A study published in the November 2013 edition of Christianity Today states that the number one reason churches get sued is claims involving the alleged sexual abuse of a minor. (This is followed by insurance coverage disputes, religious freedom disputes, property disputes, and personal injury disputes, in that order.)
This is particularly true in Oregon, which has some of the most pro-plaintiff laws in the country concerning a religious organization’s direct and vicarious liability for the abuse of a child by an employee.
Also, pursuant to Oregon Revised Statutes 12.117, Oregon allows alleged child abuse victims to sue until just before their 40th birthdays. This extended statute of limitations also allows child abuse lawsuits to be filed decades after a plaintiff turns 40 if they can show repressed memories of the abuse.
The wide degree to which Oregon law allows a religious organization to be held vicariously liable for child abuse by an employee was confirmed this year in the case of Schmidt v. Slader, 263 Oregon Court of Appeals 197 (2014).
In Schmidt, the plaintiff alleged that he was sexually abused by a priest, Father Frank, in the 1950s, when plaintiff was seven or eight years old. Plaintiff sued the Archdiocese of Portland in 2002, about 50 years later. Plaintiff testified that beginning in 1999, he remembered roller skating with several friends and his siblings near St. Mary’s Church in the town of Mt. Angel. According to plaintiff, he fell down and scraped his knees, and Frank, who was wearing his robes, offered to help him. Frank helped plaintiff into the basement of the church, sat him on a table, and violently sodomized him. Id. at 199, n. 3.
Plaintiff alleged that the Archdiocese was vicariously liable for the sexual abuse by Frank because he was its employee. In the context of a legal malpractice claim plaintiff brought against his lawyer (after his lawsuit against the Archdiocese was dismissed), the court held that the Archdiocese could have been held vicariously liable for Frank’s abuse of plaintiff if relevant evidence had been presented by plaintiff’s lawyer. That evidence consisted of testimony from three of plaintiff’s sisters. They testified that Frank had been in Mt. Angel for several years and had developed a close relationship with plaintiff and his family. Also, they testified that Frank visited plaintiff’s family home; spent time alone with plaintiff and his siblings; frequently walked alone with plaintiff; spent more time with plaintiff’s family than did other priests; and that plaintiff, at six or seven years old, had served as an altar boy under his supervision. Id. at 202.
Initially, the court, citing Oregon Supreme Court precedent, held that to establish that an employee acted within the course and scope of employment such that his employer can be held vicariously liable for his conduct, the plaintiff must prove that three conditions are satisfied: “(1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform.” Id. at 203-204 (citations omitted). The court conceded that “the priest’s tortious conduct—the sexual assaults—was clearly outside his scope of employment,” but held that “the inquiry regarding vicarious liability [does] not end there. *** A jury reasonably could infer that the priest’s performance of his pastoral duties with respect to plaintiff and his family were a necessary precursor to the sexual abuse and that the assaults thus were a direct outgrowth of and were engendered by conduct that was within the scope of his employment.” Id. at 204 (citation and brackets omitted). The “relevant question is not whether the intentional tort itself was committed with the express consent of an employer or in furtherance of any interest of the employer. Rather, the focus of the analysis is directed at whether there is evidence of acts that were within the scope of the employment that, in turn, resulted in the acts that caused injury to plaintiff.” Id. at 205 (citations and brackets omitted).
Applying these legal tests, the court in Schmidt held that if the above testimony from plaintiff’s sisters had been presented, it would have created a factual dispute for a jury to decide “as to whether Frank’s actions in the context of his relationship with plaintiff and his family were a ‘necessary precursor’ to plaintiff’s sexual abuse,” meaning that a jury could have found the Archdiocese vicariously liable for Frank’s sexual assault on plaintiff. Id. The court noted that “there is no doubt that, when Frank sexually assaulted plaintiff, he was not acting within the scope of his employment.” Id. However, “the Archdiocese still can be found vicariously liable, if the acts that were within Frank’s scope of employment resulted in the acts which led to injury to plaintiff.” Id. (citations, brackets, and internal quotations omitted). “The issue is not whether a jury could find that violent rape is a natural risk inherent in the job of a priest, but, rather, whether Frank’s prior relationship with plaintiff and his family was developed while Frank was acting within the course and scope of his employment and whether that prior relationship was a ‘necessary precursor’ to or ‘resulted in’ plaintiff’s injuries.” Id. at 207 (internal quotations and citation omitted).
The court in Schmidt noted the evidence that “Frank was frequently at plaintiff’s family home, that Frank was allowed to spend time alone with plaintiff and his siblings, that Frank frequently walked alone with plaintiff, that Frank spent more time with plaintiff’s family than did other priests, and that plaintiff served as an altar boy under Frank’s supervision when he was six or seven years old. *** [This evidence] would allow a reasonable juror to infer that Frank had developed a close and trusting relationship with plaintiff and his family before the assault. Based on that evidence, a jury could infer that *** Frank’s contact with plaintiff and his family was, at least initially, motivated by his desire to fulfill his priestly duties to the Archdiocese, particularly if a jury finds that plaintiff served as an altar boy under Frank’s supervision.” Id. at 205-206. The court held that “the causation question” should “be left to the jury.” Id. at 207.
Therefore, in Oregon, unlike nearly every other state, a religious employer can be held vicariously liable for an employee’s sexual assault on a minor, even when (1) it is undisputed that the assault was (of course) outside the scope of the employee’s employment, and (2) the employer had no reason to believe that any such assault would occur.
The recent Schmidt decision thus confirms why Oregon churches and religious schools need to be particularly vigilant about monitoring close relationships between minors and priests, pastors, teachers, and other employees.
One important recent exception to this broad rule of vicarious liability, however, concerns “nonemployee agents,” who are different from “employees” (as Father Frank was alleged to be in the Schmidt case). In Oregon, “vicarious liability for an agent’s physical torts arises only if the principal [the employer] has the right to control the agent’s specific injury-causing conduct in particular. *** Ordinarily, a principal [the employer] is not liable for the negligence of a nonemployee, because a principal generally does not have the requisite right of control over those nonemployee agents.” Eads v. Borman, 351 Oregon Supreme Court 729, 738 (2012) (emphasis in original). “An agent is an employee if the principal has the right to control the physical details of the work being performed by the agent; in other words, the principal directs not only the end result, but also controls how the employee performs the work. In contrast, when the agent retains control over the details of the manner in which it performs its duties, that agent is a nonemployee agent.” Vaughn v. First Transit, Inc., 346 Oregon Supreme Court 128, 137 (2009).
“In general, a principal is liable for all torts committed by its employees while acting within the scope of their employment. But a principal ordinarily is not liable in tort for physical injuries caused by the actions of its agents who are not employees. Rather, a principal is vicariously liable for an act of its nonemployee agent only if the principal ‘intended’ or ‘authorized the result or the manner of performance.’ In other words, for a principal [the employer] to be vicariously liable for the negligence of its nonemployee agents, there ordinarily must be a connection between the principal’s ‘right to control’ the agent’s actions and the specific conduct giving rise to the tort claim.” Id. at 137-138.
Thus, an Oregon church or religious school facing a child abuse lawsuit (or other lawsuit) needs to determine whether the alleged wrongdoer was an “employee” or a “nonemployee agent.” Many volunteers and other persons who are not paid can qualify as nonemployee agents, although someone can still be a nonemployee agent even if they are paid. A church or religious school should not be vicariously liable for child abuse committed by a nonemployee agent because it obviously did not have the right to control the agent’s “specific injury-causing conduct in particular” (the abuse of a child).