Pastor, Church & Law

Legal Liability

§ 01.03.04

Key point 1-03.04. Churches, like any employer, may be legally responsible for the negligence or other misconduct of employees committed within the course of their employment. This theory of liability generally is known as respondeat superior. It does not apply to self-employed workers.

The characterization of a minister (or other church worker) as an employee or self employed is sometimes important in assessing legal liability. It is a well established principle of law that an employer is responsible for the civil wrongs committed by an employee in the course of employment. This principle of employer liability for the misconduct and negligence of employees committed in the course of their employment generally is referred to as respondeat superior (the “superior responds”).

If a minister or other church worker is considered to be self employed, however, then the church is shielded from liability for his or her wrongs. To illustrate, if while driving recklessly on church business a minister injures a pedestrian, his or her church will be vicariously liable for the injury if an employer employee relationship exists. If the minister is not an employee of the church, then the church will not be liable. The courts have come to both conclusions.34 See generally chapter 10, infra.

Observation. The fact that a minister reports his or her federal income taxes as a self-employed person does not necessarily prevent church liability under the doctrine of respondeat superior. Some courts have construed the term employee very broadly to include those persons who are self-employed for federal income tax reporting purposes. On the other hand, other courts have construed the term employee more narrowly, and have ruled that ministers are not employees for purposes of respondeat superior even though they report their federal income taxes as employees. 35 Id

Example. A Catholic church was not legally responsible on the basis of respondeat superior for injuries caused by the negligent driving of a priest, since he was self-employed rather than an employee. The court based its decision on the following factors: (1) the priest’s “day-to-day activities are within his own discretion and control”; (2) the priest is authorized under canon law to do whatever he feels necessary to carry out his duties; (3) he sets his own hours and vacation; (4) he makes out his own paycheck, and hires and fires non-clergy workers; (5) he has complete discretion in purchasing church supplies and paying bills out of parish funds; (6) his work requires a high level of skill and experience and is generally done without supervision; and (7) he was driving his own car at the time of the accident and had obtained his own insurance on the vehicle. Under these facts, the court concluded that the priest was not an employee of the church, and accordingly the church was not responsible for his actions on the basis of respondeat superior. 36 Brillhart v. Scheier, 758 P.2d 219 (Kan. 1988).

Example. An elected but unpaid church official killed one person and injured another when the vehicle he was driving struck another vehicle. A court ruled that state and national denominational agencies were not legally responsible for the official’s actions on the basis of respondeat superior, since he was not an employee or agent. The court looked to the following factors in deciding whether or not a person is an employee for purposes of respondeat superior: (1) whether or not the individual’s performance is in the course of the employer’s business; (2) whether or not the individual receives any compensation from the employer; (3) whether or not the employer supplied tools and a place of work in the normal course of the relationship; (4) whether the employer controls the details and quality of the work; (5) whether the employer controls the hours worked; (6) whether the employer selects the materials, tools and personnel used; (7) the length of employment; (8) the type of business; and (9) any pertinent agreements or contracts. 37 Nye v. Kemp, 646 N.E.2d 262 (Ohio App. 10 Dist. 1994).

Under a related legal principle, the acts of an “agent” committed within the scope of an “agency relationship” are attributable to the “principal.”38 See chapter 10, infra.An agency relationship is similar to an employer-employee relationship, and it exists whenever two persons agree that one (the agent) will act on behalf of another (the principal) and be subject to the other’s control.39 See RESTATEMENT (SECOND) AGENCY § 1 (1958): “Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. The one for whom action is to be taken is the principal. The one who is to act is the agent.” An official “comment” interpreting this language notes that “it is the element of continuous subjection to the will of the principal which distinguishes the agent from other fiduciaries and the agency agreement from other agreements.”An example would be an agent working for a real estate company. The agent and company agree that the agent will act on behalf of the company and be subject to its control. Under these circumstances an agency relationship exists and the company will be liable for the acts of the agent committed within the course of the agency relationship.

Many persons injured by the negligence or misconduct of a minister have sued the minister’s church and even a parent denominational agency on the ground that the minister was an “agent” of the church and denominational agency. These cases are addressed in chapter 10 of this text.

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