Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor 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.
* A federal court in Kansas ruled that a victim of child abuse made a viable claim against a charity that hired the molester as a youth worker despite knowledge of a history of sexual misconduct. An adult male (“Don”) worked as a volunteer wrestling coach for an amateur wrestling club (the “charity”). He met a 13-year-old male (the “victim”) who participated in the charity’s wrestling program. During the next two years, Don molested the victim in a variety of locations, including his own home.
Don had a history of sexual misconduct. He was prosecuted several years before for sexual misconduct with young males in another state. The prosecution is a matter of public record. The victim sued the charity, claiming that it was responsible for Don’s wrongful acts on the basis of several theories, including negligent selection. Specifically, the victim argued that the charity knew about Don’s history of sexual misconduct with young males and that he was likely to commit future harm to children, and that it “ratified, abetted and enabled” him to abuse the victim by permitting him to act as a volunteer coach. In addition, the victim argued that the charity was liable for failing to report Don to the proper authorities upon receiving information that he was engaging in sexual misconduct with minors. The charity asked the court to dismiss all of the victim’s claims.
The court noted that a motion to dismiss is appropriate only when “it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claims which would entitle it to relief.” The court ruled that a dismissal of the victim’s claims was inappropriate since he had produced sufficient evidence in support of those claims. It noted that liability based on “aiding and abetting others” requires proof of the following: (1) the person whom the defendant aids must perform a wrongful act causing injury; (2) at the time the defendant provides assistance, he or she must be generally aware of his or her role in part of a wrongful or illegal activity; and (3) the defendant must knowingly and substantially assist in the violation.
The court concluded that the victim had produced sufficient proof of “aiding and abetting” to survive a motion to dismiss. He “certainly alleges that Don performed a wrongful act causing injury. Additionally, he alleges that the charity knew about Don’s past sexual misconduct with minors in athletic programs, knew that he was likely to commit future harm to children … and it nevertheless permitted him … to act as a volunteer coach. The victim further alleges that it failed to report Don to the proper authorities upon receiving information that he was engaging in sexual misconduct with students. These allegations generally indicate that the charity was aware of its role in Don’s misconduct during the time period when he was serving as a volunteer in their programs and that it knowingly and substantially assisted in his misconduct by allowing him to continue as a volunteer in their programs and not reporting him to the proper authorities. These allegations are sufficient to state a claim under an aiding and abetting theory.”
The court also ruled that there was sufficient evidence that the charity “ratified” Don’s behavior to let this claim proceed to trial. It observed: “Upon acquiring full knowledge of all the material circumstances of an agent’s unauthorized act, the principal must promptly repudiate the act or it will be presumed that the principal has ratified and affirmed the act.” According to the victim, the charity “knew about Don’s propensities and nevertheless allowed him to serve as a volunteer … and then failed to report him to the authorities once it learned about his misconduct.”
Application. This case is important for the following reasons. First, the court ruled that a charity can be liable for a volunteer’s acts of sexual misconduct on the basis of “aiding and abetting” and “ratification.” Few courts have recognized these grounds for liability in sexual misconduct cases in the past. Second, the court concluded that the charity was aware of Don’s propensity to molest children, in part because he had been prosecuted for child molestation several years before in another state and this proceeding was a matter of public record. This conclusion suggests that churches and other charities that conduct criminal records checks on youth workers should do so on a national basis, since they may be responsible for knowing criminal prosecutions and convictions that are matters of public record in other states. C.T. v. Liberal School District, 2007 WL 1579472 (D. Kan. 2007).
