Pastor, Church, and Denomination Could Face Liability for Negligent Supervision But Not for ‘Duty to Warn’

Church Law and Tax Report Pastor, Church, and Denomination Could Face Liability for Negligent Supervision

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

Church Law and Tax Report

Pastor, Church, and Denomination Could Face Liability for Negligent Supervision But Not for ‘Duty to Warn’

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

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

A federal court in Vermont ruled that a church and its parent denomination could be liable for a pastor’s acts of child molestation on the basis of negligent supervision, but not on the basis of a “duty to warn” the congregation of the pastor’s dangerous propensities. A woman (the “plaintiff”) sued her former church, its pastor, and the national denomination with which the church is affiliated, claiming that she had been sexually molested by the pastor when she was a minor. The plaintiff’s mother eventually learned of the abuse, and reported it to church officials. The officials took no action against the pastor, issued no warnings to the congregation, and did not report abuse to any child protective agency or police agency. The plaintiff claimed that the pastor abused at least three other minors before abusing her, one of whom reported the abuse to the church, which took no action.

The plaintiff sued the church in a federal district court for breach of fiduciary duty, negligence, breach of a duty to warn the congregation, ratification, and fraud.

Fiduciary duty

The plaintiff claimed that the church defendants entered into a fiduciary relationship with her by permitting the pastor to hold himself out as a representative of the church, and that this duty was breached by the church defendants’ failure to prevent the pastor from molesting her.

The court noted that a fiduciary relationship exists “when a principal is dependent upon, and reposes trust and confidence in the fiduciary.” It concluded that a fiduciary relationship does not exist between a church or pastor and a member of the congregation as a result of membership status. A fiduciary relationship “can only be inferred from a specific relationship between a fiduciary and the principal, not from a principal’s general status as a member of a church.” The court concluded that since there were no special facts that would create a fiduciary relationship, such as a counseling relationship between the pastor and plaintiff, this basis of liability had to be dismissed.

Negligence

The court noted that “to hold a defendant liable for negligence, a plaintiff must establish the defendant owed her a particular duty of care, it breached that duty of care, and the breach harmed the plaintiff.” The plaintiff claimed that the church defendants had duties to:

1. supervise the pastor

2. control him

3. protect the plaintiff from him, and

4. warn her of his vicious propensities.

The plaintiff argued the church defendants breached these duties of care by allowing the pastor to have unsupervised contact with her, by failing to supervise the pastor, by choosing not to investigate him, and by concealing information about his vicious propensities from her parents.

(1) duty to supervise the pastor

The plaintiff claimed the church defendants “had a duty to provide reasonable supervision” of the pastor. The court agreed, noting that “in cases regarding the liability of religious organizations for negligent supervision of their clergy, the courts have held that in order for a duty to have existed, the organizations must have known or should have known that misconduct was occurring.” The court concluded: “If the pastor connected with the plaintiff and her family through his position at the church and the church was forewarned of the danger he posed, the church may have had a duty to supervise him. This is sufficient to state a claim for negligent supervision.”

(2) duty to control the pastor

The court noted that “generally, there is no duty to control the conduct of another to protect a third person from harm. An exception to this rule may arise where there is a special relationship between two persons which gives one control over the actions of another.” A “special relationship” can arise “where an off-duty employee’s negligent acts occurred on the employer’s premises” or “where the employer voluntarily and knowingly assumes a duty of control.”

The plaintiff alleged that the pastor molested her on his personal property, not on property belonging to the church defendants. She claimed that the church defendants had a duty to protect her from the pastor because it was aware of his prior abuse of minor congregants. But the court noted that “mere foreseeability is insufficient to establish a duty to control if the employee is not on the employer’s premises.”

The court concluded that there is no “special relationship” between the church defendants and the pastor giving rise to a duty “when he was not on the church’s premises or carrying out its business, and therefore the church had no duty to control him when he was … outside church activities.” As a result, “to the plaintiff’s negligence claim depends on the existence of a duty to control, that claim is dismissed.”

(3) duty to protect the plaintiff

The court noted that “to state a claim for negligence based on a duty to protect, the plaintiff must show the church voluntarily assumed an obligation to protect her in particular from the pastor. At this time, to the extent her negligence claim depends on the existence of a duty to protect, it is dismissed without prejudice.”

(4) duty to warn

The plaintiff claimed the church had a duty to warn members of the pastor’s dangerous propensities. The court disagreed: “[We find] no duty to warn distinct from a duty to protect exists in the context of institutional sex abuse cases. Accordingly, to the extent the plaintiff’s negligence claim depends on the existence of a distinct duty to warn, it is dismissed with prejudice.”

Ratification

The plaintiff asserted that the church defendants were liable for the pastor’s wrongful acts on the basis of the legal theory of “ratification.” Ratification is “the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority.” Under this theory, an employer “may ratify the unauthorized act of its employee, i.e., an act not within the scope of the employment, and thereby become obligated to the same extent as if the principal had originally authorized the act.” The plaintiff claimed that the church defendants ratified the pastor’s wrongful acts by refusing to remove or discipline him after learning of his molestation of the plaintiff.

The court refused to recognize ratification as a separate basis for liability in sex abuse cases since it had never been recognized by the state supreme court.

What This Means For Churches:

This case underscores two points.

First, most courts have rejected “breach of a fiduciary duty” as a basis for church liability in child molestation cases based solely on the victim’s status as a member of the church. There must be a “special relationship,” such as a counseling relationship, for a fiduciary duty of protection to arise.

Second, and most importantly, the court agreed with the plaintiff that the church defendants had a duty to supervise the pastor once they became aware of his propensity to molest minors. And, a violation of this duty amounted to negligent supervision for which the church defendants were liable. This is an important conclusion that has been recognized by many courts. Church leaders that learn that a pastor or other employee or volunteer has had inappropriate sexual contact with a minor (or adult), and that for whatever reason decide to retain him, have a legal duty to supervise him to prevent future harm. Most church leaders conclude that it would be impossible to adequately supervise a sex offender, and for this reason terminate the person’s employment or volunteer service. But the takeaway point is that church leaders should never retain a known or reasonably suspected sex offender without legal counsel. The risks are too great, as this case illustrates. Lewis v. Congregation, 95 F.Supp.3d 762 (D. Vt. 2015).

Legal Developments

Zoning Laws

The Vermont Supreme Court rejected an attempt by neighboring landowners to halt the construction of a cell phone tower on church property.

Richard R. Hammar, Attorney, CPA

Bio

State: Vermont
Categories: Church Property, Zoning

Church Law & Tax Report

Zoning Laws

The Vermont Supreme Court rejected an attempt by neighboring landowners to halt the construction of a cell phone tower on church property.

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

* The Vermont Supreme Court rejected an attempt by neighboring landowners to halt the construction of a cell phone tower on church property. Verizon Wireless reached an agreement with a church to install a cell phone tower on the church’s property. From the beginning, the plan met with intense opposition from neighboring landowners. The neighbors lost the first case in which they challenged the zoning permit Verizon Wireless received to implement the project. The neighbors then instituted a second lawsuit in which they claimed that even if Verizon Wireless had a valid zoning permit, the church should have obtained a conditional use permit in order to allow Verizon Wireless to modify the church’s parking lot. The neighbors pointed out that the installation of the cell phone tower would result in the elimination of five parking spaces in the church’s parking lot, and this constituted a “change” in the use of the parking lot that required a conditional use permit issued by the local zoning commission. The state supreme court rejected the neighbors’ argument. It concluded: “Courts have long recognized that public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties …. We conclude that this is, in fact, the same case as [the previous lawsuit]. The question here, as in the first case, is whether the permit applicants have complied with the zoning law. The facts necessary to determine this case are nearly identical to the facts in the first.” In re St. Mary’s Church Cell Tower, 910 A.2d 925 (Vt. 2006).

Legal Developments

Child Abuse

The Vermont Supreme Court ruled that persons who are mandatory reporters of child abuse under state law have no legal duty to report consensual sexual activity among two minors.

Richard R. Hammar, Attorney, CPA

Bio

State: Vermont

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

The Vermont Supreme Court ruled that persons who are mandatory reporters of child abuse under state law have no legal duty to report consensual sexual activity among two minors.

This addresses a question that is all too common for both senior pastors and youth pastors who learn of sexual activity among minors. Is there a legal duty to report such activity, assuming that it meets the definition of reportable abuse under state law and the pastor is a mandatory child abuse reporter? This is a very complex question for which there has been little if any guidance from the courts, and that is what makes the Vermont ruling significant.

The facts of the case can be quickly stated. A 14-year-old boy had "consensual" sexual intercourse with a 12-year-old girl while watching television at her home. The boy was prosecuted for being a delinquent on the basis of his commission of the crime of statutory rape. The state supreme court ruled that the boy could not be adjudicated a delinquent since minors cannot be guilty of the crime of statutory rape. It based this conclusion on the fact that statutory rape is reportable child abuse under the state child abuse reporting law, and so if consensual sex between minors (below the age of 16) constitutes statutory rape and obligates mandatory reporters to report every known or reasonably suspected incident then the following unacceptable consequences would result: (1) The state would have to list one or both minors in the child abuse registry as a victim or perpetrator despite the fact that an adjudication of delinquency is a confidential procedure that normally cannot be publicly disclosed. The court concluded, "We seriously doubt the that legislature intended to label a juvenile under sixteen years of age who engages in a sexual act a child abuser for life." (2) If the abuse is substantiated, the state "shall promptly inform a parent or guardian of the child." The written records of the investigation are placed in a registry of substantiated child abuse cases indexed by the name of the child. Registry information is available to day care providers for background checks on job applicants and staff. Thus, "placement of information in the registry represents a substantial stigma for the perpetrator, and a substantial privacy invasion for the abused child." (3) Prosecution for consensual sexual acts between minors "raises important privacy concerns that implicate constitutional rights. The United States Supreme Court has held that the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults."

Application. The fact is that consensual sex between adolescents is common, and pastors may be made aware of it when it involves members of their congregation. If the sexual relations constitute reportable child abuse under state law, and a pastor is a mandatory child abuse reporter (and is not exempted from the reporting obligation by the applicability of the clergy-penitent privilege), then the pastor faces a very difficult task in knowing whether or not to report the incident. This case suggests that not every act of consensual sex between minors under the age of 16 will constitute reportable child abuse under state law, since such conduct may not constitute statutory rape. Of course, this case reflects the conclusion of but one court. Courts in other states may reach a different conclusion. It is therefore imperative for pastors to consult with an attorney, or with an employee of the state agency that investigates reports of child abuse, to determine the existence of a reporting duty under these circumstances. In re G.T., 758 A.2d 301 (Vt. 2000).

Legal Developments

Lawsuits by Victims of Child Abuse

Court rules that man abused as child can sue his former diocese for injuries.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax1994-09-01Recent Developments

Sexual Misconduct by Clergy and Church Workers

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

• Key point: Minors who are sexually molested by church workers may not sue their church after the statute of limitations has expired. Generally, the statute of limitations begins to run on a minor’s 18th birthday. In some states the statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. Other states do not recognize this so-called “discovery rule.”

• A federal court in Vermont ruled that an adult who claimed to have been sexually abused by a nun some 40 years earlier could sue a Catholic diocese for his alleged injuries. In 1992, an adult male (the plaintiff) began receiving intensive psychotherapy for what he alleges were severe emotional problems. As a result of this therapy, the plaintiff claims that he discovered he was the victim of “childhood sexual abuse, physical abuse and psychological abuse” allegedly occurring forty years ago when he was a resident of a church orphanage. The plaintiff filed a lawsuit in 1993 against “Sister Jane Doe,” the alleged perpetrator whose identity is yet unknown, and various religious organizations allegedly responsible for hiring and supervising Sister Jane Doe. The plaintiff alleged in his lawsuit that he has “used all due diligence, given the nature, extent, and severity of his psychological injuries and the circumstances of their infliction, to discover the fact that he has been injured by the sexual abuse.” The lawsuit listed the following five theories of liability against Sister Jane Doe: childhood sexual abuse, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and invasion of privacy. In addition, the lawsuit claimed that the orphanage and Catholic diocese were liable for his injuries on the basis of negligence. The diocese urged the court to dismiss the case on the ground that the statute of limitations had expired long before. Under Vermont law, when a plaintiff sues to recover damages for injuries “suffered as a result of childhood sexual abuse,” the lawsuit must be brought within “six years of the act alleged to have caused the injury or condition, or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later.” The diocese claimed that since the alleged abuse occurred over forty years ago it is reasonable to assume that the plaintiff should have discovered the cause of his injuries long ago. It also argued that forcing it to defend against an alleged injury occurring so long ago violates the very purpose of a statute of limitations—relieving defendants of the difficult if not impossible task of defending against such claims. The court rejected these arguments, and ruled that the statute of limitations had not expired on any of the plaintiff’s claims (except for assault and battery, which the court deemed to be unrelated to childhood sexual abuse). The court observed that under Vermont law the test is when the plaintiff in fact discovered that his injuries were caused by childhood abuse, and not when he reasonably could have made this discovery.

The diocese also argued that forcing it to defend against an alleged injury occurring 40 years ago violates due process of law because there is no meaningful way to defend against a claim that is so old. The diocese would be without recourse to witnesses and records because of the passage of time. In rejecting this argument, the court observed: “[The diocese] provides no support for its theory that the prospect of an absence of records or witnesses violates a defendant’s constitutional due process rights. [It] has made no showing that it has no access to records or witnesses, only that it will be burdensome for it to attempt to locate records and witnesses. That burden alone does not implicate an individual’s due process rights.”

Finally, the court rejected the argument of the diocese that the plaintiff’s lawsuit was barred by the first amendment guaranty of religious freedom. Specifically, it argued that by permitting the plaintiff to sue the diocese, the court will be forced to determine what is acceptable behavior by a minister or other religious practitioner in a religious institution such as a church-run orphanage. The court agreed in part with this argument:

This argument has some merit. However, in this case it is unclear whether the actions taken by Sister Jane Doe had their origin in secular or religious activities. Tort claims which are based on purely secular activities do not invoke the protections of the [Constitution] because they are unrelated to the religious efforts of a cleric (for example, negligent operation of church van). But to the extent that a cleric’s actions are related to his or her religious endeavors, judicial review may foster excessive entanglement. Not having a sufficient factual basis for determining the circumstances surrounding Sister Jane Doe’s alleged misconduct, it is not clear to the Court that a first amendment defense would lie. Dismissal of the claims against her … would thus be premature at this stage.

Similarly, dismissal of plaintiff’s indirect and direct claims against [the diocese] is premature. Although the prohibitions of the first amendment may be implicated when a plaintiff seeks to hold a religious organization vicariously liable for wrongful conduct of its servant, it is not yet apparent whether the underlying claims against Sister Jane Doe are related to secular or religious activities, nor whether or to what extent the alleged activities were conducted within the scope of her employment at the orphanage. Thus, just as the claims against Sister Jane Doe must await further factual development, so must the claims of respondeat superior against [the diocese].

The plaintiff’s allegations of intentional and negligent conduct on the part of [the diocese] in hiring and supervising Sister Jane Doe and in fostering an environment in which sexual and physical abuse could occur give rise to serious constitutional concerns. Inquiry by a court or jury into the policies and practices of a religious organization in supervising and hiring clergy and other religious officials may foster excessive entanglement with religion. On the other hand, if hiring was done with knowledge that a prospective employee had perverted sexual proclivities, the institution might well be held accountable even though the hiring was part of the administration of a religious facility. Resolution of these issues must await further factual development.

What is the significance of this case to churches and denominational agencies? Consider the following: (1) It illustrates the possibility, in some states, of facing lawsuits for the alleged abuse of children occurring decades ago. According to this court, such a prospect does not violate due process of law. Of course, plaintiffs themselves will have a difficult time convincing skeptical juries that abuse occurred so long ago, particularly when the plaintiff cannot even identify the offender. (2) The court conceded that the first amendment guaranty of religious freedom may prevent the civil courts from deciding whether or not a religious institution is responsible on the basis of the “respondeat superior” doctrine for the acts of ministers or other religious practitioners occurring in the course of their religious duties. The respondeat superior doctrine imposes liability upon employers for the negligent acts of their employees committed within the scope of their employment. The court also conceded that a religious institution would not be liable under this theory for the acts of an employee that were not committed within the scope of his or her employment. (3) Perhaps most importantly, the court recognized that any attempt by a civil court to find a church or denominational agency liable for a minister’s sexual misconduct on the basis of “negligent hiring” or “negligent supervision” would “give rise to serious constitutional concerns”. Why? Because it would entangle the court in internal ecclesiastical determinations including the selection, training and fitness of clergy. Further proceedings in this case will be discussed in future issues of this newsletter. Barquin v. Roman Catholic Diocese, 839 F. Supp. 275 (D. Vt. 1993).

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m10 m86 c0594

Legal Developments

Regulations for Church-Operated Schools

Court rules that church schools must comply with state regulations.

Richard R. Hammar, Attorney, CPA

Bio

State: Vermont
Categories: Schools

Church Law and Tax 1991-03-01 Recent Developments

Employee Relations

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

• A Wisconsin appeals court ruled that a state agency’s investigation into a dismissed teacher’s complaint of age discrimination did not violate the constitutional rights of a church-operated school. State law prohibits most employers, including church schools, from discriminating in employment decisions on the basis of age. A church school terminated a teacher whom it had employed for 16 years. The school cited “problems with the teacher’s classroom management, her professionalism, and her maintenance of a prayerful environment.” The teacher felt that she was fired on account of her age (56), and she filed a complaint with the state equal rights agency. The agency investigated the termination, and concluded that there was reason to believe that the teacher had been a victim of age discrimination. This conclusion was based primarily on the fact that the school had given the teacher an excellent evaluation less than a year prior to her dismissal. The agency ordered a hearing to resolve the matter, but the school filed a lawsuit seeking to prevent any hearing on the ground that a hearing into the basis for its dismissal of one of its teachers would violate its constitutional right to religious freedom. A trial court rejected the school’s position, and the school appealed. A state appeals court concluded that the school’s constitutional rights would not be violated by a hearing addressing the charge of age discrimination. The court relied solely on a 1986 decision of the United States Supreme Court in a similar case. The Supreme Court had ruled that an Ohio civil rights agency “violates no constitutional rights by merely investigating the circumstances of [the employee’s] discharge in this case, if only to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge.” Based on this language, the Wisconsin court concluded that “the state agency charged with enforcing the state’s employment laws can investigate discrimination complaints against a religious institution without violating the first amendment.” The court emphasized that the school “is still free to discharge employees for religious reasons,” and that the school “will prevail in the [agency] investigation if [the dismissed teacher] cannot prove that the religious-based reason given for her discharge was only a pretext for age discrimination.” As a result, the agency hearing into the former teacher’s complaint of age discrimination will proceed. If the school can establish that it dismissed the teacher for “religious” reasons (e.g., failure to maintain a “prayerful environment” in the classroom), then it will prevail. This case also illustrates the problems associated with employee evaluations. While periodic employee evaluations are an excellent practice, they must be done objectively. Employers all too often “inflate” such evaluations in order to avoid conflict. This case illustrates the legal problems that can be associated with such a practice. Sacred Heart School Board v. Labor & Industry Review Commission, 460 N.W.2d 430 (Wis. App. 1990).

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m42 c0291