Key point 10-04.1. Some courts have found churches liable on the basis of negligent selection for the molestation of a minor by a church worker if the church failed to exercise reasonable care in the selection of the worker.
Key point 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.
Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.
A Georgia court ruled that a church that hired a youth worker without checking the references listed in his employment application could be liable on the basis of negligent hiring for the workers’ sexual molestation of a minor. A church’s child protection policy stated that “all volunteers working with children or youth” were required to have maintained church membership for at least three months and to complete a membership class and an application, which included two reference forms and written consent to a background check. A 21-year-old male (the “defendant”) began attending the church, and soon expressed an interest in volunteering to work with the youth ministry. He filled out a volunteer application, which included the names of two references, and gave it to the church’s youth pastor. The church’s administrative assistant found the application suspicious, felt that there was “something not right” about him, and communicated these concerns to the youth pastor, who took no further action.
The defendant began attending youth group meetings, and assisted the youth pastor. One of these meetings was a “game night” at which the defendant handed out pizza, played catch football, ran laps around a makeshift trail, and took some boys to the weight room, with some of these activities taking place without any other adult present.
One of the two reference forms turned in by the defendant bore a signature from a woman who later testified that she had declined to provide a reference for the defendant, that she never filled out the reference form, and that her signature on the form was a forgery. She further testified that had the church contacted her, which it did not, she would “never” have recommended the defendant as a volunteer because she had “concerns that he may be a sexual predator.” For example, she testified that the defendant was a frequent visitor to her house, and that he paid special attention to her second son, who was four years old; that on one night when she and two of her children, and the defendant, were all sleeping together in the same room, the defendant, who was sleeping on the floor, repeatedly “grabbed” the feet of her second son, who was also sleeping on the floor, in an effort to “pull” or “slide” the boy’s body “down” toward him. This happened “four or five times,” and the defendant pretended to be asleep throughout. She repeatedly pulled her son away from the defendant before pulling him off the floor entirely and into bed with her.
At about the time that the defendant became involved with the church’s youth ministry, a 14-year-old boy (the “victim”) began attending Wednesday night youth services at the church as a guest of a friend. On one of his visits, the victim met the defendant, describing him to his mother as a “cool” youth leader who liked the same video games that he did.
A few weeks later, the church held a fall festival that included food, children’s games, and other activities. At around 2 p.m. that day, the defendant called the victim and invited him to the festival. When the victim put his mother on the phone, the defendant told her that he was a youth leader and asked if the victim could attend the festival. The victim’s mother agreed; drove the boy and his friend to the church, where adults and children were engaged in cleanup after the conclusion of the festival; and dropped the two boys off in the parking lot without speaking to the defendant or any other adult.
The victim and his friend accompanied the defendant to a vacant room in the church where the defendant told the boys that he wanted to show them “some Army moves” he learned from his drill sergeant. The defendant then put the victim in a headlock, choked him until he passed out, and slapped him in order to revive him. The defendant thereafter led the boys off church property to a wooded nature trail. He told the victim’s friend to wait some distance away. The defendant then proceeded to sexually molest the victim. Later that day, the victim informed his parents what had happened. The parents immediately called the youth pastor, who informed them that: (1) Although the church had received the defendant’s application to become a youth worker, it had not completed the background check on him required under church policy; and (2) the defendant should not have been allowed to have unsupervised contact with youth at the church.
The defendant was arrested and charged with one count of attempted aggravated child molestation and three counts of child molestation. He pled guilty to two counts of child molestation and was sentenced to 20 years.
The victim’s parents sued the church, claiming that it was negligent when it hired, retained, and supervised the defendant as a youth group volunteer and its failure to warn the victim. The trial court dismissed the lawsuit on the ground that “no evidence” demonstrated that the church “knew or should have known” of the defendant’s “propensity or proclivity to commit the criminal offense of sexual assault against a minor.” The parents appealed.
The appeals court began its opinion by noting:
An employer must exercise ordinary care in the selection of employees, and must not retain them after knowledge of incompetency … . These same principles apply to the acts or omissions of non-profit organizations, including churches, when such an organization solicits volunteers to perform projects on its behalf … . As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.
However, a church will be liable for injuries occurring outside the scope of a volunteer’s duties “only where there is sufficient evidence to establish that the employer reasonably knew or should have known of the person’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff,” such that it is “reasonably foreseeable that the person could cause the type of harm sustained by the plaintiff.”
The court concluded that “the question of whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case,” and specifically, “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.” The court continued:
The church allowed the defendant unsupervised contact with children before it checked his references, one of which would have yielded some evidence that he had attempted to molest a child—the same category of criminal and tortious conduct of which [the parents] complain. Because a jury could reasonably conclude on this record that the church failed to exercise reasonable care as to accepting the defendant’s services as a volunteer youth leader without contacting either of his references, the trial court erred when it granted the church’s summary judgment on the negligent hiring, retention, and supervision claims.
What This Means For Churches:
This case is relevant and instructive to church leaders for three reasons.
First, the court affirmed that “a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.”
Second, the court concluded that “the question of whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case,” and specifically, “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.”
Third, the court concluded that the church could be liable for the defendant’s acts on the basis of negligent hiring because it “allowed him unsupervised contact with children before it checked his references, one of which would have yielded some evidence that he had attempted to molest a child.” In fact, the defendant provided the church with two written references, but one of them later testified that she was never asked for a reference by the church, that her “signature” had been forged, and that she would have alerted the church to the defendant’s propensity to molest minors had she been contacted.
The takeaway point is that churches should not rely on written references provided by applicants for youth or children’s ministry without verifying the authenticity of the references through personal contact with them. Allen v. Church, 761 S.E.2d 605 (Ga. App. 2014).
