Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1989-03-01 Recent Developments Personal Injuries on Church Property or During Church

Church Law and Tax 1989-03-01 Recent Developments

Personal Injuries on Church Property or During Church Activities

The Virginia Supreme Court ruled that a church and its pastor can be sued by a mother whose child is sexually assaulted by a church employee. Here are the facts. In 1985, a mother sued a Baptist church and its pastor, alleging that her 10-year-old daughter had been repeatedly raped and assaulted by a church employee. She asserted that the church and minister were legally responsible on the basis of three separate theories. First, she claimed that the church and minister were liable on the basis of “negligent hiring”—i.e., they failed to exercise reasonable care in the selection of the employee. Specifically, she alleged that when the employee was hired, the church and minister either knew or should have known that he had recently been convicted of aggravated sexual assault on a young girl, that he was on probation for the offense, and that a condition of his probation was that he not be involved or associated with children. Despite these circumstances, the individual was hired and entrusted with duties that encouraged him to come freely into contact with children, and in addition was given keys to all of the church’s doors. The mother alleged that the employee in fact came into contact with her daughter on the church’s premises, and had sexual intercourse with her on numerous occasions. Second, the mother alleged that the church and its pastor were liable on the basis of their “negligent supervision” of the employee. Third, the mother alleged that the church and its pastor were legally responsible for her daughter’s injuries because of the their failure to warn parents of the employee’s previous criminal and sexual history. The church and pastor sought a dismissal of the suit, arguing that churches were immune from liability under Virginia law, and also that the employee’s probation and parole were controlled by the Commonwealth of Virginia and could not be delegated to a church. A trial court agreed with the church’s contentions, and dismissed the case. The mother appealed to the state supreme court, which ruled that the church and its pastor could be sued on the theory of negligent hiring. The theories of negligent supervision and failure to warn were not addressed by the court, since the mother’s attorney abandoned them on appeal. The state supreme court rejected the church’s contentions that the theory of negligent hiring either was not recognized under Virginia law, or was not recognized in the context of church employers. It cited earlier decisions in which it had recognized the theory of negligent hiring in the context of charitable employers. The court also rejected the church’s contention that it could not be responsible for criminal acts of employees: “To say that a negligently hired employee who acts willfully or criminally thus relieves his employer of liability for negligent hiring when willful or criminal conduct is precisely what the employer should have foreseen would rob the tort of vitality ….” The court also rejected the church’s claim that it could not be liable since the alleged conduct of its employee was not within the “scope of his employment”: “This argument demonstrates that [the church] is confusing the doctrine of respondeat superior with the tort of negligent hiring …. The two causes of action differ in focus. Under respondeat superior, an employer is vicariously liable for an employee’s tortious acts committed within the scope of employment. In contrast, negligent hiring is a doctrine of primary liability; the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others. Negligent hiring, therefore, enables plaintiffs to recover in situations where respondeat superior’s ‘scope of employment’ limitation previously protected employers from liability.” Accordingly, the church’s contention that “proof that the misconduct was within the scope of the wrongdoer’s scope of employment is misplaced.” The court remanded the case back to the state trial court for a trial on the issue of negligent hiring. What activities on the part of the church would prevent a finding of negligent hiring? Unfortunately, the Virginia Supreme Court did not address this issue, other than to refer to earlier decisions in which it had concluded that (1) an employer need only exercise “due care in the selection and retention of employees,” and once this duty is discharged, it cannot be liable on the basis of “negligent hiring” for injuries caused by its employees, and (2) an employer was responsible for injuries caused by an employee who “got dangerously angry from slight provocation” since “no one made inquiry concerning his past record, habits, or general fitness for the position” (had it done so “it probably would not have offered [him] the job”). Clearly, churches should carefully screen any person who is applying for a position (whether compensated or volunteer) that will involve the custody or supervision of minors. Such screening should involve, at a minimum (1) verification of identity, (2) an application form that seeks information on the applicant’s previous church work and church membership, references, and any criminal convictions, (3) contacting of references and other churches with which the individual has been associated to determine his or her fitness for work with minors, and the making of written memoranda of those contacts, and (4) contacting the local social services agency to ascertain if the applicant has been convicted of any sex-related crime involving minors. This significant issue will be addressed more fully in a feature article in Church Law & Tax Report. J. v. Victory Baptist Church, 372 S.E.2d 391 (Va. 1988).

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