Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.
Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker's acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and 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 Colorado ruled that a church was not liable on the basis of negligence or fiduciary duty for a Sunday School teacher's sexual relationship with one of his adolescent students off of church premises. A 40-year-old male (the "defendant') became a volunteer Sunday School teacher at his church for a group of adolescent minors. The church had a "two-deep" policy for certain settings where two adults had to be present, including Sunday classrooms with children ages 11 or younger. The church did not apply the two-deep policy to teenage Sunday School classes because there were several teenagers in the classroom, the doors were not locked, the church was full of people, other adults were frequently in and out of the classroom, and the class was short.
The church did not conduct background checks on Sunday School teachers, and none was conducted on the defendant. If a criminal background check had been conducted, it would have revealed the following:
- 2002: The defendant was arrested for a misdemeanor violation of a restraining order;
- 2002: In a domestic relations matter, a permanent protective order was entered by consent with no admission of the allegations;
- 2003: The defendant was found guilty of four counts of violation of a custody order (class 5 felony), fined, and sentenced to 60 days work release and three years' probation as a result of his moving with his children to Tennessee without court approval;
- 2003: The defendant pled guilty to violating a restraining order, resulting in a fine, suspended jail sentence, and probation.
- 2005: The defendant was arrested for violating a restraining order for calling his ex-wife 38 minutes after the time permitted by the order.
- 2005: The defendant was arrested for violating a restraining order for calling his ex-wife eight minutes prior to the time permitted by the order.
- 2008: The defendant was arrested for misdemeanor violation of a restraining order. He had called his daughter on her birthday.
In the Sunday School class the defendant taught, there were anywhere between five and 12 students, including both boys and girls. There was no co-teacher. There were two doors to the room, which were closed during class. The doors had a peephole that allowed people to look into the room. During class, the defendant became acquainted with a 15-year-old girl (the "plaintiff"). He often texted her while teaching, but was never alone with her during class and had no physical contact with her.
The plaintiff began communicating with the defendant outside of class. Initially, it was "just regular conversation," usually by texts. But over the next few months they communicated by text messages hundreds of times, and by phone "thousands and thousands of times." This usually occurred between 9 p.m. to 2 a.m. or 3 a.m., when the defendant got off work. The relationship ultimately resulted in sexual intercourse on at least two occasions, at the plaintiff's home. The defendant led the plaintiff to believe he wanted to have a long-term relationship with her. He said he wanted to marry her. She considered marrying him when she turned 18. However, the plaintiff saw on Facebook that the defendant had another woman in his life. Once plaintiff realized she was not going to get married to the defendant, she felt hurt, betrayed, manipulated, and angry. She called and told her mother, who reported the matter to the police. At first, plaintiff told her mother that she had been raped because she felt like she had—that the defendant had manipulated her into believing it was okay.
The defendant pled guilty to sexual assault with a 10-year age difference, a class 1 misdemeanor.
Negligent hiring
The court began its opinion by noting that negligent hiring involves an "employer's responsibility for the dangerous propensities of the employee, which were known or should have been known by the employer at the time of hiring, gauged in relation to the employee's job duties …. An employer has a duty to exercise reasonable care in making his decision to hire …. The requisite degree of care increases, and may require expanded inquiry into the employee's background, when the employer expects the employee to have frequent contact with the public or when the nature of the employment fosters close contact and a special relationship between particular persons and the employee."
The plaintiff claimed that the church had a duty to protect her from the sexual assaults occurring off church premises, and that it violated this duty by appointing the defendant as a Sunday School teacher. The court disagreed:
Plaintiff argues this duty existed because the church was aware of the defendant's history of domestic violence and crimes involving his own children, but failed to discover his character to cause harm to women and children. The undisputed facts, however, are to the contrary. Instead, the evidence establishes that, at the time of his calling [as a Sunday School teacher] the defendant had been a church member for several years; his membership record bore no annotation for abuse; and [church leaders] were only aware that around the time of the end of his first marriage he had taken his children across state lines, which [church leaders] viewed as domestic issues between a husband and wife. Such facts show no propensity or characteristic that put the church on notice that the defendant posed a risk of harm to minors as implicated in this case.
The plaintiff also argued that the church had a heightened duty to investigate due to the defendant's regular contact with the public. The court disagreed, noting that even if teaching a weekly 40-minute Sunday School class to a limited number of students in a group setting was sufficient "regular contact" requiring an independent inquiry, that inquiry would have shown violations relating to domestic disputes that did not "put the church on notice of any character or propensity on the part of the defendant to engage in sexual misconduct involving a minor at church or, for that matter, anywhere else."
Negligent supervision
In a claim for negligent supervision against an employer, the plaintiff must prove that the defendant "knew his employee posed a risk of harm to the plaintiff and that the harm that occurred was a foreseeable manifestation of that risk." As with negligent hiring, liability is "predicated on the employer's antecedent ability to recognize a potential employee's attributes of character or prior conduct which would create an undue risk of harm to those with whom the employee came in contact in executing his employment responsibilities."
The plaintiff claimed that the church was responsible for the defendant's acts on the basis of negligent supervision. In particular, she cited the lack of:
- training of the defendant before assigning him the role as a Sunday School teacher;
- a co-teacher in the Sunday School class;
- a window in the closed Sunday School classroom door; and,
- supervision in general.
The court noted that "before a duty of care may exist there must be a connection between the employer's knowledge of the employee's dangerous propensities and the harm caused. In this case, there is insufficient evidence that any alleged supervision deficiencies caused the harm." For example, "there is no evidence that the defendant's lack of training on religious education was the cause of the sexual intercourse, and it should go without saying that an employer need not have to train a 40-year-old adult male that he is prohibited from engaging in sexual intercourse with a 15-year-old. There is also no evidence that the lack of a co-teacher or a window in the classroom door caused the harm—the sexual interactions occurred at night, outside of plaintiff's house."
"Grooming"
The plaintiff alleged that the defendant "groomed" her during Sunday School class, that the grooming occurred due to a lack of supervision, and that the intercourse would not have occurred without the grooming. The court noted that the plaintiff failed "to identify specific conduct constituting grooming; to tie that conduct to the Sunday School class; and to explain how that conduct would have been deterred by some specific form of supervision." Even if this conduct could be deemed grooming, "it would be dwarfed by the non-controllable instances of identical conduct. Plaintiff testified that she and the defendant exchanged hundreds of text messages and thousands of calls outside of church—all between about 9 p.m. to 2 a.m. or 3 a.m.—when the defendant got off work. If any grooming occurred, it was far from a time and place connected with the defendant's 'employment' at the church."
Fiduciary relationship
The plaintiff also claimed that the church was liable for the defendant's wrongful acts on the basis of a breach of its "fiduciary duty" to her. In particular, she asserted that the church and defendant were acting as fiduciaries in providing religious instruction and creating a setting for interaction which created trust and reliance. In support of her argument, plaintiff further noted that the defendant and church placed themselves in a position of superiority, trust, and influence and she, then age 15, was vulnerable and dependent.
The church countered by asserting that "no court has recognized a fiduciary duty based on a basic clergy-congregant relationship" much less a Sunday School teacher-student relationship. In other words, attending church or its Sunday School "does not create a fiduciary relationship between the church/school/teacher and the parishioner/student."
The court concluded:
What is notably absent is any evidence that the defendant and church [the defendants"] assumed any duty to act in plaintiff's best interest or that plaintiff reposed any trust or confidence in and relied on defendants to protect her interest. Instead, she was a visiting parishioner, present at church services like all other parishioners and at Sunday School like other young men and women. She was free to attend or not attend, as demonstrated by her testimony that she attended anywhere from three to 20 occasions. Such undisputed facts do not support the existence of a fiduciary relationship between defendants and plaintiff. Similarly, plaintiff's bare allegations and arguments that a fiduciary duty existed, without any evidentiary basis to show such a duty in fact existed, are insufficient.
What This Means For Churches:
This case is instructive for the following reasons:
First, it demonstrates that not all crimes render one unfit for children's ministry. The defendant's criminal record was limited to various violations of child custody agreements.
Such crimes, the court concluded, did not suggest that he was a risk to minors.
Second, the court concluded that a failure to conduct a criminal records check on a church volunteer who will work with minors does not, by itself, make a church liable for the volunteer's wrongful acts. A failure to conduct a criminal records checks is irrelevant if such a check would not have revealed any crimes suggesting that the person poses a risk of harm to minors.
Third, the court suggested that the "degree of care increases, and may require expanded inquiry into the employee's background, when the employer expects the employee to have frequent contact with the public or when the nature of the employment fosters close contact and a special relationship between particular persons and the employee." However, the court concluded that an "expanded inquiry" into the defendant's past would not have revealed any facts suggesting he was a risk of harm to minors.
Fourth, the court rejected the plaintiff's argument that it was responsible for her injuries on the basis of negligent supervision since it failed to adequately train the defendant, did not have a co-teacher in the classroom, and did not have a window in the classroom. It noted that there was "insufficient evidence that any alleged supervision deficiencies caused the harm." For example, "there is no evidence that the defendant's lack of training … was the cause of the sexual intercourse, and it should go without saying that an employer need not have to train a 40-year-old adult male that he is prohibited from engaging in sexual intercourse with a 15-year-old. There is also no evidence that the lack of a co-teacher or a window in the classroom door caused the harm—the sexual interactions occurred at night, outside of plaintiff's house."
Fifth, the plaintiff alleged that she and the defendant had exchanged hundreds of text messages and thousands of calls outside of church. Such communications, the court concluded, were too far removed from the church to serve as a basis for liability. But, at a minimum, they suggest that social media contacts between adult youth workers and minors in the youth group are inappropriate, and may lead to a sexual relationship that in some cases may expose a church to liability. Such communications should be absolutely banned.
Any need to communicate with minors should be done through their parents. When social media communications evolve into "sexting," this can expose the adult participant to criminal liability, as has been noted in several previous articles in this newsletter. Lindeman, 2014 WL 2505647 (D. Colo. 2014).
* See also Insurance, Drew v. Insurance Company, 2014 WL 2436273 (D.N.J. 2014), in the Recent Developments section of this newsletter.
