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Course of Employment

§ 10.02.03
Key point 10-02.03. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.

The doctrine of respondeat superior imputes an employee's negligence to his or her employer only if the negligence occurred in the course of employment. It often is difficult to ascertain whether employees are acting in the course of their employment at the time of a negligent act. Generally, conduct of an employee is in the course of employment if (1) it is of the kind the employee is employed to perform, (2) it occurs during the hours and within the geographical area authorized by the employment relationship, and (3) it is motivated, at least in part, by a desire to serve the employer. An employer generally will not be responsible for the misconduct of an employee that occurs before or after working hours, that occurs an unreasonable distance from an authorized work area, or that occurs while the employee is engaged in personal business.

Example. A federal appeals court concluded that a Methodist church was legally responsible for the copyright infringement of a minister of music since "the only inference that reasonably can be drawn from the evidence is that in selecting and arranging the song … for use by the church choir [the minister] was engaged in the course and scope of his employment by the church." [41] Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962).

The courts have generally ruled that deciding whether a church employee was acting within the scope of his or her employment at the time of a wrongful act is permissible so long as no interpretation of church doctrine is involved.[42] See, e.g., Olson v. First Church of Nazarene, 661 N.W.2d 254 (Minn. App. 2003). The plaintiffs' claims did not involve "an inquiry into what the cleric's role is within the church or his duties generally. The court need only determine whether the pastor, when he sexually penetrated [the victim] was providing ongoing, private spiritual advice, aid, or comfort to her in his capacity as a cleric and the court does not need to examine the content of the advice, aid, or comfort given."

Many persons who have been sexually assaulted by church workers have attempted to sue their church or a denominational agency on the basis of respondeat superior. Most courts have rejected such efforts, on the ground that the offender was not acting within the scope of his or her employment while engaging in such acts. A few courts have interpreted the concept of "scope of employment" more broadly, and have found churches liable on the basis of respondeat superior. Examples of both kinds of cases are presented below.

1. Cases Refusing to Apply Respondeat Superior to Intentional or Criminal Acts

Most courts have refused to hold churches liable on the basis of respondeat superior for the sexual misconduct of employees or volunteers.

Case studies
  • A California appeals court ruled that a Catholic archdiocese was not responsible on the basis of respondeat superior for the seduction of a 16-year-old girl by several priests. The girl claimed that she had become pregnant through the priests' misconduct, that the priests used their influence to persuade her to remain silent, and that the priests sent her to the Philippine Islands to give birth. The court concluded that for the archdiocese to be liable under the theory of respondeat superior for the priests' conduct, their conduct had to be characteristic of the activities of the church or otherwise reasonably foreseeable. The court observed, "It would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church. … Similarly, [the girl] has not pointed out any fact which could lead this court to the conclusion that the Archbishop ratified the concupiscent acts of the priests." [ 43] Milla v. Roman Catholic Archbishop of Los Angeles, 232 Cal. Rptr. 685 (1986).
  • A California court, in ruling that a church was not legally responsible for a Sunday school teacher's repeated rape of a young boy, observed, "Certainly [the teacher] was not employed to molest young boys. There is no evidence the acts occurred during Sunday school. … There is no evidence to suggest that [the teacher's] conduct was actuated by a purpose to serve [the church]. Rather, the acts were independent, self-serving pursuits unrelated to church activities. Finally, [the teacher's] acts of sexual molestation were not foreseeable in light of the duties he was hired to perform. There is no aspect of a Sunday school teacher's or member's duties that would make sexual abuse anything other than highly unusual and very startling. We conclude [the teacher's] acts against [the boy] were neither required, incidental to his duties, nor foreseeable. They were, therefore, not within the scope of his employment. [44] Scott v. Central Baptist Church, 243 Cal. Rptr. 128 (4th Dist. App. 1988).
  • An Illinois court ruled that a church and a parent denomination were not legally responsible for a pastor's sexual assault of three boys.[45] Mt. Zion State Bank v. Central Illinois Conference of the United Methodist Church, 556 N.E.2d 1270 (Ill. App. 1990). The court emphasized that the pastor's assault constituted a deviation from the pastor's "scope of employment." Since the assault did not occur within the scope or course of the pastor's employment, it could not be imputed to the church or parent denomination.
  • The Kentucky Supreme Court ruled that a diocese was not liable for a priest's sexual misconduct on the basis of respondeat superior. The court observed: "To accept such a theory would in effect require the diocese to become an absolute insurer for the behavior of anyone who was in the priesthood and would result in strict liability on the part of the diocese for any actionable wrong involving a parishioner. We must conclude that such an argument is absurd. Certainly, the scope of employment of a priest could include marriage counseling, but it clearly does not include adultery." [46] Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000).
  • A Minnesota court ruled that a regional and national church were not liable on the basis of respondeat superior for the sexual misconduct of a pastor since those acts were not committed in the course of his employment. Rather, they occurred at the pastor's residence. The victim never alleged that she went to visit the pastor "for any type of religious counseling or any other reason connected to his status as a retired minister." In fact, she testified that she never attended any religious service conducted by the pastor, and knew him only as a family friend. [47] C.B. ex rel. L.B. v. Evangelical Lutheran Church in America, 726 N.W.2d 127 (Minn. App. 2007).
  • An Ohio court ruled that a church and denominational agency were not liable for a pastor's sexual relationship with a female member of his congregation. The court noted that "in order for an employer to be liable under the doctrine of respondeat superior, the act of the employee must be committed within the scope of employment." Further, if the employee's act is intentional, the act must be "calculated to facilitate or promote the business for which the employee was employed. Thus, an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business." The court concluded that it was "difficult to conceive of pastoral fornication with a parishioner as a legitimate religious belief or practice." In other words, "intentional sexual activity is not related to a cleric's duties, nor does it further church interests. Therefore, that conduct does not fall within the scope of a cleric's employment." [48] DePietro, 825 N.E.2d 630 (Ohio App. 2005).

Several other courts have concluded that churches cannot be sued on the basis of respondeat superior if church workers were not engaged in the course of their employment at the time their conduct resulted in injuries to others. To illustrate, the following kinds of conduct were deemed not to have occurred within the course of employment: a minister sexually seduced a woman during marital counseling;[49] See, e.g., Destefano v. Grabian, 763 P.2d 275 (Colo. 1988) (the court ruled that the church and a parent denomination might be liable on the basis of negligent hiring or negligent supervision); Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991); Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993); Erickson v. Christenson, 781 P.2d 383 (Or. App. 1989) (the court ruled that the church and a parent denomination might be liable on the basis of negligent hiring or negligentsupervision); J. v. Victory Baptist Church, 372 S.E.2d 391 (Va. 1988) (the court ruled that the church was not liable on the basis of respondeat superior, but might be liable on the basis of negligent retention or supervision if it were aware of previous incidents of misconduct but did nothing to monitor the employee's behavior); Lund v. Capel, 675 P.2d 226 (Wash. 1984). seven Catholic priests allegedly engaged in a sexual relationship with a female parishioner;[50] Milla v. Tamayo, 232 Cal. Rptr. 685 (1986). a teacher at a church-operated school engaged in sexual relations with a minor;[51] Scott v. Blanchet High School, 747 P.2d 1124 (Wash. App. 1987). a Catholic nun was driving a car on personal rather than church business.[52] Mattingly v. State Department of Health, 509 So.2d 82 (La. App. 1987). See also Ambrosio v. Price, 495 F. Supp. 381 (D. Nebr. 1979).

2. Cases Applying Respondeat Superior to Intentional or Criminal Acts

A few courts have found churches liable on the basis of respondeat superior for the sexual misconduct of employees and volunteers. In reaching such a conclusion, these courts have interpreted the concept of "course of employment" broadly.

Case studies
  • The Oregon Supreme Court ruled that a church can be liable for the sexual misconduct of an employee on the basis of respondeat superior, so long as the misconduct was a direct outgrowth of actions by the employee that were within the scope of his or her employment. The court noted that under the doctrine of respondeat superior, "an employer is liable for an employee's torts, including intentional torts, if the employee was acting within the scope of employment." In order for an employee's acts to be within the scope of employment, the following factors must be present: (1) the conduct occurred within the time and space limits authorized by the employment; (2) the employee was motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform. The court conceded that a pastor's alleged sexual assaults on a victim clearly were outside the scope of his employment, but it concluded that his employing church could still be liable on the basis of respondeat superior if "acts that were within [the pastor's] scope of employment resulted in the acts which led to injury to plaintiff." The court noted that it would be extraordinary to find an act of intentional misconduct, such as sexual molestation, to be within the scope of an employee's employment. But, it insisted that this is not necessary. Rather, the question is whether the pastor was performing any acts that were within the scope of his employment that ultimately caused the victim's injuries. The court concluded that this test was met: "The complaint alleges that [the pastor] used his position as youth pastor, spiritual guide, and confessor to [the victim] and his family to gain their trust and confidence, and thereby to gain the permission of [the victim's] family to spend large periods of time alone with [him]. By virtue of that relationship, [the pastor] gained the opportunity to be alone with [the victim], to touch him physically, and then to assault him sexually. The complaint further alleges that those activities were committed in connection with [the pastor's] employment as youth pastor, that they were committed within the time and space limitations of [his] employment, that they were committed out of a desire, at least partially and initially, to fulfill [his] employment duties as youth pastor, and that they generally were of a kind and nature that he was required to perform as youth pastor." [53] Fearing v. Bucher, 977 P.2d 1163 (Ore. 1999).
  • A Washington state appellate court concluded that a Catholic diocese could be sued on the basis of respondeat superior for damages resulting from the alleged sexual molestation of minors by a Catholic priest[54] Does 1-9 v. Compcare, Inc., 763 P.2d 1237 (Wash. App. 1988).. A Catholic diocese in Louisiana suspended a priest from performing his "priestly duties" after he admitted to sexual misconduct with minors. The priest was asked to leave the diocese, and he eventually was admitted (with the approval of the diocese) to a rehabilitation program in another state. Just prior to the priest's discharge from this program, the diocese informed him that his "options in the ministry were severely limited if not nil," and that "because of the possibility of legal action and the responsibility on the part of any institution that might hire you, I think realistically that for church employment you are a very poor risk." The diocese further advised the priest that he would not be permitted to perform priestly duties upon his release, and that he was not to return to the diocese. Following his release from the rehabilitation program, the priest accepted a job as a counselor of adolescents in an alcohol and drug rehabilitation center in a private hospital. He was terminated from this job because of complaints of sexual abuse by former patients. Eight adolescents and one adult sued the hospital, the priest, as well as his diocese and bishop. The plaintiffs alleged that the diocese had negligently supervised the priest, and that it should have warned the private hospital of his pedophilia. The appeals court agreed that "an employer may be held liable for acts beyond the scope of employment because of its prior knowledge of the dangerous tendencies of its employee." The diocese argued that it could not be liable for the misconduct of the priest, since his actions did not arise out of his priestly duties and accordingly were not within the scope of his employment relationship with the diocese. In rejecting this claim, the court observed that "the duty of obedience which [the priest] owed the diocese encompassed all phases of his life and correspondingly the diocese's authority over its cleric went beyond the customary employer/employee relationship. … Despite his employment with [the hospital], the employment relationship between [the priest] and the diocese continued.".
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