Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.
Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on First Amendment considerations.
A federal court in Vermont ruled that a church and its parent denomination could be liable for a pastor’s acts of child molestation on the basis of negligent supervision, but not on the basis of a “duty to warn” the congregation of the pastor’s dangerous propensities. A woman (the “plaintiff”) sued her former church, its pastor, and the national denomination with which the church is affiliated, claiming that she had been sexually molested by the pastor when she was a minor. The plaintiff’s mother eventually learned of the abuse, and reported it to church officials. The officials took no action against the pastor, issued no warnings to the congregation, and did not report abuse to any child protective agency or police agency. The plaintiff claimed that the pastor abused at least three other minors before abusing her, one of whom reported the abuse to the church, which took no action.
The plaintiff sued the church in a federal district court for breach of fiduciary duty, negligence, breach of a duty to warn the congregation, ratification, and fraud.
The plaintiff claimed that the church defendants entered into a fiduciary relationship with her by permitting the pastor to hold himself out as a representative of the church, and that this duty was breached by the church defendants’ failure to prevent the pastor from molesting her.
The court noted that a fiduciary relationship exists “when a principal is dependent upon, and reposes trust and confidence in the fiduciary.” It concluded that a fiduciary relationship does not exist between a church or pastor and a member of the congregation as a result of membership status. A fiduciary relationship “can only be inferred from a specific relationship between a fiduciary and the principal, not from a principal’s general status as a member of a church.” The court concluded that since there were no special facts that would create a fiduciary relationship, such as a counseling relationship between the pastor and plaintiff, this basis of liability had to be dismissed.
The court noted that “to hold a defendant liable for negligence, a plaintiff must establish the defendant owed her a particular duty of care, it breached that duty of care, and the breach harmed the plaintiff.” The plaintiff claimed that the church defendants had duties to:
1. supervise the pastor
2. control him
3. protect the plaintiff from him, and
4. warn her of his vicious propensities.
The plaintiff argued the church defendants breached these duties of care by allowing the pastor to have unsupervised contact with her, by failing to supervise the pastor, by choosing not to investigate him, and by concealing information about his vicious propensities from her parents.
(1) duty to supervise the pastor
The plaintiff claimed the church defendants “had a duty to provide reasonable supervision” of the pastor. The court agreed, noting that “in cases regarding the liability of religious organizations for negligent supervision of their clergy, the courts have held that in order for a duty to have existed, the organizations must have known or should have known that misconduct was occurring.” The court concluded: “If the pastor connected with the plaintiff and her family through his position at the church and the church was forewarned of the danger he posed, the church may have had a duty to supervise him. This is sufficient to state a claim for negligent supervision.”
(2) duty to control the pastor
The court noted that “generally, there is no duty to control the conduct of another to protect a third person from harm. An exception to this rule may arise where there is a special relationship between two persons which gives one control over the actions of another.” A “special relationship” can arise “where an off-duty employee’s negligent acts occurred on the employer’s premises” or “where the employer voluntarily and knowingly assumes a duty of control.”
The plaintiff alleged that the pastor molested her on his personal property, not on property belonging to the church defendants. She claimed that the church defendants had a duty to protect her from the pastor because it was aware of his prior abuse of minor congregants. But the court noted that “mere foreseeability is insufficient to establish a duty to control if the employee is not on the employer’s premises.”
The court concluded that there is no “special relationship” between the church defendants and the pastor giving rise to a duty “when he was not on the church’s premises or carrying out its business, and therefore the church had no duty to control him when he was … outside church activities.” As a result, “to the plaintiff’s negligence claim depends on the existence of a duty to control, that claim is dismissed.”
(3) duty to protect the plaintiff
The court noted that “to state a claim for negligence based on a duty to protect, the plaintiff must show the church voluntarily assumed an obligation to protect her in particular from the pastor. At this time, to the extent her negligence claim depends on the existence of a duty to protect, it is dismissed without prejudice.”
(4) duty to warn
The plaintiff claimed the church had a duty to warn members of the pastor’s dangerous propensities. The court disagreed: “[We find] no duty to warn distinct from a duty to protect exists in the context of institutional sex abuse cases. Accordingly, to the extent the plaintiff’s negligence claim depends on the existence of a distinct duty to warn, it is dismissed with prejudice.”
The plaintiff asserted that the church defendants were liable for the pastor’s wrongful acts on the basis of the legal theory of “ratification.” Ratification is “the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority.” Under this theory, an employer “may ratify the unauthorized act of its employee, i.e., an act not within the scope of the employment, and thereby become obligated to the same extent as if the principal had originally authorized the act.” The plaintiff claimed that the church defendants ratified the pastor’s wrongful acts by refusing to remove or discipline him after learning of his molestation of the plaintiff.
The court refused to recognize ratification as a separate basis for liability in sex abuse cases since it had never been recognized by the state supreme court.
What This Means For Churches:
This case underscores two points.
First, most courts have rejected “breach of a fiduciary duty” as a basis for church liability in child molestation cases based solely on the victim’s status as a member of the church. There must be a “special relationship,” such as a counseling relationship, for a fiduciary duty of protection to arise.
Second, and most importantly, the court agreed with the plaintiff that the church defendants had a duty to supervise the pastor once they became aware of his propensity to molest minors. And, a violation of this duty amounted to negligent supervision for which the church defendants were liable. This is an important conclusion that has been recognized by many courts. Church leaders that learn that a pastor or other employee or volunteer has had inappropriate sexual contact with a minor (or adult), and that for whatever reason decide to retain him, have a legal duty to supervise him to prevent future harm. Most church leaders conclude that it would be impossible to adequately supervise a sex offender, and for this reason terminate the person’s employment or volunteer service. But the takeaway point is that church leaders should never retain a known or reasonably suspected sex offender without legal counsel. The risks are too great, as this case illustrates. Lewis v. Congregation, 95 F.Supp.3d 762 (D. Vt. 2015).