Combating Claims With Common Sense
Avoiding Negligent Hiring, Retention, and Supervision Claims Against Churches
by G. Stanton Masters
In June 2008, a Tennessee man sued his nondenominational church for $2.5 million after he sustained an injury during an altar service. The man claimed he fell backward during prayer, and the so-called catchers customarily present in such services failed to prevent his fall.1 The man also alleged that his pastor was negligent in not supervising the catchers to make sure they were behind him as he prayed.
Claims for negligent supervision, as well as related claims for negligent hiring and negligent retention, have become favorites for injured parties and their lawyers to use against churches. Negligence, a lack of due care, is a concept long known to the law. The indirect nature of negligent hiring, retention, and selection claims makes them different.
If a church directs an employee or volunteer to act in a way that proves negligent, the church can be held liable directly for its decisions. Similarly, if a church employee or volunteer acts carelessly, but not at the specific direction of the church, his negligence may be attributed to the church. States accomplish this through legal doctrines of varying names, such as respondeat superior and agency,2 but the gist of those doctrines is essentially the same. If an employee or volunteer is acting within the scope of his employment or agency, the employer or principal should be responsible for injuries that result from the employee or volunteer’s carelessness.
Many states have applied these doctrines against churches. In those states, for example, if a church employee negligently fails to stop at an intersection while driving on church business, the church may be liable for the resulting collision.
Not everything an employee or volunteer does, however, is within the scope of his employment or agency. No one’s job description includes assault, battery, or sexual molestation; yet people accuse church employees and volunteers of these very things. When someone levels these allegations, an intentional wrongdoer is often standing between the church and the injured party. These are the cases where claims for negligent hiring, retention, and supervision are most potent against churches.
As their names suggest, these claims are rooted in negligence. Distilled to its simplest definition, a person is negligent if he fails to use due care to protect another from injury when he has a duty to do so. Courts have found that employers, including churches, have a duty not to hire or retain employees or volunteers that it should know pose an unreasonable risk of harm to others, and they have a duty to supervise personnel and activities to avoid unreasonable risk of harm to participants. When someone sues a church for negligent hiring, negligent retention, or negligent supervision, he alleges that the church was not as careful as it should have been when it selected the wrongdoer as its employee or volunteer, when it decided to keep the wrongdoer in a position of responsibility at the church, or as it managed the wrongdoer’s activities.
These claims provide an injured plaintiff with a back door through which to find a church liable when the church otherwise might not be responsible for the wrongdoer’s misconduct. Why would injured parties go through this trouble? Injured parties and their lawyers perceive churches as having greater assets – land, buildings, vehicles, personal property, bank accounts, and insurance policies – than the individual wrongdoer. Furthermore, injured parties and their lawyers count on threats of lawsuits and bad publicity to easily frighten churches and to extract quick settlements. Often the vehicle for applying this pressure against a church is a threatened claim of negligent hiring, retention, or supervision.
Rick Warren begins The Purpose Driven Life with the words: “It’s not about you.” Protecting a church from allegations of negligent hiring, retention, and supervision of its personnel and activities also begins with an understanding that such claims are not about your church, at least not directly. Instead, they often are about finding an alternate path to reach your church’s assets. Although indirect, the risk to your church is very real.
The purpose of this article is to help churches reduce this risk by better understanding negligent hiring, retention, and supervision claims. A discussion of the applicable law will provide insights for risk avoidance. Recent court decisions also will confirm practices churches can adopt and mistakes they can avoid. Unfortunately, an article like this cannot detail the law in each of the 50-plus jurisdictions where your church may be located or address every circumstance your church may encounter. At best it can offer a general overview of the law and perhaps provide a point worth remembering.3 Here it is: Except for the grace of God, nothing is more important in avoiding these claims than using common sense.
Negligent Hiring Claims
Although states describe claims for negligent hiring differently, the essence of these claims is: The church hired an employee (or selected a volunteer) that it knew or should have known posed an unreasonable risk of injury to another person, and injury to a third person occurred as a direct result. The gravamen of this complaint is what the church knew or should have known. What then should common sense dictate as the best way to avoid these claims? Know your employees and volunteers.
Knowing your employees and volunteers begins with a thorough screening process before you place candidates in a position of responsibility at your church. This process should assess a candidate’s suitability based on the potential risks inherent in the position for which you are considering the candidate. If the position involves driving a church vehicle, does the individual have a history of reckless driving? If the position deals with children, does the candidate have any history suggesting he might be abusive? If the position involves engagement with members of the opposite sex, is there anything that suggests this candidate might pose a risk of sexual misconduct?
Start by having candidates fill out a complete application and follow up on any unusual information, such as gaps in prior employment history or vague reasons for leaving prior jobs. If your application requests references (and it should), document your attempt to contact those references as well as any information they provide. To the extent situations warrant and the law permits or requires, conduct background checks on candidates, which may include criminal history, driving history, educational background, etc.
Professional services can perform some of these checks for a fee. A church also can conduct some background checks. For example, many states now post a sex-offender registry online. Check it. Other states, such as Missouri, permit online access to statewide criminal and civil lawsuit information. Perform a name search and see what turns up. Finally, interview the candidate. Often a candidate will volunteer details in a conversation that he might not otherwise put in writing. Document the results of the screening process. If anything revealed in the screening process suggests a candidate might pose a risk of harm to others, keep looking for better candidates.
Federal, state, and even municipal antidiscrimination laws may limit what you can ask a candidate, and the law may prescribe the types of background searches a church can use. To make matters even more complicated, some of these laws apply to churches and some do not. Consult a local employment lawyer to see what your jurisdiction permits. Do not allow the seeming complexity of employment discrimination and related laws discourage your church from proper screening. The benefits of careful screening far outweigh the costs, as a recent Massachusetts case reveals.
In the Petrell case, a Massachusetts woman in her thirties sued her Episcopal parish, the local diocese, and bishops after she became involved in a sexual relationship with her parish priest. Among the woman’s claims, she alleged that the diocese and bishops were negligent in hiring the offending priest. The evidence disclosed that the diocese had engaged in a thorough prehiring screening process including a professional background investigation that made inquiries to all former schools, employers, and diocese with which the priest had been associated; direct communications with church officials with whom the priest had worked previously; confirmation that the priest had attended sexual misconduct awareness training; and an interview with the priest. The investigation revealed no evidence of prior sexual misconduct by the priest. As a result, the court concluded there were no facts suggesting the diocese and bishops had overlooked evidence from which they could have known the priest would engage in a sexual relationship with an adult parishioner. The court affirmed a judgment in favor of the bishops and the diocese. 4 The Petrell case alone should convince any skeptic that a thorough prehiring screening process can offer protection against negligent hiring claims.
Understandably, churches are reluctant to discourage potential employees and volunteers unnecessarily with draconian screening procedures. Again, common sense may offer guidance in determining how much screening is necessary to fill a particular position. One common sense consideration is the likelihood and magnitude of the potential injury if a candidate engages in misconduct in that position. Since, for example, the potential harm to a child at the hand of an abuser is substantial, a church might reasonably require more stringent screening procedures of those working with children than for those working with the men’s softball team.
Another common sense consideration is a pastor’s personal exposure to the candidate. Have you known the candidate well enough and long enough to feel certain you would know if the candidate had been involved in any criminal or illicit activity? If so, you might need fewer screening procedures. A wise pastor, however, must understand that every time the church opts for lesser screening procedures, the church is potentially taking on greater risk of a negligent hiring claim. How much risk are you willing to take?
Certainly, common sense always should tell a wise pastor to be wary of any candidate he does not know well, and who seems overly eager for a position, particularly a position dealing with youth or children.
When I was an Assemblies of God youth, I and other boys from my church attended youth camp. Our dorm room counselor was a male, approximately 35 years old, whom we did not know. The counselor was not from our church or any Assemblies of God church. During camp our counselor became close to some of the boys, even giving them gifts. Although camp ended without incident, our counselor began showing up at church and sitting with the boys from his dorm room. He also began appearing at some boys’ homes late at night just to talk or to invite them out for a Coke.
Thank God for an observant pastor who, unsettled by the circumstances, chose to thoroughly investigate. The pastor reported our youth camp counselor had a prison record and dubious motives. The pastor called this man into his office and dispatched him from our church without incident. The situation ultimately caused the district to implement more stringent screening for youth camp volunteers.
True, the story of my youth camp experience occurred in a far more trusting era, but potential predators still are out there. Thorough prehiring screening is needed more today than ever. Screenings will help protect your church from claims by weeding out unsuitable individuals. No system is foolproof, however. Sometimes people level allegations of misconduct against individuals no one has any reason to suspect. In those cases, the documentation in your files of a thorough and complete screening of a candidate prior to making him your employee or volunteer becomes powerful evidence your church can use to defend itself against a negligent hiring claim.
Negligent Retention Claims
In a negligent retention claim, the injured party alleges that the church knew or should have know that its employee or volunteer posed an unreasonable risk of harm to another, but carelessly left that employee or volunteer in his position of responsibility. The gist of this claim is the knowledge the church receives after it hires an employee or selects a volunteer. Common sense dictates that a church can help avoid negligent retention claims by taking suggestions of wrongdoing against any employee or volunteer seriously, investigating thoroughly, and responding in a way that reasonably assures the alleged misconduct will not occur in the future.
Allegations of misconduct leveled against a church’s employee or volunteer may be sincere, fabricated, or anything between. Nevertheless, a wise pastor treats such allegations seriously. As a first step, the person assigned by the church to investigate the matter should meet directly with the accuser and also with the accused to obtain the facts. While the investigation is under way, the best approach is for the church to remove the accused employee or volunteer from the position or circumstance in which the accusation arises. If it is impossible to remove the accused party, then the second best approach is to neutralize any opportunity for the accused to commit the alleged misconduct again, such as requiring the accused to perform his functions only under the direct observation of other adults. Once you have completed your investigation, fairly determine whether you can verify the allegations, and then choose an appropriate response.
The purpose of the investigation is to make sure the alleged misconduct does not occur in the future. The church’s response may well depend on the results of its investigation. If the church concludes the accusation is completely unfounded, it may feel comfortable returning to the status quo. If the church concludes the accusation is true, then it must take appropriate corrective action immediately. Depending on the circumstances and risks involved, such corrective action might include additional training, enhanced supervision, reassignment, termination, and/or a report to proper authorities. What if the investigation of the complaint is inconclusive? Common sense suggests the church err on the side of caution. Even if the church is unable to assess fault to an employee or volunteer, the church still may choose to implement safeguards designed to lessen the risk that misconduct of the type alleged (but unproved) could occur in the future.
At some point it will become necessary to report the results of the investigation to the congregation, other interested parties, and most important, the accuser. The saying is true: “Anything you say may be used against you in court.” In cases of sufficient seriousness, the church may want to involve its attorney in conducting the investigation, determining corrective measures, and crafting a description of the investigation’s findings before public dissemination.
Recent court decisions illustrate the importance of churches correctly investigating and responding to allegations of misconduct against their employees and volunteers. In Petrell the Massachusetts case in which a woman became involved in a sexual relationship with her priest, the diocese received anonymous and incomplete reports of suspected sexual misconduct by the priest while the secret affair was occurring. The reports to the diocese, however, did not include the identity of the woman or the circumstances in which the misconduct was occurring. Despite the diocese’s efforts to obtain more concrete information on which to act, witnesses were unwilling to come forward. The evidence showed that the diocese followed its written policy for dealing with allegations of sexual misconduct. Furthermore, when diocese finally learned of the sexual relationship, the diocese moved quickly with its disciplinary process, which resulted in removing the priest from his position. On these facts, the court upheld judgment for the diocese on a claim of negligent retention of the offending priest.
In contrast to the favorable result in the Petrell case, mishandling evidence of employee misconduct can have tragic consequences for a church. In the Faieta case, the parents of a 2-year-old boy sued an Ohio church and its daycare worker after the parents discovered visible marks, cuts, and contusions on the child’s backside. The jury found in favor of the injured child. On appeal the church did not deny the daycare worker had abused the child. The church claimed, however, it could not be liable because it did not know (and could not have known) of its worker’s propensity to abuse children until after the incident in which the child was injured.
The evidence in the case, however, told a different story. The record showed that the church had previously fired the worker from another job for performance issues, but later rehired him as a substitute daycare worker, although he had no apparent background in childcare. Three months before the plaintiffs’ child was injured and while the daycare worker was alone in a room with children, another child was seriously injured. The worker claimed the injury in the prior incident occurred when two children “bumped heads.” One child in the prior incident suffered a fractured skull, but the other child inexplicably had no injury at all.
Despite the suspicious circumstances surrounding the earlier incident, the church conducted no investigation of that incident, did not thoroughly examine the worker regarding the matter, did not provide the worker with training on injury prevention in the classroom, and made no changes in the way it supervised the worker. The court noted that the very next time the daycare worker was alone with children following the prior incident, the injury to the plaintiffs’ son occurred. From this evidence the court concluded that a jury reasonably could conclude that the church knew or should have known that its daycare worker had a propensity to physically harm children, and the court upheld the jury verdict of over $2 million against the church. 5
Common sense suggests it is better to follow the diligence rewarded in the Petrell case than repeat the costly mistake described in the Faieta case. Investigate, and do not lightly dismiss allegations of wrongdoing and suspicious circumstances.
Negligent Supervision Claims
A claim for negligent supervision is similar to a claim for negligent retention, and many common sense preventative measures apply equally to both. Reduced to its basics, however, a negligent supervision claim alleges that an employer has failed to exercise sufficient control over its employees and volunteers, as well as its activities, to prevent injury to another. The gist of the claim is exercising control. What does common sense dictate? Put clear rules in place and make sure everyone follows them.
What sorts of rules do you need? Start by considering your church’s greatest areas of risk, and design rules to limit that exposure. For example, child molestations often occur when a child is alone with male in an out-of-the-way place. To reduce this risk, consider implementing policies prohibiting an adult worker from being alone with a minor, requiring church activities to have at least two adult workers at all times, and preferring husband-wife teams as activity leaders. Churches also need to consider steps to eliminate locations where illicit activities could occur unseen. Policies requiring door locks, lights, windows, and even cameras can go a long way in reducing a church’s risks of employee or volunteer misconduct.
Regardless of the activity, have a policy that requires an adequate number of supervising adults at all times. The correct number is not set in stone, but should vary depending on the likelihood and magnitude of potential injuries posed by the activity. Thus, an activity designed to teach Royal Rangers the correct use of a camp ax probably requires more supervision than taking a Fine Arts Festival ensemble to sing at a local nursing home. Why? Because given their ages and the tools involved, the risk of serious injury is greater for the Royal Rangers than the singers. Having ample supervision serves two purposes. First, it may prevent an injury from happening; and, second, even if injury does occur, the presence of a reasonable number of supervisors may convince a court that lack of supervision did not cause the injury. Either way, the church may escape liability.
Such was a New York court’s conclusion in the Rivera case. AlthoughRivera involved a school district rather than a church, its lessons apply equally to both. There, a mother sued the school district for negligent supervision after her child’s arm caught in some playground equipment and the child suffered injury. The evidence, however, showed that the child’s injury happened quickly and without warning while there were three supervisors on the playground, one of whom was standing next to the child when the accident occurred. On these facts, the court found there was no proof that closer supervision would have prevented the accident, and the court entered judgment in favor of the school district. 6
In addition to requiring an adequate number of supervisors, your church policies also should stress accountability and follow up. Your employees and volunteers should be encouraged to report information they receive regarding violations of policies, suspicious activities, excessively angry parents, injuries of any kind, and anything else that does not seem quite right. The purpose of this reporting policy is not to punish necessarily, but rather to protect the church. Make no mistake. What church leaders do not know can still hurt the church, a hard lesson recently learned by church leaders in Oklahoma.
In the Schovanec case, the plaintiff alleged that he was coerced into engaging in inappropriate sexual conduct by a priest who was his youth pastor and that the bishop and diocese negligently supervised the priest by failing to prevent the priest’s conduct. The diocese countered that it legally could not be liable because there was no evidence that the diocese had actual knowledge the priest had previously engaged in the specific type of sexual abuse about which the plaintiff complained. The plaintiff’s evidence, however, showed that other priests and employees of the diocese had heard rumors of parties involving boys at the rectory where the accused priest lived; that the priest allowed boys in his charge to spend nights with him at the rectory; that the priest commonly went skinny dipping with boys in his charge; and that the priest had isolated himself from other priests.
The Oklahoma court made two points on the basis of the plaintiff’s evidence. First, the diocese could not escape liability for negligent supervision by claiming it had no knowledge of the accused priest’s behavior. Other priests and employees of the diocese did know, and the court imputed their knowledge to the diocese. In its second point, the court concluded that although the diocese may not have known of the precise type of abuse about which the plaintiff complained, reasonable minds could differ on whether the knowledge the diocese did have was sufficient to conclude that sexual abuse of some sort might be occurring and whether there was a need to respond. The court refused to exonerate the diocese based on its “lack of specific knowledge defense,” but instead gave the plaintiff permission to try his negligent supervision claim to a jury.7
The Schovanec case makes clear that knowledge is key, and churches need to have policies in place that require an upward flow of information. It is essential that a church’s employees and volunteers report potential problems of any kind right away. Otherwise, the church may be deemed to know, and be responsible to act upon, critical facts long before complete information actually reaches church leaders.
Regardless of the type of policies a church puts in place, make sure workers follow those policies. If someone asserts a claim for negligent supervision against your church, the only thing worse than having no stated policy to protect others is to have a policy that the church does not enforce, as a New York camp recently learned.
In the Benedek case, a participant in a religious summer camp brought a claim for negligent supervision after he was injured during “horseplay” with one of the camp’s dining room staff while the boy’s assigned counselor was absent. The president of the camp testified that the camp’s rules required campers to be with assigned counselors during the daytime and that camp employees other than assigned counselors were not to mingle with campers. Despite favorable law in New York that otherwise might have protected the camp from liability, the court instead focused on the fact the boy’s injury occurred when his counselor was absent and he was involved in horseplay with an unauthorized camp employee, both in violation of the camp’s rules. As a result, the court allowed the boy’s negligent supervision claim against the camp to proceed.8
Common sense indicates that if there is a policy on the books, make sure your employees and volunteers follow it. Otherwise, a church increases its risk of an adverse judgment on a negligent supervision claim.
The Importance of Insurance
No matter how much common sense a church applies to its personnel and its activities, there remains a risk from negligent hiring, retention, and supervision claims. If such claims cannot be avoided and litigation ensues, then adequate insurance is a church’s next line of defense. (See article, “Insurance: What Coverage Do You Need?” elsewhere in this issue.) Why? Because any judgment not covered by insurance will have to be paid by the church. So before a problem arises, review your church’s insurance coverage. Ask your insurance carrier to confirm in writing that your church has coverage for negligent hiring, retention, and supervision claims. In addition, make sure you have a policy or policies in place to cover not only your church as an entity, but its staff, officers, and directors. Finally, make sure your church has a reasonable amount of coverage. A local lawyer can help you determine what is reasonable in your jurisdiction. If your church does not have adequate coverage for these claims, try to obtain it. Common sense recognizes it is better to pay a judgment with insurance proceeds than with offering plate dollars.
Clearly, churches have a much more important mission than just avoiding lawsuits. Nevertheless, claims for negligent hiring, retention, and supervision can be very real obstacles to fulfilling that mission. Applying common sense will assist in avoiding those obstacles.
G. STANTON MASTERS, J.D., The Masters Law Firm, P.C., North Kansas City, Missouri
1. See Complaint,Lincoln v. Community Christian Center Ministries, et. al, Civil Action #3-253-08, Circuit Court of Knox County, Tennessee, June 2008.
2. Respondeat superior is Latin for “let the master answer.” An agent is someone who is authorized to act for another, who is called the “principal.”
3. Because of its generality, this article is no substitute for legal advice provided by a qualified lawyer in your home state. As courts are fond of saying, “Ignorance of the law is no excuse.”
4. See Petrell v. Shaw, 902 NE 2d 401 (Mass. 2009).
5. See Faieta v. World Harvest Church, 2008 Ohio 6959 (Ohio App. 12/31/2008). Although the court decision describes Faieta’s claim as one for “negligent supervision,” Ohio law appears to include negligent retention claims under that description.
6. See Rivera v. Westbury Union Free School District, 2009 N.Y. Slip Op. 30774(U) (N.Y. Supp. Ct. 3/31/2009).
7. See Schovanec v. Arch Diocese of Oklahoma City, 188 P. 3d, 158 (Okla. 2008).
8. See Benedek v. Richland Manor Associates, LLC, 2008 N.Y. Slip Op. 52350(U) (N.Y. Supp. Ct. 11/25/2008).