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Court Decisions Rejecting Negligent Retention Claims

§ 10.07.02
Key point 10-07.02. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent retention for the misconduct of ministers.

Some courts have concluded that the First Amendment prevents churches from being sued on the basis of negligent retention for the sexual misconduct of ministers.

Case studies
  • A federal appeals court ruled that a school was not liable on the basis of negligent retention for the molestation of two young girls by a teacher despite the fact that it was aware of a prior, similar complaint by another girl because the school thoroughly investigated the prior complaint, concluded that it was unsubstantiated, and took appropriate steps to monitor and restrict the employee.[101] Davis v. DeKalb County School District, 233 F.3d 1367 (11th Cir. 2000). Accord Ehrens v. Lutheran Church, 385 F.3d 232 (2nd Cir. 2004).
  • A Colorado court threw out a lawsuit brought by a woman alleging that her church acted improperly and unlawfully when it dismissed her after she made complaints of sexual harassment and child molestation against another minister.[102] Van Osdol v. Vogt, 892 P.2d 402 (Colo. App. 1994). The woman alleged that when she was a minor, her stepfather committed various acts of sexual assault against her when they resided together. Her stepfather was a minister at the time, and later became president of his denomination. The woman pursued ministerial studies and was licensed as a minister. After serving as a minister in the State of Washington, she moved to the Denver area to start a new church. She later learned that her stepfather, with whom she had severed all ties, was also pastoring a church in the Denver area. She learned that her stepfather was allegedly sexually harassing women church employees and a woman parishioner in his Denver church. She reported this alleged harassment, as well as the sexual abuse she had suffered from her stepfather as a minor, to denominational officers. In response, the stepfather filed charges with the denomination against the woman, claiming that her allegations were false and demanding a full investigation. After an investigation, denominational officers revoked the woman's license and denied her the opportunity to open a new church. The woman responded by filing a lawsuit against her stepfather and her denomination, alleging several theories of liability including negligent retention of her stepfather. In rejecting the woman's claim of negligent retention, the court noted that "[a]n employer may be subject to liability for negligent supervision and retention if the employer knows or should have known that an employee's conduct would subject third parties to an unreasonable risk of harm." The court concluded that any resolution of these theories of liability would involve the civil courts in a church's decision-making processes contrary to the First Amendment guaranty of religious freedom.
  • A federal district court in Michigan ruled that a church school and various church agencies were not liable on the basis of negligent hiring, supervision, or retention for the sexual molestation of a minor student by a priest.[103] Isely v. Capuchin Province, 880 F. Supp. 1138 (E.D. Mich. 1995). The court, in summarily rejecting the victim's claim that the school and church agencies had been guilty of "negligent hiring," observed, "Questions of hiring and retention of clergy necessarily will require interpretation of church canons, and internal church policies and practices. It is well-settled that when a court is required to interpret canon law or internal church policies and practices, the First Amendment is violated because such judicial inquiry would constitute excessive government entanglement with religion. … [An] inquiry into the decision of who should be permitted to become or remain a priest necessarily would involve prohibited excessive entanglement with religion. Therefore [the victim's] claims of negligence predicated upon a negligent hiring theory will be dismissed."
  • The Missouri Supreme Court ruled that the First Amendment barred it from resolving a lawsuit in which a Catholic diocese was sued as a result of a priest's acts of sexual molestation.[104] Gray v. Ward, 950 S.W.2d 232 (Mo. 1997). Accord Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997). An adult male alleged that when he was about 14 years old he went to a Catholic priest for confession and counseling about various concerns, some of a sexual nature. The priest initiated a sexual relationship with the victim that lasted about 10 years. The victim alleged that when the priest was "hired or ordained" the diocese "knew or reasonably should have known of prior sexual misconduct or a propensity to such conduct" by him. The victim sued the diocese on the basis of several theories of liability including negligent retention. The court concluded that a resolution of the victim's claims against the diocese would violate the First Amendment.
  • A federal court in New York refused to find a church or denomination agency liable, on the basis of "negligent placement, retention, or supervision," for a pastor's sexual contacts with a woman during marital counseling.[105] Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991). The court made the following statement in rejecting the woman's claim that the church and denomination had been guilty of negligence: "[A]ny inquiry into the policies and practices of the church defendants in hiring or supervising their clergy raises … First Amendment problems of entanglement … which might involve the court in making sensitive judgments about the propriety of the church defendants' supervision in light of their religious beliefs. Insofar as concerns retention or supervision, the pastor of a Presbyterian church is not analogous to a common law employee. He may not demit his charge nor be removed by the session, without the consent of the presbytery, functioning essentially as an ecclesiastical court. The traditional denominations each have their own intricate principles of governance, as to which the state has no rights of visitation. Church governance is founded in scripture, modified by reformers over almost two millennia. As the Supreme Court stated [long ago]: 'It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to the one which is less so.'[106] Watson v. Jones, 80 U.S. 679 (1872). It would therefore also be inappropriate and unconstitutional for this court to determine after the fact that the ecclesiastical authorities negligently supervised or retained the [pastor]. Any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the text and history of the [First Amendment]."
  • A Texas court ruled that a church and regional denominational agency were not liable on the basis of negligent retention for the sexual assault of a church secretary by a pastor because they had no knowledge of prior acts of sexual misconduct by the pastor. The court noted that an employer is liable for negligent retention only if it retains in its employ an incompetent worker "whom the employer knows was incompetent or unfit, thereby creating an unreasonable risk of harm to others." A plaintiff's injury "must be the result of the employer's continued employment of a knowingly unfit employee." The court noted that neither the local church nor the parent denomination had any prior knowledge of sexual misconduct by the pastor. The court conceded that several complaints had been made against him in the past, but none involved sexual misconduct.[107] Doe v. South Central Spanish District of the Church of God, 2002 WL 31296620 (Tex. App. 2002).
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