Theories of Liability
In recent years, churches have been sued as a result of the sexual abuse of minors by church workers on church property or during church activities.
In most cases, the victim alleges either or both of the following two theories:
the church was negligent in hiring the abuser without adequate screening or evaluation;
the church was negligent in its supervision of the abuser.
The term negligence generally refers to conduct that creates an unreasonable risk of foreseeable harm to others. It connotes carelessness, heedlessness, inattention, or inadvertence. It is important to recognise that churches are not "guarantors" of the safety and well-being of children. They are not absolutely liable for every injury that occurs on their premises or in the course of their activities. Generally, they are responsible only for those injuries that result from their negligence.
Negligent hiring simply means that the church failed to act responsibly and with due care in the selection of workers (both volunteer and compensated) for positions involving the supervision or custody of minors. Victims of abuse who have sued a church often allege that the church was negligent in not adequately screening applicants.
Note: the church may exercise sufficient care in the hiring of an individual, but still be legally accountable for acts of abuse on the basis of negligent supervision. Negligent supervision means that a church did not exercise sufficient care in supervising a worker. Clearly, both theories of liability are important.
Legal Obligations of the Church
Incidents of abuse can occur in any church. Most churches are perfectly willing to select, without any screening process whatsoever, anyone expressing an interest in working in a volunteer capacity with minors. Churches are by nature trusting and unsuspecting institutions, and it is these very qualities that have made them targets of child abusers.
Obviously a single incident of abuse can devastate a church. Parents often become enraged, the viability of the church's youth and children's programmes is jeopardised, and sometimes church leaders are considered responsible for allowing the incident to happen. But far more tragic is the emotional trauma to the victim and the victim's family, and the enormous potential legal liability the church faces.
The main insurers of the Presbyterian Church in New South Wales, Sun Alliance and Royal Insurance Australia Limited, have agreed to a limited cover under our blanket Public Liability Broadform and Products Liability Policy indemnifying the Property Trust on behalf of congregations and committees in respect of all approved church activities.
These activities would include Sunday Schools, Youth Groups, welfare and social workers where potential exposure can be expected to be higher than would otherwise be the case. Any legal liability incurred by the Church as a result of ministers' activities is also indemnified.
The child abuse cover is limited in terms of the amount of indemnity the company is prepared to provide. The limitation of $1 million is not only the aggregate of any one event but also the aggregate in any one year of insurance so that if a claim were to be made which attracted an estimated verdict of $1 million (exclusive of legal costs and other expenses) the indemnity provided under the child abuse extension would be exhausted for the rest of the policy year.
The insurer has endeavoured to purchase additional cover for child abuse and sexual abuse but to no avail. The professional re-insurers approached were not prepared to quote and even if the re-insurers were to do so, the cost, because of the involvement of the overseas insurance market, would be prohibitive.
The child care centres and pre school kindergartens are separately insured and the policy has now been extended to provide child abuse cover up to the limit of the sum insured under the policy of $5 million.
Although this cover appears to be somewhat more generous that Sun Alliance Royal Insurance, the exposure is really rather more confined whereas the blanket indemnity provided under the main Church Broadform policy is all embracing.
The following points should be noted:
(a) It is against public policy and therefore illegal to indemnify by insurance the perpetrators of illegal acts. All liability insurance policies exclude exemplary or punitive damages awarded by a court. Special and general damages are covered as are legal costs.
(b) It is important, if the protection of our liability insurance policies is to be relied upon, that the underwriters, through the Indemnity Committee of the Church, are notified of any act or circumstance that may give rise to a claim. There is no retrospective indemnity for past causes of legal liability if this condition is not observed.
A Case in Question
In one of the most significant reported decisions for the church in America, the Virginia Supreme Court ruled that a church and its pastor could be sued by a mother whose child was sexually assaulted by a church employee. In 1985, a mother sued a Baptist church and its pastor, alleging that her 10 year old daughter had been repeatedly raped and assaulted by a church employee. She asserted that the church and minister were legally responsible on the basis of three separate theories. First, she claimed that the church and its minister were liable on the basis of "negligent hiring" - ie. they failed to exercise reasonable care in the selection of the employee. Specifically, she alleged that when the employee was hired, the church and minister either knew or should have known that he had been recently convicted of aggregated sexual assault on a young girl, that he was on probation for the offence, and that a condition of his probation was that he not be involved or associated with children. Despite these circumstances, the individual was hired and entrusted with duties that encouraged him to come freely into contact with children, and in addition was given keys to all of the church's doors. The mother alleged that the employee in fact came into contact with her daughter on the church premises, and had sexual intercourse with her on numerous occasions. Second, the mother alleged that the church and its pastor were liable on the basis of their "negligent supervision" of the employee. Third, the mother alleged that the church and its pastor were legally responsible for her daughter's injuries because of the failure to warn parents of the employee's previous criminal and sexual history.
The church and its pastor sought a dismissal of the suit, arguing that churches were immune from liability under Virginia law, and also that the employee's probation and parole were controlled by the Commonwealth of Virginia and could not be delegated to a church. A trial court agreed with the church's contentions and dismissed the case. The mother appealed to the State Supreme Court, which ruled that the church and its pastor could be sued on the grounds of negligent hiring. The theories of negligent supervision and failure to warn were not addressed by the court, since the mother's attorney abandoned them on appeal.
The State Supreme Court rejected the church's contentions that the theory of negligent hiring either was not recognised under Virginia law, or was not recognised in context of church employers. It cited earlier decisions in which it had recognised the theory of negligent hiring in the context of charitable employers. The court also rejected the church's contention that it could not be responsible for criminal acts of employees:
"To say that a negligently hired employee who wilfully acts or engages in criminal conduct is precisely what the employer should have foreseen would rob the 'tort of vitality.'"
The court also rejected the church's claim that it could not be liable since the alleged conduct of its employee was not within the "scope of his employment": "This argument demonstrates that [the church] is confusing the doctrine of respondent superior with the tort of negligent hiring. The two causes of action differ in focus. Under respondent superior, an employer is vicariously liable for an employee's tortuous acts committed within the scope of employment. In contrast, negligent hiring is a doctrine of primary liability: the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others. Negligent hiring, therefore, enables plaintiffs to recover in situations where respondent superior's 'scope of employment' limitation previously protected employers from liability. Accordingly, the church's contention that "proof that the misconduct was within the scope of the wrongdoer's scope of employment is misplaced." The court remanded the case back to the state trial on the issue of negligent hiring.
What activities on the part of the church would prevent a finding of negligent hiring? Unfortunately, the Virginia Supreme Court did not address this issue, other than to refer to earlier decisions in which it had concluded that:
an employer need only exercise "due care in the selection and retention of employees," and once this duty is discharged, it cannot be liable on the basis of "negligent hiring" for injuries caused by its employees, and
an employer was responsible for injuries caused by an employee who "got dangerously angry from slight provocation" since "no-one made inquiry concerning his past record, habits, or general fitness for the position" (had it done so "it would probably not have offered [him] the job")
(J. v. Victory Baptist Church, 372 S.E. 2d 391 [Va. 1988])
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