Key point 10-05.02. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.
This section reviews court decisions in which a church or other religious organization was found not liable on the basis of negligent selection for inappropriate sexual contact with an adult by a minister or other church worker. Note that several courts have concluded that the First Amendment’s “nonestablishment of religion” and “free exercise of religion” clauses prevent the civil courts from resolving negligent selection claims involving clergy misconduct.
- A Florida court ruled that it was barred by the First Amendment from resolving a woman’s lawsuit claiming that she had been the victim of a priest’s sexual misconduct.86 Doe v. Evans, 718 So.2d 286 (Fla. App. 1998).The court concluded that the resolution of a negligent hiring, supervision, or retention claim against a church or diocese would amount to an excessive entanglement in violation of the First Amendment.
- A Kentucky court ruled that a church could not be liable for a pastor’s sexual misconduct since there was “no evidence in the record that [he] had any history of sexual misconduct involving parishioners, or that the church had any knowledge that [he] might engage in such misconduct.”87 Payne v. Osborne, 1999 WL 354495 (Ky. App. 1999). Accord Olinger v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 521 F.Supp.2d 577 (E.D. Ky. 2007).
- A Maryland court ruled that a church and denominational agency were not liable on the basis of clergy malpractice for injuries sustained by a woman who was seduced by a pastor while working at a church camp. And, since the court refused to find the pastor legally responsible for the victim’s injuries on the basis of malpractice, the church could not be liable on the basis of negligent hiring.88 Borchers v. Hrychuk, 727 A.2d 388 (Md. App. 1999).
- A Minnesota court ruled that a church and denominational agency could not be liable on the basis of negligent hiring for the sexual misconduct of a pastor. The court concluded that a resolution of the negligent hiring claim against the church defendants would “entangle” church and state in violation of the First Amendment’s nonestablishment of religion clause. It observed: “The church defendants argue that [the plaintiff’s] hiring-related claims implicate core, fundamental church doctrines governing identification of individuals called to the ministry. We agree. A determination of whether the statutorily required inquiries were made of a pastor-candidate’s former employers does not involve church doctrine, but a determination of how that information should be used in a hiring decision would force the court into an examination of church doctrine governing who is qualified to be a pastor. When claims involve core questions of church discipline and internal governance, the Supreme Court has acknowledged that the inevitable danger of governmental entanglement precludes judicial review.”89 J.M.v. Minnesota District Council, 658 N.W.2d 589 (Minn. App. 2003).
- A federal court in New York refused to find a church or denominational agency liable on the basis of “negligent placement, retention, or supervision” for a pastor’s sexual contacts with a woman during marital counseling.90 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 amp;hellip; 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.”
- The Ohio Supreme Court ruled that state and national denominational offices could not be sued on the basis of negligent hiring as a result of the sexual misconduct of clergy.91 Byrd v. Faber, 565 N.E.2d 584 (Ohio 1991). Accord Doe v. Turner, 1994 WL 369956 (Ohio App. 1994), Mirick v. McClellan, 1994 WL 156303 (Ohio App. 1994); Gebhart v. College of Mount St. Joseph, 665 N.E.2d 223 (Ohio App. 1995).A woman who had engaged in a sexual relationship with her pastor in the course of marital counseling sued the denominational offices, claiming that they were responsible for her injuries on the basis of negligent hiring. The lawsuit alleged that the state and national denominational offices “knew, or should have known of the inclination of [the pastor] to commit such actions and were reckless or negligent in allowing said [pastor] to assume the position of pastor. …” The court acknowledged that “if a church hires an individual despite knowledge of prior improper behavior in his former church-related employment, the church may be liable in tort for negligent hiring.” However, the court insisted that a lawsuit that merely alleges that a religious organization is guilty of “negligent hiring,” but that recites no facts supporting such an allegation, must be dismissed. Since the woman’s lawsuit contained no reference whatsoever to any facts to support a claim of negligent hiring, it had to be dismissed. The court observed, “We hold today that … greater specificity in pleading is required when a claim is brought against a religious institution for negligent hiring due to the myriad of First Amendment problems which accompany such a claim. In order to survive a … motion to dismiss, a plaintiff bringing a negligent hiring claim against a religious institution must plead facts with particularity. Specifically, the plaintiff must plead facts which indicate that the individual hired had a past history of criminal conduct, tortious, or otherwise dangerous conduct about which the religious institution knew or could have discovered through reasonable investigation. The mere incantation of the elements of a negligent hiring claim, i.e., the abstract statement that the religious institution knew or should have known about the employee’s criminal or tortious propensities, without more, is not enough to enable a plaintiff to survive a motion to dismiss for failure to state a claim [upon which relief can be granted]. … While even the most liberal construction of the First Amendment will not protect a religious organization’s decision to hire someone who it knows is likely to commit criminal or tortious acts, the mere incantation of an abstract legal standard should not subject a religious organization’s employment policies to state scrutiny. Consequently, in order to survive a motion to dismiss, a plaintiff bringing a negligent hiring claim must allege some fact indicating that the religious institution knew or should have known of the employee’s criminal or tortious propensities.” The court ruled that the woman’s lawsuit had to be dismissed, since it “alleged no fact indicating that [the pastor] had a past history of criminal or tortious conduct about which the [denominational offices] knew or should have known.”
- The Oklahoma Supreme Court ruled that a married couple could not sue their church and former pastor for damages they allegedly incurred as a result of an adulterous affair between the former pastor and the wife.92 Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993).The husband and wife sued the church and former pastor as a result of the pastor’s conduct. The lawsuit alleged that the church was negligent in the selection of the pastor since it knew or should have known about the wife’s affair and a previous affair in Texas. The church insisted that it did not know of the affair or of the alleged incident in Texas, and that it did not condone such behavior. The court concluded that the church was not responsible for injuries resulting from the minister’s conduct. It observed that the First Amendment guaranty of religious freedom did not shield churches from liability for personal injuries arising “from acts unrelated to religious practices protected by the First Amendment.” However, it insisted that all of the couple’s claims against the church had to be dismissed. It observed, “Neither the claims by the husband nor the wife against the minister are cognizable in Oklahoma. … Because their claims against the minister also serve as the basis for the claims against the church for its negligent hiring and supervision of the minister, that claim is also not cognizable.”
- A Texas court summarily dismissed a lawsuit alleging that a church was responsible on the basis of negligence for its pastor’s sexual relationship with a counselee. The victim claimed that the church was negligent in hiring, training and supervising the pastor. The court observed: “As a general rule, courts will not attempt to right wrongs related to the hiring, firing, discipline, or administration of clergy. The training and supervision of clergy are part of the administration of clergy. To recover for negligent hiring, retention, or administration in a case such as this, a plaintiff must show that the church employed an incompetent servant and that the church knew, or by the exercise of reasonable care should have known, that the minister was incompetent or unfit. It must be shown that the church knew or should have known that the minister’s conduct as a counselor presented an unreasonable risk of harm to others. In the present case, [the church] established as a matter of law that it exercised reasonable care and yet did not know of any incompetence or sexual misconduct by [the pastor] either before his hiring or during his employment, until the church was notified [of the affair with the woman]. When the church was notified, it terminated him as pastor the very next day. … [T]here was no evidence that [the church] should have known that [the pastor] was likely to engage in misconduct during counseling. In light of the uncontroverted evidence of [the church’s] diligence and lack of notice, the trial court properly [dismissed the case].”93 Hodges v. Kleinwood Church of Christ, 2000 WL 994337 (Tex. App. 2000).