YMCA Ordered to Pay “Future Mental Anguish Damages”

Organization held liable for negligent selection for a worker’s molestation of a camper.

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.

The Texas Supreme Court upheld a jury award of $500,000 for mental suffering in a case involving the sexual molestation of a minor by a counselor at a YMCA summer camp. A 9-year-old boy (the "victim") was sexually molested by his counselor while attending a YMCA summer camp. The counselor was arrested and later confessed to sexually inappropriate conduct with a number of the young campers, including the victim. He claimed that the abuse occurred while both he and victim were fully dressed. The victim did not reveal the incident to his parents, who learned about it as a result of the counselor's confession.

The victim's parents sued the YMCA for negligently hiring, retention, and supervising the perpetrator. The jury found that the abuse caused the child serious mental injury and awarded "future" mental anguish damages of $500,000. The state supreme court affirmed this verdict, rejecting the YMCA's claim that there was insufficient evidence of future mental anguish. The court acknowledged that the victim testified that he had placed the incident "in a vault" in his mind. An expert witness testified that the victim's reference to putting the incident "in a vault" meant that he was using denial as a temporary coping mechanism, which is a common response to childhood sexual abuse. Other expert witnesses testified to other short and long-term effects that sexual abuse has on child victims, including poor performance in school.

One expert witness testified that trauma the victim experienced would not simply disappear but would have to be processed in some manner when he was ready, which may not happen for many years. In many cases where the victim "in-capsulates" the incident in a vault, as the victim had done, there is an "enormous reaction" when that vault opens later in life. The evidence further showed that, while the victim appeared to be functioning well, "children who have been sexually abused are often not diagnosed with depression or anxiety until they are adults in their thirties, forties, and fifties."

The court concluded: "We have recognized the consensus among experts that child victims of sexual abuse frequently repress and suppress memories and emotions associated with the event until their adult years." Adams v. YMCA of San Antonio, 265 S.W.3d 915 (Tex. 2008).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

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