in part, because the clergyman had served as counselor to plaintiff. Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993). (2) A fiduciary duty was created when a priest undertook to counsel plaintiffs. Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988).
Federal district court in Iowa. Court dismissed plaintiff’s breach of fiduciary duty claim because plaintiff simply alleged clergy-parishioner relationship, not counseling relationship. Doe v. Hartz, 52 F. Supp.2d 1027 (N.D. Iowa 1999).
New Jersey. The New Jersey Supreme Court concluded that a breach of fiduciary duty claim arising out of the sexual relationship between a clergyman and a parishioner who was seeking marital counseling was permissible under New Jersey law. In so doing, the court placed considerable weight on the fact that the plaintiff was engaged in a specific pastoral counseling relationship with the clergyman. According to that court, “trust and confidence are vital to the counseling relationship between parishioner and pastor. By accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary.” The court explained that “establishing a fiduciary duty essentially requires proof that a parishioner trusted and sought counseling from the pastor.” F.G. v. MacDonell, 696 A.2d 697 (1997).
Federal appeals court. A federal appeals court permitted a breach of fiduciary duty claim to proceed against a clergyman because the fiduciary duty allegedly arose out of a counseling relationship, not simply a clergy-parishioner relationship. Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998).

The court concluded that “something more” than the general clergy-parishioner relationship must be present to establish a fiduciary relationship, and it declined the plaintiff’s invitation to establish a fiduciary relationship “between all clergy and their congregants.” The court concluded that the plaintiff’s relationship with the priest in this case was not fiduciary in nature because it “was not characterized by the unique degree of trust and confidence required of a fiduciary relationship.” In particular, the court noted that the plaintiff had not alleged a formal pastoral counseling relationship between herself and the priest. Rather, she claimed that her “whole association” with the priest was one of “counseling.” The court disagreed:

The plaintiff’s interactions with the priest were largely social. She did not meet him for specific counseling appointments, but, rather, the two went on lunch and dinner dates, shopping trips, walks on the beach and trips to see movies. Also, the plaintiff has admitted that many of the conversations she considered counseling took place immediately after mass with other congregants present and that the counseling primarily involved discussions about their relationship …. While the priest may have counseled the plaintiff from time to time, as a priest may for any parishioner, he was not her counselor. Moreover … the plaintiff was well over the age of majority throughout the time of their consensual interactions. While we do not condone the defendant’s behavior, we conclude that no fiduciary relationship existed between him and the plaintiff; consequently, no fiduciary duty was breached.

Archdiocese

The court also dismissed the plaintiff’s negligent supervision claim against the archdiocese on the ground that there can be no negligent supervision if an employee does not engage in wrongful behavior. Since the priest had not breached a fiduciary duty, the archdiocese could not be liable on the basis of negligent supervision for his actions.

Application. This case is important because it is one of the most extensive discussions of the liability of ministers and churches for acts of sexual misconduct on the basis of a breach of a fiduciary duty. The court refused to find that a priest who was not involved in a counseling relationship with a church member has a fiduciary duty toward that person, and therefore the priest could not be liable on the basis of a breach of such a duty for any inappropriate sexual conduct. There may be other bases of liability, but not this one. Further, since the priest was not liable, the archdiocese could not be liable since its liability (whether on the basis of negligent hiring or supervision, or breach of a fiduciary duty) required that the priest’s acts be wrongful. Ahern v. Kappalumakkel, 903 A.2d 266 (Conn. App. 2006).

Legal Developments

Woman Sues Church Elders for Advice She Received

Court ruled church elders could not be sued for their advice to a woman to remain with her abusive husband.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Counseling

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in "non-religious" counseling.

A Connecticut court ruled that church elders who counseled with a woman could not be sued for their advice to remain with her abusive husband.

A woman sought out leaders of her church for assistance in escaping from her husband's violence. She met with three church elders over the course of several years. One discouraged her from supplying any details about her husband, demonstrated discomfort at the topic, often told her that she might have caused her own problems, and once reprimanded her for discussing her husband's abuse with someone other than a church elder. Two other church elders encouraged her to stay with her husband and refused to look at marks on her back she sustained from her husband. One elder told her to do whatever her husband told her to do.

The woman later sued the church elders and her church for intentionally and negligently causing her emotional distress. The court ruled that the alleged acts of the elders were not sufficiently outrageous to amount to intentional infliction of emotional distress, which requires conduct that is "so extreme in degree that it goes beyond all bounds of decency and is regarded as atrocious, and utterly intolerable in a civilized society." While the court found the woman's allegations troubling, it noted that "they must be considered in the context of efforts made as part of the church's pastoral counseling. While the counselor's suggestions may have been ill advised, indeed insensitive, they do not meet the threshold of extreme outrageous conduct."

The woman also claimed that the elders and church were guilty of negligent infliction of emotional distress, which requires proof of (1) negligence on the part of the defendant, and (2) that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." The woman claimed that the elders had a duty to exercise reasonable care in counseling and directing her with respect to her family life, that they breached that duty, and that any reasonable person in their position would have known that such acts and omissions would cause her to suffer severe emotional distress. She further alleged that she suffered extreme emotional distress in that she was unable to eat, lost sleep, was hospitalized, and developed chronic conditions. The elders insisted that the only type of counseling they provided was spiritual, and so the first amendment guaranty of religious freedom barred a civil court from finding them liable based on the content of their advice.

The court agreed. It acknowledged that the first amendment does not create "blanket tort immunity for religious institutions or their clergy, thus allowing clergy and clerical institutions to be sued for the torts they commit." Further, "the common law doctrine of negligence does not intrude upon the free exercise of religion, as it does not discriminate against a religious belief or regulate or prohibit conduct because it is undertaken for religious reasons. Application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution."

The elders argued that the woman's claim of negligent infliction of emotional distress was actually a disguised claim of clergy malpractice, which is barred by the first amendment. The court noted that clergy malpractice "has been universally rejected by courts in the United States." It quoted from the landmark Nally case: "Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of a particular denomination or ecclesiastical teachings of the religious entity." Nally v. Grace Community Church, 253 Cal. Rptr. 97 (Cal. 1988). The Connecticut court concluded:

The essential facts of the plaintiff's allegations, viewed in the light most favorable to her, are as follows. Throughout her abusive marriage, the plaintiff sought the spiritual counsel of the individual defendant elders and other elders within the defendant church. In her allegations about her marital situation, she alleges that at all times the elders counseled her in accordance with Jehovah teachings. Allegedly, at the direction of the elders, the plaintiff stayed in her abusive marriage and suffered emotional distress separate from the distress she suffered as a result of her marriage. As those alleged facts demonstrate, the plaintiff's claims cannot be addressed without violating the first amendment.

The plaintiff's allegations are essentially that she sought counsel from the defendants and that they negligently caused her emotional distress in giving her bad advice contrary to Jehovah teachings. In fact, throughout her complaint, the plaintiff cites to scripture and publications, which, according to the plaintiff, show what the defendants should have done. As other courts have recognized, that is a claim of clergy malpractice, which usually is barred by first amendment principles.

[I]n the present case, any analysis of the plaintiff's claims would require a court to delve into religious issues, which is prohibited by the first amendment. Determining whether the defendants' counseling created an unreasonable risk of emotional harm or that the plaintiff's distress was foreseeable would require a court to evaluate the proprieties of religious teachings. Furthermore, the plaintiff cites certain Jehovah's scriptures, which would require the court to evaluate whether the defendants counseled in accordance therewith. Under both the free exercise clause and the establishment clause, the first amendment prohibits civil courts from resolving disputed issues of religious doctrine and practice. We conclude that the court properly granted the defendants' motion for summary judgment as to the count of negligent infliction of emotional distress.

Application. This case demonstrates the constitutional protection that the courts have extended to spiritual counseling. If the first amendment guaranty of religious freedom means anything, it means that church counselors who base their counseling on religious teachings and precepts cannot be liable on the basis of malpractice or negligence for the content of that counseling, even if it results in injuries to the counselee.

This has been the consistent conclusion of the courts that have addressed this difficult question. It is important to note that this conclusion has been applied most often in cases involving clergy counselors who are not licensed by their state as psychologists or counselors, and who are not providing exclusively "secular" counseling. The elders in this case were deemed to be pastoral counselors by the court, since they functioned as pastors within their congregation. Decorso v. Watchtower Bible Society, 829 A.2d 38 (Ct. App. 2003).

Legal Developments

Malpractice

A Connecticut court ruled that church elders who counseled with a woman could not be sued for their advice to remain with her abusive husband.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Clergy Malpractice, Counseling

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in "non-religious" counseling.

A Connecticut court ruled that church elders who counseled with a woman could not be sued for their advice to remain with her abusive husband.

Two other church elders encouraged her to stay with her husband and refused to look at marks on her back she sustained from her husband. One elder told her to do whatever her husband told her to do. The woman later sued the church elders and her church for intentionally and negligently causing her emotional distress.

The court ruled that the alleged acts of the elders were not sufficiently outrageous to amount to intentional infliction of emotional distress, which requires conduct that is "so extreme in degree that it goes beyond all bounds of decency and is regarded as atrocious, and utterly intolerable in a civilized society." While the court found the woman's allegations troubling, it noted that "they must be considered in the context of efforts made as part of the church's pastoral counseling. While the counselor's suggestions may have been ill advised, indeed insensitive, they do not meet the threshold of extreme outrageous conduct."

The woman claimed that the elders had a duty to exercise reasonable care in counseling and directing her with respect to her family life, that they breached that duty, and that any reasonable person in their position would have known that such acts and omissions would cause her to suffer severe emotional distress.

She further alleged that she suffered extreme emotional distress in that she was unable to eat, lost sleep, was hospitalized, and developed chronic conditions. The elders insisted that the only type of counseling they provided was spiritual, and so the first amendment guaranty of religious freedom barred a civil court from finding them liable based on the content of their advice.

The elders argued that the woman's claim of negligent infliction of emotional distress was actually a disguised claim of clergy malpractice, which is barred by the first amendment.

The court noted that clergy malpractice "has been universally rejected by courts in the United States." It quoted from the landmark Nally case: "Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of a particular denomination or ecclesiastical teachings of the religious entity." Nally v. Grace Community Church, 253 Cal. Rptr. 97 (Cal. 1988). The Connecticut court concluded:

The elders have presented evidence to establish that their conduct involved spiritual counseling based on the teachings of [their church]. The plaintiff has not countered that assertion. Under these circumstances, in order to determine whether the elders breached a duty in providing spiritual counseling, the court would necessarily intertwine itself with the religious philosophy of the [church]. A judicial review of plaintiff's claims would necessarily require an evaluation of the religious tenets of [her church], the religious definition of the marital relationship and the discharge of pastoral responsibilities by the elders. Such a review would impermissibly constitute excessive entanglement with religion.

What this means for churches

This case demonstrates the constitutional protection that the courts have extended to spiritual counseling. If the first amendment guaranty of religious freedom means anything, it means that church counselors who base their counseling on religious teachings and precepts cannot be liable on the basis of malpractice or negligence for the content of that counseling, even if it results in injuries to the counselee.

Legal Developments

Recent Developments in Connecticut Regarding Sexual Misconduct by Clergy and Church Workers – Part 2

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut

Church Law and Tax1999-09-01

Sexual Misconduct by Clergy and Church Workers

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

A Connecticut court ruled that the first amendment did not prevent a Catholic diocese from being sued on the basis of negligent supervision by nine adults who claimed they were molested by the same priest when they were minors. The plaintiffs alleged that the diocese had been aware of the priest’s sexual misconduct, but failed to adequately supervise him. As a result, they asserted that the diocese was legally responsible for the priest’s acts on the basis of negligent supervision. The court, in concluding that the first amendment did not prevent it from resolving this claim, observed:

Several courts have determined … that a claim of … negligence [against a church or diocese] does not require any inquiry into religious doctrine or practice. Instead, review only requires the court to determine if the church defendants knew of [the minister’s] inappropriate conduct, yet failed to protect third parties from him. The court is simply applying secular standards to secular conduct which is permissible under first amendment standards …. The court’s determination of an action against the [diocese] based upon its alleged negligent supervision of [the priest] would not prejudice or impose upon any of the religious tenets or practices of Catholicism. Rather, such a determination would involve an examination of the [diocese’s] possible role in allowing one of its employees to engage in conduct which [it] as well as society in general expressly prohibit ….

The court concluded that in determining whether or not the diocese had been negligent in supervising the priest, it could apply “neutral principles of law” (1) to determine whether the diocese failed to act when it knew or should have known that the priest was engaging in inappropriate behavior, and (2) to address conduct “that is expressly prohibited by the laws of this state.” The court stressed that there was no evidence that by taking preventive action in the face of alleged complaints concerning the misconduct of a priest the diocese would have violated any “doctrine, practice, or law” of the Roman Catholic Church. In the absence of such a conflict, subjecting the diocese to potential legal liability did not violate their rights under the first amendment. The court also quoted from a Supreme Court decision: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” Employment Division v. Smith, 494 U.S. 872 (1990). The court concluded that the first amendment “does not provide an absolute freedom to act with regard to religious beliefs …. Instead, that freedom can be regulated for the protection of society …. The protection of society requires that religious organizations be held accountable for injuries they cause to third persons. To hold otherwise would impermissibly place a religious leader in a preferred position in our society.”

The court noted that there was conflicting evidence whether the diocese was aware of the priest’s misconduct, and failed to act. It ordered the case to proceed to trial. The court acknowledged that several other courts had concluded that the first amendment prohibits the civil courts from resolving negligent supervision claims involving churches or denominational agencies, but it chose to reject those cases.

Application. This case illustrates the risk that churches and denominational agencies assume when they ignore evidence that a minister or lay worker is engaging in inappropriate conduct. Such neglect can expose the church or agency to liability, on the basis of negligent supervision or retention, for additional acts of misconduct. As a result, church and denominational leaders should take seriously any allegation of wrongdoing; investigate the matter promptly; consult with an attorney and insurance agent; and respond in a responsible and appropriate way based on the weight and nature of the evidence. Rosado v. Bridgeport Roman Catholic Diocese,716 A.2d 967 (Conn. Super. 1998). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

© 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: m10 m67 m40 m47 c0599

Legal Developments

Recent Developments in Connecticut Regarding Sexual Misconduct by Clergy and Church Workers – Part 1

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut

Church Law and Tax1999-09-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. The respondeat superior doctrine imposes liability on employers for the acts of their employees committed within the scope of their employment. Churches cannot be legally responsible on the basis of respondeat superior for the sexual misconduct of clergy or lay employees, since such acts do not occur within the scope of employment.

• Key point. Some courts have concluded that the first amendment does not necessarily prevent religious organizations from being sued on the basis of negligent hiring or negligent supervision for the sexual misconduct of clergy.

A Connecticut court ruled that the first amendment did not prevent it from resolving a woman’s claim that a church and diocese were legally responsible on the basis of “negligent hiring, training, retention, and supervision” for the acts of a priest who molested her when she was a minor. The woman alleged that for four years, when she was a minor, a priest counseled her concerning spiritual and personal matters and held himself out as a person whom she could trust and confide in during a difficult time in her life. The woman alleged that the priest sexually molested her during these counseling sessions. She sued her church and diocese when she became an adult, claiming that they were legally responsible for the priest’s acts on the basis of respondeat superior and negligent hiring, training, retention, and supervision.

Respondeat Superior

Under the doctrine of respondeat superior, an employer is legally responsible for the acts of its employees committed within the scope of their employment. However, for an employer to be liable for an employee’s intentional wrongs, “the employee must be acting within the scope of his employment and in furtherance of the employer’s business.” The court noted that this case involved “a minor who was sexually abused by a priest who was supposed to be counseling her through a difficult emotional period of her life.” As such, it was one of those “exceptional” cases “where the employees act was clearly a digression from duty and beyond the scope of employment.” Further, the abuse did not further the interests of the church, and the church did not “directly or indirectly profit” from the priest’s actions.

Negligence

The church and diocese argued that the plaintiff’s negligent hiring, training, retention, and supervision claims should be dismissed as well, since they could not be resolved without the court “entangling itself in matters of religion” in violation of the first amendment. The court disagreed:

The first amendment to the United States Constitution forbids any law respecting an establishment of religion, or prohibiting the free exercise thereof …. The free exercise clause prohibits excessive state entanglement with religion …. Although no Supreme Court decision has determined the applicability of the free exercise clause of the first amendment as a defense for a religious organization’s negligent conduct, the Court has held that the first amendment does not create blanket tort immunity for religious institutions or their clergy, thus allowing clergy and [religious] institutions to be sued for torts they commit.

The court concluded that allowing the plaintiff in this case to maintain her lawsuit against the church and diocese based on negligent hiring, training, retention, and supervision “would not prejudice or impose upon any of the religious tenets or practices of Catholicism.”

Application. This case illustrates the difficulty victims of clergy sexual misconduct face in suing their church on the basis of respondeat superior. On the other hand, the case demonstrates that victims may have more success in pursuing negligence claims. While many courts in recent year have ruled that the first amendment bars the civil courts from resolving negligence claims based on clergy sexual misconduct, this case illustrates that there are exceptions to this general rule. Doe v. Hartford Roman Catholic Diocesan Corporation, 716 A.2d 960 (Conn. App. 1998). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

Legal Developments

Recent Developments in the Connecticut Regarding Sexual Misconduct by Clergy and Church Workers

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut

Church Law and Tax1999-03-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Minors who are sexually molested by church workers may not sue their church after the statute of limitations has expired. Generally, the statute of limitations begins to run on a minor’s 18th birthday. In some states the statute of limitations is suspended if a church “actively conceals” the basis for a lawsuit from a victim.

A federal court in Connecticut ruled that the statute of limitations did not necessarily prevent an adult from suing a diocese for injuries he allegedly suffered as a minor when he was molested by a priest. A young priest served a church in Connecticut from 1961 to 1963. He initiated relationships with a small group of adolescent boys who were interested in liturgical reforms. The priest not only acted as a mentor and spiritual advisor to the boys, but also abused his position of authority and trust by inducing them to engage in sexual relations with him. The priest left the church to accept a position as spiritual director at a Catholic university. Shortly after the priest accepted this new position, the diocese received a complaint alleging that he had sexually molested a 19-year-old student at the university. The diocese’s report of the matter indicates that the priest admitted to the incident, and informed diocesan officials that “his problem,” which he “discovered” only recently, was known to only a small number of other people. The report noted that the priest denied having molested any boys in his previous parish. The report concluded that the priest was to be removed from his duties. Eventually, the priest was sent to New Mexico for several months of psychiatric treatment. Thereafter, the diocese consistently turned down his requests to resume work as a priest in Connecticut. However, the diocese continued to provide him with financial support and took no steps to alter his status as a priest.

For the next few years, the priest spent time in California, New Mexico, Maryland, and Connecticut, functioning in a variety of ecclesiastical and nonecclesiastical positions. In January of 1966, while he was serving as a parish priest in New Mexico, the diocese became aware of another complaint relating to his ministry in Connecticut. In late 1963, the priest was alleged to have offered a “solicitation to homosexual misconduct” to a high school student who was a member of his church. The boy later required hospitalization for psychiatric reasons, and his parents decided to approach diocesan officials directly, hoping to obtain compensation for the mental illness they attributed to the priest’s misconduct. The diocese apparently declined to provide support for the boy’s psychiatric care. Despite this second allegation of misconduct, the priest continued to function in his capacity as a priest under the auspices of the diocese. He ultimately settled in Maryland and developed a successful career as a writer, inspirational speaker, retreat leader, and television minister. In 1992 and 1993, allegations of sexual abuse arose in connection with his sojourns in New Mexico and California. In 1993 the diocese was sued by a 45-year-old man (the “victim”) who claimed to have been molested by the priest between 1961 and 1963. The victim claimed that his memory of the molestation was “repressed” until it was recovered through psychotherapy in 1991. The victim sued the diocese for emotional distress, breaching a fiduciary duty, negligent retention of the priest, and negligent training and supervision of the priest. The diocese asked the court to dismiss the lawsuit on the basis of the statute of limitations and the fact that it had no prior notice of the priest’s propensity to abuse children.

Fraudulent Concealment

The court noted that the statute of limitations under Connecticut law required the victim to file his lawsuit by his 35th birthday. Since this deadline was missed by ten years, the statute of limitations barred the lawsuit. However, the court noted that the statute can be suspended if a defendant “fraudulently conceals” the existence of a cause of action. Had the diocese fraudulently concealed from the victim the existence of a cause of action? The court concluded that it may have done so, and it referred this question to a jury for a final determination. The court observed that “[t]here is little dispute that the diocese intended to conceal [the priest’s] misconduct. Nor can there be much doubt that the diocese acted on this intent, as by removing [the priest] from the state as quickly as possible after the incident involving [the student].” In other words, the actions of the diocese, in response to the allegations made against the priest, were designed to conceal the nature of his misconduct.

The court added that “fraudulent concealment” does not necessarily require proof of a specific act on the part of the diocese. It also can be established by demonstrating that a fiduciary relationship existed between the diocese and the victim. If such a relationship existed, then the diocese was under an affirmative duty to warn the victim of the priest’s propensities. A failure to warn constitutes a form of “fraudulent concealment” that would suspend the statute of limitations. The court decided to let the jury determine whether or not the relationship between the victim and diocese was a fiduciary one.

Fiduciary Duty to Disclose

If a fiduciary relationship existed between the diocese and victim, this not only would suspend the statute of limitations, but also would constitute an independent basis of liability for failure to warn potential victims of the priest’s dangerous propensities.

Application. This case illustrates an important point-persons who were molested as children during church activities may be able to sue their church after the statute of limitations expires, if church leaders “fraudulently concealed” from them the existence of a potential legal claim. Fraudulent concealment may consist of specific actions designed to keep relevant information from a molestation victim. But it also will exist if a “fiduciary relationship” exists between the church and victim. If such a relationship exists, then the church has a fiduciary duty to disclose the basis of liability to the victim, and a failure to do so constitutes fraudulent concealment that suspends the statute of limitations. This means that molestation victims may be able to sue their church many years after the statute of limitations expires. Martinelli v. Bridgeport Roman Catholic Diocese, 989 F. Supp. 110 (D. Conn. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]