Officers, Directors, and Trustees – Part 1

An Illinois court ruled that board members could be personally liable for the molestation of a child on a school bus.

Church Law and Tax2004-05-01

Officers, directors, and trustees – Part 1

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.
Church Officers, Directors, and Trustees

* An Illinois court ruled that board members could be personally liable for the molestation of a child on a school bus, despite a state law conferring limited immunity from liability, because their behavior in failing to adequately protect the victim was willful and wanton. While this case involved a public school board, the court’s ruling is directly relevant to every church. A 12-year-old special education student (the “victim”) at a public school had various developmental and mental disabilities. One day, while being transported to school, the victim was sexually assaulted by a male student who had a deviant sexual history and, as a result of having been declared a sexually aggressive child, was under a “protective plan.” While the board employed a bus attendant to supervise the children on the trip to and from school, on the day of the sexual assault the bus attendant called in sick.

The victim sued the members of the school board, claiming that they were responsible for his injuries. State law grants limited immunity from liability to school board members, meaning they cannot be personally liable for their acts unless they are guilty of “willful or wanton” misconduct. The victim alleged that the board members were guilty of willful and wanton misconduct because they (1) failed to ensure that a school bus attendant was present on the bus while he was a passenger; (2) failed to transport him with reasonable safety; (3) failed to maintain discipline on the bus transporting him; (4) failed to prevent the perpetrator from sexually assaulting him; (5) failed to respond to his cries for assistance in protecting himself against the sexual assault; (6) failed to provide adequate supervision on the bus while knowing its passengers were developmentally disadvantaged; (7) failed to provide adequate supervision on the bus while knowing that one of the passengers was sexually deviant; (8) failed to put adequate protections or precautions in place to protect passengers from harming each other; and (9) failed to employ and enforce safety measures, such as requiring passengers to sit in place.

A state appeals court ruled that the victim alleged sufficient proof of willful and wanton misconduct by the board to let the case go to a jury. It observed, “Plaintiff has properly pled knowledge on the part of the board that the attacker was likely to commit a sexual assault on the passengers and that an attendant was required.”

Application. This case is of immense importance to church board members. Like public school board members, uncompensated church board members are granted “limited” immunity from personal liability for their actions. The immunity is “limited” in the sense that it does not apply to willful or wanton misconduct. Is it possible for church board members to be guilty of such conduct in the performance of their duties? Absolutely, and the significance of this conclusion must be understood. It means that board members who are guilty of such behavior face personal liability for their acts or omissions. This case sheds some light on the meaning of willful and wanton misconduct. The court concluded that the school board members may have been guilty of such behavior because they did not adequately protect the victim from a known sexual predator. The very same principle could easily apply to church board members who do not adequately restrict or monitor a known sexual predator on church premises. A simple example will illustrate this point. Bob is a registered sex offender who previously was convicted of molesting a child. He served time in prison, but was released a few years ago. He has started attending a church, and the church board learns of his background. Some members of the board are concerned about having Bob attend the church, and they speak with him. Bob assures them that he was “rehabilitated” while in prison, and no longer poses a risk of harm to anyone. Nothing is done to monitor Bob. Several months later, Bob is charged with the molestation of a child on church property. The board is distressed by this development, but take comfort in the fact that they are immunized from personal liability by state law. They should not assume that they are protected against personal liability by a state law conferring limited immunity from liability on the acts of uncompensated church board members. Such laws do not apply to willful and wanton misconduct, and according to the case discussed in this development, it is possible that a court would conclude that the board was guilty of such behavior by allowing Bob unrestricted and unsupervised access to church property despite its knowledge that he is a registered sex offender. Doe v. Chicago Board of Education, 791 N.E.2d 1283 (Ill. App. 2003).

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