Thu. Mar 4th, 2021

The Ten Deadly Lawsuits
Stephen Chawaga

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.

Ten of the most common lawsuits faced by churches today are described in this article. By familiarizing yourself with these possible pitfalls you can help protect your church against them.

1. Suits based on negligence–general public. People still slip and fall in front of churches, but charitable institutions no longer enjoy the immunity privileges they once did. Your church can be held liable for accidents caused by dangers you knew existed on your property but the general public did not. It does not matter whether the person was invited onto the property or not. A warning sign, prominently posted and disclosing the danger, is often sufficient to avoid needless injury and absolve church liability.

2. Suits based on negligence–parishioners. You owe a greater duty to church members and visitors. You must not only warn them of dangers that you know about but also exercise reasonable care and take necessary precautions to ensure their safety at all times. This means you must vigilantly look for things on your property that could cause harm, and, when you find a hazard, either fix it or warn members.

3. Suits based on negligence–“nuisances” that attract children. Property owners have a special duty to prevent hazards that can cause injuries to children, even if they are trespassing. Your church has a duty to keep children safe from conditions against which you might expect them to be unable to protect themselves. On the other hand, your duty to trespassing children does not extend to conditions that are obvious or not inherently dangerous. As one court noted, in concluding that a church was not liable for the injuries suffered by a Sunday school student who fell into a well, “there is almost no condition which an adventurous child cannot turn into an injury-producer: tree swings, slides, stairs, hard-surfaced playgrounds, and soft-surfaced playgrounds can all be a source of harm to the young.”

Nonetheless, it is prudent to keep gates locked and restrict access to such potential dangers as piles of debris and construction material, which can attract young people’s attention.

4. 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.

5. 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.

6. Suits based on defamation. Defamation is the publication to a third party of false or misleading information that you know will cause a person the loss of reputation or other injury.

Defamation may be written, known as libel, or oral, known as slander. Employees who feel they have been wrongly terminated often accuse their employers of having defamed them if the employer discusses the termination with anyone inside or outside the company. Any discussion, written or oral, that one of your employees has within the church or with any outside person about a termination could be turned into a libel or slander suit, if the fired worker is disgruntled and looking for retribution. Thus, it is important that you limit or control any such discussions to avoid providing ammunition for such suits.

Similarly, should any church members be disciplined and asked to leave the body or voluntarily resign their membership under unpleasant terms, discussions about the circumstances of the departure among remaining members or the church leadership could lead to a lawsuit. Disparaging comments simply have no place in these situations.

7. 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.

8. 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.

These types of cases are obviously devastating for the church involved no matter what the result. No important decision, such as the calling of a new minister, should be made until internal issues of control and authority are completely resolved.

9. Suits based on disclosure of confidential information. Recently a church member brought suit claiming that his pastor had revealed confidential information about him when announcing
disciplinary action against him for divisiveness. The court ruled against the man because it could establish that he had consented to subject himself to discipline at the time he became a church member. Nonetheless, a church can expose itself to charges of invasion of privacy and infliction of emotional distress by making public information that should be kept private.

10. Suits based on unfair acts. In another recent case, a church was sued over injuries a security guard it hired caused attendees at a church fair. The claim was brought under an unfair trade practices act. Such acts are common in most states and provide that businesses may not act unfairly or unscrupulously.

The court in this case dismissed the plaintiffs’ claim because they did not demonstrate with enough specificity what the church did that was unfair or unscrupulous. The court did not say, however, that the church’s conduct could not fall within the scope of the trade practices act. Thus, it seems possible that when a church is engaged in a moneymaking activity it will be subjected to the requirements of relevant unfair practices acts.

To avoid most of these cases all that is required is for a church to be honest and caring toward both its members and the public. A church that is faithful to its mission and diligent in pursuing the
safety and well-being of its members is also likely to satisfy its legal obligations.

Stephen Chawaga (schawaga@monteverde.com) practices law with the firm of Monteverde McAlee & Hurd in Philadelphia,

THE ABOVE MATERIAL WAS PUBLISHED BY YOUR CHURCH, MAY/JUNE 2001, PAGES 55-57. THIS MATERIAL IS COPYRIGHTED AND MAY BE USED FOR STUDY & RESEARCH PURPOSES ONLY.

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