Key point 10-07.2. Many courts have ruled that the first amendment prevents churches from being legally responsible on the basis of negligent retention for the misconduct of ministers.
Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of first amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.
A federal appeals court ruled that various church agencies and officers could not be liable on the basis of negligence for the sexual molestation of an adolescent boy by a pastor.
An adult male (the plaintiff) alleged that in 1994 and 1995 when he was a minor he was sexually molested on a number of occasions by a pastor (Pastor Fred) who was serving as a "pastor emeritus" in a church in Massachusetts affiliated with the Lutheran Church-Missouri Synod (LCMS). In 1997 Pastor Fred was prosecuted and convicted of various criminal charges relating to his molestation of the plaintiff.
The plaintiff sued various LCMS agencies and officers (the church defendants) on the ground that they employed or supervised or retained Pastor Fred in a position of trust with the knowledge that he had a history of sexually assaulting minors. Plaintiff alleged that in 1977, while serving as a pastor in New York, Pastor Fred was forced to leave his post because of "inappropriate behavior" towards female members including minors. The plaintiff further alleged that an LCMC officer having jurisdiction over churches in New York had personal knowledge of Pastor Fred's misconduct. However, in 1980 when Pastor Fred transferred to Massachusetts, this officer failed to inform church officials in Massachusetts of the prior misconduct knowing that during his ministry in that state he would have unsupervised access to children. The plaintiff claimed that this failure constituted negligent retention and negligent supervision, and was the cause of his injuries. A federal district court disagreed and dismissed the lawsuit.
A federal appeals court affirmed the lower court's ruling. It began its opinion by observing that "under New York law, which the parties agree applies in this case, a defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others." The plaintiff sought to avoid this rule by basing liability on the theories of negligent retention and negligent supervision. The court noted that to state a claim for negligent supervision or retention under New York law, a plaintiff must show: (1) an employee-employer relationship, (2) that the employer "knew or should have known of the employee's propensity for the conduct which caused the injury" prior to the injury's occurrence, and (3) that the injury was committed on the employer's premises or with the employer's property.
The court concluded that the plaintiff failed to prove the second requirement: "Prior to 1997 [church officials] were unaware that Pastor Fred had ever engaged in, or been accused of engaging in, sexual misconduct. The plaintiff, for his part, failed to counter this assertion with admissible evidence from which a reasonable juror could infer that the church defendants, at any time prior to the relevant incident, knew or should have known of Pastor Fred's propensity to assault minors or otherwise to engage in inappropriate sexual conduct. The trial court therefore properly [dismissed the] negligence claims."
The court also concluded that the third requirement was not met since the incidents of sexual assault did not occur on church property but instead were perpetrated at the plaintiff's home and at Pastor Fred's home. Given these facts, "the plaintiff cannot satisfy the third element of a negligent supervision cause of action—the requirement that the injury must have been committed on the employer's premises or with the employer's property."
The court noted that to the extent that the plaintiff's complaint could be read to assert a claim against the defendants for breach of a fiduciary relationship, "the defendants' lack of actual or constructive knowledge of Pastor Fred's sexual proclivities would also be fatal to this claim."
Application. This case is important for the following reasons.
1. It is a precedent that can be used to defend against claims of negligence in the hiring, retention, or supervision of ministers by churches and denominational agencies. While not every court will agree with this court's conclusions, the case stands as a forceful and persuasive precedent, especially since it is an opinion of one of the most highly respected federal appeals courts.
2. The case underscores the significance of knowledge of prior misconduct. When church leaders learn of information suggesting that a minister (or lay employee or volunteer) poses a risk of harm to others, this may serve as the basis for liability based on negligent selection or retention if the person commits foreseeable harm to one or more persons. In such a case, the issue will be whether the church acted reasonably in response to the information that it received.
3. The court suggested that a 16-year-old incident of misconduct of "an unspecified sexual nature" does not necessarily constitute notice that the person will commit an act of child molestation. Other courts may disagree with this conclusion, but this case suggests that a person's unspecified acts of misconduct occurring many years ago may not make a church liable for that person's future acts of child molestation.
4. In order to prove negligent hiring, supervision, and retention, a plaintiff must show that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury." The trial court noted that there is no "common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee."
5. Denominational agencies that lack the authority to remove a pastor from a congregation cannot be liable for the pastor's misconduct based on negligent retention. Ehrens v. The Lutheran Church-Missouri Synod, 385 F.3d 232 (2nd Cir. 2004).