Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.
Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.
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.
* A federal court in New York ruled that a Catholic archdiocese was not responsible on the basis of negligent hiring, supervision, or retention for the sexual misconduct of a priest, since it had no knowledge of prior wrongful acts. A Catholic priest asked a female parishioner (the “plaintiff”) if she had been sexually abused as a child. After the plaintiff told him that she had been abused, he informed her that he had helped other women with a history of abuse. In the course of three private “sessions” the priest engaged in various forms of sexual contact with the plaintiff as part of his “therapy” to help relieve her of the effects of the prior abuse. The plaintiff did not disclose this abuse until she began meeting with a therapist. The therapist promptly informed the victims’ assistance coordinator of the archdiocese of the plaintiff’s allegations. This was the first notice to the archdiocese of the plaintiff’s allegations concerning the priest, or of any other claims of sexual abuse made against him.
The plaintiff sued her church and the archdiocese (the “church defendants”), claiming that they were responsible on the basis of negligent hiring, supervision, and retention for the priest’s wrongful acts. The church defendants asked the court to dismiss the plaintiff’s lawsuit on the ground that there was no evidence that they were aware of the priest’s alleged propensity to commit sexual abuse.
The court began its opinion by noting:
Under New York law, a claim for negligent hiring, supervision or retention … requires a plaintiff to show: (1) that the [person causing injury to another] and the defendant were in an employee-employer relationship; (2) that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury prior to the injury’s occurrence; and, (3) that the injury was committed on the employer’s premises or with the employer’s property …. A cause of action for negligent hiring or retention requires allegations that the employer failed to investigate a prospective employee notwithstanding knowledge of facts that would lead a reasonably prudent person to investigate that prospective employee.
The plaintiff insisted that the church defendants failed to conduct any investigation into the priest’s background, and failed to instruct him not to touch females. The court responded that the plaintiff was missing the point:
The defendants had no duty to investigate the priest, or to warn him not to sexually abuse parishioners, when they had no reason to believe that he would engage in such misconduct. Under New York law, there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.
The court, in ruling that the church defendants had no knowledge of the priest’s propensity to engage in sexual misconduct, concluded: “While the defendants had offered evidence that they were unaware of [the priest’s] prior sexual misconduct, the plaintiff failed to counter with admissible evidence from which a reasonable juror could infer that the defendants, at any time prior to the relevant incident, knew or should have known of his propensity to engage in inappropriate sexual conduct.”
The lawsuit alleged that the preschool director approved the perpetrator’s enrollment in the preschool, despite being informed that he “had been sexually abused and had a history of acting-out sexually with other children.”
Application. This case is important because it illustrates the general principle, recognized by many courts, that an employer can be liable on the basis of negligent hiring or retention for the sexual misconduct of an employee only if it knew, or should have known of, the employee’s propensity to commit such acts and yet failed to investigate further. Bouchard v. New York Archdiocese, 719 F.Supp.2d 255 (S.D.N.Y. 2010).
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