Thu. Mar 4th, 2021

RECOGNIZING YOUR CHURCH’S LIABILITY RISKS
By: Dieter H. Nickel

TODAY’S LEGAL ARENA FOR CHURCHES

Many years ago churches enjoyed immunity–“charitable immunity”–for their actions. Legal theory held that church assets were comparable to a trust fund, and could not be used for purposes other than those intended by the donors. Since it was not the intent of donors to have assets used to pay liability awards, churches were immune from paying them.

Today, the doctrine of charitable immunity is totally absent in most states and of very limited scope in others.

Courts now recognize that injury that results from a church’s negligence is no less painful, disabling or financially damaging than injury resulting from any other person’s or organization’s negligence. Large court awards against churches attest to their equal status in today’s legal arena.

LEGAL ACTION TAKEN AGAINST CHURCHES

A church may be sued for breach of contract or for “tort” liability. Most legal action against churches involves torts and that is the focus of this booklet.

Breach of contract.

A contract is breached when one party to the contract performs as agreed, but the other party does not, and the failure causes injury to person or property.

The most common example of breach of contract is failure to pay for or deliver goods and services.

Your church may enter a contract for any number of reasons. It is important that you fully understand any contract before signing it, and that you enter only with the full desire and ability to fulfill your obligations. A competent attorney should examine any contract you plan to enter.

Tort liability.

“Tort” is the legal term for a wrongful act which results in damage. There are three bases for legal action under tort law:

* Intentional acts that cause injury to person or property. Libel and slander are examples, as are most criminal acts. (Legal action for crimes may be brought forth in both criminal and civil courts.)

* Strict liability can result because the law has created “automatic” liability for the benefit of all citizens. Some examples of this include workers compensation and liquor laws.

* Negligence which arises when an action results or contributes to an unintended injury, or when failure to take action allows the injury to occur.

The vast majority of lawsuits against churches involve negligence.

Damages. Without “damages” there is no basis for legal action. Damages may include physical injury, emotional injury or property damage (destruction, loss of use, diminished value, etc.).

REASONS WHY LAWSUITS CAN BE EXPENSIVE.

A lawsuit against your church, whether based on factual, false or fraudulent claims, is expensive. Churches never really come out a “winner” in a lawsuit. It can cost a great deal to be liable or to prove one is not liable. Costs include:

* Legal defense costs. Costs to defend against a lawsuit can be high, regardless of the outcome. Complicated cases and cases brought to trial can cost $10,000 or more to defend.

* Court awards for damages. Court awards may include medical and rehabilitation expenses, lost wages, pain and suffering, and restoration of property lost or damaged. A case involving serious injury or death can easily exceed $100,000 in damages, and $1 ,000,000 awards have become commonplace.

* Punitive damages. Occasionally, a court will award punitive damages to the victim. This is more likely to occur when an intentional act caused injury, or when extreme carelessness contributed to it.

* Intangibles. Lawsuits can be disruptive to your ministry and congregation, particularly those of a sensitive nature. A lot of time, energy and concern are invested in lawsuits, detracting from normal functions. Additionally, some lawsuits can divide a congregation. Members often take sides, especially when another member has filed suit.

CHURCHES HAVE MANY LIABILITY EXPOSURES

The legal exposures to your church can be thought of as falling into many categories. (We’ve explained some below.) Lawsuits often involve more than one category.

Conditions of your premises.

Your church cannot prevent all accidents, although it can reduce the likelihood of an accident occurring. The premises should be well maintained, be in compliance with local codes and be made as safe as possible for members, guests and anyone else who comes to the church.

Two Church Mutual Protection Series booklets provide helpful suggestions for maintaining safe premises–“Church Safety Begins With People” and “Make Activities Safer At Your Church.”

Consider the following accidents which resulted in legal action against churches. Many could have been prevented.

* A young couple was electrocuted when they entered a fountain to cool off. A frayed wire on the fountain pump charged the water.
* One evening, three people slipped on ice that had formed from nearby melting snow. The third person broke her hip.
* An elderly woman died of injuries suffered when she slipped on a cracked and loose church step.
* An attendee at an AA meeting was injured from slipping and falling on a wet floor.
* A choir member was injured by a fall down a stairway without handrails.

Activities of your church.

Virtually any activity your church sponsors, whether at or away from the church, has potential for accidents and subsequent legal action.

Among the activities for which we have seen (snow and water), tubing, sledding and tobogganing, hiking and climbing, biking, boating, canoeing and swimming, hayrides, horseback riding, three-wheeling, motorcycling and snowmobiling.

Also from softball, football, basketball, skating, mud events, obstacle courses and trampolining. Even food poisoning from church dinners.

When churches are found negligent–and therefore liable for damages–it is usually because they failed to take adequate safety precautions or provide proper supervision.

Select your activities carefully–based on the capabilities of the participants. Prepare for them with safety, as well as with fun, in mind. Have an adequate number of qualified supervisors, which is especially important for youth activities. Be sure each supervisor knows his or her responsibilities. Set ground rules and follow them.

Where equipment is involved, be sure the participants (and supervisors) are adequately trained to use it. And be sure it’s regularly inspected and properly maintained.

Two Church Mutual Protection Series booklets provide helpful suggestions for conducting activities safely–“Make Activities Safer At Your Church” and Maintaining Safety Away From Your Church.”

Consider the following accidents (and thousands of others) which resulted in legal action against churches. Many could have been prevented.

* A 15-year-old suffered internal injuries when he crashed his inner tube going over a 25-foot ski jump.
* A young girl injured her arm when she was pushed through a plate glass window at a skating party.
* A 9-year-old was dangling her legs over the side of a haywagon when the tractor driver turned sharply around a building. One leg was crushed between the wagon and the building.
* More than a dozen guests suffered from food poisoning after eating at a church dinner.
* A pillow fight at a youth retreat resulted in an eye injury for one young boy.

Your church as an employer.

Your church may have one or more employees–clergy (even if considered an independent contractor for tax purposes), secretaries, teachers, custodians, organists, coaches, administrators and counselors.

With employees come several special responsibilities and liability exposures. These include: workers compensation laws, vicarious liability, discrimination, harassment and wrongful termination actions, corporal punishment and professional liability.

Workers compensation laws. Almost without exception, your church is responsible (liable) for work-related injuries. This is an example of “strict” liability which was referred to earlier in this booklet. Your church is responsible for employee injuries without regard to negligence, and whether the injury occurs at or away from your church.

Consider these actual examples:

* A custodian fell from a ladder while changing a light bulb, and broke his arm.
* A church secretary suffered a temporarily disabling back strain when moving a heavy typewriter from one table to another.
* A teacher’s neck was injured when he was struck in the head by a soccer ball while supervising a playground game.
* An elderly organist broke her hip during a fall down steps from her loft.
* A pastor severely injured his back in an auto accident on the way to a home visitation.

You can create a safer working environment by having well-trained, competent employees and by providing the proper equipment for the job. This doesn’t eliminate accidents, but can reduce their likelihood. But accidents do happen–regardless of how hard you try to prevent them. That’s why it’s important to carry workers compensation insurance. In most states it’s the law. And your
responsibility to provide worker compensation benefits exists in every state-whether you carry insurance or not.

Vicarious liability. Any employer, churches included, can be held liable for the actions of its employees when they’re acting within the scope of their duties. If your employee negligently causes injury to another person or property, your church-as well as the employee-will likely be sued.

Consider these examples:

* A church that sponsored a camp outing was sued when it was alleged that its lifeguard was negligent in not preventing the drowning of a 12-year-old.
* An infant rolled off an unattended changing table at the church’s day care center, and suffered a skull fracture.
* The church was named in the lawsuit when it was alleged that a teacher paddled a child hard enough to cause bruising.
* Several children were injured while riding in the bucket of a tractor driven by a youth minister. It crashed into a tree.

Discrimination, harassment and other actions. In addition to your other exposures as an employer, you’re also exposed to liability risks from employee relations. Lawsuits alleging discrimination, sexual harassment and wrongful termination represent a growing concern for churches.

It is important for churches to be familiar with state and federal laws which impact hiring, employment and termination practices, and to establish guidelines in accordance with the law.

Here are some general guidelines:

1. Hire and promote on the basis of character, aptitude, education, training and past experience, not on age, race, sex, religion (clergy excepted), marital status, national origin, or handicaps which have no bearing on the tasks to be performed.
2. Compensate based on the quantity and quality of work performed, not on the discriminatory factors listed above.
3. Be sure all employees are properly trained and clearly know what is expected of them.
4. Supply proper equipment.
5. Assign work in a fair and equitable manner.
6. Establish written rules of conduct.
7. Evaluate employees carefully and objectively.
8. When disciplining employees:
— Know the facts–be sure that reason for discipline exists.
— Be uniform in your discipline.
— In most cases, give your employees a chance to modify performance or behavior. This can be accomplished through progressive disciplinary action (oral reprimand, written reprimand, suspension, termination).
— Document your disciplinary actions–evidence, reasons and action taken.
9. When contacted by others seeking information regarding current or former employees, confine your comments to employment dates and jobs held-unless your employee or former employee grants you written permission to reveal other information.

Consider these actual examples of legal action taken by employees against churches:

* A church was sued for discrimination after firing an employee for using vulgar language.
* Three former employees filed a wrongful termination lawsuit after being fired for failing to obtain a life-saving certification.
* An employee sued for sexual harassment and wrongful termination, claiming she was fired for refusing her boss’s advances.
* After a church fired an employee for what it claimed was poor performance, the employee sued on the basis she was fired for discriminatory reasons.

Your professional liability. A special concern to churches is the exposure to legal action from counseling activities of clergy, teachers and others in a position to counsel.

Though most cases involving counseling liability have not resulted in court awards for damages, the exposure is still very real. Several suits have been filed against clergy and their churches, and each required considerable funds to defend. Most cases have been unsuccessful, but this may change.

Your volunteer workers.

Volunteer workers are one of your church’s greatest assets when used properly. Otherwise, they become a legal liability. The exposures created by the use of volunteer workers are similar to those created by employees: They can be injured while working or they can cause injuries for which the church becomes vicariously liable.

But there are three important differences that make the exposure from volunteers even greater than from employees.

1. In most states, volunteer workers are not protected by workers compensation laws. They must resort to the civil justice system for compensation for serious injury.
2. The number of volunteer workers, and their total hours working, frequently exceed those of paid employees.
3. Volunteer workers are more often undertrained, underskilled and underequipped for the multitude of duties they perform.

Consider these claims involving volunteer workers:

* A worker, who was painting from scaffolding, fell and hit his head. He lapsed into a coma.
* A volunteer suffered extensive injuries and weeks of lost income when he fell from a ladder while helping with a church addition.
* An aspiring young pianist cut off several fingers with a table saw while helping with a church remodeling project.

Most of the cases involving supervision of activities, conditions of the premises, or use of autos in this booklet could involve either employee or volunteer negligence. What may be an employee task in one church is volunteer work in another.

These tips can reduce your liability exposure from volunteer workers.

1. Select a capable person, not just “any” person for the task at hand.
2. Hire a professional for dangerous or technically difficult jobs, such as plumbing, electrical, roof or steeple work.
3. Provide adequate, well-maintained tools and equipment.
4. Supervisors should let each worker know what is expected of them.
5. Be very selective for work with children-more on this in the Sexual Misconduct/Molestation section.

Most of Church Mutual’s Protection Series booklets provide safety suggestions that can be used to make volunteer work and your activities safer.

Your use of automobiles.

If your church owns a car, van, bus or any other motor vehicle, you have an obvious exposure to accidents and subsequent lawsuits. We read about auto accidents regularly, including some alarming church bus crashes.

What is less obvious is your church’s exposure from vehicles not owned by the church. It is a real and very common exposure. If you’ve ever rented or borrowed a vehicle, or asked someone to drive his or her own car on behalf of your church, you’ve had the exposure. If the vehicle is involved in an “at-fault” accident, your church will likely be named in a lawsuit, along with the vehicle’s owner and driver. These exposures are referred to as “hired and nonowned autos,” and include, for example:

* A pastor asks the church secretary to drive down to the office supply store.
* To enable handicapped members to attend worship services, your church asks for volunteers to drive them to and from church every Sunday.
* Five members agree to transport kids to the skating party, using their own cars.
* One member has a large van-ideal for taking a group to the weekend retreat. You borrow it.

To reduce your exposure from automobiles, use only qualified drivers and well-maintained vehicles. Provide adequate supervision for youngsters and take great care in transporting disabled persons.

Church Mutual’s Protection Series booklet, “The Road To Safer Transportation,” offers many suggestions to make your transportation programs safer.

Here are some auto incidents that resulted in lawsuits:

* A wheelchair-bound woman was injured when the church van in which she was riding suddenly stopped. The chair had not been fastened to the van, and she slammed forward.
* Two adults died and 27 were injured when the church bus went out of control in a downpour of rain. The bus flipped over the guardrail, through a road sign and tumbled down an embankment.
* After dropping off her students, the driver of the church school van lost control on ice and crossed the center line, striking an oncoming car.
* Two bus loads of children were returning to their church from a skating party, when the lead bus stopped on the highway to let a child out at her parents’ house. As she crossed the highway, she was struck by the other bus.

Sexual misconduct and molestation.

Church Mutual’s rapidly growing claim files attest to the fact that incidents of sexual misconduct and molestation represent a serious concern. This includes churches of all denominations and in all parts of the country.

The concern for the abused children cannot be overstated. However, there’s also great concern for any church involved in such difficult legal action.

Several lawsuits have been brought against churches, schools and camps for sexual abuse committed by clergy, teachers, day care workers, counselors and students. These suits generally allege, among other things, that churches were negligent in:

1. Hiring the offender.
2. Supervising the children.
3. Failing to take proper action when molestation is suspected or reported.

Consider these actual cases which have led to legal action against churches:

* Over a long period of time, a married male teacher abused several young boys in class. He had been fired from three other schools for similar offenses. A check of references, which was not made, may have revealed this problem.
* While employed by the church, a camp counselor molested an 8-year-old girl. The lawsuit alleged that the church knew of, but disregarded, a previous similar offense. Also, that it failed to investigate the counselor’s qualifications prior to hiring him and that it took no action after learning of this molestation.
* A pastor molested nine young boys at one church. Investigations revealed that church officials were aware of an incident at a previous church and transferred the pastor because of it.
* Three students sexually abused another student in an unattended room during school hours.

There are steps that can be taken to reduce the chances of sexual abuse occurring at your church. These are outlined in “Safety Tips on a Sensitive Subject: Child Sexual Abuse,” a Church Mutual Protection Series booklet. The booklet recommends that abuse be “attacked” through stringent screening of prospective employees and volunteer workers and through well-defined supervisory guidelines and educational programs. It also provides tips for detecting sexual abuse and offers a plan of action for churches to follow when sexual abuse is suspected or reported.

Libel, slander and other personal injuries.

Though sometimes defined to include any injury to a person, “personal injury” as used here refers to injury other than bodily injury and property damage. Among the more common causes of personal injury are libel, slander, invasion of privacy and false arrest. All are forms of offenses to the character or freedom of a person or organization.

Libel and slander are closely related–both are defamations of character. Both involve untrue and malicious statements which harm the reputation, memory, trade or livelihood of a person or organization. Such a statement in written form is libel, in spoken form is slander. Libel also includes publication of malicious untruths through signs, pictures or films. Churches can be sued for libel or slander on the basis of statements made at the pulpit, in church bulletins, radio broadcasts and any other publication or public gathering.

False arrest or wrongful detention lawsuits can arise when individuals are restricted in their movement or when their property is held from them. These incidents are most likely to occur as disciplinary actions or in apprehension of suspected criminals.

Invasion of privacy lawsuits can arise from unwarranted investigations into the personal lives of your members or employees, or from conducting searches of their body or private property.

Consider these actual lawsuits:

* An employee was fired when he made advances on two women; however, he denied this charge. He filed suit for libel when the church sent a letter to his prospective employer, giving reasons for the termination.
* The owner of a pornography store sued when church members picketed at his store.

The errors and omissions of directors, officers and trustees.

The directors, officers and trustees of your church or religious institution can be held accountable to the same standard of responsibility applied to other corporate officers in the business community.

Broadly defined, these responsibilities are:

1. To exercise due care and to act responsibly in church affairs.
2. To refrain from engaging in personal activity in such a manner as to injure the church or enrich the officers at the church’s expense.
3. To avoid illegal acts and stay within the power of the church.

Actual or alleged failure to fulfill these responsibilities can lead to costly lawsuits brought by congregation members, employees or other affected parties. Legal action can result from well intended but inappropriate actions. Good intentions can unfortunately result in lawsuits.

The greatest exposure to the church and its directors, officers and trustees lie in the areas of:

* Conflict of interest.
* Failure to exercise good judgement.
* Improper expenditures.
* Exceeding the authority granted by church charter.
* Failure to honor employment contracts.

Consider these actual lawsuits:
* For a building project, the church hired a general contractor who in turn hired several subcontractors. The church paid the contractor for all work performed, but soon after was sued by the subcontractors who had not been paid by the contractor. The church board was found negligent for not obtaining lien wavers from the contractor. They were ordered to pay the subcontractors, doubling the
cost of the project.

* A congregation planned to build a new church building using savings and borrowed money. The church’s directors reviewed bids, hired contractors and supervised the initial stages of the project. Unfortunately, miscalculations and cost overruns exhausted the church’s savings and credit, leaving the new building only partially completed. Because the church borrowed to its credit limit and could not generate sufficient funds to meet payments, the bank foreclosed. Both the bank and the members of the congregation sued the directors for misconduct, failure to contract and spend within authorized limits and lack of diligence.

Property disputes and other exposures.

Legal action for property disputes can arise because of ways you use your property, or because of questions of ownership.

Depending on the nature of the activities of your church, a great number of other exposures may exist. They may stem, for example, from broadcast operations, advertising, pollution, owner/landlord disputes, medical malpractice, etc.

WHAT YOUR CHURCH BOARD CAN DO ABOUT LIABILITY EXPOSURES.

Greater recognition of a church’s exposure to lawsuits is the first step in dealing with them-and that’s the purpose of this booklet. Once an exposure is recognized, you may choose to:

* Eliminate the exposure by avoiding the activity which creates it. This is an impractical option for most activities, but wise advice for those which seem to be particularly hazardous–such as three-wheeling, trampolining and hayrides.
* Control the exposure through property and vehicle maintenance programs, driver selection and training programs. Also, more careful screening of employees and volunteers and adequate supervision, for example.
* Transfer the financial consequences of the exposure to an insurance company through a well-developed, comprehensive insurance program. Accept the exposure as is. This isn’t advisable, but often done unintentionally.

THE ROLE OF YOUR CHURCH AND YOUR INSURANCE COMPANY IN THE LEGAL PROCESS.

Your church.

If an accident or other incident occurs, and you feel there is even a remote chance of legal action, notify your insurance company. Don’t wait until a lawsuit is filed, and do not decide that your insurance company will or will not cover it. Waiting to notify your insurance company wastes precious investigation time.

Most often, anyone or any organization connected with an incident will be named in a lawsuit. Your insurance policy may provide coverage for your church and anyone acting on its behalf–such as your board, employees or volunteers. Nevertheless, individuals involved should also notify their homeowners or automobile insurance company.

Cooperate fully with your insurance company during the investigation and during all other stages of the proceedings. Virtually all insurance policies require cooperation of the insured, and failure to do so can cause coverage to be voided.

No matter how much sympathy you have for the injured person, or how responsible you feel for the injury, do not encourage the injured party to sue you, and do not make statements of “guilt” or financial offers. You could be accepting responsibility (and liability) when the responsibility and liability lies elsewhere. Encouraging legal action or making offers on your own may be in violation of your insurance policy. Furthermore, it is possible that the suit you encourage is not covered by insurance or may result in a judgement greater than your policy limit.

Understand that there is no such thing as a friendly lawsuit. The civil justice system in the United States is an adversary system. Your church and the party suing your church become opponents in the litigation process. Testimony from either side is likely to create hard feelings.

The legal process can be a long, distracting and emotionally draining process for both sides. For cases that ale actually tried in court, the process may take from one to five years.

Your insurance company.

Your insurance company will investigate the incident to determine whether coverage is applicable and to prepare a course of action.

Where coverage is applicable, the company will form an evaluation as to the likelihood of your church (or other named insureds) being found negligent by a jury in a court of law. The probability may be low, likely or highly probable. Based on research of other similar cases, the company will also estimate the value of the case–the amount a jury is likely to award if your church is found liable.

Working with the evaluation of negligence and the expected value of the case, your insurance company fill decide to fight the case in court, or make an out-of-court settlement offer. Because the trial process is painful for both sides, and expensive, out-of-court settlements are generally attractive to both parties. Approximately 95% of all lawsuits are settled out of court.

Finally, it is the role of the insurance company to pay the settlement (or court award) and legal costs, up to the policy limit.

(The above material is one of a series of pamphlets published by the Church Mutual Insurance Company in Merrill, WI.)

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