Key Point 10-05. A church may be liable on the basis of negligent selection for a worker's molestation of an adult 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 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.
Key Point 10-05.3. Churches can reduce the risk of liability based on negligent supervision for sexual misconduct involving adult victims by adopting risk management policies and procedures.
A South Carolina court ruled that an employer's knowledge that an employee had been convicted six years earlier for the misdemeanor offense of publicly exposing himself in a park did not make it foreseeable that the employee would rape a coworker, and therefore the employer was not liable on the basis of negligent hiring for the employee's assault. A male employee ("Mark") at an assisted living center for the mentally disabled raped a co-employee (the "plaintiff") while at work. The plaintiff sued her employer, claiming that it had been negligent in hiring Mark, and that its negligence resulted in the assault. When it hired Mark, the employer ran a criminal background check. The background check revealed one misdemeanor charge for disorderly conduct as a result of exposing himself in a public park, and one speeding violation. As company policy, the employer relies on self-disclosure by its employees to report any criminal convictions that occur after an employee is hired. Mark did not inform his employer of any criminal convictions after being hired. During his five years of employment, Mark was accused on two occasions of sexually molesting a patient. Both accusations were investigated, and later dropped due to a lack of evidence. Mark was allowed to continue his employment without restriction.
The employer asked the court to dismiss the plaintiff's lawsuit on the ground that there was no evidence that Mark would sexually assault a co-worker. In opposition, appellant argued that, and so it had not been negligent in hiring, supervising, or retaining him. The court agreed with the employer, and dismissed the lawsuit. The plaintiff appealed.
On appeal, the plaintiff argued that although the employer performed a criminal background check, it did not conduct any additional inquiry or investigation to discover that Mark's conviction for disorderly conduct was sexual in nature. She cited a detective's testimony that the disorderly conduct conviction was for public exposure in a public park that "is known for sexual activity."
The court began its opinion by noting that "in a negligent hiring context, a plaintiff must show at a minimum, that the employer knew, or should have known, of the employee's criminal propensities. When determining the foreseeability of a criminal act, a court must look at the totality of the circumstances, and only when the circumstances are somewhat overwhelming can an employer be held liable."
Criminal records check
The court concluded that the plaintiff had failed to prove that Mark's assault was reasonably foreseeable.
Before hiring him, the employer performed a criminal background check through the Ohio Bureau of Criminal Investigation. His conviction for disorderly conduct was included on the BCI report. The plaintiff argues that the employer should have conducted periodic background checks while Mark was employed. However, there is no evidence that any additional crimes would have shown up on these reports nor does appellant present any evidence that he actually committed any crime while he was employed.
In rejecting the plaintiff's claim that Mark's conviction for disorderly conduct made her rape foreseeable, the court noted that Mark's act of exposing himself in the public park "was not a physical assault that would demonstrate to his employer that he would potentially rape a fellow employee …. It would be quite a stretch to suggest that his disorderly conduct charge from 1999 demonstrates that he would be likely to commit a rape in 2005."
The two previous accusations
The court also rejected the plaintiff's claim that the two prior accusations of sexual misconduct made her rape foreseeable, and therefore the employer was liable on the basis of negligent hiring:
The plaintiff notes that the allegations were found to be "unsubstantiated," but implies that the assault actually occurred and shows that the rape was foreseeable. Her argument is unpersuasive. Both the [local and county] police investigated the matter and concluded that the allegation was unfounded. The resident had a history of making false allegations. Further, Mark had four years of experience at the time of the allegation with no prior allegations of abuse and passed a lie detector test. There is no evidence that the employer acted unreasonably during the situation.
Mental health issues
The plaintiff noted that a detective had informed the employer, prior to the rape, that she found Mark to be "odd," and that he was not taking his medicine for borderline schizophrenia and bipolar disorder. Further, the plaintiff claimed that Mark took an FMLA leave-of-absence for these issues. The plaintiff concluded that the employer should have conducted an independent evaluation of Mark's mental health before allowing him to return to work. The court disagreed, noting that "this does not show foreseeability of the rape." To the contrary, the employer testified that she never saw any signs that Mark was mentally unstable or threatening in any way. Even if he was suffering from these disorders, "there is no evidence that they would make him violent or prone to commit a sexual assault. Further, his doctor released him to return to work without restriction following his FMLA leave. Accordingly, the plaintiff fails to demonstrate that a genuine issue of material fact exists regarding negligent hiring, supervision or retention.
Application. This case is instructive for the following five reasons. First, the court correctly noted that an employer generally cannot be liable on the basis of negligent hiring for an employee's criminal act unless the act was reasonably foreseeable based on what the employer knew or in the exercise of reasonable care should have known.
Second, the court concluded that an employee's misdemeanor conviction for public exposure in a park did not make it foreseeable that the employee would rape a coworker six years later, even if the park had a reputation for illegal sexual activity. In particular, the court noted that Mark's act of exposing himself in the public park "was not a physical assault that would demonstrate to his employer that he would potentially rape a fellow employee …. It would be quite a stretch to suggest that his disorderly conduct charge from 1999 demonstrates that he would be likely to commit a rape in 2005."
Third, the court concluded that the employer's failure to conduct periodic criminal background checks on Mark did not make it negligent, since "there was no evidence that any additional crimes would have shown up on these reports" and there was no proof that Mark "committed any crime while he was employed."
Fourth, the court concluded that the two previous accusations of sexual misconduct against Mark did not make his subsequent rape of the plaintiff foreseeable, since (1) those accusations were investigated by local and county police and adjudged to be unsubstantiated, and (2) the purposed victim had a reputation for making false accusations.
Fifth, Mark's mental health problems did not make his rape of the plaintiff foreseeable, and therefore the employer could not be liable on the basis of negligent hiring. Prewitt v. Alexson Services, Inc., 2008 WL 3893575 (Ohio App. 2008).
This Recent Development first appeared in Church Law & Tax Report, July/August 2009.