Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.
Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
The Virginia Supreme Court ruled that a church could be liable for a retired pastor’s acts of sexual abuse on the basis of negligent hiring and retention if his performance of miscellaneous tasks for the church made him an agent or employee of the church, exposing it to liability for his acts based on negligent hiring and retention.
An ordained minister (the “defendant”) was hired as lead pastor of a Virginia church (“Church A”) in 1995. Prior to this assignment, the defendant had been involved in “an inappropriate relationship with a young girl” when he was a pastor of Church B. He was terminated from his position in Church B because of this relationship.
He also served as pastor of Church C and engaged in “inappropriate behavior toward women” in that congregation. He allegedly was hired by Church A, despite the fact his prior history of inappropriate behavior toward women was known to Church A and a regional denominational office in Virginia (the “denominational office”).
Not long after he was hired by Church A, a number of persons made allegations about the defendant behaving inappropriately toward some women. For example, in December 1996, a church member wrote to the denominational office that the defendant’s soul was “lost to sin.” The writer forwarded an inappropriate letter that the defendant had sent to two other female church members.
Later, in January 1997, another person wrote the denominational office asking it to prevent the defendant from continuing to contact her and stating that he “needs help.”
Also in January 1997, yet another person wrote to Church A, forwarding a letter the defendant’s daughter had written. The letter referenced multiple incidents of the defendant’s sexual misconduct and predatory behavior, including an instance when he inappropriately touched another person. The letter referenced the defendant’s “unwanted and inappropriate advances on many women over the years.”
In January 2001, yet another person wrote to the denominational office informing it that the defendant had been writing inappropriate letters to her young niece. The writer enclosed letters to her niece and asked the denominational office to intervene to hold the defendant accountable. In the enclosed letters, the defendant confessed his love for the niece, told her that it was hard not being able to touch her, and asked her to send him pictures of herself.
In 2002, the denominational office arranged for the defendant and his wife to attend a Christian counseling and mental health facility. The defendant and his wife attended in July 2002.
Following this visit, a counselor from the facility sent a written report to the denominational office stating that the defendant needed “to set healthy boundaries with women” and that the defendant “needed someone to hold him accountable” for his inappropriate actions. The report suggested that the defendant “should meet with that person regularly for a while.”
This report indicated that the defendant was told to attend the counseling “because of inappropriate communications with a young girl who was a member of the congregation at a church where he pastored prior to his tenure at [Church A].”
The report was placed in the defendant’s file at the denominational office.
In February 2005, two women wrote yet another letter to the denominational office stating that the defendant had been making sexual advances for years toward one of the authors of the letter.
The letter described one instance in which the defendant offered this woman $500 if she would send him pictures of herself “in various states of undress.”
The letter further stated that the defendant arranged a meeting with this woman at the church parking lot where he sexually assaulted her. He “warned her not to tell anyone about his forceful and predatory advances.”
The letter writers asked the denominational office to “make the right decision” and warned it that if it did not “a lot of other young women would be affected by [the defendant’s] ‘perverted sexual conduct in the future.’”
In April 2005, another of the defendant’s daughters wrote to the denominational office stating she could “no longer ‘cover’” for her father and that the allegations made by the writers of the February 2005 letter were true.
This daughter further stated that the defendant had been terminated from at least one position before becoming pastor at Church A and that this termination occurred because of his “inappropriate conduct with young girls.”
Also in April 2005, a grandson of the defendant wrote a letter to the denominational office that corroborated the statements in the February 2005 letter. The grandson asked persons in a position of authority to “quit overlooking” his grandfather’s inappropriate behavior.
In March 2011, the defendant announced his intention to retire, and stepped down as pastor in April 2011. But he continued to maintain a close relationship and serve as a spiritual leader to certain former congregation members from Church A, and he performed miscellaneous duties for the church.
In 2016, the defendant developed a relationship with a 13-year-old girl (the “victim”) in Church A. He often invited the victim and her parents to his home for meals, spiritual advising, and fellowship.
On one occasion the victim and her mother went to the defendant’s home to bring him and his wife tomatoes from a farmer’s market.
The victim’s mother spoke with the defendant’s wife in the kitchen. This left the defendant alone with the victim in the living room. He sexually touched the victim after initiating contact under the guise of offering nonsexual comfort and support. Several days later she told her parents what had happened.
The victim: A church and several denominational officials were negligent
The victim sued the defendant, Church A, and state and national denominational offices, claiming that they were all responsible for her injuries on several grounds, including:
- negligent hiring
- negligent retention
- negligence in failing to investigate reports of the defendant’s behavior, failing to remove him from ministry or work that would allow him to be around young women and underage girls, failing to warn members of the church of the danger he posed, and failing to protect minor female members of the church from the defendant
- negligent infliction of emotional distress
- intentional infliction of emotional distress
- fraud by omission or concealment
- vicarious liability against the state and national denominational agencies based on the scope of the defendant’s duties as an agent, volunteer, or employee
- vicarious liability based on apparent authority
The trial court dismissed all of the plaintiff’s claims, and the plaintiff appealed to the state supreme court. The court’s analysis of the main claims is summarized below.
Negligent hiring and retention
The Supreme Court of Virginia upheld the trial court’s dismissal of the negligent hiring and retention claims. It noted that negligent hiring focuses on the employer’s negligence “in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances . . . it should have been foreseeable that the hired individual posed a threat of injury to others.”
The court further stated:
A claim for negligent retention exists “for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [others] . . . (emphasis added).
The negligent retention tort . . . requires a showing that the risk of future harm was so grave that discharging the dangerous employee would have been the only reasonable response . . .
The Virginia Supreme Court further explained its reasons for upholding the trial court’s decision:
A claim for negligent hiring or retention is not viable for persons who are no longer employed by the defendant employer at the time of the commission of the tort. . . .
[W]e hold that a negligent hiring or a negligent retention claim ceases to be viable for conduct committed after the employee is no longer retained by the employer. . . .
The termination of employment is a logical and practical boundary for employer liability for claims of negligent hiring or retention. The rationale for holding an employer liable for hiring an unfit or dangerous employee is that a victim might be exposed to risk or danger during the course of the employment—not at some other time in the possibly distant future when the employer has no control over the employee. In addition, an employer cannot be liable for “retaining” an employee who is no longer retained. To hold otherwise would impose a duty of care on employers that is unmanageable, utterly unpredictable, and conceptually limitless. The same concept of duty applies to agents. When the agent has ceased working for the principal, the duty of the principal ceases.
The plaintiff insisted that the plaintiff’s negligent hiring and negligent retention claims were viable since the defendant’s miscellaneous duties on behalf of Church A following his retirement made him an agent or employee of the church at the time of the plaintiff’s abuse.
The court responded:
The question then becomes whether the allegations establish that [the defendant] was no longer employed by the defendants at the time he committed the tort. . . . The [plaintiff’s lawsuit] expressly and repeatedly states that [the defendant] was an “agent, volunteer, and/or employee” at the time he improperly touched [the plaintiff]. It additionally states that [the defendant] maintained responsibilities with the church after he retired as the pastor. The [plaintiff’s lawsuit] expressly alleges that [the defendant] was an “agent, volunteer, and/or employee” at the time he committed the tort. A reasonable inference from the allegations in the complaint is that [the defendant] retired as pastor but remained an agent of the church. Another possibility is that [he] was rehired as an employee or agent. If [he] was an employee or agent at the time the sexual battery occurred, the claims for negligent hiring or negligent retention should not have been dismissed on the basis that he retired as a pastor.
If, as a matter of fact, [the defendant] was not an employee or agent at the time he committed the conduct alleged in the pending case, the negligent hiring or retention claims fail as a matter of law and should be dismissed. If [he] was still employed, albeit not as the pastor, or if he was selected or retained to serve in some capacity as an agent at the time the tort was committed, the trial court will need to address on remand from a factual standpoint what his role was as an agent. Further evidentiary development, however, is required to determine [the defendant’s] status as an employee or agent at the time of the tort.
Personal liability of denominational officials
The plaintiff’s lawsuit sought to hold personally liable several officers of the state and national denomination on the basis of negligent hiring and retention. In rejecting this claim, the Virginia Supreme Court observed:
The [lawsuit] seeks to personally hold liable a number of individuals for negligent hiring or retention. These individuals were state or district Overseers. . . . The tort of negligent hiring or retention is available against an employer, not individuals who played a role in hiring or retaining an employee. It is the employer who selects and retains employees and who, therefore, bears responsibility for those decisions. . . . There is no allegation that any of these individual defendants were [the defendant’s] employer. Consequently, we affirm the trial court’s dismissal of the individual defendants with respect to the negligent hiring or retention counts.
Employers are vicariously liable for the acts of their employees committed within the course and scope of their employment. The plaintiff acknowledged that the defendant had retired in 2011 and that he stepped down from his role as pastor, but the plaintiff insisted that the miscellaneous duties the defendant performed for the church following his retirement were sufficient to make him an agent or employee whose acts were attributable to his employer under the principle of vicarious liability.
The court agreed that “[i]t is certainly possible to retire from full time ministry as a pastor and, nevertheless, retain a role within the church as an employee, volunteer, or agent.” As a result, the trial court was in error and dismissing the plaintiff’s claim of vicarious liability against Church A.
The court added:
“It simply is not enough . . . that the claim arose out of an activity which was within the employee’s scope of employment.” . . . The [wrongful] act must occur “while the employee was in fact performing a specific job-related service for the employer.” . . . “[Liability] cannot extend to an employer for an unauthorized tortious act by an employee arising ‘wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account.’”
The denominational defendants argued that the misconduct by the defendant was such a significant and unusual deviation from the scope of any conceivable agency or employee relationship that they cannot be liable for the alleged sexual assault of the plaintiff. They noted that
“[an employer] is not liable for every wrong which [an employee] may commit during the continuance of an employment. . . . If the [employee] steps aside from his [employer’s] business and is engaged in an independent venture of his own, the relation of [employer] and [employee] is for the time suspended.”
The court noted that the sexual molestation of the plaintiff occurred on a visit by the defendant and his wife to the plaintiff’s home to deliver tomatoes purchased from a local farmer’s market. While in the home, the defendant and plaintiff remained in a room apart from others, and it was at this time that the molestation occurred in the course of the defendant providing spiritual comfort and counsel.
The court concluded that if an employee’s “acts of molestation occurred simultaneously with his performance of job-related services, a reasonable jury could infer that [the employee] acted from a mixed motive and not ‘wholly from some external, independent, and personal motive.’”
The court found it difficult to imagine that allegations of sexual misconduct could fall within the scope of employment. However, it declined to make this determination and remanded the case back to the trial court for further consideration.
The plaintiff alleged that the defendant “was cloaked with apparent authority” to act for the church. The court noted that “[a] ‘principal is bound, under the doctrine of apparent authority, to the extent he holds out another as having the authority to act for him.’”
Quoting itself from a previous case, the Virginia Supreme Court added:
An act is within the apparent scope of an agent’s authority if, in view of the character of his actual and known duties, an ordinarily prudent person, having a reasonable knowledge of the usages of the business in which the agent is engaged, would be justified in believing that he is authorized to perform the act in question.
However, the court stated in this case, “the act in question is a sexual battery.” It continued:
No reasonable person would believe that the church vested [the defendant] with the authority to engage in such an act. Therefore, the [trial] court properly rejected [the plaintiff’s] claim that [the defendant] possessed apparent authority for his acts.
Willful and wanton negligence
The plaintiff’s lawsuit alleged that the church defendants’ failure to investigate the reports of the defendant’s behavior, their failure to remove him, their failure to warn members of the congregation about his behavior, and their failure to protect minor female members of the church constituted willful and wanton negligence, and the trial court erred in dismissing her claims that the defendants were grossly negligent.
The court noted that Virginia, like many states, recognizes three levels of negligence:
“The first level, simple negligence, involves the failure to use the degree of care that an ordinarily prudent person would exercise under similar circumstances to avoid injury to another.
“The second level, gross negligence, is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person. This requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.”
The third level of negligent conduct is willful and wanton negligence. Willful and wanton negligence “is defined as ‘acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.’” . . . We also have stated that “gross negligence involves conduct that ‘shocks fair-minded people,’ and willful and wanton negligence involves such recklessness that the actor is aware that his conduct probably would cause injury to another.”
The court concluded that the plaintiff’s allegations did not rise to the level of gross or willful and wanton negligence because: (1) it was acknowledged that the church defendants manifested some degree of care by requiring the defendant to attend counseling; (2) even if the allegations from one incident in 2005 showed that the defendant presented a particular risk, and therefore sufficed for a claim of negligent hiring or retention, those allegations did not rise to the level of indifference to another and an utter disregard of prudence that would shock the conscience; and (3) some of the plaintiff’s allegations depict conduct directed at women that is wholly inappropriate but did signal that his conduct “probably would cause injury to another.”
Intentional infliction of emotional distress
The court noted:
To recover for intentional infliction of emotional distress, a plaintiff must establish that “(1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous and intolerable; (3) there was a causal connection between the wrongdoer’s conduct and the emotional distress; and (4) the emotional distress was severe.” . . .
Liability is present only when the conduct has been so “outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
The court concluded that the plaintiff’s allegations, even if true, “do not clear the high bar necessary to sustain a claim for intentional infliction of emotional distress.” The court explained:
[The defendant] served as a pastor for over forty years, from 1967 to 2011. There are broad and nonspecific allegations about [his] inappropriate conduct as well as specific allegations of disturbing conduct toward women over the course of those decades. None of the specific allegations prior to the sexual battery of [the plaintiff] involved the sexual battery of a minor. [The defendant] was made to attend and did attend counseling. The [church] defendants’ failure to take measures stronger than ordering counseling does not on these facts rise to the level of being outrageous and intolerable. Therefore, we affirm the dismissal of this claim.
Fraud by nondisclosure
The plaintiff claimed that the church defendants’ failure to warn the congregation of the risk posed by the defendant amounted to fraud by nondisclosure or concealment. The court disagreed:
The [plaintiff] fails to state a claim for fraud by omission for at least two reasons. First, no factual allegations support a conclusion that the [church] defendants intentionally concealed operative facts, as opposed to negligently or recklessly failing to disclose them. Second, the defendants did not owe a duty to warn [the plaintiff] or the other congregants about the complaints against [the defendant], so their silence cannot constitute concealment. . . . There was no special relationship between the defendants and [the plaintiff], and, therefore, there was no duty to disclose [the defendant’s] inappropriate behavior. Consequently, we affirm the . . . [trial] court’s dismissal of this claim.
What this means for churches
There are several important lessons to be learned from this case. Consider the following.
1. Negligent hiring
Most importantly, the court concluded that while a church cannot be liable on the basis of negligent hiring for sexual or other injuries committed by former employees, it may be liable if the former employee performs sufficient duties to be an employee or agent of the church.
This conclusion is significant since the primary basis of liability in most sexual abuse cases involving churches is negligent hiring. That is, the church was negligent or careless in failing to adequately assess an employee’s fitness and suitability prior to the time he or she was hired.
Church leaders should understand that allowing a former church employee to perform miscellaneous tasks on behalf of the church may expose the church to liability on the basis of negligent hiring, if those tasks are sufficient to make the person an employee or agent of the church.
Employee status is defined broadly by the courts, and rather minimal tasks performed by a former employee may suffice for a continuation of employee status.
Often, tasks performed by former employees are sporadic, off-site, and unsupervised, which greatly increases a church’s potential liability. This must be considered before a former employee is allowed to perform tasks for the church.
Also, note that allowing a former employee to perform miscellaneous tasks on behalf of the church may raise additional issues in addition to increased liability, including the following:
- If a former employee who continues to perform miscellaneous services on behalf of the church is not a minister, then the church may be responsible for withholding Social Security and Medicare taxes from the person’s compensation and may itself be liable for the payment of these taxes if it fails to withhold them. Ministers are exempt from the tax withholding requirement and pay their federal taxes using the estimated quarterly tax procedure.
- The church may be responsible to comply with the payroll tax deposit requirement if the former employee is not a minister or is a minister who has elected voluntary tax withholding.
- The church may be required to issue Form W-2 to the former employee.
- The church may be required to comply with the minimum wage and overtime requirements of the Fair Labor Standards Act.
- The church may be obligated to pay for workers’ compensation insurance.
- The church may be subject to the nondiscrimination provisions of Title VII of the Civil Rights Act of 1964 and other federal and state nondiscrimination requirements that pertain to employees.
2. Negligent retention
A church may use reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others. The court explained:
A claim for negligent retention exists “for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [others]. . . (emphasis added).
The negligent retention tort . . . requires a showing that the risk of future harm was so grave that discharging the dangerous employee would have been the only reasonable response . . .
The court concluded:
[A]n employer cannot be liable for “retaining” an employee who is no longer retained. To hold otherwise would impose a duty of care on employers that is unmanageable, utterly unpredictable, and conceptually limitless. The same concept of duty applies to agents. When the agent has ceased working for the principal, the duty of the principal ceases.
3. Apparent authority
Many victims of childhood sexual abuse have relied on the doctrine of apparent authority to hold churches and denominational agencies legally responsible for their injuries. Apparent authority derives from agency law, and basically holds that a principal (i.e., a church or denominational agency) is responsible for the acts of its agents that it holds out as having authority to act for it if the agent’s acts are within the apparent scope of an agent’s authority.
The court concluded that this requirement was not met since “the act in question is a sexual battery. No reasonable person would believe that the church vested [the defendant] with the authority to engage in such an act. Therefore, the [trial] court properly rejected [the plaintiff’s] claim that [the defendant] possessed apparent authority for his acts.”
This sensible conclusion will be a useful precedent to any church or denominational agency that is sued on the basis of the apparent authority of an agent.
4. Willful and wanton negligence, and gross negligence
In most states, uncompensated members of nonprofit boards are granted limited immunity from liability by state and federal law for their acts of ordinary negligence. Limited immunity means the board members cannot be personally liable for the ordinary negligence, but they may be personally liable for their grossly negligent acts, or in some states, for their willful and wanton negligence. It is important for church leaders to be familiar with these terms under applicable state law. The court in this case defined both types of negligence as follows:
Willful and wanton negligence “is defined as ‘acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.’” . . . We also have stated that “gross negligence involves conduct that ‘shocks fair-minded people,’ and willful and wanton negligence involves such recklessness that the actor is aware that his conduct probably would cause injury to another.”
The distinction between willful and wanton negligence and gross negligence is significant since it will define the types of negligence for which uncompensated board members are not personally liable.
In addition, one or possibly both of these terms are used to define a church’s liability for punitive damages. These are damages that are designed to punish the defendants for reprehensible conduct. Since they generally are exempted from coverage under church liability insurance policies, it is important for church leaders to understand which term applies and the meaning of the term.
Doe v. Baker, 857 S.E.2d 573 (Va. 2021).