• 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 Rhode Island Supreme Court ruled that a church was not liable on the basis of negligent supervision or negligent retention for harassing telephone calls made by its janitor to a female member of the congregation. A woman (Diane) began receiving harassing telephone calls at her home in the morning. The caller would say nothing, and then hang up. These telephone calls continued on a daily basis for several weeks. Diane eventually contacted the police department to determine the origin of the calls, and a “trap” was placed on her line. It was ultimately determined that the calls were being made by the janitor of the church that Diane attended. The janitor made calls to Diane both from his home, and from the church. The church had no knowledge of the janitor’s actions until Diane filed her complaint with the police department. The janitor was arrested and charged with the crime of making harassing telephone calls. He was allowed to keep his position as church janitor. Diane’s father, a member of the church finance committee, demanded that the janitor be terminated in order to minimize any further contact with his daughter. Diane was later diagnosed with chronic post-traumatic stress disorder, and attributed her continuing emotional distress to the janitor’s very presence at the church. Because the church refused to terminate the janitor’s employment, Diane stopped going to the church. Up until this time she had been a member of the church for thirty-nine years.

Diane filed a lawsuit against the church claiming that it was responsible for the janitor’s actions on the basis of negligent supervision and negligent retention. A trial court dismissed the claims against the church, and Diane appealed. She argued on appeal that the church, as an employer, had a duty to refrain from hiring or retaining an employee who is unfit or incompetent. She argued that the fact that the janitor was making harassing telephone calls rendered him unfit, and that the church should have discovered his unfitness because his duties at the church did not require the use of the telephone. As to her negligent retention claim, Diane argued that the church was negligent in retaining the janitor because it knew of his criminal conduct and because it knew that his continuing employment at the church was causing her stress.

The state supreme court acknowledged that an employer has a duty “to exercise reasonable care in selecting and retaining an employee who, as far as could be reasonably known, is competent and fit for the employment. The amount of care deemed to be reasonable depends on the risk of harm inherent in the employment-the greater the risk of harm, the higher the degree of care necessary to constitute ordinary care.” The court concluded that the church had not been negligent either in supervising or retaining the janitor:

Concerning her negligent supervision claim, [Diane] failed to demonstrate any evidence that would allow a reasonable jury to determine that the failure to monitor [the janitor’s] use of the telephone was a breach of ordinary care in supervising a church janitor. Her only support for this claim was that [a janitor] should not have been using the telephone. However, a review of the record reveals that the [church] was not even made aware of the telephone calls until the day Diane filed her report with the police department, at which time the telephone calls ceased. Furthermore, there is no evidence to suggest that [the janitor’s position] necessitated a heightened degree of supervision.

Concerning her negligent retention claim, [Diane] failed to demonstrate any evidence that would allow a reasonable jury to determine that [the janitor] was unfit or incompetent to perform his duties as a janitor. There is absolutely no evidence that his criminal conduct affected his ability to be a good janitor, and no allegations have been made that Diane, or any other party, has received harassing telephone calls since [the janitor was caught]. Although it might be admirable for a church to employ only people with high moral integrity and the most unblemished character, there is no evidence to suggest that [the janitor’s] criminal activity affected his ability to maintain the church in a state of cleanliness and to perform the usual janitorial services.

In summary, the trial court determined that the church had no duty to control the use of the telephone by the janitor in the absence of any knowledge that the janitor would use such telephone to make harassing calls …. After the intervention of the police, it is undisputed that the telephone calls ceased in respect to Diane. Consequently, the church owed no duty to her to discharge [the janitor].

Application.This case addresses the important question of when a church is legally responsible for an employee’s wrongful behavior. Some of the janitor’s harassing telephone calls clearly were made from a telephone at the church. Did this make the church liable on the basis of negligent supervision of its employee? No, concluded the court, for the following reasons: (1) the church’s failure to monitor the janitor’s use of the telephone was not a breach of ordinary care in supervising a church janitor; (2) there is no evidence to suggest that the position of janitor necessitates a “heightened degree of supervision”; and (3) the janitor made no more harassing telephone calls after the church learned that such calls had been made. This ruling indicates that some staff positions may require less supervision than others because they are not associated with danger or risk, and that churches cannot be liable for negligent supervision of such employees without specific knowledge that they pose a risk of harm to others. A janitor is just such an employee, the court concluded. The court did not list positions that require a greater degree of supervision, and it did not discuss how such employees could be supervised more closely. It is easy for courts to impose a duty of supervision on employers, but few courts ever describe what such a duty means in practical terms. For example, if a church has a greater duty of supervision with respect to youth pastors, what does this mean? Should the church hire “chaperones” to monitor the youth pastor every second that he or she is on church property or engaged in an official church activity? If this degree of supervision is not necessary, then what is? Very few courts have addressed such questions, and so church leaders have little to guide them in determining what level of supervision should be exercised. This is unfortunate. Of course, we will address any future cases that provide guidance.

The court also ruled that the church was not liable on the basis of negligent retention. It noted simply that the janitor’s inappropriate behavior did not render him unfit to perform janitorial duties. It should be noted that the court emphasized that the harassing telephone calls stopped after the janitor was caught. There is little doubt that the court would have found the church liable on the basis of negligent retention if the janitor had made additional harassing telephone calls after the church learned of his inappropriate behavior and made the decision to retain him. Rivers v. Poisson, 2000 WL 1673440 (R.I. 2000).

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