On the morning of October 9, 2013, a pastor employed by both a church and a university campus ministry was driving a motor vehicle when he negligently collided with another vehicle. The driver of the other vehicle (the “decedent”), a married woman with five children, was killed in the accident. At the time of the accident, the pastor was talking on his cell phone with a church employee. The church employee initiated the phone call with the pastor while knowing the pastor was operating a vehicle at the time.
The family of the decedent sued the church for wrongful death, alleging that the accident was due to the “negligent distraction” of the pastor by the church employee who initiated the cell-phone call. The lawsuit alleged that the negligence of the pastor and church employee were imputable to the church since both individuals were church employees who were acting within the scope of their employment at the time of the phone call.
The lawsuit further alleged that at the time of the cell-phone call the pastor was in violation of the Illinois Cell Phone Act, which, in part, provides:
(a) As used in this Section: “Electronic communication device” means an electronic device, including but not limited to a hand-held wireless telephone, hand-held personal digital assistant, or a portable or mobile computer, but does not include a global positioning system or navigation system or a device that is physically or electronically integrated into the motor vehicle.
(b) A person may not operate a motor vehicle on a roadway while using an electronic communication device.
(b-5) A person commits aggravated use of an electronic communication device when he or she violates subsection (b) and in committing the violation he or she was involved in a motor vehicle accident that results in great bodily harm, permanent disability, disfigurement, or death to another and the violation was a proximate cause of the injury or death. 625 ILCS 5/12-610.2.
The church turned the lawsuit over to its general liability insurer. The insurer responded by asking the court to determine (in a “declaratory judgment”) whether the church’s policy covered the unique facts of this case. The insurer argued that the church’s policy did not provide coverage, for two reasons.
First, at the time of the accident, the pastor was on his way to his other job with the campus ministry and therefore he was not using his car for church business.
Second, the pastor’s auto insurance carrier was defending the church pursuant to the policy it had issued to the pastor, and so long as this insurer was providing a defense there was no reason for it to do so.
The decedent’s family asserted that the church’s general liability insurer was obligated to provide the church with a legal defense and indemnification for any adverse verdict or judgment. They noted that, at the time of the accident, the pastor was “substantially within the authorized time and space limits of his employment, he was serving the interests of the church, and the church directly supervised and controlled him.”
A state appeals court agreed with the church insurer’s position, and ruled that the church’s liability policy did not cover the family’s wrongful death claim. Pekin Insurance Company v. Lutheran Church, 2016 WL 150966 (Ill. App. 2016).
Application to churches
The importance of this case is not the insurance coverage issue. Rather, it is the family’s claim that the church was liable for the decedent’s death on the basis of the pastor’s “distracted driving” that had been caused by a church employee’s initiation of a phone call to the pastor’s cell phone while knowing the pastor was driving a car. Note the following points:
The Kubert case
This same issue was addressed by a court in New Jersey in 2013. Kubert v. Best, 75 A.3d 1214 (N.J. Super. 2013). The court ruled that a person sending a text message to another may be legally responsible for injuries caused by the recipient’s distracted driving if the sender knew that the recipient was driving a vehicle at the time of the communication. The Kubert case involved a head-on collision between a motorcycle driven by a married couple (the “plaintiffs”) and an 18-year-old male (“Kyle”) driving a pickup truck. As the plaintiffs traveled around a curve, Kyle’s truck crossed the center line of the highway and entered their lane of travel. The resulting collision seriously injured the plaintiffs.
A subsequent examination of Kyle’s phone records revealed that at the time of the accident he was texting his teenage girlfriend (the “defendant”), and that he had done so 62 times that day. The telephone record also showed that, in a period of less than 12 hours on that day, Kyle had sent or received 180 text messages.
In her deposition, the defendant acknowledged that it was her habit to text more than 100 times per day. She said: “I’m a teenager. That’s what we do.” She also testified that she generally did not pay attention to whether the recipient of her texts was driving a car at the time or not.
Immediately after the accident, Kyle called 911, which fixed the precise time of the accident. This information, plus Kyle’s phone records, demonstrated that he was engaged in texting at the precise time of the accident.
The plaintiffs sued Kyle initially, but, after learning of the defendant’s involvement in the accident, sued her as well. The defendant asked the court to dismiss her from the case on the ground that she had no liability for the accident because she was not present at the scene, had no legal duty to avoid sending a text to Kyle when he was driving, and did not know he was driving. The trial judge concluded that the defendant did not have a legal duty to avoid sending a text message to Kyle, even if she knew he was driving. The judge dismissed plaintiffs’ claims against her, and the plaintiffs appealed.
A New Jersey appeals court ruled that “a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.” But the court also concluded that plaintiffs “failed to present sufficient evidence to prove that the defendant had such knowledge when she texted Kyle immediately before the accident.” The court concluded: We do not hold that someone who texts to a person driving is liable for that person’s negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle. We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.
The court adopted the following two-prong analysis for determining the liability of texters: First, “we do not hold that someone who texts to a person driving is liable for that person’s negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle.” Second, “we hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.” A violation of this duty amounts to negligence for which the texter can be liable in a civil lawsuit.
In summary, the mere act of sending a text to another person does not create liability, even if the texter knows that the recipient is operating a motor vehicle. People often receive text messages while driving a vehicle, and choose not to read or respond to them. Texter liability arises only when the texter knows that:
- the recipient is in the process of operating a motor vehicle, and
- knows or has special reason to know that the recipient is likely to read the text message while driving.
How can one who sends a text message know that the recipient is operating a motor vehicle, and is likely to read the text message while driving? Consider the following:
- The court explained this critical component of liability as follows: “When the sender has actual knowledge or special reason to know from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver.” According to this language, a text message sender may know from “prior texting experience or otherwise” that a recipient will view a text while driving.
- One way to prove that the sender of a text message knows, or should know, that the recipient is likely to read the text message while operating a motor vehicle is if a conversation occurs with multiple messages and responses. So long as the sender knows that the recipient is operating a motor vehicle, then the sender’s participation in a multimessage conversation with the recipient will demonstrate that the sender knows that the recipient is reading the messages while driving.
- In some text messaging conversations the recipient will acknowledge, directly or indirectly, that he or she is in the process of operating a motor vehicle.
- A staff member who sends a text message to another staff member may know the recipient is engaged in operating a motor vehicle as a result of scheduling. That is, if the recipient is driving to a scheduled appointment, then the time of departure and the time of the appointment ordinarily will indicate if the recipient was driving at the time of the text messaging.
- In the case of cell-phone conversations, the fact that the person receiving the call is driving often can be established by traffic noise, poor or variable reception, and scheduling.
Church liability
Churches may be exposed to liability in several ways as a result of the use of cell phones by church employees and volunteers. Consider the following:
Negligence
Negligence is conduct that creates an unreasonable risk of foreseeable harm to the person or property of another, and that results in the foreseeable harm. The important point to recognize is that negligence need not be intentional. For example, negligence may include conduct that is simply careless, heedless, or inadvertent.
Churches can be liable on the basis of negligence in a couple of ways.
First, churches can be liable for their own negligence. For example, a church’s failure to adopt a policy restricting the use of cell phones by church employees and volunteers while driving on church business may be viewed as negligent depending on the circumstances.
Second, churches can be liable for the negligence of employees and volunteers occurring in the course of their duties. This vicarious or imputed liability of an employer for the negligence of an employee is known as respondeat superior (the “employer responds”). To illustrate, if an employee uses a cell phone while driving on church business and causes an accident resulting in death or injury to another, this can expose the church to liability on the basis of respondeat superior.
Negligence per se
Several state legislatures have enacted statutes prohibiting the use of cell phones for texting or calling in some situations. According to data compiled by the United States Department of Transportation:
- 41 states ban text messaging by all drivers (an additional 6 states ban all texting by novice drivers)
- 12 states ban the use of handheld cell phones while driving
- no state bans the use of hands-free cell phones while driving, but several ban hands-free use of cell phones by bus drivers and 37 states ban cell-phone use by novice drivers (defined differently from state to state)
Under the principle of “negligence per se,” a person who injures another as a result of violation of a statute may be liable to the victim. The significance of a finding of negligence per se is that actual negligence is presumed. There is no need to show any culpability on a defendant’s part other than a violation of a statute. This means that a person who injures or kills another while violating a state law barring use of a handheld cell phone would be automatically liable for monetary damages without a need for the victim to prove actual negligence. In other words, the mere failure to comply with the law constitutes negligence per se. And, the distracted driver’s employer may be vicariously liable if the accident occurred while the driver was engaged in the course of his or her employment.
This makes it essential for church leaders to be familiar with applicable federal, state, and local laws pertaining to the use of cell phones while driving. Allowing employees and volunteers to operate cell phones while driving may expose the employing church to liability for any deaths or injuries that may occur. Even when the use of a cell phone is allowed by law, this does not preclude a driver (or his or her employer) from being liable for deaths or injuries resulting from the driver’s negligence.
Gross negligence
Most states have enacted laws limiting the liability of church officers and directors. In some states, these laws protect all church volunteers. In some cases, the statute may protect only officers and directors of churches that are incorporated under the state’s general nonprofit corporation law. The most common type of statute immunizes uncompensated directors and officers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence.”
In 1997, Congress enacted the Volunteer Protection Act (42 U.S.C. § 14501). The Act clarifies that it “preempts the laws of any state to the extent that such laws are inconsistent with this [Act] except that this [Act] shall not preempt any state law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity.” The Act states that no volunteer of a nonprofit organization shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization if (1) the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity at the time of the act or omission; (2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the state in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity; (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and (4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to possess an operator’s license or obtain insurance.
As with state laws, the federal Volunteer Protection Act affords only “limited” immunity to uncompensated volunteers since it provides no immunity from liability for gross negligence. Gross negligence has never been definitively defined, but it certainly connotes behavior that goes beyond ordinary negligence and approaches recklessness. What kind of behavior would this include? Possibly the following, depending on the circumstances:
- use of 15 passenger vans to carry people, without restriction
- failure to adequately screen persons who will work with minors
- failure to adopt a cell-phone policy prohibiting the use of cell phones by church employees or volunteers while driving in the course of church business
Examples
The following examples illustrate potential areas of church liability.
EXAMPLE 1 Pastor Tim is the lead pastor at his church. He is out of the office for several hours each week, and frequently uses his cell phone, for both calls and texts, while driving. The church secretary receives an important message about a church member who was recently hospitalized, and she sends Pastor Tim a text message informing him of this development and asking if he plans to be back at the church for a scheduled appointment that afternoon. She knows that, at the time she sent the text, Pastor Tim was driving his car to a lunch appointment with another pastor. While responding to this text message, Pastor Tim becomes distracted and causes an accident in which another driver is seriously injured. There are four potential grounds for church liability under these circumstances: (1) According to the Kubert case, the church (as the “texter”) is liable for Pastor Tim’s negligence so long as it knows he is driving a vehicle at the time of the text message, and it knows that he is likely to read the text message while driving. It is likely that both conditions are satisfied in this case, which exposes the church to liability. (2) The church may be liable on the basis of negligence for failing to have a cell-phone policy that prohibits employees from using cell phones while operating a motor vehicle in the course of church business. (3) The church may be liable on the basis of negligence per se if Pastor Tim’s operation of a cell phone while driving violated state law. (4) The church may be liable on the basis of “respondeat superior” for the negligent acts of its employees committed within the course of their employment.
EXAMPLE 2 Same facts as the previous example. Is it possible for the members of the church board to be liable for Pastor Tim’s negligence? The answer is yes. Most states and the federal government have enacted laws immunizing uncompensated directors and officers of nonprofit organizations from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence.” It is possible that a jury would conclude that a church board’s failure to take steps to ban the use of cell phones by employees while operating motor vehicles on church business amounts to gross negligence, which would eliminate the limited immunity from liability provided by state and federal law. This is especially true if text messaging while driving is prohibited by state law. No court has addressed this question, so it remains a mere possibility.
EXAMPLE 3 A church’s lead pastor sends the church’s youth pastor a text message. He does not know that the youth pastor is operating a motor vehicle. The youth pastor responds to the text message, and the two pastors engage in a brief series of text messages. The youth pastor is momentarily distracted while sending her final response, and causes an accident in which another person is injured. According to the Kubert case, the lead pastor (the “texter”) is not liable for the youth pastor’s negligence since he did not know that the youth pastor was driving a vehicle at the time of the text message conversation. The church cannot be liable based on the lead pastor’s text messages since the pastor himself is not liable, but it may be liable for the youth pastor’s negligence based on its failure to have a cell-phone policy that prohibits the use of cell phones while driving a vehicle on church business.
EXAMPLE 4 Last year, a church adopted a cell-phone policy prohibiting the use of cell phones by church employees while driving a motor vehicle on church business. While at first unpopular, and only sporadically followed, the church staff has come to see the value of the policy in protecting the church as well as the general public. Compliance has become the norm. One day, the church secretary needs to ask the lead pastor a question. She knows that he is driving a car at the time, but she sends him a text assuming that he will read and respond when it is safe. But instead, the pastor decides to open the message and respond while driving. This results in a momentary lapse in concentration, and an accident. According to the Kubert case, the church (as the “texter”) is liable for the pastor’s negligent use of his cell phone for text messaging so long as it knows he is driving a vehicle at the time of the text message, and it knows that he is likely to read the text message while driving. It is possible, based on the successful implementation of the church’s cell phone policy, that the church could not reasonably know that the pastor would violate the policy and respond to the text message while driving, and therefore the church would not be liable.
EXAMPLE 5 For many years, a church secretary has called the church’s lead pastor on his cell phone to discuss church business when he was not in the church office. In more recent years, she has engaged in text message conversations more often than cell-phone calls. On one occasion, the pastor causes an accident due to distracted driving while attempting to respond to a text message from the church secretary. The occupants of the other vehicle were injured and sue the church. They also sue the church secretary personally, claiming that she knew the pastor was engaged in driving at the time of her text message and was likely to respond. The church secretary insists that she did not know that he was driving, or that he would respond to her text message while driving. According to the Kubert case, the court noted that “prior texting experience” can demonstrate that a text message sender knows, or should know, that the recipient will view the text while driving.
