• Key point. In some states, the members of an unincorporated church cannot sue the church for the acts of other members, or other members themselves. However, they may be able to sue a nonmember.

An Indiana court ruled that a church member who was injured when she fell on church premises could not sue her unincorporated church, but could sue the church janitor who was not a member of the church and who she claimed negligently waxed the floor. The court observed that

the general common law rule in Indiana is that members of an unincorporated association cannot sue the association for the [negligence] of one or more of its members. Because [the victim] is a member of [the church] she is barred, pursuant to this rule, from suing the church. Thus [her] sole remedy is to sue [the defendant], a non—member, part—time janitor …. Although the rule protecting an unincorporated association from a suit by its own members was originally adopted in an attempt to prevent collusive lawsuits between the members of an association, we find it hard to believe that the rule was also intended to allow a part—time employee of an association to shoulder the sole responsibility for a member’s accident. Because we find it hard to accept that a non—member employee of an unincorporated association should be exposed to such liability of that an injured plaintiff could only look to the pockets of a non—member employee, we believe that it may be time to take another look at the rule and particularly the rule’s impact on the employees of unincorporated associations and injured plaintiffs.

The court concluded that the janitor may have been negligent in improperly waxing the church floor, and it permitted the victim to proceed with her lawsuit against him. This case illustrates the bizarre legal consequences that sometimes flow from unincorporated status. MacDonald v. Maxwell, 655 N.E.2 1249 (Ind. App. 1995). [ Unincorporated Associations]

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