Sexual Misconduct by Clergy, Lay Employees, and Volunteers – Part 1

A Louisiana court ruled that the members of a school board could be personally liable for the sexual molestation of a 16-year-old girl that occurred on a school bus.

Church Law and Tax2006-05-01

Sexual misconduct by clergy, lay employees, and volunteer workers – Part 1

Key point 6-08. State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.
Church Officers, Directors, and Trustees

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.
Negligence as a Basis for Liability

* A Louisiana court ruled that the members of a school board could be personally liable for the sexual molestation of a 16-year-old girl that occurred on a school bus. A school bus was transporting a school’s boys and girls basketball teams on an out-of-town trip. During the trip, five members of the boys team sexually molested a 16-year-old girl who was a member of the girls team. When the incident occurred, the head coaches of the boys and girls teams were seated in the front row of the bus, and the coach of the boys team was asleep. Although numerous students on the bus were aware of the incident as it was occurring, the coaches did not become aware of it until a few days later when some of the female basketball players informed their coach after practice. A full investigation ensued, which resulted in the expulsion of the five perpetrators from the school.

The victim’s father sued the members of the school board, claiming that they were responsible for his daughter’s injuries on the basis of the following two considerations: (1) A failure to provide adequate supervision of students on the bus. (2) A violation of a school policy that required the boys and girls teams to be strictly separated on the bus with the coaches seated between the boys and the girls.

After a trial by jury, a verdict was returned in favor of the victim in the amount of $250,000. The jury found that the school board breached its duty of reasonable supervision of the students involved in the incident, that the lack of reasonable supervision was the legal cause of the incident, and that 100% of the fault was allocated to the board and none to any of the five boys accused of the sexual assault. The members of the school board appealed.

A state appeals court affirmed the trial court’s verdict in favor of the victim. It acknowledged that school board members are not ‘insurers’ of the safety of school children, but ‘liability will be imposed upon a school board where there is a causal connection between a lack of supervision and an incident which could have been avoided by the exercise of a reasonable degree of supervision. School board employees have a duty to provide reasonable supervision commensurate with the age of the children and the attendant circumstances.’

The court noted that a former principal of the school testified at trial that a policy of separating boys and girls on school buses (with coaches sitting between them) had been in place for several years, and that it had been implemented as a result of prior incidents of sexual misconduct involving students of the high school, including one that had previously occurred on a school bus and which received some publicity in a local newspaper. In other words, the prior sexual incidents ‘acted as a catalyst to initiate a school policy separating the boys from the girls when traveling by bus on school-sponsored athletic trips.’

The court stressed that the incident in question was not a ‘spontaneous act’ that could not have been prevented with adequate supervision on the part of the coaches. Indeed, ‘but for these two coaches’ failure to adhere to this school policy, this sexual incident could have been easily avoided.’

The court also rejected the board members’ claim that the jury erred in finding them 100% at fault while assigning no fault to the five students who molested the victim.

Application. This case illustrates two important points. First, board members of public charities may be personally liable for some of their actions or omissions. It is true that uncompensated board members of public charities are given limited immunity from liability under federal and state law, but some exceptions apply. For example, acts of gross negligence generally are not insulated from liability.

Second, this case demonstrates the consequences of violating a written policy. The court concluded that the board was liable in part because of the failure by school employees to follow the school’s policy on separating boys and girls while riding together on a bus. Many churches have adopted policies addressing safety and risk management concerns. Some have adopted dozens or even hundreds of policies. Church leaders should understand that the risk of policy violations increases with the number of policies. After all, how many churches can confidently assume that a policy manual containing hundreds of policies can be comprehended, much less enforced? Yet, a single failure to follow a written policy can be incriminating evidence if the church is later sued as a result of an injury caused by a failure to follow a specific policy. The bottom line is that a church should adopt no more policies than it reasonably can be expected to follow, and existing policies should be periodically reviewed to ensure compliance. Doe v. DeSoto Parish School Board, 907 So.2d 275 (La. App. 2005).

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