Pastor, Church & Law

Churches are exposed to legal liability as a result of a number of acts and omissions, many of which have been addressed in previous chapters. This chapter addresses church liability based on four types of negligence—vicarious liability for the negligence of employees; negligent selection; negligent retention; and negligent supervision, plus liability based on counseling, breach of fiduciary duty, ratification, and defamation.

Negligence refers to conduct that creates an unreasonable and foreseeable risk of harm to another's person or property, and that in fact results in the foreseeable harm. Churches can be liable on the basis of negligence in a variety of ways, four of which are addressed in this chapter. To illustrate, churches can be vicariously liable for the negligence of employees committed within the course of their employment under the legal principle of respondeat superior. Churches also may be liable on the basis of negligence in the selection, retention, or supervision of employees and volunteer workers.

In recent years, some courts have found churches liable on the basis of a breach of a fiduciary duty for injuries occurring on their premises or in the course of their activities. This chapter also addresses church liability for defamation, and surveys a number of defenses available to churches that are sued on the basis of these theories of liability.

Thankfully, for each of the liabilities examined in this chapter, "risk management" is emphasized, and churches are provided with several suggestions to reduce their risk of legal liability.

The chapter concludes with an analysis of the liability of denominational agencies for the activities of affiliated churches and clergy. This is a question of increasing concern to many denominations.

This chapter is written with two purposes in mind: (1) to explain several common and significant theories of church liability; and (2) to assist church leaders in adopting strategies to manage or reduce these risks. The good news is that by implementing relatively simple precautions, church leaders can significantly reduce the risk of church liability.

Churches can be sued for a variety of acts and omissions. The following theories of church liability are addressed in other chapters:

• discipline and removal of ministers;[1] Section 2-04, supra.
• undue influence;[2] Section 4-03, supra.
• invasion of privacy;[3] Section 4-04, supra.
• clergy malpractice;[4] Section 4-05, supra.
• breach of contract;[5] Section 4-06, supra.
• refusal to permit inspection of church records;[6] Section 6-03.1, supra.
• church names;[7] Section 6-05, supra.
• removal of officers and directors;[8] Section 6-06.4, supra.
• discipline and removal of members;[9] Section 6-10, supra
• procedural irregularities in church business meetings;[10] Section 6-12, supra.
• church property disputes;[11] Sections 7-01 through 7-04.
• zoning law;[12] Section 7-06, supra.
• violation of municipal building codes;[13] Section 7-08, supra.
• violation of local landmarking ordinances;[14] Section 7-10, supra.
• eminent domain;[15] Section 7-11, supra.
• violation of restrictive covenants;[16] Section 7-13, supra.
• materialman's liens;[17] Section 7-15, supra.
• adverse possession;[18] Section 7-18, supra.
• premises liability;[19] Section 7-20, supra.
• workers compensation;[20] Section 8-07, supra
• violations of the Fair Labor Standards Act;[21] Section 8-08, supra.
• several kinds of employment discrimination;[22] Sections 8-09 through 8-21, supra.
• termination of employees;[23] Section 8-22, supra.
• reference letters;[24] Section 8-24, supra.
• securities law violations;[25] Section 9-04, supra.
• copyright law violations;[26] Section 9-05, supra.

This chapter addresses the following additional theories of church liability:

• vicarious liability for the negligence of employees
• negligent selection
• negligent retention
• negligent supervision
• counseling
• breach of fiduciary duty
• ratification
• defamation
• denominational liability
• church vans
• inspection of computers
• prayer lists
• defibrillators
• Sarbanes-Oxley

Key point. This chapter has two purposes: (1) to explain several common and significant theories of church liability; and (2) to assist church leaders in adopting strategies to manage or reduce these risks. The good news is that by implementing relatively simple precautions, church leaders can significantly reduce the risk of church liability.