Injuries on the Playground

Court rules church not liable for injuries based on gross negligence.

KEY POINT 6-08 State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.

* An Arkansas court ruled that a church was not liable on the basis of gross negligence for injuries to a young child who was pushed off a piece of playground equipment by another child. A mother was required to sign a release when she enrolled her 3-year-old daughter (the "victim") in a church's preschool program. The release specified that the church would be liable only for gross negligence. The victim was injured when she was shoved off a piece of elevated playground equipment by a 3-year-old boy. The mother sued the church, claiming that it was responsible for her daughter's injuries on the basis of its gross negligence in failing to adequately supervise children playing on the elevated equipment. A trial court dismissed the case on the ground that the church had not been grossly negligent. A state appeals court affirmed this ruling. It defined gross negligence as "the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another," and concluded that the church's acts did not satisfy this definition. It concluded: "Under this analysis, we cannot say that the trial court erred by granting summary judgment on the grounds that there was no evidence of an intentional failure on the part of the daycare to perform a manifest duty. There was evidence that the three-year-old who pushed [the victim] off of the playground equipment had behavioral problems involving aggression toward daycare personnel and other children, but there was nothing to show that these problems were so unusual or severe that there was a manifest duty on the part of the daycare to segregate the boy from the other children during supervised play."

The court referred to an earlier case in which a school was found not to have been grossly negligent as a result of a bus driver's failure to prevent a girl from being raped by a male student. The court in the previous case concluded:

We cannot say that [the bus driver's] conduct rose to the level of gross negligence or reckless indifference. There is no evidence showing that he intentionally failed to perform a manifest duty in reckless disregard of the consequences as affecting the life of [the victim] nor that he intentionally performed an act of an unreasonable character in disregard of a risk to [the victim] that was known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow …. The [victim alleged that the bus driver] was grossly negligent or recklessly indifferent because he knew that [the assailant] was a problem student that he had to keep his eye on and failed to do so. However, [the victim] failed to provide any evidence that such a failure was in any way intentional …. [The victim] also asserted that [the driver] was grossly negligent or recklessly indifferent because of his knowledge of an incident during the prior year when Mary complained to Baum that another student, Kenny, had improperly touched her. Appellants contended that such earlier incident put him on notice that inappropriate sexual conduct had occurred on the bus. However, there was no evidence of an intentional failure to perform a manifest duty or intentional performance of an act with disregard of a known or obvious risk as a result of the earlier incident. Appellant does not cite any authority, and we know of none, that holds that an incident involving another student during the previous year establishes that a failure to observe or respond to an unobserved incident a year later rises to the level of gross negligence or reckless indifference. Appellants have failed to provide evidence to support the allegation that Baum intentionally failed to perform a manifest duty or act with disregard of a known or obvious risk on the day the incident occurred with regard to James. Applying our standard of review of summary-judgment cases to the present case, we hold that there exists no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law on the issues of gross negligence and reckless indifference. Doe v. Baum, 72 S.W.3d 483 (Ark. 2004).

Application. This case is important because of the court's definition of gross negligence. Church leaders should be familiar with the concept of gross negligence, since such behavior not only exposes a church to punitive damages in most states, but it also exposes members of the church board to personal liability. While the definition of gross negligence varies slightly from state to state, this court stressed the necessity of intentionality in failing to perform a duty to protect others from injury. While the church's preschool workers may have been inattentive, and even negligent, in their supervision of the young children on the elevated playground equipment, their conduct did not rise to the level of an intentional failure to perform their duty of care in supervising the children. On the other hand, it is possible, if not likely, that church board members who refuse to implement a policy for the screening of children's workers would be deemed grossly negligent in the event that a registered sex offender is hired to work with children and later molests one or more of them. The board's refusal to implement such a policy might well be deemed by a jury to constitute an intentional breach of the duty of care the church owes to children, thereby exposing the board members to individual liability. The same might be true if a church board allows minors to be transported to an off-campus activity in a fully loaded church-owned 15- passenger van. In either case, the actions of the church board might be deemed to be grossly negligent, thereby eliminating the limited immunity from personal liability that is otherwise enjoyed by uncompensated board members of nonprofit corporations. 2007 WL 1277900 (Ark. App. 2007).

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