July 15, 2014
by John Kaempf


In 1999, the Oregon Supreme Court issued a landmark decision that made Oregon one of the few states that allow an employer to be held vicariously liable for an employee abusing a child. Fearing v. Bucher, 328 Oregon Supreme Court 367 (1999). This ruling was followed by a flood of child abuse lawsuits that resulted in the bankruptcy of the Catholic Archdiocese of Portland in the 2000s given that it could be held liable for child abuse by priests it employed. The Fearing case, which involved alleged child abuse by a priest, remains the law in Oregon as to an “employee”
of a defendant.

Moreover, Oregon’s child abuse statute of limitations was amended in 2009 to grant an alleged child abuse victim an automatic right to file a civil lawsuit until they reach 40 years of age. (Oregon Revised Statutes 12.117)

These two developments have made Oregon one of the most active jurisdictions in the country for child abuse lawsuits, which can involve physical, sexual, and/or emotional abuse.

However, in the last few years, the Oregon Supreme Court has rejected an employer’s vicarious liability for the conduct of persons known as “nonemployee agents.” This can include church and religious
school volunteers.

The distinction between an “employee” and a “nonemployee agent” is critical. The Oregon Supreme Court held in 2012 that “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. The principal’s abstract right of control or right to control an agent in other respects is not enough. *** 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 [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 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 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).

In summary, an Oregon church or religious school faced with a child abuse or other tort claim needs to determine whether the person accused of injuring the plaintiff was its “employee” or its “nonemployee agent.” If it can be established that the person was a nonemployee agent, the church or religious school should not be vicariously liable for the person’s conduct.