Pastor, Church & Law

§ 4.01

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Negligence is a common basis for clergy liability. Negligence is conduct that creates an unreasonable and foreseeable risk of harm to another person that results in injury. Negligent conduct need not be intentional. It may consist either of a specific act or failure to act. It may be helpful to think of negligence as carelessness.

Although negligence can arise in many ways, it is most often associated with carelessness in the operation of a vehicle. But a minister may create unreasonable risks of harm to others in countless other ways, such as entrusting a dangerous article to one who, because of inexperience or immaturity, cannot safely handle it; authorizing a children's activity or retreat without adequate adult supervision; knowing of a dangerous condition on the church property but failing to correct it; failing to take reasonable action to have ice and snow removed from the church's sidewalks and parking lot; or failing to have an excessively slippery floor made safe.

Even if a minister's conduct or failure to act creates an unreasonable risk of harm to others, and harm does in fact result, the minister may assert various defenses which may prevent liability. One defense is contributory negligence, which is negligence on the part of the injured party that contributes to the injury. Obviously, if the victim is negligent, and except for his or her negligence the injury would not have occurred, the party whose negligence directly caused the accident cannot be fully accountable for the injury.

Traditionally, contributory negligence on the part of a victim was a complete defense to liability. Such a rule proved to be inequitable, however, for it entirely insulated from legal liability the party whose negligence directly caused the injury. To remedy this situation, most states have adopted "comparative negligence" laws. These laws seek to apportion damages and liability on the basis of the relative fault of the parties involved. Under the doctrine of comparative negligence, negligence victims who were themselves contributorily negligent will not necessarily be denied recovery. Instead, their recovery will be reduced in proportion to their fault. Comparative negligence laws vary widely. Some states have adopted "pure" comparative negligence. Such laws allow a proportionate recovery to all negligence victims, including those whose own contributory negligence was equal to or greater than the negligence of the person directly causing the injury. Other states have adopted a "fifty percent" rule, under which victims may recover proportionate damages only if their contributory negligence was less than fifty percent of the combined negligence resulting in their injuries.

Another defense to negligence is the doctrine of assumption of risk. Under this doctrine, persons who voluntarily expose themselves to a known and appreciated danger created by the negligence of another will not be allowed to recover damages for injuries that occur. Assumption of risk is distinct from contributory negligence and ordinarily is not affected by comparative negligence laws.

Another defense to negligence is imputed negligence. Under certain circumstances the law permits the negligence of one party to be imputed to another, even though the other was not negligent. The most common example involves the negligence of employees committed in the course of employment. The negligence of employees acting in the course of their employment is imputed to their employers. Courts and attorneys refer to this as the respondeat superior doctrine (i.e., the "superior responds" for the damages its employees cause). The reason for this rule has been stated in various way. Consider the following:

• The losses caused by the negligence of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon the enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the [negligence] of employees, and sought to profit by it, it is just that he, rather than the injured plaintiff, should bear them; and because he is better able to absorb them and to distribute them, through prices, rates or liability insurance, to society, to the community at large.[1] W. PROSSER, TORTS § 69 (5th ed. 1984).
• This doctrine is based on a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business. Three reasons have been suggested for imposing liability on an enterprise for the risks incident to the enterprise: (1) It tends to provide a spur toward accident prevention; (2) it tends to provide greater assurance of compensation for accident victims, and (3) at the same time it tends to provide reasonable assurance that, like other costs, accident losses will be broadly and equitably distributed among the beneficiaries of the enterprises that entail them.[2] Perez v. Van Groningen & Sons, Inc., 227 Cal.Rptr. 106(Cal. 1986).
• The principal justification for the application of the doctrine of respondeat superior in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business.[3] Johnston v. Long, 181 P.2d 645(Cal. 1947).

If a minister is an employee of the church for which he or she works, then the minister's negligence may be imputed to the church. The potential legal liability of churches (and denominational agencies) for the negligence of clergy is discussed fully in chapter 10. For now, simply note the following five considerations.

(1) A church may be legally responsible for the negligence of its minister committed within the scope of employment.

(2) The church will be liable only if the minister is an employee rather than self-employed.

(3) A minister's reporting status for federal income tax reporting purposes is of limited significance. The courts often ignore this status completely when deciding if a worker is an employee or self-employed for purposes of imputing liability to an employer under the respondeat superior doctrine. Further, many ministers who report their income taxes as self-employed would probably be reclassified as employees by the IRS if audited.

(4) The justification for imputing an employee's negligence to an employer (discussed above) does not apply as forcefully to a church, which, unlike many business corporations, is not necessarily "better able to absorb [legal judgments] and to distribute them, through prices, rates or liability insurance, to society, to the community at large." It is perhaps reasonable to require businesses to "pass along" the cost of their employees' negligence to consumers through price adjustments. But how does a church "pass along" such costs to the public?

(5) The fact that a minister's negligence may be imputed to his or her employing church does not necessarily shield the minister from personal liability. Negligent ministers ordinarily are personally liable for their negligence and can be sued directly by their "victims." It is common for the victim of a minister's negligence to sue both the minister individually and the minister's employing church. The fact that the church may be liable in no way shields the minister from personal liability. And, if for any reason the suit against the church is dismissed, the minister may be solely liable. While unlikely, in some states a church could require a minister to indemnify or reimburse it for damages paid as a result of imputed negligence.