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.
A Minnesota court dismissed a lawsuit claiming that a school was responsible, on the basis of negligent supervision, for a coach's sexual abuse of a minor student.
In the fall of 2009, an adult male (the "defendant") was employed as a football coach and weight room supervisor at a public high school. Prior to hiring the defendant, the school district interviewed him, checked his references, and conducted a criminal background check. During the hiring process, the school district did not discover anything that suggested he posed a risk to students.
When the defendant was hired, he received a copy of the school district's employee handbook, which contained policies regarding how employees should interact with students. One policy stated, "Sexual relationships between school district employees and students, without regard to the age of the student, are strictly forbidden and may subject the employee to criminal liability." The policy also prohibited employees from dating students, having sexual interactions with students, and committing or inducing students to commit immoral or illegal acts. The policy directed employees to "employ safeguards against improper relationships with students or claims of such improper relationships." The defendant acknowledged he knew during the fall of 2009 that the policy prohibited school district employees from dating or having sexual interactions with students.
A 13-year-old female student (the "victim") in the school's eighth grade met the defendant when he was coaching the eighth-grade football team. At that time, the victim was friends with football players on the team and would stop by and say hello to her friends at football games. The victim and defendant got to know each other better at the start of her ninth-grade year, as she continued to visit her friends on the ninth-grade football team that the defendant then coached.
After a football game in the fall of 2009, the victim borrowed the defendant's cell phone to call her parents for a ride home. When she got home, she used the caller ID feature of her home telephone to acquire the defendant's cell phone number and proceeded to initiate correspondence with him under a false identity. The victim used her personal cell phone to send the defendant text messages, pretending to be an adult woman interested in having a sexual relationship with him. After a week of exchanging text messages, the victim admitted to him that she was the person who was sending the text messages. The defendant was initially angry with her, but he soon resumed texting with her, even though he knew that she was a ninth-grade student. Over the following weeks, the two exchanged hundreds of text messages, many of which contained graphic sexual content. The defendant also emailed two explicit photographs of himself.
During this time period, the two saw each other in person mainly in the school weight room that the defendant supervised. While the two engaged in sexual touching on only one occasion, they continued to engage often in sexually explicit emails and text messages.
On November 17, 2009, the mother of another student contacted the victim's mother and told her that the defendant and victim had been exchanging sexually explicit text messages. The next day, that student told a school official about the defendant's inappropriate relationship with the victim. The school district called the police the same day to report the sexual abuse. The defendant was arrested, and his employment was terminated shortly thereafter. In 2011, he pleaded guilty to one count of fourth-degree criminal sexual conduct and two counts of solicitation of a minor to engage in sexual conduct.
In October 2011, the victim filed a complaint against the school district, alleging negligence and negligent supervision. The trial court dismissed both claims against the school, and the victim appealed.
The appeals court began its opinion by noting that "for purposes of a negligence claim, there is no general duty to protect another from harm, but a duty to protect arises if there is a special relationship between the parties and the risk is foreseeable." To prove negligent supervision "the plaintiff must prove (1) the employee's conduct was foreseeable and (2) the employer failed to exercise ordinary care when supervising the employee." Therefore, "to succeed on a claim of either negligence or negligent supervision, a plaintiff must prove that the risk in question was foreseeable."
In the context of negligence and negligent supervision claims, foreseeability means "a level of probability which would lead a prudent person to take effective precautions … . In determining whether a danger is foreseeable, courts look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility." Sexual abuse of minors, the court stressed, "will rarely be deemed foreseeable in the absence of prior similar incidents."
The victim argued that the existence of several "red flags" should have put the school district on notice that the defendant's sexual abuse of the victim was foreseeable. These red flags included:
- While attending a football practice the victim shouted at the defendant, "I love you!"
- On one occasion, the defendant was seen talking with the victim following a football practice in a school parking lot while they were "alone."
- Another coach saw the victim using a computer in the weight room office while the defendant was away.
- A weight room supervisor saw the defendant alone with an unknown "young girl" in the weight room on a Saturday morning when he was supervising the weight room.
The court concluded that these incidents failed to make the defendant's sexual contact with the victim foreseeable, and therefore the school was not guilty of negligence or negligent supervision:
Even viewing the record in the light most favorable to the victim, these alleged red flags were insufficient to raise a genuine issue of material fact as to whether the defendant's sexual abuse of the victim was foreseeable. Taken in context, the incidents she cites are not sufficiently similar to or indicative of sexual abuse as to give the school district notice that an inappropriate relationship existed between her and the defendant. First, the victim's "I love you" shout was a single statement by a teenage girl at a football practice, the defendant did not react to the shout, and the victim was instructed to leave the practice after she shouted. Second, as to the observation of the victim talking to the defendant in the school parking lot, the record indicates that they were not alone and that it was common to see coaches talking with students in the parking lot after sports practices. Third, the observation of the victim using a computer in the weight room office while the defendant was supervising other students in the weight room is not an objectively reasonable indicator of a potentially inappropriate relationship between them. Fourth, observations of the defendant and an unidentified young female alone in the weight room on a Saturday do not raise any reasonable inferences of potential or ongoing sexual abuse. Furthermore, there is no evidence that any school district employee observed physical contact or sexual conduct of any kind between the two.
What this means for churches
This case illustrates three important principles.
First, the case illustrates the importance of "foreseeability" in finding a school or church liable on the basis of negligent supervision for acts of child molestation. Foreseeability means knowledge of prior similar incidents or credible allegations indicating that the perpetrator could engage in such behavior. Conversely, if church leaders do have information suggesting that a person might engage in sexual assaults, then it may be liable for any future assaults on the basis of either negligent supervision or negligent retention.
Second, in concluding that the defendant's sexual relationship with the victim was not foreseeable, the court pointed to the fact that when he was hired, the school interviewed him, checked his references, and conducted a criminal background check. During the hiring process, the school district did not discover anything that suggested he posed a risk to students.
Third, the court dismissed the "red flags" that the victim claimed made the defendant's wrongful acts foreseeable. Doe v. School District, 873 N.W.2d 352 (Minn. App. 2016).