Churches’ Liability for Children in Their Care

What legal responsibility do churches have to supervise children?

Church Law and Tax 1994-11-01 Recent Developments

Sexual Misconduct by Clergy and Church Workers

Key point: A church can be legally responsible on the basis of negligent supervision for the abduction and molestation of a child who wanders off of church premises.

In a decision that will be of direct relevance to churches, a Georgia court ruled that a local Boys Club could be sued by the parents of a 5-year-old boy who was abducted and molested when he wandered off the Boys Club premises without adult supervision. The victim was enrolled in a summer day camp conducted by the Boys Club in his community. Boys in the program ranged from 6 to 11 (an exception was made in the case of the victim), and the boys were to be under the direct supervision of an adult worker at all times. An adult was stationed at a desk by the front door of the facility, and no child was allowed to leave the premised unattended. Nevertheless, the victim was able to walk out the front door and go around the building to look at the swimming pool without adult supervision. While outside, the boy was abducted and sexually molested. No adult staff member was aware of the victim’s absence until his big brother brought it to the staff’s attention. A search proved fruitless. The boy was later found in a nearby forest by police. About a month before the abduction a staff member called the victim’s parents to inform them that the boy was missing. After a thorough search the boy was found asleep in a small room on the premises. The victim’s parents expressed concern about this incident and were assured that the staff would in the future watch the victim closely and keep track of his whereabouts. The parents later sued the Boys Club and a trial court dismissed the lawsuit. The parents appealed, and a state appeals court ruled that the parents could sue the Boys Club on the basis of negligent supervision. The appeals court began its opinion by explaining the “duty of care” that is imposed on institutions that care for or work with children:

The measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard. The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it is that care which a prudent person would exercise under like circumstances. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.

Applying this standard to the facts of this case, the court concluded that the question remained “whether a prudent person caring for a five or six-year-old child under similar circumstances would have allowed the child to leave the building without an older person, and thus whether [the Boys Club] breached its duty of care.” Accordingly the trial court erred in dismissing the lawsuit. Further, the court pointed out that there was evidence that the Boys Club “undertook to ensure that [the victim] was under the direct supervision of an adult at all times and that a child of his age would not leave the building unattended or unquestioned,” and that it promised the victim’s parents that it would watch the victim and keep track of his whereabouts. The court observed:

When one promises to do something and another reasonably and foreseeably relies on that promise, the promisor has a duty to perform the promised act in a non-negligent manner. Accordingly, the duty imposed on [the Boys Club] in this case is not only the general duty owed by anyone who undertakes the care of a child but also the duty arising from [its] policies and its promises to [the victim’s] parents to enforce those policies and [the parents’] reliance on those promises.

The court rejected the Boys Club’s argument that its negligence was “superseded” by the intervening and unforeseeable criminal act of the molester. In other words, the Boys Club may have been negligent, but it cannot be responsible for an unforeseeable criminal act. The Boys Club stressed that no similar incidents had ever occurred on its premises. The court rejected this argument. It concluded that in the case of negligent supervision “what is reasonably foreseeable is not exclusively dependent upon what is known about a specific place.” In other words, the fact that no abductions had ever occurred on the premises did not mean that such a risk was unforeseeable. The proper question is “what may happen to any child at any place.” Based on this standard the court concluded that the risk of abduction was foreseeable, and accordingly the Boys Club’s negligence was not cut off. The court noted that “[o]ne has only to read the daily newspapers … to appreciate the prevalence of child abduction and abuse in our society.”

A dissenting judge warned that the court’s decision makes any person or organization that works with children an “insurer” of their safety, thereby increasing to an unacceptable degree the potential liability of all who care for children. The dissenter lamented, “[i]s the Sunday School teacher in a relatively crime-free rural community now required reasonably to foresee that a child who physically strays from the fold will be abducted from church property even though no similar acts have ever occurred previously in that community?” The dissenter concluded by observing that “the potential for expansion of parental and volunteer care giver liability posed by this broad language is self-evident.” Wallace v. Boys Club of Albany, Georgia, Inc., 439 S.E.2d 746 (Ga. App. 1993).

See Also: Negligent Supervision

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