• Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.
• Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.
Negligence as a Basis for Liability
* A New York court ruled that the national Boy Scouts organization, and a local church, were not responsible for the sexual molestation of several scouts in a church-sponsored troop by a scout leader. A Boy Scout troop conducted its weekly meetings in a church. A volunteer assistant scoutmaster (Jon) sexually molested several boys who were members of the troop. He was convicted of several crimes as a result of his actions and sentenced to prison. Some of the victims sued the national Boy Scouts of America (BSA) and the church for money damages as a result of their physical and emotional injuries. BSA is a national organization which issues charters to regional organizations (councils). The councils, in turn, facilitate the chartering of local “units” or troops. Each troop has a local sponsor. In this case, the troop was sponsored by a church.
In their lawsuit the victims claimed that (1) both BSA and the church had been negligent in failing to adequately screen volunteers; (2) BSA was negligent in approving Jon as a scout leader on an “incomplete application”; and (3) both organizations were negligent in supervising Jon and protecting minors from him despite notice that he was an unfit leader. A trial court dismissed all claims against BSA and the church, and the victims appealed.
negligent approval of Jon as a scout leader
A state appeals court ruled that BSA and the church could not be liable on the basis of negligent hiring or screening. It concluded, “We note that plaintiffs do not cite any items omitted in Jon’s application or, for that matter, identify any information which could or should have been discovered during a screening process or during Jon’s long tenure as a scout and scout leader which would have put defendants on notice that he had a propensity for sexual abuse. Thus, without deciding whether BSA owed or breached any duty in connection with Jon’s certification as a scout leader, we conclude that these claims were properly dismissed for lack of any evidence that any such breach was a cause of the injuries sustained by plaintiffs.”
negligent hiring and negligent supervision
The court noted that a claim based on negligent hiring and supervision “requires a showing that defendants knew of the employee’s propensity to commit the alleged acts or that defendants should have known of such propensity had they conducted an adequate hiring procedure.” The court concluded,
Here, it is undisputed that Jon served for many years as a scout leader without incident or complaint; indeed, his tenure as assistant scout leader dates back at least 10 years … The evidence offered by plaintiffs that defendants had knowledge that Jon was a danger to the boys in his care is based upon the fact that some of the defendants were aware that, as a teenager, he had been denied Eagle Scout status due to a DWI conviction and an incident in which he had entered a scout camp intoxicated. In addition, plaintiffs point to Jon’s practices of drinking beer and smoking cigarettes in front of the boys, and rely on evidence that he occasionally offered some of them cigarettes. Evidence also exists that he provided alcohol to plaintiffs and other boys and encouraged them to drink. Even assuming defendants were aware of Jon’s alleged improper use of alcohol and cigarettes, we find these allegations, although relevant to his qualifications as a scout leader, insufficient as a matter of law to constitute notice to defendants that there was a danger of Jon sexually assaulting plaintiffs. Plaintiffs’ reliance on testimony from the church’s scouting coordinator that he would not have approved Jon as a scout leader based on his personal “intuition” is also insufficient, as is the general proposition that sexual abuse of children is a pervasive problem in society today, to constitute a factual basis upon which to charge any of these defendants with notice that Jon posed a danger as a sexual predator to the boys in his charge. There must be some foundation upon which the question of foreseeability of harm may be predicated, i.e., at least a minimal showing as to the existence of actual or constructive notice.
With regard to the church’s liability, the court concluded, “The church’s scouting coordinator testified that he was the church representative in charge of all dealings with the troop and that he had no prior notice of Jon’s pedophiliac propensities despite having known him for over 10 years as a Boy Scout adult volunteer. Given this undisputed evidence that the church liaison to the scout troop had no prior knowledge of Jon’s predatory sexual tendencies and the dearth of any suggestion that evidence exists to the contrary, we find that [the trial court properly dismissed all claims against the church].”
Application. This case is important for the following reasons. First, the court rejected the victims’ claim that the BSA and the church were responsible for Jon’s acts on the basis of negligent hiring or screening, since they cited no information omitted in Jon’s application, and failed to identify any information which could or should have been discovered during a screening process or during Jon’s long tenure as a scout leader which would have put them on notice that he had a propensity for sexual abuse.
Second, the court concluded that any claim based on negligent hiring or supervision “requires a showing that defendants knew of the employee’s propensity to commit the alleged acts or that defendants should have known of such propensity had they conducted an adequate hiring procedure.” The court concluded that the victims failed to meet this standard. It relied in part on Jon’s long (10 years) tenure as a scout leader without a single complaint of inappropriate sexual misconduct. It rejected the victims’ contention that a previous conviction for DWI, or allegedly offering alcohol or cigarettes to minors suggested that he was a possible pedophile. The court concluded that “there must be some foundation upon which the question of foreseeability of harm may be predicated, i.e., at least a minimal showing as to the existence of actual or constructive notice” that Jon might sexually molest minors. Steinborn v. Himmel, 2004 WL 1469312 (N.Y.A.D. 2004).
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