by Richard R. Hammar, J.D., LL.M., CPA

Court Decisions Recognizing Negligent Retention Claims

§ 10.07.01
Key point 10-07.01. Some courts have found churches liable on the basis of negligent retention for the sexual misconduct of ministers and other church workers on the ground that the church was negligent in retaining the offender after receiving credible information indicating that he or she posed a risk of harm to others.

Some courts have concluded that churches can be sued on the basis of negligent retention for the sexual misconduct of ministers and other church staff.

Case studies
  • A federal appeals court concluded that two female church employees could sue the minister who had seduced them since he had "held himself out" as a qualified marital counselor.[96] Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998). However, the court dismissed all of the employees' claims against the church, including negligent retention. The court acknowledged that "an employer that negligently retains in his employ an individual who is incompetent or unfit for the job may be liable to a third party whose injury was proximately caused by the employer's negligence." However, to prove negligent retention, the two women had to show that the church "knew or should have known that [the former minister's] conduct as a supervisor or counselor presented an unreasonable risk of harm to others." The court concluded that there was no evidence that the church "know or should have known" that the former minister was engaging in marital counseling or that he was likely to engage in sexual misconduct or disclose confidences as a marriage counselor.

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