Key point 10-12. Churches face a number of legal risks when they offer counseling services by ministers or laypersons. These include negligent selection, retention, or supervision of a counselor who engages in sexual misconduct or negligent counseling. A church also may be vicariously liable for a counselor’s failure to report child abuse, breach of confidentiality, and breach of a fiduciary relationship.
* A New York court ruled that a husband whose wife was seduced by a pastor while serving as a marriage counselor could sue the pastor and church for breach of a fiduciary duty, and the church for negligent supervision and negligent retention. A pastor provided marital counseling to a couple in his church. In addition to serving as a marriage counselor, the pastor presided over various church-sponsored functions, including weekend “marriage retreats,” which the couple attended. On one occasion the pastor informed the husband that some church members were alleging that the pastor was having an affair with the wife. The wife, and the pastor, both assured the husband that the accusations were false. The husband then asked the church to investigate and was advised that the proper procedure was to file a grievance. Prior to filing the grievance, the husband and his wife met with a church officer who urged him not to file a grievance that would cause negative publicity for the church and would ultimately result in no findings because the accusations were false. The husband agreed not to file a grievance, and the pastor continued to provide marital counseling to the couple for another two years until the wife finally admitted that she and the pastor were romantically involved.
Upon learning of the relationship, the husband sued the pastor. He also sued the church and a regional denominational agency (the “church defendants”) for breach of a fiduciary duty, negligent supervision, negligent retention, and emotional distress.
Breach of a fiduciary duty
The court noted that in New York a fiduciary relationship “requires a showing of a relation between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation,” and that “emotional and psychological damages are recoverable on a claim for breach of fiduciary duty.”
The court concluded that the pastor’s decision to act as marriage counselor made him a fiduciary. It put him “in a position of trust, in which he had a duty to act honestly and advise [the husband] in furtherance of his interest in preserving his marriage, which was the object of the relationship.” The court noted that the husband’s lawsuit alleged “acts of disloyalty and injurious conduct” by the pastor, and that “this is not just a case of a minister engaged in a consensual sexual relationship while acting as a spiritual adviser.” Instead, the husband’s allegations “if proven, are sufficient to sustain a claim of breach of fiduciary duty against [the pastor], for deceiving him and undermining his marriage, while continuing to act as his marriage counselor.”
However, the court ruled that any sexual relationship between the pastor and the wife was outside the scope of the pastor’s duties, meaning that the church defendants could not be liable for the pastor’s conduct.
Negligent supervision and retention
The court noted that a claim for negligent supervision or retention arises “when an employer places an employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in supervising or retaining the employee.” An “essential element” of both negligent supervision and negligent retention is that the employer “knew or should have known of the employee’s propensity for the conduct that caused the injury.”
The court concluded that the husband’s lawsuit stated a valid claim for negligent retention and supervision against the church defendants:
A fair reading of the complaint is that [the pastor] engaged in marriage counseling and conducted church-sponsored marriage retreats on their behalf. Assuming that the church defendants knew, or should have known, that he was having sexual relations with plaintiff’s wife, then they could be held liable for negligent supervision and/or retention in light of the allegations that: (1) [a church officer] received accusations from three parishioners about the affair; (2) the plaintiff’s wife was not an isolated case; (3) the [church officer] dissuaded plaintiff from filing a grievance which would have resulted in an investigation; and (4) the [church officer] represented that the accusations were false when he knew, or should have known, otherwise. Plaintiff alleges that the officer was told that the pastor was having an affair with plaintiff’s wife and for two and a half years, the church defendants permitted the marital counseling to continue, while actively discouraging plaintiff from initiating an investigation. Thus, accepting plaintiff’s version of the facts, the church defendants knew, or should have known, of the pastor’s propensity to engage in harmful conduct, but decided to look the other way.
The court dismissed the husband’s claim for emotional distress. It noted that such a claim must allege “outrageous conduct that exceeds the bounds of decency tolerable in civilized society,” and “is a theory of liability that is to be invoked only as a last resort.” Further, “when the complained-of conduct is embraced by a traditional tort which provides for emotional damages, the cause of action for infliction of emotional distress should be dismissed. Such is the case here where viable claims for the traditional torts of breach of fiduciary duty and negligent supervision and/or retention, exist.”
Application. This case illustrates two important legal principles with which church leaders should be familiar. First, when pastors serve a marriage counselors, it is much more likely that they will be deemed to be engaged in a “fiduciary relationship.” This means that they have a duty to act in the best interests of counselees and do nothing to harm them. A breach of this duty may lead to personal liability.
Second, the court ruled that a church may be liable on the basis of negligent supervision for failing to adequately supervise a pastor if it “knew or should have known” of the pastor’s propensity to commit conduct that causes injury to another person. Similarly, a church may be responsible on the basis of negligent retention for retaining a pastor after it “knew or should have known” of the pastor’s propensity to cause harm to others. The lesson is clear. Church leaders that ignore “warning signs” that a staff member (employee or volunteer) has a propensity to engage in a particular kind of harmful conduct may expose their church to liability on the basis of negligent supervision or negligent retention if the staff member harms one or more persons while engaging in the same kind of harmful conduct. Warning signs must be promptly addressed, and appropriate actions taken. A good question to ask is this, “How would a jury view our response to information suggesting that a staff member constitutes a risk of harm to others? Would a jury conclude that we have acted in a reasonable manner, and that our response was appropriate in light of the nature of the risk?” 820 N.Y.S.2d 682 (N.Y. Sup. 2006).