Louisiana

Legal Developments

‘Reasonable, competent supervision’ required of church-owned school in playground assault case

A Louisiana court rules that a church-owned school was required to provide “reasonable, competent supervision” in a playground assault case.

Richard R. Hammar, Attorney, CPA
Bio

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.

In a case that will be relevant to every church leader, a Louisiana court addressed the liability of parents for injuries caused by their minor children on church premises. 

Background

Four kindergarten students at a church-owned elementary school were playing tag on a school playground when one of the boys (the perpetrator) assaulted another boy (the victim). The victim suffered serious injuries, including confinement to a wheelchair for approximately three months.

The victim’s parents sued the parents of the perpetrator in one lawsuit, and sued the school and church in a separate lawsuit. The victim’s parents claimed each of the parties were responsible for their child’s injuries. 

The trial court dismissed the lawsuits. 

The victim’s parents appealed.

Liability of parents for the conduct of a minor child

A state appeals court observed: “Generally, a father and a mother are responsible for damage caused by their minor child who lives with them …  when the child’s conduct creates an unreasonable risk of injury to others, even though the parent himself is not personally negligent, and the child is too young to be personally negligent.” 

The court noted that “there is no fixed rule for determining whether a child’s conduct creates an unreasonable risk of harm. Relevant factors to be considered and weighed include: 
  1. the claims and interests of the parties;
  2. the probability of the risk occurring; 
  3. the gravity of the consequences; 
  4. the burden of adequate precautions; 
  5. individual and societal rights and obligations; and, 
  6. the social utility involved. 

The injured person must prove that 

the child’s conduct presented an unreasonable risk of injury to another and that the damage resulted from the unreasonable risk of injury. Once this is proved, the parent can escape liability only if he shows the injury was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.

The appeals court reversed the trial court’s dismissal of all claims against the perpetrator and his parents, allowing it to proceed to trial. The appeals court concluded that there was sufficient evidence that the perpetrator posed an unreasonable risk of harm to others, based on the following facts:

In his deposition, the victim testified that he was playing a game of tag with two friends at recess when the perpetrator joined the game. The victim did not want to play with [the perpetrator] because, earlier in the school year [the perpetrator] had twisted his fingers more than once when they were standing in line at school. Without telling the other students, the victim quit the game of tag and walked away. The perpetrator followed him, shoved him to the ground, and jumped on him “on purpose.”

The victim’s mother testified that, before the playground incident, her son had repeatedly come home from school telling her that the perpetrator was “being mean” to him by twisting his fingers. The mother instructed her son not to play with him anymore. 

The victim’s mother also testified that, on a field trip in October 2017, she had personally seen the perpetrator being disruptive, not following orders, and grabbing another child in an attempt to “bear hug” the child. 

The mother further stated that, at a school function in early December 2017, the perpetrator’s mother told the victim’s mother that she had met with her son’s teacher regarding her son’s frequently being marked down on the classroom behavior chart.

The perpetrator had many documented behavioral concerns throughout the school year, including:
  • kicking students while walking down the hall, 
  • punching students in the bathroom, 
  • constant roughhousing on the playground,
  • misbehavior at special classes,
  • hitting students in the back while sitting on the carpet, slapping another student in the face while carpooling, and 
  • coloring on the classroom floor during nap time.

Liability of the school and church

The victim’s parents sued the school and church (the “church defendants”) in a separate lawsuit. The trial court also dismissed the parents’ claims against the school and church defendants and the victim’s parents appealed. 

The appeals court concluded:

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and proof of a causal connection between the lack of supervision and the accident. The risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised.

The victim’s family claimed that “because the school and church knew that the perpetrator had prior behavior problems, they were required to exercise a heightened amount of supervision over the perpetrator, particularly on the playground.” 

The appeals court agreed, allowing the lawsuit to proceed to trial.

What this case means for churches

This case illustrates the remarkable conclusion that not only are schools and churches potentially liable for injuries to children occurring on their premises, but so are the parents of children who injure other children when the child’s conduct creates an unreasonable risk of injury to others. 

The bottom line: Church leaders who become aware of a child exhibiting aggressive and harmful behavior toward other children should intervene promptly to restrain the offender and protect other children since a failure to do so may lead to liability for both the church and the parents of the child causing injuries to other children. 

This risk can be minimized by various interventions, including:

1. Using an adequate number of adults to supervise all church activities, especially those involving minors. Also, be sure that adult supervisors are screened and trained on responding to aggressive children. 

2. Checking with local public elementary schools to see what policies they have instituted in cases involving aggressive children. By aligning your policies to those of government agencies (such as a public school) you will go a long way toward demonstrating that your church exercised a sufficient degree of care and therefore was not negligent for injuries that occur.

3. Checking with non-governmental charities (i.e., the American Red Cross, YMCA, Boy Scouts of America, and similar organizations) to obtain guidelines on responding to violent and aggressive children. Reliance on such standards makes it much less likely that a church will be guilty of negligent supervision. Be sure that you document your research.

4. Using video technology to monitor children on church premises. This will help explain how injuries occur and may result in a church’s quick dismissal from a lawsuit. 

5.  Apprising parents of a minor child who injures another child in an unprovoked act of aggression. If the circumstances warrant, either expel the child or require that the child always be accompanied by a parent on church property.

6. Recognizing knowledge of past incidents. If a child is injured on church property, then the church’s duty of supervision increases. The church will be held to a higher standard of supervision because of such knowledge. It is important for church leaders to be aware of this, and to be diligent in implementing some, or all, of the risk management procedures mentioned in this article. As the victim’s parents asserted, “because the school and church knew that the perpetrator had prior behavior problems, [the school and church] were required to exercise a heightened amount of supervision over the perpetrator, particularly on the playground.” 

7. Familiarizing youth workers with the church’s policies and ensuring these policies are followed. This is essential. At a minimum, this should be part of an orientation process for all new workers (both paid and volunteer). Periodic training sessions are also desirable to reinforce nursery policies. A church that fails to follow its own risk management policies is placing itself in a precarious legal position. 

8. Regularly reviewing policies and procedures. It is a good practice to have your risk management procedures reviewed periodically by an attorney and by your church’s insurance agent. Such a review will help to ensure that your policies are current and effective.

Loupe v. Roman Catholic Church, 368 So. 3d 583 (La. App. 2023) and 365 So. 3d 844 (La. App. 2023).

Legal Developments

Court: ADA Case Brought Against Religious School Allowed to Proceed

A federal court refused to dismiss a mother’s lawsuit, stating the school’s denominational ties—and possible exemption from the federal law—must be proven.

Richard R. Hammar, Attorney, CPA
Bio

Key Point 8-14.2 . The federal Americans with Disabilities Act (“ADA”) prohibits discrimination against disabled persons by privately owned places of public accommodation. The Act exempts religious organizations from this provision. Some states and cities have enacted laws prohibiting discrimination against disabled persons in some places of public accommodation, and these laws may apply to religious organizations.

A federal court in Louisiana ruled that a student with cerebral palsy could proceed with the lawsuit she brought against a religious school under the Americans with Disabilities Act (ADA), even though the ADA generally exempts religious organizations from its requirements.

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Plaintiff requested help with accommodations

A student with cerebral palsy and periventricular leukomalacia (PVL) (“Plaintiff”) attended the school for eight years, and then was home-schooled for the seventh grade during the COVID-19 pandemic. She then sought to again attend the school for the eighth grade.

During her previous attendance at the school, the Plaintiff said she received accommodations for her physical disabilities, including being accompanied every day by an aide compensated by her family. This aide helped her with daily activities, including navigating the hallways between classes, carrying her materials to and from classes, carrying her lunch tray, helping her cut her food, and assisting her in using the bathroom.

In addition to her physical limitations, the Plaintiff’s PVL has caused a brain injury that makes it difficult to retain and quickly recall math facts. Up through the sixth grade, the school accommodated this disability by allowing her to use a basic, four-function calculator during math classes.

During the seventh grade, the Plaintiff’s mother arranged for home-schooling because the Plaintiff’s cerebral palsy made her exceptionally vulnerable to COVID-19, and no vaccine was available at the time.

When her mother reached out to the school to make arrangements for the eighth grade, officials informed her that the Plaintiff would have to re-apply for admission.

Officials also said the Plaintiff would need to take the Independent School Entrance Exam (“ISEE”)—and without the use of a calculator because the school eliminated calculator use as an accommodation for any disabled students—and the Plaintiff had previously been allowed to use one only because she was “grandfathered in.”

Administrators for the ISEE specifically authorize the calculator as an accommodation for persons with disabilities such as the Plaintiff’s. When this fact was brought to the school’s attention, officials said the school would permit the Plaintiff to use it for the ISEE test, but if admitted, she could not use it for her future course work or tests at the school.

Plaintiff’s mother alleged that the school did not want to provide physical accommodations for her disabled daughter and denied the calculator accommodation to make it impossible for her to attend and succeed there.

The Plaintiff subsequently filed a lawsuit under the ADA in a federal court in Louisiana.

Learn more about how public accommodations statutes and court decisions across the country do—or don’t—affect churches in Church Law & Tax’s 50-State Public Accommodations Laws Report.

School: Religious affiliation exempts it from ADA

The school asked the court to dismiss the lawsuit, arguing that because it is a religious institution, it is not subject to the ADA. As a part of the request, the school asked the court to take “judicial notice” of the school’s website, which the school believes demonstrates its affiliations with the Episcopal Church.

Under Rule 201 of the Federal Rules of Evidence, a court can take judicial notice of “a fact that is not subject to reasonable dispute.”

The court first noted the way the religious exemption works under the ADA:

Title III of the ADA provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Private elementary and secondary schools are encompassed by the statute. However, religious schools are exempted from the ADA. … The religious exemption is read broadly:

‘The ADA’s exemption of religious organizations and religious entities controlled by religious organizations is very broad, encompassing a wide variety of situations. Religious organizations and entities controlled by religious organizations have no obligations under the ADA. Even when a religious organization carries out activities that would otherwise make it a public accommodation, the religious organization is exempt from ADA coverage.

Thus, if a church itself operates a day care center, a nursing home, a private school, or a diocesan school system, the operations of the center, home, school, or schools would not be subject to the requirements of the ADA. … The religious entity would not lose its exemption merely because the services provided were open to the general public.

The test is whether the church or other religious organization operates the public accommodation, not which individuals receive the public accommodation’s service.’

The court then turned its attention to the school’s request for judicial notice about its religious affiliation, which would then presumably make it exempt from the ADA.

The central issue for establishing the religious exemption in this case, according to the court, “is whether the face of the complaint establishes that (the school) is operated by the Episcopal Church.”

The court concluded:

A review of the complaint demonstrates that that fact is not established on its face. Seemingly acknowledging this, (the school) requests the court to take “judicial notice” of its website, which it contends reflects its close connection to the Episcopal church. … The court declines to take judicial notice of facts contained in the website because the defendant’s website does not meet the reliability standards required [for judicial notice].

In large part a marketing and recruitment tool, it is not in the nature of the official government or agency websites of which courts typically take judicial notice. Accordingly, (the school) is not entitled to dismissal of the ADA claim.

The types of judicial notice allowed under the rules of evidence instead must be ones “generally known” within its jurisdiction or ones “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

The school “seeks to introduce the website to establish a fact which is in issue — whether (the school) is operated by a religious entity — which is not resolved on the face of the complaint. Accordingly, (the school) is not entitled to dismissal of the ADA claim.”

What this means for churches

Title III of the ADA prohibits discrimination against disabled persons by privately owned places of public accommodation. The ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

The ADA defines the term public accommodation to include 12 types of facilities, including auditoriums or other places of public gathering, private schools (including nursery, elementary, secondary, undergraduate, and postgraduate), and day care centers.

The ADA defines discrimination in public accommodations broadly to include denying an individual the opportunity to use the accommodations on the basis of a disability, and failure to make reasonable modifications in policies, practices, or procedures, if necessary to make the accommodations available to disabled individuals.

The ADA specifies that its public accommodation provisions “shall not apply to … religious organizations or entities controlled by religious organizations, including places of worship.” Accordingly, most types of religious organizations are excluded from the prohibition of discrimination in places of public accommodation.

While religious organizations are exempt from the public accommodation provisions of ADA, some may still consider making certain accessibility-related changes. For more information, see Church Law & Tax’s article, “Preparing the Way.”

The House Report to the ADA at the time of the law’s passage specifies that “places of worship and schools controlled by religious organizations are among those organizations and entities which fall within this exemption.”

The House Report further specifies that “activities conducted by a religious organization or an entity controlled by a religious organization on its own property, which are open to nonmembers of that organization or entity are included in this exemption.”

The federal court’s decision in Louisiana does not necessarily mean the school is not exempt from the ADA, although the decision certainly creates such a possibility.

Instead, the school now must go further into the litigation in order to provide evidence establishing facts that show it is operated by the Episcopal Church. Churches that operate schools, as well as religious schools with ties to denominations, should consult with qualified local legal counsel about the specific ways to publicly demonstrate their religious affiliations beyond merely marketing and recruitment tools, such as websites and brochures.

It is also important to note that, while religious organizations are not subject to the ADA’s public accommodation provisions, they still may be subject to similar provisions under state or local law. Local legal counsel can help determine the existence of religious exemptions, and the steps needed to comply with the laws in the event no exemptions exist.

E.R. v. St. Martin’s Episcopal School, 2022 WL 558168 (E.D. La. 2022)

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Legal Developments

Defendant’s Meeting with Pastor Was Not for Spiritual Advice

Man accused of sexual abuse of stepdaughter not protected by clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-07.4. In order for the clergy-penitent privilege to apply, there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

A Louisiana court ruled that the clergy-penitent privilege did not apply to statements made by a criminal defendant to a pastor. The court based its ruling on the fact that the defendant had met with the pastor to refute criminal charges made against him rather than to seek spiritual counsel required for the privilege to apply.

The defendant is given a 15-year sentence by a trial court

During a three-day trial, a jury heard the victim testify that her stepfather (the “defendant”) began a sexual relationship with her when she was 14 years old that lasted for more than three years.

An associate pastor testified that in April 2017 the victim told him the defendant had been having sex with her since she was 14 years old, continuing until about two weeks before the meeting with the associate pastor. The associate pastor agreed to meet with the victim and her mother the following day so that she could tell her mother, who was unaware of the situation.

The associate pastor stated that he and the church’s senior pastor met with the victim and her mother, and that the defendant was outside the room during the meeting. Thereafter, the associate pastor testified that the defendant wanted to tell his side of the story and did so in the pastor’s office out of the presence of his wife and her daughter. According to the pastor, the defendant admitted to having a sexual relationship with the victim but only after she turned 18.

The defendant later met with a detective who took a recorded video statement of the defendant after he was advised of and waived his Miranda rights. In the video statement, the defendant admitted to engaging in sexual intercourse with the defendant when she was 17 and 18, but he denied earlier contact. The defendant was charged with sexual abuse of a minor.

At the defendant’s trial, the pastor was allowed to testify regarding the defendant’s confession despite the defendant’s claim that the confession was protected from disclosure by the clergy-penitent privilege. The jury found the defendant guilty and sentenced him to 15 years at hard labor. The defendant appealed on the ground that his conversation with the pastor should not have been allowed in evidence at his trial.

Appeals court: “spiritual guidance” was not the sole purpose of meeting

On appeal, the defendant asserted that the trial court erred in rejecting his claim that his conversation with the pastor was protected by the clergy-penitent privilege and should not have been admitted into evidence at his trial. He noted that the statements he communicated to his pastor were made in a private setting and were made for the sole purpose of spiritual counseling.

The appeals court ruled that the clergy-penitent privilege did not apply in this case and therefore it was appropriate for the pastor to testify regarding his conversation with the defendant. The court began its opinion by quoting the clergy-penitent privilege in Louisiana:

“A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

“A communication is ‘confidential’ if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

“The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person.”

The court noted:

“Thus, there are three legal prerequisites to finding that the clergy privilege applies. First, it must be determined that the person to whom the communication was received is a ‘clergyman.’ Second, it must be determined that the purpose of the communication was to seek spiritual advice or consolation. . . . Third, it must be determined that the communication was made privately and was not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. However, even if those explicit requirements of the article are met, it must also be determined whether or not the communicant waived the application of the privilege” by voluntarily disclosing or consenting “to disclosure of any significant part of the privileged matter” [quoting State v. Gray, 891 So.2d 1260 (La. 2005)].

The court concluded that the second requirement for the clergy-penitent privilege to apply was not met since “the primary purpose of defendant’s [conversation with] the pastor was for a reason other than spiritual guidance. The record supports the finding that defendant’s sole purpose was to refute the victim’s accusation that the sexual intercourse started when she was fourteen years old.”

What this means for churches

This case illustrates that not all conversations with clergy are protected by the clergy-penitent privilege. Such conversations are protected only when clergy are sought out in their professional capacity as spiritual advisers. In rejecting the application of the privilege, the court stressed that the purpose of the meeting was to rebut the victim’s claims and to share his side of the story. State v. Faciane, 2020 La. App. Lexis 485 (La. App. 2020).

Legal Developments

Murder Suspect’s Statements to Church Employee Not Privileged

Inculpatory statements made by a murder suspect to a church employee were not protected from disclosure by the clergy-penitent privilege because the employee was not a minister and the privilege had been waived.

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

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

A Louisiana court ruled that inculpatory statements made by a murder suspect to a church employee were not protected from disclosure by the clergy-penitent privilege because the employee was not a minister and the privilege had been waived.

A murder suspect (the “defendant”) confided in a lay church employee who worked in “congregational care” that he had killed someone. The defendant gave the employee some names and telephone numbers of people, and he asked the employee to contact the people and tell them he was “not a monster” and that he did not mean to kill the victim. The defendant stated that he would eventually turn himself in. The employee told him that he could give him until 2 p.m. the following day to do so. If he failed to do so, the employee said he would call the police. When the defendant failed to turn himself in by the deadline, the employee contacted the police and disclosed everything the defendant had told him.

The defendant was found guilty of manslaughter. The church employee testified for the prosecution at the trial, and fully disclosed his conversations with the defendant. The defendant appealed his conviction, claiming that his conversations with the church employee were protected by the clergy-penitent privilege and should not have been disclosed to the jury. The appeals court disagreed.

The court noted that the state clergy-penitent privilege applied to confidential communications between a penitent and minister for the purpose of spiritual counsel and advice. It concluded that the defendant’s conversations with the church employee were not privileged for two reasons. First, the employee was not a minister. While the privilege applied to communications with someone a penitent reasonably believed to be a minister, such a belief was not reasonable in this case. The court observed that the trial court did not err “in concluding that defendant could not have reasonably believed the employee was a minister … such that his inculpatory admissions were privileged.”

Second, the court concluded that the defendant had “waived” the privilege:

While it might be argued that defendant sought consolation from the employee, the record does not clearly reflect that defendant made the communication intending that the employee never disclose to another person that he killed his friend. Further, after making the communication to the employee, defendant implicitly consented to the employee revealing the communication to [the authorities] in the event defendant did not turn himself in by 2 p.m. the following day. Additionally, according to [the employee’s] testimony, defendant specifically asked him to contact certain persons to tell them that defendant wanted them to know that he was not a monster, and didn’t mean to do this (meaning the killing). Thus, even assuming the prerequisites necessary for the privilege to apply … were present when defendant initially made the communication to the employee, defendant clearly waived the privilege by then implicitly, although conditionally, consenting to disclosure of the privileged matter.

What This Means For Churches

This case illustrates two important points regarding the clergy-penitent privilege.

First, in all states, the privilege applies to confidential communications made to a minister in the course of spiritual counseling, and in many states, like Louisiana, the privilege applies to confidential statements made to a person who is not a minister but whom the communicant reasonably believes to be a minister. This case demonstrates that a belief that someone is a minster must be reasonable in light of all the facts and circumstances. The court concluded that the defendant’s belief that a church employee was a “minister” was not reasonable.

Second, this case demonstrates that an otherwise privileged communication may be lost through waiver. The court concluded that the defendant’s request that the employee inform several friends that he was not “a monster,” and acquiesced in the employee’s threat to report the defendant’s culpability to the authorities if he failed to do so by the next day, amounted to a waiver. State v. Luzzo, 214 So.3d 55 (La. App. 2017).

Legal Developments

First Amendment Religion Clauses Prohibit Court from Resolving Confidential Communications Claim

First Amendment religion clauses prevented the civil courts from resolving a parishioner’s claim that a priest improperly disclosed his confidential communications without permission.

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-08.09. Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.

A Louisiana appeals court ruled that the First Amendment religion clauses prevented the civil courts from resolving a parishioner’s claim that a priest improperly disclosed his confidential communications without permission.

A parishioner (the “plaintiff”) learned that a priest had disclosed to others the fact that he had visited the priest for confession, as well as the substance of what was said. The plaintiff sued the priest for invasion of privacy. His lawsuit made the following assertions:

A foundation doctrine in the Roman Catholic Church for thousands of years mandates that the seal of confession is absolute and inviolable.

Pursuant to his oath to the Church, a priest is compelled never to break that seal.

Neither is a priest allowed to admit that someone went to confession to him.

This is not a gray area in the doctrine of the Roman Catholic Church and a priest who violates the seal of Confession incurs an automatic excommunication.

The standard of secrecy protecting a confession outweighs any form of professional confidentiality or secrecy. When a person unburdens his soul and confesses his sins to a priest in the Sacrament of Penance, a very sacred trust is formed. The priest must maintain absolute secrecy about anything that a person confesses.

The plaintiff claimed that the priest violated his First Amendment rights and invaded his privacy when he “disregarded the sacramental seal and informed other individuals without express permission” that the plaintiff had visited him for confession. The plaintiff also sued the local bishop, claiming that he contributed to the priest’s wrongful behavior by failing to remedy his conduct “after he learned of the violation of the sacramental seal of confession.” The plaintiff sued the diocese arguing that it was vicariously responsible for the wrongful acts of its priest.

The defendants asked the court to dismiss all of the plaintiff’s claims on the ground that the First Amendment guaranty of religious freedom barred civil court interference with a foundational religious doctrine. The plaintiff countered by asserting that the court could address his claims since the priest’s actions “went beyond the scope of an internal religious matter and, therefore, outside the scope of the First Amendment’s protections.”

The court agreed with the church defendants and dismissed the case. It observed:

Plaintiff’s claims fall within the scope of internal religious affairs as they are predicated on: (1) the breach of the sacramental seal of confession, as defined by the Roman Catholic Church; and (2) the bishop’s failure to remedy the breach in accordance with church doctrine. In order to discern whether plaintiff has asserted meritorious claims against the church defendants, the court would have to interpret church doctrine relating to the sacrament of confession and otherwise encroach upon the internal affairs of the Roman Catholic Church. Application of long-standing First Amendment jurisprudence, therefore, mandates that this court refrain from considering plaintiff’s claims.

What this means for churches

This case is important because the court’s decision represents one of the few times that a court has addressed the liability of a church or pastor for the pastor’s disclosure of confidential information shared in a conversation protected by the clergy-penitent privilege. The court declined to hold the priest or church liable for the priest’s unauthorized disclosure of a penitential communication. The other cases are summarized in Table 1. Sonnier v. Diocese, 2017 WL 778153 (La. App. 2017).

Cases Addressing the Liability of a Church or Pastor for
the Pastor’s Disclosure Of Confidential Information

State Case Liable?
Arizona
  • A woman sought out a pastor for counseling.
  • Confided highly personal and private matters including the fact that her father had sexually molested her and her sister.
  • The sister later married the pastor’s son and accused him of infidelity.
  • In an attempt to defend his son, the pastor told the board and congregation that the sister could not be believed because her family was “incestuous” and “dysfunctional.” The sister sued the pastor and the church for invasion of privacy, defamation, malpractice, and breach of fiduciary duty.
  • An Arizona court concluded that the pastor offered “no good reason for insulating a counselor from liability for betraying clients’ confidences to their detriment merely because the counselor is a clergy member.” Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).
 Yes
California
  • Pastor confessed to denominational officers about inappropriate conduct; assurance of confidentiality.
  • Denominational officers shared a minister’s confession with a church’s pastoral search committee.
  • The court acknowledged that it could find no previous case in which “a counselee or communicant has sought to hold a religious officer liable in tort for [an unauthorized disclosure of confidential communications].
  • It saw no reason why clergy and church leaders should not be held legally accountable for injuries they inflict when they disclose confidential information to others without consent. Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989).
 Yes
Kansas
  • The Kansas Supreme Court ruled that a pastor and his employing church were not liable for the pastor’s disclosure of confidential information obtained during marital counseling.
  • The court concluded that to the extent the plaintiff’s claims were based on the pastor’s providing spiritual counseling, “we decline to find a fiduciary relationship based on the spiritual nature of the relationship alone.” Further, the court concurred with cases “which hold that a minister’s duty of confidentiality is a moral, not a legal, obligation.” Horosko v. Jones, 2004 WL 2926665 (Kan. 2004).
 No
Louisiana
  • An adult male (the “plaintiff”) received counseling from the pastor of his church “regarding resolution of conflict between himself and his sisters resulting from physical and sexual abuse conducted by their father.”
  • The pastor told church leaders that the plaintiff could not serve on a church committee because he “is messed up because he has been sexually abused by his father.”
  • The plaintiff sued his pastor and church on the basis of malpractice, infliction of emotional distress, and violation of the clergy privilege.
  • A Louisiana court dismissed the lawsuit. It noted that the clergy privilege is a rule of evidence and “does not create causes of action or other substantive rights.” Therefore, the plaintiff was not entitled to monetary damages as a result of the pastor’s disclosure of confidential information he acquired during a conversation protected by the privilege. Lann v. Davis, 793 So.2d 463 (La. App. 2001).
 No
Michigan
  • A Michigan court ruled that a minister could not be sued for breaching a “duty of confidentiality” by disclosing to the congregation information that was communicated to him by a member in the course of a confidential counseling session.
  • A church member confessed to his pastor that he had previously committed adultery with prostitutes. The pastor decided to communicate this information to the entire congregation, including the member’s wife, family, and friends.
  • The member sued his pastor and church, alleging that the pastor’s disclosure amounted to a breach of the duty of confidentiality. He insisted that the clergy-penitent privilege imposes upon clergy a “duty of confidentiality,” and that clergy who disclose confidences without permission may be sued for breaching this duty.
  • The court disagreed, noting that the clergy-penitent privilege is a “rule of evidence that did not create a cause of action for disclosure of private or privileged communications.” Smith v. Calvary Christian Church, 592 N.W.2d 713 (Mich. App. 1998).
 No
New York
  • A New York court ruled that two rabbis could not be sued for breaching a “duty of confidentiality” as a result of their disclosure of confidential information shared with them by a counselee since there was a third person present during the counseling sessions.
  • Further, the court ruled that the clergy-penitent privilege does not impose a “fiduciary duty of confidentiality” upon clergy. Lightman v. Flaum, 717 N.Y.S.2d 617 (2000).
 No
Ohio
  • A church member (the “plaintiff”) met with his pastor for marital counseling. He confessed to having been involved in several affairs during his marriage, and that he was currently having an affair.
  • The minister disclosed these confessions to plaintiff’s wife and suggested that she obtain a restraining order and seek a divorce.
  • An Ohio court allowed the plaintiff to sue his pastor for negligence. It observed: “Public policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential.” Alexander v. Culp, 705 N.E.2d 378 (Ohio App. 1993).
 Yes
Texas
  • The Texas Supreme Court ruled that the First Amendment guaranty of religious liberty prevented it from resolving a dismissed church member’s claim that her pastor committed “professional negligence” by using information she shared with him in confidence as the basis for disciplining her.
  • The court concluded: “The secular confidentiality interest the plaintiff’s professional negligence claim advances fails to override the strong constitutional presumption that favors preserving the church’s interest in managing its affairs. She voluntarily became a member of the church body and agreed to abide by the church constitution; indeed, she expressed that she did so willingly. That constitution outlined the disciplinary process that would be followed if a member engaged in conduct that the church considered inappropriate. The pastor … assumed an obligation to the plaintiff and to the congregation to follow the church’s constitution. Although the plaintiff contends pastoral counseling is not at issue because she did not receive marital counseling from the pastor in his capacity as a member of the clergy, the publication about which she complains was made in the course of the church disciplinary process and communicated by the pastor pursuant to the requirements of that process.” Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).
 No

Legal Developments

National, Regional Denominational Agencies Not Legally Responsible for Child’s Brain Damage Incurred at Affiliated Church

Regional and national denominational agencies are not necessarily liable for deaths and injuries occurring on the property of affiliated churches.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

Key point 10-18.3. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister's prior wrongdoing in accordance with the denomination's governing documents; lack of an agency relationship; the prohibition by the First Amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.

A Louisiana appeals court ruled that national and regional denominational agencies were not legally responsible for permanent brain damage suffered by a toddler who fell into a filled, uncovered baptistery in an affiliated church.

On December 19, 2013, a mother and her 22-month-old daughter attended a dinner at a church in their community. At some point during the dinner, the daughter was found submerged in the baptismal pool of the church. The child suffered a severe brain injury that has left her unable to walk, talk, or feed herself. The mother sued the church, and regional and national denominational agencies with which it was affiliated (the "regional church" and "national church") claiming that they had all been negligent in failing to guard the baptismal pool in any way and leaving the pool full of water. The pool is four feet deep. There are no doors or other barriers separating the pool from the general premises of the church and no cover over the pool or any other safety features.

The regional church and national church filed motions for summary judgment seeking dismissal of the mother's claims on the ground that neither had any responsibility for the employment of the church's pastor, nor was there any employer-employee or agency relationship between them and the local church sufficient to impose upon them any liability for the actions of the church. They each claimed that there were no genuine issues regarding their lack of supervision, governance, or control over the church, and, therefore, they were entitled to judgment as a matter of law.

In support of their motions for summary judgment, the regional church and national church pointed to the national church's constitution and bylaws, which clearly demonstrate that these two entities are separate and distinct from the local church. For example, the constitution states that each affiliated church

has the right of self-government … and shall have the power to choose or call its pastor, elect its official board, and transact all other business pertaining to its life as a local unit. It shall have the right to administer discipline to its members according to the Scriptures and its constitution or bylaws. It shall have the right to acquire and hold title to property, either through trustees or in its corporate name as a self-governing unit. The fact it is affiliated with [the national church] shall in no way destroy its rights as above stated or interfere with its sovereignty.

The national church's bylaws clarify that the limited "control" exercised by the national or regional churches over affiliated churches is limited to the approval or disapproval of "scriptural doctrine and conduct" and the revocation of a church's certificate of affiliation if deemed necessary. The national church's bylaws add:

Affiliated churches are deemed to be sovereign, autonomous, self-governing, and self-determining bodies, which have, by their sovereign, self-determining action in making application for and receiving recognition as [an] affiliated church, entered into an agreement … to be amenable to the [national and regional churches] in matters of doctrine and conduct.

An officer of the national church testified that affiliated churches are congregational in polity and that the denomination is a cooperative fellowship of independent and autonomous churches that have plenary control over their own properties. This officer testified that the national church has no authority to require churches to comply with any risk management recommendations, and that it lacks authority to supervise or control church property. An officer of the regional church testified that the denomination practices baptism by immersion, but stressed that neither the national church nor regional church controlled the setting for baptisms by immersion, which could be done anywhere the local pastor chooses. Further, this officer testified that the national and regional churches had no ownership of the property of local churches.

The trial court, in dismissing the mother's claims against the national and regional churches, relied on the following facts:

  • Neither had a master-servant or employment relationship with the local church or anyone employed by it.
  • There was no relationship between the national and regional churches, and the local church where the injury occurred, other than on matters of religious doctrine.
  • The national and regional churches never had any ownership, custody, or control of the local church.
  • All of the defendants were separately incorporated with their own officers and directors and with no common officers or directors.
  • All of the defendants were insured separately.
  • Each defendant oversees its own finances and hires its own employees free of any control from the other.
  • The baptistery involved in this accident, along with the building and land containing it, was owned solely by the local church.
  • The national church's constitution and bylaws show that the local churches have plenary control of their property.
  • The national and regional churches have never been involved in any jointly financed business venture with the local church.
  • The national and regional churches recognize the sovereign and self-governing status of affiliated churches including the right to acquire, use, and maintain property exclusively.

The trial court concluded that the mother had presented no evidence to controvert the evidence submitted by the national and regional churches, or which would indicate that they controlled the daily secular or financial affairs of the local church. Absent such evidence, the court concluded that there was no authority for finding them liable for injuries occurring in affiliated churches. It also found that the affidavits—the constitution and the bylaws—were "replete with references to the sovereign and autonomous nature of affiliated churches."

In dismissing the mother's claim that the national and regional churches, and all affiliated churches, comprised one "single-business enterprise" making any one defendant legally responsible for the acts and omissions of the others, the court noted that the single-business-enterprise doctrine was a theory for imposing liability where two or more business entities act as one. When corporations integrate their resources in operations to achieve a common business purpose, each business may be held liable for wrongful acts done in pursuit of that purpose. But the trial court found that the main focus of the relationship between the national and regional churches and local churches was doctrinal in nature. It found nothing to indicate that the two councils were responsible for maintaining the individual church's property.

The mother appealed the trial court's dismissal of her claims against the national and regional church. She alleged three bases of liability that the trial court had rejected:

Respondeat superior liability
Under Louisiana law, "masters" and employers are answerable for the damage occasioned by their servants in the course of their employment. This form of liability is known as respondeat superior (the superior, or employer, responds). A servant is a person employed to perform services in the affairs of another and who, with respect to the physical conduct in the performance of the services, is subject to the other's control or right to control. The word servant includes anyone who performs continuous service for another and whose physical movements are subject to the control or right to control of the other as to the manner of performing the service. The single, most important factor to consider in deciding whether the master-servant relationship exists is the right of the employer to control the work of the servant or employee. The right of control necessarily encompasses "supervision, selection and engagement, payment of wages or salary and the power to dismiss."

The appeals court concluded that the national and regional churches
had no right under the constitution and bylaws to control the property of [the church] or to dictate what actions were taken on a day-to-day basis at the church. The individual churches own the property on which the churches are located, insure them individually and have control over who they employ as their pastors. Although the pastors [are licensed and ordained by the denomination] which has the right to intervene when a pastor has acted in an inappropriate manner or contrary to the teachings of the church, all the evidence presented leads to the conclusion that the local churches are sovereign and autonomous. The national and regional churches have no control over the daily secular or financial aspects of the local church; and, therefore, there is no master-servant relationship between them and the church.

Single-business enterprise
The appeals court concluded that the trial court correctly rejected "single-business enterprise" as a basis of liability:
The single-business-enterprise doctrine is a theory for imposing liability where two or more business entities act as one. Generally, under this doctrine, when corporations integrate their resources in operations to achieve a common business purpose, each business may be held liable for wrongful acts done in pursuit of that purpose ….

When determining whether a corporation is an alter ego, agent, tool or instrumentality of another corporation, the court is required to look to the substance of the corporate structure rather than its form. The courts have considered various factors to support an argument that a group of entities constitute a single-business enterprise. These factors can include such things as … common directors or officers; unified administrative control of corporations whose business functions are similar or supplementary; directors and officers of one corporation acting independently in the interest of that corporation; corporation financing another corporation; corporation paying the salaries and other expenses or losses of another corporation; receiving no business other than that given to it by its affiliated corporations; corporation using the property of another corporation as its own; noncompliance with corporate formalities; and common employees and services rendered by the employees of one corporation on behalf of another corporation. This list is illustrative and is not intended as an exhaustive list of relevant factors. No one factor is dispositive of the issue of single-business enterprise.

The court concluded that the national and regional churches
presented evidence in the form of the constitution and bylaws, as well as deposition testimony, which showed that [the church where the accident occurred] is a sovereign and autonomous entity over which they had no control. The national and regional churches are separately incorporated, as is each church, which becomes a part of the [denomination]. Judged by the substance of corporate structure rather than the form, the national and regional churches do not share officers and directors with local churches, do not pay the salaries of the local pastors, do not act independently on behalf of the local churches and do not insure the properties owned by the local churches. The mother presented no evidence to controvert that of the national and regional churches showing that there is no single-business enterprise between them. Therefore, there are no genuine issues of material fact remaining in this regard, and this assignment of error is without merit.

Unincorporated association
The mother further claimed that the national and regional churches, and local church, comprised an "unincorporated association" making each defendant fully liable for the acts of other defendants. In rejecting this novel theory, the court observed:
An unincorporated association … does not come into existence or commence merely by virtue of the fortuitous creation of a community of interest or the fact that a number of individuals have simply acted together; there must also be an agreement whereby two or more persons combine certain attributes to create a separate entity for a legitimate purpose. While the parties need not specifically intend or have knowledge of all the legal ramifications of juridical personality, they must at least conceive of their creation as a being or thing separate from themselves … .

Clearly, under the constitution and the bylaws, all three levels of the church are separate corporate entities, and the sovereign nature of the local churches is often reiterated. Through the constitution and the bylaws, the national church has devised a method by which … individual churches are created to act autonomously and free of the national and regional churches in all but doctrinal theory. Therefore, there is no agreement whereby two or more persons combine certain attributes to create a separate entity for a legitimate purpose in regard to the [denomination] and there is no unincorporated association.

What this means for churches

This tragic case is illustrative for the following reasons:

1. It demonstrates the risks involved in maintaining filled, uncovered baptisteries on church premises.

2. It demonstrates that regional and national denominational agencies are not necessarily liable for deaths and injuries occurring on the property of affiliated churches. In this case, regional and national denominational agencies were not liable for the injuries sustained by the toddler who fell into the church baptistery because:

Most importantly, the denomination's constitution and bylaws unequivocally described the independence and autonomy of affiliated churches, and the lack of any authority by regional and national denominational agencies to supervise or control affiliated churches or church properties. The language of a denominational agency's governing documents will often determine whether the agency is, or is not, vicariously liable for the acts and omissions of affiliated churches. Often, such documents are written without a legal review, and with no thought of legal liability, and this becomes apparent when the plaintiffs' attorneys seek to establish vicarious liability of a parent denominational agency based on ambiguous or technically imprecise language. This makes a periodic legal review of denominational governing documents a necessity.
The limited authority of the national and regional church over affiliated churches was limited to doctrinal fidelity, precluding liability based on respondeat superior, single-business enterprise, and an unincorporated association status. 185 So.3d 125 (La. App. 2016).

Legal Developments

Louisiana Court Affirms Decade Sentence for Church Volunteer Convicted of Molestation

Church Law and Tax Report Louisiana Court Affirms Decade Sentence for Church Volunteer Convicted of

Church Law and Tax Report

Louisiana Court Affirms Decade Sentence for Church Volunteer Convicted of Molestation

Key point 10-09.3. Churches can reduce the risk of liability based on negligent supervision for the sexual molestation of minors by adopting risk management policies and procedures.

A Louisiana appeals court affirmed a 10-year sentence at hard labor for a volunteer youth worker who raped a 13-year-old girl while taking her home from a church event. A 13-year old girl (the “victim”) attended youth group meetings at a church. The victim and several other members of the youth group went to dinner at a local restaurant. Some of the volunteer youth workers also attended this event, including an adult male (the “defendant”) and his pregnant wife and 1-year-old son. The defendant and his wife drove separately to the restaurant.

After dinner, the defendant’s wife wanted to take their infant son home. The defendant volunteered to take the victim home in his truck, and it was during this ride that the defendant started rubbing the victim’s leg. The victim asked him to stop, but he pulled over onto a dirt road, parked the truck, and raped her despite her begging him to stop. The defendant then exited the truck from the passenger side and locked the door so the victim could not escape. He got back in the truck and drove her home. Before the victim exited the truck, the defendant said, “I hope I didn’t cross any boundaries.” The victim arrived home around midnight, and both of her parents were asleep.

The next morning, the victim told her parents that the defendant had “rubbed her leg” on the way home the night before, but did not tell her parents about the rape. The parents arranged a meeting with their pastor and the defendant. When confronted with the victim’s allegations, the defendant started crying, and admitted to inappropriately touching her on her leg and apologized repeatedly. The parties did not discuss contacting law enforcement.

Three years later, the victim told two of her friends, and her youth pastor, about the rape. The youth pastor instructed her to tell her mother what occurred, which she did. Despite assuring the victim that she would not report the rape to the police, she did so.

A detective later met with the defendant. The defendant, who was not under arrest at that time, voluntarily agreed to give a statement. After being advised of, and waiving his Miranda rights, the defendant admitted only that he had touched the victim on her leg, and emphatically denied the victim’s rape allegation.

The defendant was charged with molestation of a juvenile, and was found guilty by a jury. At the defendant’s sentencing hearing, a probation officer testified that the defendant had shown no remorse for his actions. The victim’s mother described the negative effects the crime had on the victim. The defendant also made a statement, stating that he prays for forgiveness everyday and that he had apologized to the victim and her family at the meeting with the pastor. After a careful consideration of the evidence, the trial court sentenced the defendant to 10 years at hard labor. It also informed the defendant of the sex offender notification and registration requirements.

The defendant appealed, arguing that the sentence was excessive in light of his lack of a criminal history and his family obligations, and that the record was void of any indication that he was an ongoing threat to the victim or others. The defendant expressed his remorse, and asserted that he was not among “the most egregious or blameworthy offenders.” The state responded by noting that in light of the fact that the defendant faced a sentencing exposure of 20 years at hard labor, the 10-year sentence was not excessive.

A state appeals court affirmed the defendant’s 10-year sentence at hard labor: “The defendant was sentenced to 10 years at hard labor, with credit for all time served. This midrange sentence does not shock the sense of justice, nor is it disproportionate to the severity of the offense. The trial court adequately considered all of the aggravating and mitigating factors when tailoring its sentence for the defendant. After a careful review of the record, we find that the trial court did not abuse its discretion in imposing that sentence.”

What This Means For Churches:

This case illustrates the importance of adopting, and enforcing, a “two-adult rule” that prohibits church employees and volunteers from being alone with a single minor. Had the church in this case adopted such a rule, it would have barred the defendant from taking the victim home without a second adult in his truck. This would have had the following consequences:

  • The rape would not have occurred;
  • the defendant would not have been sentenced to 10 years at hard labor;
  • the defendant’s wife and three young children would not have lost their husband and father, with the attendant relational and financial stresses;
  • the church would not be exposed to liability based on negligence for allowing a minor to be alone with an adult volunteer.

Clearly, adopting a two-adult rule, while an integral part of a program to reduce the risk of child molestation on church property and during church activities, is of no value if the policy is not followed. Church leaders need to continually stress the importance of following such a policy, and be alert to violations. State v. Linder, 162 So.3d 1278 (La. App. 2015).

Legal Developments

Church School May Have Violated Dismissed Teacher’s Rights under Family and Medical Leave Act

Church Law and Tax Report Church School May Have Violated Dismissed Teacher’s Rights under Family

Church Law and Tax Report

Church School May Have Violated Dismissed Teacher’s Rights under Family and Medical Leave Act

Key point 8-14.1. The federal Americans with Disabilities Act prohibits employers with at least 15 employees, and that are engaged in interstate commerce, from discriminating in any employment decision against a qualified individual with a disability who is able, with or without reasonable accommodation from the employer, to perform the essential functions of the job. Accommodations that impose an undue hardship upon an employer are not required. Religious organizations may give preference to nondisabled members of their faith over disabled persons who are members of a different faith.

Key point 8-15. The federal Family and Medical Leave Act requires employers with 50 or more employees and engaged in interstate commerce to allow employees up to 12 weeks of unpaid leave each year on account of certain medical and family needs. There is no exemption for religious organizations.

Key point 8-20. Several federal and state laws require certain employers to display workplace posters in order to inform employees of their rights. Some poster requirements apply to religious organizations, while others do not. Even those that do often require modification to avoid confusion.

A federal district court in Louisiana ruled that a church school had not violated the Americans with Disabilities Act in dismissing a teacher, but may have violated the Family and Medical Leave Act. A woman (the “plaintiff”) was employed as a teacher at a church school for 14 years. Like all teachers at the school, she was employed on an annual basis pursuant to an employment contract. During the end of the 2011-2012 academic year, she met with the school principal to discuss goals for the upcoming year. One of the plaintiff’s “major goals” was a “health goal” that included seeing a doctor about her weight loss issues (she suffered from anorexia nervosa).

In July 2012, the plaintiff emailed the preschool’s vice principal to inquire about sick leave so she could receive medical attention for her eating disorder. The vice principal informed her that she had 17 sick days plus accrued vacation leave. The Family and Medical Leave Act (FMLA) was not referred to by either the plaintiff or the vice principal. The plaintiff began her sick leave in August of 2012 to seek treatment for her eating disorder.

A few months later, the plaintiff received “return to work” releases and returned to work in October. Her nutritionist “cautiously agreed” to allow her to return to work and noted that the release came with “strict guidelines.” Similarly, the plaintiff’s counselor provided her with a release subject to various conditions.

The day after she returned to work, the plaintiff had an appointment with her nutritionist, who indicated that she was “below expectation” in meeting the required goals for her release to work. During an appointment with her counselor a few days later, the plaintiff was informed that her medical team was discontinuing her treatment because she still continued to lose weight. The plaintiff did not return to work after her appointment, and her employment was terminated.

The plaintiff sued the school claiming that it committed violations of the Americans with Disabilities Act (ADA) and FMLA. The school asked the court to dismiss all claims.

ADA

The plaintiff claimed that the school violated the ADA by terminating her employment before discussing reasonable accommodations and without providing her with sufficient notice of her rights under the ADA.

The court conceded that discrimination under the ADA includes an employer’s failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability unless such covered entity can demonstrate that the accommodation would impose an undue hardship.” An employee’s failure to request accommodation precludes a failure to accommodate claim under the ADA.

The plaintiff admitted that she did not consider herself to be disabled, and so she “has not established that she is a qualified individual with a disability.” Further, the court noted that the plaintiff never asked for an accommodation. Therefore, “because she has shown neither that she is an individual with a disability nor that she requested an accommodation, she has failed to establish a case of failure to accommodate under the ADA.”

The plaintiff also claimed that the school violated her rights under the ADA by failing to post notices explaining her rights under the ADA. The court, in dismissing this argument, concluded: “Federal law requires every employer to post notices describing the provisions of the ADA. These notices are to be posted in ‘conspicuous places.’ There is, however, no private cause of action to enforce the posting requirements.”

FMLA

The FMLA, which applies to employers with 50 or more employees, entitles an eligible employee to take up to 12 work weeks of leave in a 12-month period when the employee has a serious health condition that makes her unable to perform the duties of her position. After a qualifying absence, the employer must restore the employee to the same position previously held by the employee before taking leave under the FMLA.

The plaintiff claimed that the school violated the FMLA by failing to inform her of the amount of leave that she had available and the procedure to apply for available leave. The court stressed that “there are no magic words required of an employee to take leave under the FMLA,” and that the FMLA “does not require an employee to invoke the language of the statute to gain its protection when notifying her employer of her need for leave for a serious health condition.” An employee need only “provide her employer with enough information that would reasonably apprise the employer of the employee’s request to take time off for a serious health condition.” The court concluded:

The school was familiar with the plaintiff’s medical condition and was also aware that discharge from treatment by her medical team would prevent her from working. The court finds these communications sufficient to create a genuine dispute as to a material fact as to whether she provided adequate notice that she was planning to take qualifying leave under the FMLA … . In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee … . Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly … notify the employee that the paid leave is designated and will be counted as FMLA leave.

The plaintiff asserted that she was unaware of her rights under FMLA since the school had failed to display FMLA posters. But the school principal insisted that there were FMLA notices posted throughout the school. However, she acknowledged that the plaintiff never received individualized notice of her leave time available under the FMLA. As a result, the court denied the school’s motion to dismiss the FMLA claim.

What This Means For Churches:

This case illustrates three important points.

First, the federal Americans with Disabilities Act, which applies to employers with 15 or more employees, imposes upon employers a duty to provide reasonable accommodations to disabled employees, but this requirement does not apply to employees who do not request them.

Second, the failure of an employer subject to the ADA to display posters informing employees of their rights under the Act does not give employees a claim to monetary damages.

Third, here are three points to note about FMLA: (1) It is a federal statute that only applies to employers with 50 or more employees. As a result, it does not apply to most churches. (2) Employees can trigger their rights under the FMLA without referring to the Act. All that is required is that an employee provide an employer with enough information that would “reasonably apprise the employer of the employee’s request to take time off for a serious health condition.” In some cases, the employer may not understand that FMLA leave is being requested. (3) The FMLA requires covered employers to display a poster informing employees of their rights under the Act, but it also requires employers to provide employees with individualized notice of the potential availability of unpaid leave under FMLA. Bernard v. Episcopal Day School, 2014 WL 5342582 (W.D. La. 2014).

Legal Developments

Church Deacon Secretly Records Teenage Girls in His Bathroom

A 10-year sentence at hard labor stands up in court.

Key point. The use of hidden cameras to secretly record minors undressing in a restroom or locker room may result in criminal liability for the felony of video voyeurism.

A Louisiana court affirmed a sentence of 10 years at hard labor for a church deacon who made video recordings of teenage girls with a camera hidden in a bathroom in his home during a church youth retreat.

The deacon (the "defendant") hosted a weekend church retreat at his home. The retreat was for young female church members. Seven girls attended, all under the age of 17. Prior to their arrival, the defendant installed hidden video cameras in the bathroom the girls would be using during the weekend. During their stay, one of the girls discovered the camera and removed it. She alerted her parents. Several images of the girls had been recorded in various stages of undress and nudity. The authorities were notified.

A search warrant was issued for the residence, revealing pornographic material involving juveniles and adults. These images had been transferred to the defendant's personal computer, which had internet access.

The defendant was ultimately charged with a total of 21 counts. He pled guilty to two counts of video voyeurism in exchange for dismissal of the remaining charges. A pre-sentence investigation was ordered and a sentencing hearing was held in which impact statements were presented to the court on behalf of the defendant and the victims. A report by a psychologist stated that the defendant had been in treatment following discovery of the offenses, and that he suffered from severe depression. The defendant was sentenced to 10 years at hard labor. He appealed, claiming that his sentence was excessive and unreasonable.

In support of his appeal, the defendant noted that he was 55 years old at the time of the offenses and had no criminal history; he was active in his church, and gainfully employed; and, he was a full-time husband and father. The defendant claimed that the sentences placed undue hardship on his wife and family, who have forgiven him and have chosen to support him through this traumatic time. He also noted that he never had possession of or viewed the videos because the cameras were confiscated by one of the victims, and therefore the crime of video voyeurism was not completed.

A state appeals court rejected the defendant's claims, and affirmed the 10-year sentence at hard labor. It concluded: "The trial judge carefully considered the defendant's circumstances and mitigating factors presented by his family, including their statements regarding his good character and church leadership activities, as well as the statements from other church members and victims and their families. Considering the position of trust this defendant enjoyed with his fellow church families and their children and the betrayal of that trust as evidenced by statements from the victims' families during sentencing, [the sentence] was well within the trial judge's discretion. These sentences do not shock our sense of justice in this case, nor are they disproportionate to the severity of the offenses. The court noted that "statements made during sentencing referenced other atrocious activities of the defendant. For example, he taped a camera to his shoe at church to photograph up the girls' skirts." State v. Holmes, 130 So.3d 999 (La.App. 2014).

Legal Developments

Church Board Guilty of Defamation

Pastor able to sue board for false accusations.

Church Law and Tax Report

Church Board Guilty of Defamation

Pastor able to sue board for false accusations.

Key point 4-02.02. Ministers are considered “public figures” and as a result they cannot be defamed unless the person making an otherwise defamatory remark did so with malice. In this context, malice means that the person making the defamatory remark either had actual knowledge that it was false or made it with a reckless disregard as to its truth or falsity.

A Louisiana court ruled that a church and members of the church board were guilty of defaming a former pastor. A church’s treasurer, board chairman, and three church members visited the church’s bank to obtain information on the church’s finances because the church was planning on building a new sanctuary. They were advised by the bank that the church had a $50,000 certificate of deposit (“CD”). At a meeting of the church board, the church’s pastor was unable to identify the source of the CD and was asked to step down as pastor. He repeatedly informed the church board that he did not steal any money from the church and that the CD did not belong to the church.

The pastor sued the church and members of the church board (the “church defendants”). His lawsuit alleged that church board members defamed him by falsely accusing him of having improperly used funds belonging to the church; accused him of embezzlement of church funds by purchasing the CD with church funds for his own use; and called him a thief and a liar before members of the church. A trial court ruled in favor of the pastor, and awarded him $196,228 for back pay, $120,246 for pastoral annual payment loss, $79,795 for fringe benefit loss, plus costs and interest from the date of judicial demand, and general damages of $150,000. The church defendants appealed.

The court noted that three elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another, (2) communicated to a third party (“publication”), and (3) resulting in injury to reputation. The court added that “a statement is defamatory if it tends to harm a person’s reputation, lowers the person in the estimation of the community, deters others from associating with the person, or otherwise exposes the person to contempt or ridicule.”

Words that accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, are deemed “defamation per se,” meaning that they are presumptively defamatory. The court concluded that the church defendants’ statements were defamatory per se. The church defendants “accused the pastor of embezzlement of church funds,” and of being a thief and a liar in front of other members of the church … . These accusations are defamatory per se because they accused the pastor of criminal conduct and because, by their very nature, they tended to injure his professional reputation as a pastor.”

Even if statements constitute defamation per se, they still must be communicated (“published”) to at least one third person in order for defamation to occur. The reason for this requirement is that defamation constitutes an injury to reputation, and this cannot occur unless the defamatory statement is communicated to others. The court observed, “Publication means the communication of non-privileged defamatory words to even one single person besides the party defamed. A defendant who utters a defamatory statement is responsible for all republication that is the natural and probable consequence of the author’s act.”

The court next observed that “a plaintiff claiming defamation must present competent evidence of the injuries suffered,” and that “the defamatory statements were a substantial factor in causing the harm.” There was no question, the court concluded, that the pastor had suffered due to the defamatory statements: “He was unable to pursue his vocation as a pastor of an established church. Further, he lost his health insurance and his pension, which were benefits that the church provided to him … . He was in poor health and unable to find other work.”

What This Means For Churches:

This case illustrates three important points:

First, church leaders should understand that making derogatory comments in public regarding current or former staff members may result in liability for defamation, especially when those comments refer to criminal acts, such as embezzlement or theft. If financial improprieties are detected or suspected, church leaders must be cautious in what they communicate with the membership. Any statement should be written, and approved by legal counsel.

Many courts have recognized a “qualified privilege” for statements made to church members on matters of common interest. This means that such statements ordinarily cannot be defamatory unless made with “malice.” Malice in this context means that the person making the statements knew they were false, or made them with a reckless disregard as to their truthfulness. Malice is very difficult to prove, and this means that churches have significant protection when communicating with members regarding matters of common interest.

Note that this privilege generally is limited to communications made to church members. Church leaders wanting to preserve the qualified privilege defense when communicating matters of common interest to the congregation should take steps to ensure that their statements are directed exclusively to members.

Second, the court ruled that the “publication” requirement in the definition of defamation can be satisfied if a defamatory statement is shared with only one person: “Publication means the communication of non-privileged defamatory words to even one single person besides the party defamed. A defendant who utters a defamatory statement is responsible for all republication that is the natural and probable consequence of the author’s act.”

Third, note that some members of the church board were sued as well as the church, and were found personally liable for their actions. Thompson v. Bank One of Louisiana, NA, 134 So.3d 653 (La. App. 2014).

Legal Developments

Priest Not a Mandatory Reporter in Child Abuse Case

Louisiana court rules priest not subject to civil liability for failing to report abuse.


Overview

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, but some states exempt them from the reporting obligation if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. This generally refers to communications, in confidence, with a minister in the course of spiritual counsel.

This article explores a decision by the Louisiana Supreme Court regarding some of these issues. Of note, the court concluded a minister can be subject to civil liability for failing to report child abuse to the authorities, unless the minister learned of the abuse solely in the course of a conversation protected by the clergy-penitent privilege.


Background


Parents of Minor Child v. Charlet, 135 So.3d 1177 (La. 2014)

Key Point 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

A 64-year-old male (“Phil”) was a long-time and respected member of a Catholic church. He began exchanging emails with a 14-year-old girl (the “victim”) whom he met at church. The emails increased in frequency and became “laced with seductive nuances.” The relationship culminated in kissing and fondling.

The victim became confused and scared over the evolving “relationship” with Phil, and on three separate occasions she decided to seek spiritual guidance through confession with her priest. On each occasion she related to the priest that Phil had inappropriately touched her, kissed her, and told her that “he wanted to make love to her.” The victim alleged that the priest instructed her to handle the situation herself, because otherwise, “too many people would be hurt.”

Following these three meetings with the priest, the abusive acts continued. The priest and the victim's parents later met with Phil and his spouse concerning the “obsessive number of emails and phone calls” between Phil and the victim and the seemingly inappropriate closeness between the two that had been observed by various parishioners.

Shortly thereafter, the parents confronted their daughter about the emails and phone calls, at which time, she confessed to the true nature of the relationship, including details of the inappropriate sexual contacts. The parents immediately contacted Phil, ordering him to cease contact with their daughter, and filed a formal complaint with the local sheriff's department. An official investigation was ongoing when Phil died unexpectedly from a heart attack.

The parents filed a lawsuit naming as defendants the priest, for allegedly being a mandatory reporter who failed to report the abuse allegations; and their church, alleging vicarious liability for the alleged misconduct of the priest in failing to report the sexual abuse, as well as for the negligent training and supervision of the priest.

Shortly before the scheduled trial date, the church filed a motion seeking to prevent the plaintiffs from “mentioning, referencing, or introducing evidence at trial of any confessions that may or may not have taken place” between their minor child and the priest, while the priest was acting in his official capacity hearing a confession from his parishioner. The trial court denied the motion, finding the testimony of the victim regarding the confession was relevant and, as the holder of the privilege, she was entitled to waive it and testify. However, the trial court “did recognize the conundrum with which the priest is presented, and I know his solution to that is going to be that he is not going to say anything about any confession.”

A state appeals court reversed the trial court's ruling and concluded that the parents could not compel the disclosure of their daughter's communications with the priest. The court reasoned:

Because we have concluded that the priest is not a mandatory-reporter, there can be no private or civil cause of action against him for any breach of a statute inapplicable to him; thus, any evidence or testimony, by anyone, regarding the occurrence of a confession, or the subject matter thereof, is wholly inadmissible, irrelevant, and non-probative. Accordingly, the motion seeking to exclude all such evidence, should have been granted.

The appeals court further found no civil remedy for violation of a mandatory reporter's duty to report child abuse. Accordingly, the court dismissed the plaintiffs' claims against the priest and the church in their entirety. The parents appealed this ruling to the Louisiana Supreme Court.


the clergy-penitent privilege

The state supreme court first addressed the application of the clergy-penitent privilege to the victim's communications with her priest. The Louisiana clergy-penitent privilege, set forth in Code of Evidence Article 511, provides:

A. Definitions. As used in this Article:

(1) A “clergyman” is a minister, priest, rabbi, Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.

(2) A communication is “confidential” if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

B. General rule of privilege.

A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person. (emphasis added)

The court noted that, according to this language the privilege “clearly belongs to the penitent-communicant, not to the priest.” It observed:

A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman …. It follows, if the penitent waives the privilege, the priest cannot then raise it to protect himself as he can only “claim the privilege on behalf of the person,” not in his own right. Therefore, we find the appellate court erred in granting the church's motion excluding all evidence of the confession in its entirety as the child is free to testify and introduce evidence as to her own confession.

failure to report child abuse

Can a minister be subject to civil liability for failing to report child abuse to the authorities? The court referenced “the duty imposed by law on members of the clergy” under the state child abuse reporting law, which defines a mandatory reporter to include a member of the clergy:

“Member of the clergy” is any priest, rabbi, duly ordained clerical deacon or minister, Christian Science practitioner, or other similarly situated functionary of a religious organization, except that he is not required to report a confidential communication, as defined in Code of Evidence Article 511, from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential. In that instance, he shall encourage that person to report the allegations to the appropriate authorities ….

As a result, “a member of the clergy as a mandatory reporter under this provision has a mandatory duty to report abuse in accordance with the following provision of the child abuse reporting law:

Notwithstanding any claim of privileged communication, any mandatory reporter who has cause to believe that a child's physical or mental health or welfare is endangered as a result of abuse or neglect or that abuse or neglect was a contributing factor in a child's death shall report [the abuse to the authorities].

The supreme court concluded that the appeals court erred in concluding that the priest could not be personally liable for violating his duty to report the victim's abuse. The appeals court concluded that “there is no duty on a clergy member, the breach of which would sustain a private or civil cause of action.” But the supreme court disagreed, noting that such a conclusion

disregards our general concept of liability set forth in our Civil Code that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” and “every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” It likewise disregards the duty imposed by law on members of the clergy [to report child abuse].

The court also rejected the appeals court's conclusion that the priest was not required to report the victim's abuse because he learned about it in conversations with the victim that were protected by the clergy-penitent privilege. Such a conclusion, the court concluded, assumed that the victim's communications with the priest fit within the narrow exception of privileged communications as defined in Code of Evidence Article 511 (above), meaning

from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential.

The court concluded that “there exist material issues of fact concerning whether the communications between the child and the priest were confessions and whether the priest obtained knowledge outside the confessional that would trigger his duty to report.”

The supreme court sent the case back to the trial court for further consideration.

Relevance to church leaders

The Louisiana Supreme Court's decision is relevant to church leaders because it directly addresses the role of the clergy-penitent privilege with respect to child abuse reporting laws. Leaders must be aware of who may claim the clergy-penitent privilege. Leaders also must be aware when the privilege may be waived.

Additionally, as this Louisiana Supreme Court ruling illustrates, leaders also must be aware of the potential civil liability of clergy, who are mandatory child abuse reporters under state law, for failing to report abuse. The court concluded that a minister can be subject to civil liability for failing to report child abuse to the authorities, unless the minister learned of the abuse solely in the course of a conversation protected by the clergy-penitent privilege. It rejected the lower court's conclusion that “there is no duty on a clergy member, the breach of which would sustain a private or civil cause of action.” Such a conclusion, the supreme court concluded,

disregards our general concept of liability set forth in our Civil Code that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” and “every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” It likewise disregards the duty imposed by law on members of the clergy [to report child abuse].

Lastly, leaders must know potential criminal liability for failing to report abuse.

The issues raised in this article are covered in greater detail in Richard Hammar’s article, “Child Abuse Reporting and the Clergy Privilege.”

Legal Developments

Discriminating Against Obese Employees

Court rules that severe obesity is a disability under the Americans with Disabilities Act.

Richard R. Hammar, Attorney, CPA
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Discriminating Against Obese Employees

Court rules that severe obesity is a disability under the Americans with Disabilities Act.

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

Key point 8-14.1. The federal Americans with Disabilities Act prohibits employers with at least 15 employees, and that are engaged in interstate commerce, from discriminating in any employment decision against a qualified individual with a disability who is able, with or without reasonable accommodation from the employer, to perform the essential functions of the job. Accommodations that impose an undue hardship upon an employer are not required. Religious organizations may give preference to nondisabled members of their faith over disabled persons who are members of a different faith.

A federal district court in Louisiana ruled that severe obesity is a disability under the Americans with Disabilities Act. A 400-pound woman (the “plaintiff”) was hired to oversee a day care program for the children of mothers staying at a residential treatment facility for chemically dependent women and their children. Eight years later, the plaintiff was fired. At the time of her termination, she weighed 527 pounds. She filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that she had been terminated because her employer regarded her as disabled due to her obesity. The plaintiff died shortly after filing her complaint with the EEOC. Her death certificate listed the cause of death as “morbid obesity.” Following her death, the plaintiff’s estate continued her claim of discrimination.

The EEOC concluded that the plaintiff had severe obesity, which is a physical impairment under the Americans with Disabilities Act (“ADA”) and that her employer regarded her as disabled because of it. As a result, the EEOC sued the employer, claiming that the plaintiff’s termination was a violation of the ADA.

The court began its opinion by noting that “to prevail on an ADA claim, the EEOC must demonstrate that: (1) there is a disability within the meaning of the ADA, (2) the complaining party is a qualified individual with a disability, and (3) the complaining party suffered an adverse employment decision because of the disability. The threshold inquiry is whether or not a plaintiff has a disability within the meaning of the ADA.”

Under the ADA, a disability is a physical or mental impairment that substantially limits one or more “major life activities.” An employee who is “regarded as having such an impairment” also meets the definition of “disabled,” whether disabled or not.

The court quoted from the EEOC’s ADA compliance manual:

[B]eing overweight, in and of itself, is not generally an impairment …. On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment. In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment.

The court concluded that “a careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party’s weight is within the normal range. However, if an employee’s is outside the normal range—that is, if the charging party is severely obese—there is no explicit requirement that obesity be based on a physiological impairment.” The court noted that the plaintiff was severely obese; when she was hired she weighed in excess of 400 pounds, and when she was terminated, she weighed in excess of 500 pounds. In addition, she had multiple resulting disorders from her obesity, including diabetes, congestive heart failure, and hypertension.

The court concluded that the plaintiff was disabled, and that her employer violated the ADA by terminating her on account of her disability without any effort to reasonably accommodate her disability. In support of its decision, the court noted that, three months before her termination, she received a performance evaluation where she was rated as “excellent” in seven out of twelve areas, including “Quality of Work.”

What This Means For Churches:

This case should serve as notice to churches that are subject to the ADA, or a state counterpart, that morbidly obese employees may be regarded as disabled. This means that a church may be liable for taking any adverse employment action (i.e., termination) against a morbidly obese employee, and may have a legal obligation to “accommodate” such a person’s disability, so long as this would not impose an undue burden on the church. Our recommendation is that churches should not dismiss, demote, or take any other adverse employment action against morbidly obese employees without first consulting with legal counsel. E.E.O.C. v. Resources for Human Development, Inc., 2011 WL 6091560 (E.D. La. 2011).

This Recent Development first appeared in Church Law & Tax Report, July/August 2012.

Legal Developments

Vicarious Liability

Can a school be sued for the molestation of a student?

Richard R. Hammar, Attorney, CPA
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Vicarious Liability

Can a school be sued for the molestation of a student?

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

A Louisiana court ruled that a school could be sued on the basis of negligent supervision, but not negligent hiring, for a janitor’s sexual molestation of an 8-year-old student. An 8-year-old girl (the “victim”) arrived at school at 7:15 a.m. one day. Although school did not begin until 8 a.m., the victim participated in the breakfast program, which began 30 minutes before the start of school. According to the victim’s account of the events that morning, when she walked up to the school she was approached by the school janitor, who informed her that one of her teachers wanted to see her and proceeded to walk her upstairs to a classroom. Once in the classroom the janitor molested her and warned her not to tell anyone what had happened. Two days later, the victim informed her family, which led to the janitor’s arrest and prosecution for child abuse. The victim’s mother thereafter sued the school for negligent supervision, vicarious liability, and negligent hiring. A trial court dismissed the lawsuit, and the mother appealed.

negligent supervision

The appeals court noted that the school was unlocked and students were allowed into the cafeteria prior to the start of the breakfast program. There was a supervising teacher and cafeteria worker on site for the breakfast program from 7 a.m. until the start of the school day. The school had a security plan in place that included the presence of a security guard to help ensure the safety of the children. However, the school’s principal testified that she could not recall the exact time the security plan called for the security guard to report to duty, making it impossible for her to determine if the security plan was properly implemented on the day the victim was molested.

The school claimed that the victim was dropped off before the official start of the breakfast program, and therefore it had no duty to supervise or protect her from the conduct of its employees. The court disagreed:

The Court concluded that an employer’s risk of liability for an employee’s acts “increases with the amount of authority and freedom of action granted to the employee in performing his assigned tasks.”

[The principal’s] testimony established that the victim was dropped off at approximately the same time every morning. Each time the victim was dropped [the principal] observed that the school was always open and there was staff present. A reasonable person would conclude that once the students are allowed to enter the school building, they are under the school’s care and the duty to supervise is assumed.

vicarious liability

In general, an employer is vicariously liable for the acts of its employees committed within the scope of their employment. The school insisted that it was not vicariously liable for the janitor’s acts since they were not committed within the course and scope of his work. The court concluded that the vicarious liability claim against the school could proceed. It concluded:

In considering whether the tortious act was reasonably incidental to the performance of [the janitor’s] duties, we must look at the facts and circumstances specific to this case. [The school principal] testified that the janitor possessed keys to the premises and was allowed free access to the school grounds and buildings. His status as janitor also permitted him access to the young children attending the school. Given his prominent presence on the school’s campus and the fact that he was an adult, it is natural that an eight-year-old child would view him as an authority figure, which explains why the victim did not question his directive.

The court noted that “the scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the employee in performing his assigned tasks.” In this case, “it is clear that it was the janitor’s position and duties as a school employee that allowed him unrestricted access to the victim and the empty classroom where she was taken.”

negligent hiring and retention

The court rejected the victim’s claim that the school was negligent in hiring the janitor. It noted that as a condition of employment the school performed a background check on the janitor and found that he did not have a record of criminal activity.

The victim claimed that the school was aware that the janitor had molested another student in the past, and therefore was negligent in hiring or retaining him. But the court dismissed this claim on the ground that the victim presented no corroborating evidence that school officials were aware of any prior incident.

What This Means For Churches:

This case is instructive for two reasons. First, it demonstrates that schools, and churches, may be liable for injuries to minors that occur on their premises even before any scheduled activity. As the court noted, “a reasonable person would conclude that once the students are allowed to enter the school building, they are under the school’s care and the duty to supervise is assumed.”

Second, the court concluded that an employer’s risk of liability for an employee’s acts “increases with the amount of authority and freedom of action granted to the employee in performing his assigned tasks.” The janitor in this case had keys to the school building, and had unrestricted access to the entire premises. As a result, the court concluded that the school was vicariously liable for his acts. Booth v. Orleans Parish School Board, 49 So.3d 919 (La. App. 2011).

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

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Legal Developments

Court Resolves Lawsuit Addressing Pastor’s Financial Mismanagement

First Amendment doesn’t prevent court from resolving lawsuit brought forth by former board members.

Richard R. Hammar, Attorney, CPA
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Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

* A Louisiana court ruled that the First Amendment guaranty of religious freedom did not prevent it from resolving a lawsuit brought by former board members of a church seeking redress for the pastor's financial mismanagement. A church's governing board (its "board of deacons") passed a resolution calling for the pastor's termination. In response, the pastor called a special meeting of the congregation to elect a new board of deacons. At the meeting, the pastor's slate of proposed deacons was elected and the dissidents were voted off the board. The dissidents filed a lawsuit claiming that the pastor had mismanaged church property and had misused church funds by, among other things, using church funds for his own personal gain. The dissidents also alleged that the pastor had destroyed some of the church's financial records in order to conceal his wrongdoing.

The dissidents asked the court to issue an order (1) barring the pastor from accessing any of the church's financial records; (2) freezing the disposition church property pending a hearing; (3) calling for an accounting of the church's bank accounts from the time that the pastor gained control over the accounts; (4) appointing a trustee to protect and preserve church property; (5) holding the pastor liable for any expenditures of church funds that were not related to church business; (6) ordering the pastor to comply with the subpoena; and (7) requiring the pastor to resign.

The pastor asked the trial court to dismiss the lawsuit on the ground that each of the dissidents' claims implicated internal church governance. The court ruled that the congregation's decision to retain the pastor and oust the board was legally valid, but it agreed with the pastor that any resolution of the dissidents' claims pertaining to church finances would violate the First Amendment. A state appeals court agreed. It concluded:

We are limited in our authority to interfere with the internal matters of a church …. The courts will not assume jurisdiction, in fact has none, to resolve disputes regarding their spiritual or ecclesiastical affairs. However, there is jurisdiction to resolve questions of civil or property rights …. [The dissidents] allege that the pastor mismanaged the financial assets and the property of the church. Their allegations that the pastor had used church funds for personal gain, that he had mismanaged church property, that he had destroyed church records, and that he had refused to comply with a subpoena do not involve any ecclesiastical or spiritual matters …. Neither side seeks to raise [theological] questions. They argue no issues of differences in religious faith or creed, and argue no spiritual conflicts, or ecclesiastical doctrine. Rather, the underlying dispute revolves around the property of the Church—control over its financial assets and affairs—and not God. Because this case does not involve any ecclesiastical or spiritual issues and is instead focused solely on issues involving the financial affairs and property rights of the church, we hold that the trial court had jurisdiction to consider the merits of the contestants' complaint. McClendon v. Pugh, 49 So.3d 1238 (Ala. 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

Adding Defendants to a Lawsuit

Be sure to name all potential defendants in the lawsuit; you may not be able to amend it.

Richard R. Hammar, Attorney, CPA
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A Louisiana court ruled that a church could not sue its bank for negligence in allowing an employee to make unauthorized charges to the church's credit card since it failed to name the bank as a defendant in its original lawsuit.

A church filed a civil lawsuit against its former financial secretary, alleging that during the course of her three-year employment she used church funds for her personal use, mostly through the unauthorized use of church checks and credit cards. The church's lawsuit alleged that the financial secretary:

  • Signed other persons' names to church checks without authorization.
  • Reported to the church that checks were written to one person or company when in reality checks were written to unauthorized persons or companies.
  • Reported to the church that checks so written were in one amount and in fact were written in other amounts not shown.
  • Opened credit accounts and credit cards in the church's name unknown to the church. These were used for unauthorized expenses that were not for the use and benefit of the church, but for the financial secretary's personal use.
  • Used church funds for her personal benefit.
  • Failed to make appropriate and timely payments to the IRS of taxes withheld from employee payroll checks.
  • Duplicated payroll payments to herself in excess of the salary amounts authorized by the church.
  • Improperly and inaccurately balanced and reported on bank statements and business accounts of the church to cover up the misuse and misappropriation of church funds.
  • Failed to use good and acceptable business accounting practices in her fiduciary capacity as an employee of the church.
  • Violated the church's financial policies and practices and engaged in conduct to cover up all violations.

The lawsuit also named the financial secretary's husband as a defendant, alleging that the misappropriated funds benefitted both spouses and therefore he was responsible for reimbursement of damages as well. The church's lawsuit did not name any other defendants.

Neither the financial secretary nor her husband responded to the lawsuit, and so the trial court entered a default judgment against them in the amount of $384,000 plus interest and attorneys' fees.

On the same day that the court issued the default judgment, the church amended its lawsuit to include as defendants the church's credit card company and bank. The church asserted that the credit card company (Citigroup) was liable for its losses as it "negligently, improperly and without authority issued in the name of the church a credit card used by [the financial secretary] to charge personal items to the church which were solely for the use and benefit of herself and her family."

The church further alleged that the credit card company "failed to follow reasonable and safe business practices and procedures to ensure that the church had authorized the issuance of credit cards in its name used by the financial secretary to make these charges," and "breached its duty to protect the church from fraudulent use of its name and financial resources for the issuance of credit and payment of unauthorized and fraudulent charges."

The church also named its bank (Capital One) as a defendant, alleging that it was responsible for the financial secretary's acts. Specifically, it alleged that, due to its negligence and lack of care, the financial secretary "was able to draw unauthorized funds for payment for her, her husband and her family's sole benefit by forging signatures of other authorized persons, using the bank's internet banking features to avoid the requirement of two authorized signatures to draw on the church's accounts." The bank further asserted that the bank failed "to warn the church of obviously improper transactions which a reasonably prudent bank knew or should have known were fraudulent."

These two defendants asked the court to dismiss the church's claims against them on the ground that the original lawsuit failed to mention them as defendants, and that the default judgment was for all damages the church sustained. The trial court agreed and dismissed these claims. The church appealed.

A state appeals court affirmed the trial court's dismissal of all claims against the credit card company and bank. It stated the general rule as follows: "After obtaining a default judgment against an original defendant, a plaintiff cannot later amend the lawsuit to add another (sic) defendants." This makes sense, since a default judgment ordinarily grants the plaintiff the full measure of damages requested in the lawsuit, which presumably fully compensate the plaintiff for its injury or loss. To allow a plaintiff to sue additional defendants after a default judgment would potentially allow the plaintiff to collect multiple damages for the same injury.

What this means for churches

This case illustrates the importance of naming all potential defendants in a lawsuit. If only one defendant is named, and a default judgment is entered against the sole defendant because of a failure to respond to the lawsuit, the plaintiff may be precluded from amending the lawsuit to name additional defendants. 26 So.3d 917 (La. App. 2009).

Legal Developments

Church Member’s Defamation Suit Dismissed

Defamation usually cannot be proved without evidence of a false statement.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Church Member’s Defamation Suit Dismissed

Defamation usually cannot be proved without evidence of a false statement.

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

Key Point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

A Louisiana court ruled that a minister did not defame a church member in an article he wrote for the church bulletin since the article did not contain a false statement concerning the member. A church member (the “plaintiff”), who had previously served as the church’s bookkeeper, had several differences of opinion with the church’s minister over issues of administration. The conflict intensified to the point that the plaintiff submitted a letter to the minister in which she resigned from all of her volunteer ministries in the church. Despite her letter, the plaintiff continued to participate in various church ministries. This prompted the minister to send her a letter informing her that her activities were in “direct violation of [her] own self-applied resignation” from the church ministries, and reminded her that her “membership, active participation and contributions in these ministries are no longer allowed.” He directed her to “desist from such roles” and to “stop disturbing the peace” of the church. The minister also wrote a short article in the church bulletin that stated, in part:

No member or group of members of this parish has the right to intimidate, or to try to intimidate, other members from the legitimate use of any facility or property that belongs to this parish. Any such report will be treated very seriously.

On the other hand, any parishioner that allows himself/herself to be intimidated from using any of these facilities, legitimately of course, is simply depriving himself/herself [of] his/her natural right and [has] only himself/herself to blame for it.

The plaintiff sued the church, claiming that these statements in the church bulletin had defamed her. A trial court dismissed the lawsuit, and the plaintiff appealed.

A state appeals court began its opinion by noting that defamation involves a false statement about another, that is communicated to others, and that injures the other’s reputation. The court concluded that the bulletin did not defame the plaintiff since it did not contain any false statements concerning her: “Notably, the alleged defamatory bulletin does not mention [the plaintiff] by name or otherwise. Moreover, nothing in the bulletin is alleged to be a false statement; thus, it is of no moment that [the plaintiff] felt that the message was directed at her, or that other church members may have taken it to be directed at her. Indeed, the testimony of other church members revealed there were persons other than [the plaintiff] they thought the minister may have been referring to in the bulletin message. Likewise, just because the letters and even the bulletin may have embarrassed [the plaintiff], as a matter of law, without a false statement, she cannot prove defamation.” 2008 WL 2065938 (La. App. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.

Legal Developments

Restraining Orders

A woman’s right to be protected from abuse, harassment, and stalking outweighed her husband’s perceived constitutional right to attend the church of his choice.

Richard R. Hammar, Attorney, CPA
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A Louisiana court ruled that a restraining order prohibiting a husband from going within 100 yards of his wife's residence did not violate the husband's constitutional right to attend his church that was located within 100 yards of his wife's residence.

Courts frequently issue restraining orders preventing a specified person (usually a current or former spouse) from being within a designated distance of a person in need of protection. A trial court in Louisiana issued such an order following a hearing in which a wife testified that her husband threatened her life with a knife, and engaged in frequent acts of pushing, shoving, choking, and beating. The court's order prohibited the husband from going within 100 yards of his wife's residence. Within a few months the husband was found in contempt of court for going within 100 yards of his wife's residence. A trial judge imposed a prison sentence of six months with credit for time already served.

The husband asked the court to reduce the 100-yard requirement to 50 yards so that he could attend his church which was located more than 50 but less than 100 yards from his wife's residence. He testified, "I want to attend church, and my wife's house is right at a hundred 100 yards, so I haven't been attending church. If it's set at fifty 50 yards then I can attend church and not be in violation of the protective order."

A trial court rejected this request, and this ruling was affirmed by a state appeals court. The court concluded: "We find [the husband's] argument that the 100 yard distance requirement imposed by the trial court violates his constitutional right to attend the church of his choice to be without merit. From the evidence contained in the record it is evident that the church to which [the husband] refers is in very close proximity to [his wife's] home. Considering the fact that the trial court found [him] in contempt of court on three different occasions for either contacting his wife or for going near her residence, we find no abuse of the trial court's discretion in its finding that her right to be protected from abuse, harassment, and stalking outweighs her husband's perceived constitutional right to attend the church of his choice." Francois v. Francois, 941 So.2d 722 (La. App. 2006).

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Legal Developments

Monetary Awards for Injury Lawsuits

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

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Monetary Awards for Injury Lawsuits

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

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

Key point 7-20.1. In most states, whether a church is liable for injuries occurring on its premises will depend on whether the victim is an invitee, a licensee, or a trespasser. Churches, like any property owner, owe the highest degree of care to invitees, a lesser degree of care to licensees, and a very minimal degree of care to trespassers. As a result, it is more likely that churches will be liable for injuries to persons who meet the definition of an “invitee.”

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

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

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

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

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

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Legal Developments

Confidential and Privileged Communications

The Louisiana Supreme Court ruled that a man’s confession to a minister that he had committed a murder was admissible as evidence at trial.

Richard R. Hammar, Attorney, CPA
Bio

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

Key point 3-08.02. The clergy-penitent privilege may apply to communications made to a minister in the course of marriage counseling, even when both spouses are present.

The Louisiana Supreme Court ruled that a man's confession to a minister that he had committed a murder was admissible as evidence at trial because it was not protected by the clergy-penitent privilege.

An associate pastor was contacted by cell phone on a Saturday evening by a female member of the congregation who asked him to meet her and her son and nephew (the defendants) in a hotel room. When the pastor asked the woman about the purpose of the meeting, she replied that she wanted him to counsel the defendants "about a matter" and "lead them to Christ."

Neither defendant attended the church, and the pastor did not know them. When the pastor arrived at the hotel room, the mother told her son to tell him "what happened." The son explained how they had called a cab driver to rob him, and when he reached for a gun they shot and killed him. The nephew said nothing about the crime, and made no confession.

The pastor spoke with both defendants about their lifestyle and the outcome of their way of living, and prayed with them. After being told about the shooting, the pastor did not know what to do. He called his senior pastor and was told to report the incident to the police. However, he did not tell the mother, or either defendant, that the pastor had instructed him to inform the police, or that he intended to do so. When he left the hotel, the pastor called the police as he had been instructed.

The defendants were later charged with murder, and the prosecution attempted to have the pastor testify about their confession. The defendants' attorney objected, claiming that the confession was protected by the clergy-penitent privilege and was therefore not admissible in evidence.

A trial court determined that the confession was privileged and refused to allow the pastor to testify. It conceded that there were four people in the room, that the defendants did not know the pastor, and that the pastor made a phone call to his senior pastor from the hotel room following the confession.

However, it based its decision on the fact that the defendants claimed that they had sought out the pastor primarily for spiritual guidance, and it was their expectation that the pastor would keep their confession in confidence. The prosecutor appealed this ruling. A state appeals court affirmed the trial court's decision, and the case was appealed to the state supreme court.

Clergy-penitent privilege

The supreme court began its ruling by quoting the Louisiana clergy-penitent privilege:

"A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser …. A communication is confidential if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication."

The court noted, based on this language, that the following three conditions must be met for the privilege to apply: First, the person to whom the communication was communicated is a "clergyman." Second, the purpose of the communication was to seek spiritual advice or consolation. Third, the communication was made privately and was not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

The court conceded that the first two requirements were met since the pastor was a "clergyman," and the defendants spoke with him in order to obtain spiritual counsel. The court acknowledged that the pastor did not know either defendant, and had only spoken to them on this one occasion, but concluded that "the communicant may be a first time communicant if he or she reasonably believes, based upon the communicant's knowledge, that the communication will be held confidential and is motivated by penitential considerations."

The third requirement for the clergy privilege to apply is that the communication was made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. The court concluded that this requirement was not met. It noted that the confession was not made privately since there were four persons in the room. However, it concluded that the woman who called the meeting was a person with a "spiritual connection to the minister," and therefore her presence was "in furtherance of the purpose of the communication."

On the other hand, it ruled that the nephew's presence was not in furtherance of the communication, and so his presence prevented the son's confession from being a confidential communication protected by the clergy-penitent privilege. This was so even though the nephew was a participant in the crime.

Waiver

The court noted that the clergy-penitent privilege was waived by the defendants. First, when the pastor used his cell phone to call his senior pastor for advice on what to do about the son's confession, the son "waived any expectation in the confidentiality of his confession disclosure by remaining silent during the call and thereby consenting to disclosure of the information." Second, the court ruled that the defendants waived the clergy privilege by informing their mother and aunt about the shooting, thereby causing her to take them to see the pastor.

What this means for churches

This case represents one of the most extended discussions of confidentiality in the context of the clergy-penitent privilege, and for this reason it merits careful study. Many states limit the clergy-penitent privilege to statements made "in confidence" to a minister acting in a professional capacity as a spiritual advisor, and many define "in confidence" to include statements made to a minister in the presence of other persons present in furtherance of the purpose of the communication. These terms are often difficult to apply to particular situations, and the court's analysis in this case provides much-needed clarification. In addition, the court's discussion of waiver is helpful. State v. Gray, 891 So.2d 1260 (La. 2005).

Legal Developments

Church Treasurer Sentenced to Six Years at Hard Labor

Treasurer wrote unauthorized checks to pay her own bills, showed no remorse.

Richard R. Hammar, Attorney, CPA
Bio

State v. Bruce, 886 So.2d 636 (La. App. 2004)

Amy was the church treasurer of a church in Louisiana for four years. Each month she wrote unauthorized checks from the church's account to pay her insurance premiums. She also wrote monthly unauthorized checks to herself from the church's account. In most of these cases she forged a co-worker's signature on the checks. The total amount of the unauthorized checks was in excess of $79,000.

The state charged Amy with felony theft and forgery, but agreed to drop the forgery charge in return for her agreement to plead guilty to the theft charge. A court sentenced her to six years in a state penitentiary at hard labor. Amy was 58 years of age at the time of her sentencing. She claimed that she took church funds to pay her medical bills.

Prior to imposing sentence, the court carefully considered the evidence supporting Amy's sentence as well as evidence supporting a more lenient sentence. The following evidence supported a more lenient sentence:

  • age (58 years old)
  • poor health
  • no prior criminal record

On the other hand, the following evidence supported a sentence of 6 years at hard labor:

  • Amy had not shown any remorse for her crime
  • she had never apologized or accepted complete responsibility for her acts
  • she had not paid "one penny" of restitution
  • she had used her position of trust to commit the crime
  • the offense caused significant economic loss to the church
  • the offense involved multiple incidents for which separate sentences could have been imposed

Amy appealed her sentence on the ground that it was excessive. A state appeals court rejected her claim. It noted that a trial court has "broad discretion to sentence within the statutory limits," and that "absent a showing of abuse of that discretion, an appellate court may not set aside a sentence as excessive." The court concluded:

On this record, we do not find error. Amy was exposed to imprisonment for up to ten years but was sentenced to serve far less than that. The trial court carefully considered the facts and circumstances of this matter before imposing sentence. It is lawful and, under the unique circumstances of this case, is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of a manifest abuse of the district court's discretion in the imposition of this mid-range sentence which is not constitutionally excessive.

In support of its decision the court referred to two recent cases in Louisiana in which 6-year sentences were imposed for felony theft. One case involved a 66-year-old woman who had embezzled $375,000 from her law firm employers over a period of six years. In affirming the 6-year sentence, the court noted she had abused a position of trust and engaged in an ongoing series of criminal acts which could have been punished separately. Further, there had been no restitution. In the second case, an attorney embezzled at least $18,000 from clients. In imposing a sentence of 6 years for felony theft the court noted that he had abused a position of trust.

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