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Court Decisions Recognizing Negligent Selection Claims

§ 10.04.01
Key point 10-04.01. Some courts have found churches liable on the basis of negligent selection for the molestation of a minor by a church worker if the church failed to exercise reasonable care in the selection of the worker.

This section reviews court decisions in which a church or other religious organization was found liable on the basis of negligent selection for a worker's acts of child molestation. A few illustrative cases are summarized below.

Case Studies
  • A California court ruled that a church was responsible on the basis of "negligent hiring" for the sexual molestation of a 13-year-old boy by his pastor.[61] Evan F. v. Hughson United Methodist Church, 10 Cal. Rptr.2d 748 (Cal. App. 3 Dist. 1992). The pastor was hired after being suspended from the ministry for a number of years because of allegations that he had molested a child. The court noted that the local church's pastoral search committee was aware that the pastor previously had "stepped down" from the ministry for some reason. Yet, the church did not "investigate or make any inquiry" regarding the pastor's fitness to serve. The court observed that the local church's pastoral selection committee was aware of "some difficulty with [the pastor's] reappointment to the active ministry and understood he had been on a sabbatical of some kind. … Nevertheless, [the church] did not investigate or make any inquiry regarding [the pastor's] fitness to serve as pastor."
  • A Florida court ruled that the First Amendment religion clauses did not prevent it from resolving a lawsuit claiming that a church and denominational agency were legally responsible on the basis of negligent hiring for a minister's acts of child molestation. The court noted that "most of the courts which have rejected these types of claims have done so based on the belief that to determine liability they would be required to interpret church doctrine." On the other hand, those courts that have accepted these claims "see their role as simply applying neutral principles of law to nonreligious conduct." The court concluded: "In their complaint, the plaintiffs alleged that they were both employees and parishioners of the defendant church, that they were sexually assaulted and battered by [the priest] while working at the defendant church, and that, despite knowing that [the priest] had committed several sexual assaults and batteries, he was retained by the defendants as a priest and given the task of supervising the plaintiffs. The issue to be determined by the court, therefore, is whether the defendants had reason to know of [the priest's] misconduct and did nothing to prevent reasonably foreseeable harm from being inflicted upon the plaintiffs. This determination is one governed by tort law and does not require inquiry into the religious doctrines and practices of the Catholic church."[62] Doe v. Malicki, 771 So.2d 545 (Fla. App. 2000).
  • The Virginia Supreme Court ruled that a church and its pastor could be sued by a mother whose child was sexually assaulted by a church employee.[63] J. v. Victory Baptist Church, 372 S.E.2d 391 (Va. 1988). A mother sued a church and its pastor, alleging that her 10-year-old daughter had been repeatedly raped and assaulted by a church employee. She asserted that the church and minister were legally responsible on the basis of several grounds, including "negligent hiring" (referred to as negligent selection in this chapter). Specifically, she alleged that when the employee was hired, the church and minister either knew or should have known that he had recently been convicted of aggravated sexual assault on a young girl, that he was on probation for the offense, and that a condition of his probation was that he not be involved or associated with children. Despite these circumstances, the individual was hired and entrusted with duties that encouraged him to come freely into contact with children, and in addition was given keys to all of the church's doors. The mother alleged that the employee in fact came into contact with her daughter on the church's premises, and had sexual intercourse with her on numerous occasions. The court ruled that the church could be sued on the basis of negligent selection. It rejected the church's contentions that the theory of negligent selection either was not recognized under Virginia law, or was not recognized in the context of church employers. The court also rejected the church's contention that it could not be responsible for criminal acts of employees: "To say that a negligently hired employee who acts willfully or criminally thus relieves his employer of liability for negligent selection when willful or criminal conduct is precisely what the employer should have foreseen would rob the tort of vitality. …" The court also rejected the church's contention that it could not be liable for the employee's acts of molestation since they had not occurred within the scope of employment. It acknowledged that church liability based on respondeat superior required that the employee's acts be committed within the scope of employment. However, "negligent hiring is a doctrine of primary liability; the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others. Negligent hiring, therefore, enables plaintiffs to recover in situations where respondeat superior's scope of employment limitation previously protected employers from liability.
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