There Was a Time When the Most Significant Lawsuit a Church Had to Fear Was from Someone

BAPTIST CHURCH POLITY

LECTURE 46

LEGAL ISSUES II

There was a time when the most significant lawsuit a church had to fear was from someone who slipped on the sidewalk in front of the entrance. Even then, the church might have escaped liability because of a statutory or judicial grant of immunity. Those days are now gone, as it seems that new causes for action against religious institutions are being invented daily (Stephen Chawaga, Lawyer)

Churches are more impacted than ever by legal concerns—and this trend will intensify in the future. Why? Largely, for two reasons. First, the dramatic increase in litigation will continue unabated. According to the most recent statistics released by the NationalCenter for State Courts, over 93 million new cases were filed in state courts in 1991. These included nearly 20 million civil lawsuits, and this number is expected to double over the next 6 years.

This study proves that our society is drowning in litigation. If civil lawsuits double in the next 6 years, that will represent 40 million new civil lawsuits each year. Church leaders must recognize that this ominous trend will directly impact churches and other religious institutions. Litigation involving churches will reflect the general trends in society at large and can be expected to increase significantly.

Second, as all levels of government (local, state, and federal) become more regulatory, there will be more and more "points of intersection" between government regulation and the autonomy of the local church. (Richard Hammar, J.D.)

2 Cor 6:3 Giving no offence in any thing, that the ministry be not blamed:

Suits based on negligence—supervision of employees.

After you have hired an employee you have an ongoing duty to protect the public and members of your own congregation against any violent or criminal propensities of the employee that come to your attention. If you hear of disturbing conduct from another member of your staff via complaint or report, you should investigate the charges unless the person bringing the complaint specifically requests that you not. If you proceed with an investigation you should thoroughly document it—noting the specific charges alleged, the people you spoke with and what they said, any documents involved, and all else pertinent to your determination as to whether the charges warranted action. Failure to take action after hearing of a complaint or turning a blind eye to misconduct a later investigation reveals practically guarantees that your church will be sued along with the employee if he or she harms someone.

A church's duty extends only to conduct that is foreseeable by a reasonable person and only to events that relate to work done for you. What an employee does on his or her own time is not your responsibility.

2 Cor 1:12 For our rejoicing is this, the testimony of our conscience, that in simplicity and godly sincerity, not with fleshly wisdom, but by the grace of God, we have had our conversation in the world, and more abundantly to you-ward.

Suits based on sexual harassment.

Church staff can become vulnerable to charges of sexual harassment given the close relationships that often develop when clergy counsel members of the opposite sex. Depending on the case, the church may be able to avoid liability based on the First Amendment. However, it is wise for church staff and other leaders to receive education on harassment issues.

Anyone in the church in a position of authority can be accused of an intemperate remark or even a pattern of improper conduct while supervising employees or counseling members of the opposite sex. Church staff should act with due caution and the utmost integrity in all situations, taking prudent steps to guard against harassment charges. i.e., overcomplementing, cornering, inappropriate touching, staring…

Many churches have been sued as a result of the sexual misconduct of ministers during counseling activities. Sadly, many of these allegations are true. However, some are false, but it is very difficult for ministers to "prove their innocence," since it is "my word against theirs." A church can significantly reduce its risk of such incidents and of false allegations in a number of ways.

Adopt a rule forbidding any counseling by male pastors with unaccompanied females without a third person’s being present. The third person can be the pastor’s spouse or another staff member.

Require the pastor to engage in opposite-sex counseling only by telephone.

A less-effective approach is to prohibit off-premises counseling without a third person present, and to restrict counseling on church premises. Such restrictions could include a requirement that opposite-sex counseling occur only during office hours, be limited to not more than 45 minutes, and a maximum of four sessions with the same person. Of course, some exceptions would be in order for any of these approaches (for example, when the counselee is a relative or above a certain age). (Richard Hammer, J.D.)

Matt 17:27 Notwithstanding, lest we should offend them, go thou to the sea, and cast an hook, and take up the fish that first cometh up; and when thou hast opened his mouth, thou shalt find a piece of money: that take, and give unto them for me and thee.

Breach of Fiduciary duty

Church decision makers such as church officers and directors owe certainfiduciary duties to the organization. One such duty is known as the duty of care. Theduty of care requires that the decision maker exercise the level of care and skill that aperson of ordinary prudence would exercise in the same or similar circumstances. Theduty of care requires that the decision maker act in good faith and make decisions thathe/she believes to be in the best interest of the church.

The second significant fiduciary duty owed by decision makers of churches is theduty of loyalty. The duty of loyalty requires that the decision maker act for the benefit ofthe church and not for personal benefit, i.e. the duty of loyalty requires loyalty to thechurch. To satisfy the duty of loyalty, decision makers must look to the best interest ofthe church rather then private gain. In doing so, it is imperative that the decision makerdisclose any personal interest related to the decision being made.

Courts generally will not interfere with or judge “religious decisions” madeby or on behalf of a church. If an organization can establish the particular decision was“religious” or “ecclesiastical” in nature, then courts are reluctant to second guess thatdecision and prefer not to interfere. This doctrine is referred to the ecclesiasticalabstention doctrine.

1 Cor 10:32-33 Give none offence, neither to the Jews, nor to the Gentiles, nor to the church of God: Even as I please all men in all things, not seeking mine own profit, but the profit of many, that they may be saved.

Suits based on apparent authority.

When a church lacks clear divisions of authority between clergy and laity or within these two groups, projects can be commenced and work begun without proper approval being obtained. Sometimes a dispute can arise about what approval is necessary.

In these circumstances, outside consultants, such as lawyers, accountants, and contractors, can be hired by one group whose decision is subsequently overruled or not recognized when the time comes for the consultant's bill to be paid. When the statement is presented the church may well be liable for the expense even though the vestry, elders, or board of trustees never sanctioned the assignment. If the group that did the hiring appeared to have the power to do so and the consultant relied on that appearance to his or her detriment by expending the time and energy necessary to do the job requested, the church will likely have to pay the consultant's bill or face legal action. This situation can be avoided if the church has outlined, in writing, who has budget and hiring authority in what matters.Stephen Chawaga

Suits based on disputes over election of the pastor.

At least twice in the past year churches were embroiled in suits over claims that a new minister was hired improperly and should not be allowed to lead. In one case, the majority of a parish's trustees were replaced by another group at a special meeting of the church. That group then voted to reinstate a minister whom the previous majority had voted to let go. The previous majority sued, and a court ultimately ruled that the actions taken to replace them were proper. In another case, a minister brought suit to confirm that he had been properly hired by trustees who were empowered to do so.

(Stephen Chawaga, J.D.)

Church liability suits

There are many activities engaged in by religious organizations that involve therequirement of a degree of care to those participating. For example, a religiousorganization must provide a reasonably safe facility to its guests, it must maintain itsvehicles in a reasonably safe manner so as not to cause injury, and it must supervise itsactivities in a reasonable manner so as not to allow harm or injury to fall upon theparticipants.

An organization such as a church cannot engage in any activity without theparticipation of its agents or employees. Therefore, the church acts through them. If avolunteer is acting on behalf of the church and within the scope of the volunteer’sauthority with regard to a particular activity, and through the volunteer’s negligence,causes injury or property damage to another, the volunteer would have direct liability tothe third party. However, the church would be responsible to the third party vicariouslybecause the law considers it legally responsible for the activity of its agents or employeeswhen they act within the scope of their authority. This means that the church could beforced to pay all of the damages to the plaintiff if the actor was financially unable to doso.

However, if the volunteercommits an intentional tort, such as sexual misconduct, it can be argued that the volunteeris not in good faith in his or her conduct and the conduct has gone outside his or herscope of authority given by the organization. For example, if a child is injured in achurch nursery because the adult worker negligently failed to supervise the childrenplaying, the church could be vicariously liable. On the other hand, if the child had beeninjured by the intentional abuse of the adult worker, the church would not have vicariousliability.

An organization can have “direct liability” in the negligent hiring of an individualwhich the organization knew or reasonably should have known was prone to commitsuch acts. Thus, where the organization’s vicarious or indirect liability ends, its ownnegligence can continue its liability if it has not performed due diligence in its hiring andsupervising practices of its agents and employees.Due diligence typically involves a formal interview with the ‘worker’ and a reasonable ‘background check’, especially if working with young children/infants.

Any activity can become more risky without the proper supervision. This canhappen in the church nursery, the church baptistery, or on the church volleyball court orsoftball field. The organization can be liable for injuries occurring during activities whenit is shown the injuries could have been avoided with adequate supervision.

Often schools, youth associations, and other entities use written forms containingwaivers of liability to discourage claims resulting from injuries. The younger the participant, the less likely that the ‘form’ will serve as reasonable protection for the organization. Nevertheless, they are still recommended to be used even with young children’s activities, for they may discourage claims.

Religious organizations can (and should) have a child’s parentsor legal guardians sign forms consenting to the child’s participation in the activity,certifying that the child is able to participate, and listing emergency contact numbers andhealth conditions of the child. Ultimately, it should be remembered that adequatesupervision is the most important and most effective way to avoid liability in hazardousactivities.

A premises liability cause of action is comprised of four elements: (1) theowner/lessee had knowledge of some condition on the premises; (2) the condition posedan unreasonable risk of harm; (3) the owner/lessee did not exercise reasonable care toreduce or eliminate the risk; and (4) such failure caused injury to a third party.

Matt 18:6-7 But whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea. Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!

Insurance coverage

Religious organizations should discuss different types of insurance with aninsurance professional, but following is a non-exhaustive list of types of liabilityinsurance applicable to religious organizations:

a.) General liability insurance;

b.) Automobile liability insurance;

c.) Hired and non-owned insurance;

d.) Sexual misconduct insurance;

e.) Counseling acts insurance;

f.) Directors and officers insurance;

g.) Employment practices liability insurance; and

h.) Special events insurance.

Rom 13:1-4 Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

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