• Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.
Negligence as a Basis for Liability
* A federal court in New York ruled that a charity that failed to conduct a criminal records check on a volunteer youth worker was not liable on the basis of negligent hiring for the worker’s molestation of a child because the charity had no reason to believe that the worker posed a risk of molesting children. A county health care agency (“Charity A”) hired an adult male (Samuel) as a volunteer worker. Charity A did not do a background check on Samuel before hiring him, allegedly because he was rarely, if ever, left alone with patients. On at least three occasions, however, Samuel was alone with an adolescent male patient (the “victim”), and on each occasion Samuel rubbed the victim’s shoulder and neck while talking to him. The victim did not tell anyone about these incidents of physical contact. He was later transferred to a nonprofit corporation (“Charity B”) that provided residential treatment and rehabilitation programs for male juveniles with psychological problems. Shortly after the victim was enrolled at Charity B, Samuel was dismissed by Charity A for contacting the parent of an adolescent patient in violation of confidentiality rules. Samuel thereafter applied for a position as a volunteer at Charity B. He filled out an application that called for references, but he did not list anyone from Charity A. Samuel sexually molested the victim while the victim was a resident at Charity B. The abuse continued for several months, often when the victim went for overnight visits to Samuel’s apartment. Samuel later pleaded guilty to an indictment charging him with sexually molesting the victim.
The victim’s mother sued Charity A and Charity B in federal court, claiming that they were both responsible for her son’s injuries on the basis of the negligent hiring, retention, and supervision of Samuel.
A federal district court began its opinion by noting that “a necessary element of causes of action for negligent hiring, retention, and supervision is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury, and that there is no 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.”
The court stressed that an employer “is under no duty to inquire as to whether an employee has been convicted of crimes in the past. Liability will attach on such a claim only when the employer knew or should have known of the employee’s violent propensities. An employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee.”
In this case, Charity A conceded that it did no background check on Samuel before hiring him as a volunteer. However, without some evidence that it knew or should have known that Samuel posed a risk of injury to children, “its failure to investigate him further was not negligent.” Further, the court noted that the victim’s mother had not shown that Charity A would have discovered anything indicating Samuel’s propensity to [molest minors] had it actually carried out a background check on him …. Whether or not [Charity A] could have been more thorough in checking [Samuel’s] background, its actions do not support a claim of negligent hiring because a routine background check would not have revealed his propensity to molest minors. No reasonable jury could find that, at the time [Charity A] hired Samuel, it knew or should have known that he had a propensity for [molesting minors] or that a background check would have revealed such a propensity. Therefore, no reasonable jury could find that it was negligent in hiring Samuel as a volunteer.”
negligent retention and supervision
The victim’s mother claimed that Charity A was sufficiently on notice of Samuel’s dangerous propensities after he began working as a volunteer that it should be liable for negligent retention or supervision of him. The mother cited the following evidence: (1) On at least one occasion Samuel was told by a staff member at Charity A to engage in recreation with particular children but that he did so with different children. The mother claimed that this demonstrated that Samuel was a person who “disobeyed the rules.” (2) Someone at Charity A should have seen Samuel touch the victim on the shoulders and neck.
The court disagreed that these allegations put Charity A on notice that Samuel could molest children: “The fact that he on one occasion played with children other than those with whom a staff member had told him to play would not put a reasonable person on notice that he posed a danger of sexual assault or battery of children. Moreover, [the victim] testified that he never told anyone about the physical contact between him and Samuel … and there is no indication in the record that anyone saw, or should have seen, that physical contact. No reasonable jury could conclude based on the record in this case that [Charity A] knew or should have known facts that would lead a reasonable person to suspect that Samuel posed a risk to children.” As a result, the mother’s claims of negligent retention and supervision against Charity A should have been dismissed.
The court also ruled that the mother’s claims of negligent hiring, retention and supervision by Charity A could not serve as a basis for liability for Samuel’s sexual molestation of the victim after Samuel was dismissed as a volunteer by Charity A. It observed, “Even though the victim first met Samuel at [Charity A], Samuel’s abuse of the victim at Charity B was outside the scope of his employment with Charity B. The abuse occurred while the victim was in the custody of Charity B and while Samuel was under Charity B’s supervision, and primarily during the victim’s overnight visits to Samuel’s apartment.”
Application. This case is significant for the following reasons. First, and most importantly, the court ruled that “there is no 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.” And, these “specific procedures” include criminal records checks. Not all courts will agree with this conclusion, but it is worth noting that the court in this case was the federal district court for the southern district of New York, which is one of the most highly regarded courts in the country. As a result, this will be an excellent precedent for churches to cite if they are sued for the molestation of a child because they failed to implement all of the preventive measures a plaintiff insists were necessary.
Second, the court stressed that liability for negligent hiring of a volunteer worker will arise “only when the employer knew or should have known” that the person constituted a risk of harm to others. This means that church leaders cannot ignore facts or allegations that “put them on notice” that a current or prospective volunteer is a risk of harm to others. The test is whether there is sufficient evidence “that would lead a reasonably prudent person to investigate.” The court concluded that the fact that on one occasion he played with children other than those with whom a staff member had told him to play would have placed a reasonable person on notice that he posed a danger of sexual assault or battery of children. Estevez-Yalcin v. The Children’s Village, 331 F.Supp.2d 170 (S.D.N.Y. 2004).
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