• Key point: A prospective worker’s previous criminal act may have occurred so long ago that it no longer is relevant in evaluating whether or not to use the worker.

• In a significant ruling, an Ohio appeals court ruled that an employer was not liable for a worker’s rape of a 9-year-old girl even though the employer failed to discover that the worker had been convicted of a similar crime 20 years earlier. A metropolitan housing authority hired a general contractor to perform work on some of its apartment units. The general contractor hired a subcontractor who hired a worker to lay floor tiles in vacant apartment units. One morning the subcontractor found two young girls in a vacant apartment with the worker. When questioned, the worker explained that the girls were “helping him.” The subcontractor told the worker that he did not like the arrangement, but did nothing about it. Later that day, the worker took one of the girls (9 years old) to a closet and raped her. The girl and her mother later sued the subcontractor, claiming that it was responsible for the girl’s injuries on the basis of negligent selection and negligent supervision. A trial court dismissed the lawsuit, and the girl and her mother appealed. A state appeals court upheld the dismissal of the lawsuit. In rejecting the claim that the subcontractor was responsible for the girl’s injuries on the basis of “negligent selection” of the rapist, the court observed:

[The subcontractor’s] only duty was to exercise ordinary care. No facts were offered which would give rise to a duty to conduct a criminal background check. Neither side actually presented any evidence of [the worker’s] criminal history. [The subcontractor’s] deposition indicates he was not aware of [the worker’s] past criminal record but said it would not have made any difference since it was more than twenty years old. The trial court found that even if the history were known, it was so remote that it could not reasonably afford a basis of liability against [the subcontractor for the worker’s] future criminal acts. Based upon the state of the record in this case, we must concur that no facts were offered which could establish such a duty.

The court also rejected the claim that the subcontractor was responsible for the girl’s injuries on the basis of its “negligent supervision” of the worker. It observed:

[The victim and her mother] argue that the mere presence of the two young girls alone with [the worker] while he was working in the vacant apartment, when coupled with [the subcontractor’s] knowledge that [the worker] knew at least one of the girls, would put a reasonably prudent person on notice that his employee would sexually assault one of the girls. [The victim and her mother] also point to [the subcontractor’s] statement that “I don’t like it” and [his] failure to do anything about “it.” [The victim and her mother] contend that these facts are sufficient to raise genuine issues of fact that [the subcontractor] negligently breached his duty to supervise [the worker]. Taken at its very best, under circumstances most favorable to the plaintiffs, this might put a reasonably prudent person on notice that the children might be injured by some negligent act at the work site. However, it is a giant leap to say an employer must anticipate the future criminal acts of his employee. In the absence of known criminal propensity, this criminal act was not reasonably foreseeable and cannot be attributed to any act or omission by [the subcontractor]. We reject this argument.

This ruling is significant for the following reasons:

• Reasonable care. The court emphasized that employers only have a duty of exercising “reasonable care” with respect to their workers. They are not “guarantors” of the safety of persons who come in contact with their workers.
• 20-year-old conviction. The most extraordinary aspect of the court’s ruling was its conclusion that a 20-year-old criminal conviction was not relevant in evaluating a worker’s suitability for working around minors. The court observed: “The trial court found that even if the history were known, it was so remote that it could not reasonably afford a basis of liability against [the subcontractor for the worker’s] future criminal acts. Based upon the state of the record in this case, we must concur that no facts were offered which could establish such a duty.” What does this mean? This is one of the first indications by a court that the relevance of a criminal conviction may diminish with time. Many church leaders have wondered whether they should use a prospective youth worker who was convicted of a crime many years ago. This case suggests that it may not be negligent to do so in some cases. The time interval in this case was 20 years. There are three points to emphasize here. First, very few courts have addressed the issue of the relevance of old criminal convictions in evaluating the suitability of workers. Other courts may not reach the same result as this court. Accordingly, this case should not be relied upon without the advice of legal counsel. Second, this case will be very useful in defending against a lawsuit that seeks to hold a church liable for the sexual misconduct of a worker with an old criminal conviction. Third, medical authorities generally have concluded that pedophilia is an incurable condition that at best can be controlled under very limited circumstances. Pedophilia refers to sexual contact with (or orientation toward) pre-adolescent minors. If pedophilia is incurable, then the number of years that have passed since a prospective worker was convicted of a crime involving inappropriate contact with a pre-adolescent minor is not relevant. It does matter that the conviction occurred 20 or even 40 years ago. If the conviction was based on pedophilic behavior, and pedophilia is incurable, then a church should never give such a person a “second chance” and place him or her in a position involving contact with minors.
• Criminal record checks. Another extraordinary aspect of the court’s ruling was its conclusion that the subcontractor did not even need to conduct a criminal records check. It noted that the subcontractor only had a duty to exercise “ordinary care” and that “[n]o facts were offered which would give rise to a duty to conduct a criminal background check.” In other words, not only was it irrelevant that the worker was convicted of a crime 20 years before he was hired, but it also was irrelevant that the worker’s employer never conducted a criminal records check.
• Negligent supervision. The court acknowledged that the worker’s employer was aware that he was alone with two young girls on the day of the rape; that he knew one of them; and, that the employer informed the worker that he “did not like” the fact that the worker was using young girls to “help him” in his work. However, the court insisted that such information did not make the employer responsible for the worker’s conduct. It noted that “it is a giant leap to say an employer must anticipate the future criminal acts of his employee. In the absence of known criminal propensity, this criminal act was not reasonably foreseeable and cannot be attributed to any act or omission by [the subcontractor].” This aspect of the court’s ruling will be helpful to churches that are sued for criminal acts of molestation committed by youth workers. A church may be aware of some information that suggests a higher degree of supervision is warranted with respect to a particular worker. But, it is a “giant leap” to say that on the basis of this information a church must anticipate future criminal conduct. The court concluded that a criminal act (raping a 9-year-old girl) is not reasonable foreseeable and therefore cannot be attributed to the employer in the absence of “known criminal propensity.” Since the employer did not know of any prior criminal behavior by the worker and had no duty to conduct a criminal records check to find out, it could not be responsible for the worker’s criminal act.

In conclusion, this case will be helpful in the defense of churches that are sued for the acts of child molestation by youth workers. However, as noted above, it should not be relied upon by any church without the advice of legal counsel. Peters v. Ashtabula Metropolitan Housing Authority, 624 N.E.2d 1088 (Ohio App. 11 Dist. 1993).

See also the feature articles in this newsletter entitled “Denomination Found Liable for Pastor’s Misconduct” and “Personal Liability of School Officials for Sexual Misconduct of Teachers.”
See Also: Negligent Selection | Negligent Supervision

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