Summary
Aaron Montoya was a Mormon church member and Primary teacher in Syracuse, Utah.
Montoya sexually molested several children in an LDS chapel during Primary classes, and at his home.
Montoya was convicted in 2005 of five counts of first-degree felony aggravated sexual abuse of a child.
He was sentenced to prison.
As of March 2025, Montoya was out of prison on parole and lived in Woods Cross, Utah as a registered sex offender.
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Donate »Facts
- Criminal: Convicted, Found guilty, Jury trial, Plea agreement, Pleaded guilty, Prison, Registered sex offender, Released,
- Civil: No civil case,
- Positions: Primary,
- During crime: Primary,
- When accused: Primary,
- Crime: 2000s, in Utah,
- Convicted: 2000s, 2005,
- Crime scenes: LDS activity, LDS building, Perpetrator's home, Vehicle,
- Victims: 9 victims, Multiple victims,
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Born: 1972
- Mission: no
- Places: Utah,
Sources
- LDS Primary teacher accused of fondling young girls,
- LDS teacher faces charge of sex abuse,
- 4 more girls say they were abused | One is up to 15 years old; incidents may be as far back as 4 years,
- Girl takes stand, alleges sex abuse | LDS ex-teacher: Child says she was "mad"; defense says he didn't do it,
- Primary teacher takes stand at trial, denies molesting girls,
- Primary Teacher Denies Inappropriate Touching of Girls,
- Primary Teacher Found Guilty of Sexual Abuse,
- Ex-Primary teacher guilty of sex abuse,
- Montoya Sentenced; Victim Parents Criticize Judge,
- Aaron Marcos MONTOYA,
- Predator in the Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious Organizations,
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1. LDS Primary teacher accused of fondling young girls
This is an archived article that was published on sltrib.com in 2004, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
A gospel teacher at a Mormon ward in Syracuse allegedly fondled four young girls, some of them while they were praying or coloring religious pictures in his class.
Aaron Marcos Montoya, 32, of Syracuse, is charged in Farmington's 2nd District Court with five counts of aggravated sexual abuse, a first-degree felony punishable by up to life in prison.
On Wednesday, Montoya, who was booked into the Davis County Jail on Tuesday, appeared in Farmington's 2nd District Court, where bail was set at $100,000.
Montoya works as a bailiff at the Scott M. Matheson Courthouse in Salt Lake City. The Salt Lake County Sheriff's Office, which provides security to the building, has placed Montoya on paid administrative leave.
A week ago, one of the girls reported the alleged fondling to her parents, who contacted police, said Syracuse Police Sgt. Mark Sessions. Investigators located two other girls with similar accusations the next day.
Police arrested Montoya late Tuesday night, waiting for him to return from a trip to the East Coast, Sessions said. Just hours after his arrest, police identified a fourth potential victim, who claimed Montoya stuck his hand up her skirt at his home while the girl was playing with Montoya's children. The other four incidents allegedly took place inside a Church of Jesus Christ of Latter-day Saints meeting house in Syracuse in the past month. One of the girls told police she was abused twice.
Two of the alleged victims were 5 years old and two were 6, according to the charges.
In most of the incidents, Montoya allegedly sat behind the girls in Primary class and reached his hand up their skirts. Two of the girls said this happened while they were praying, according to the charges. Montoya had been teaching the class for the past year, Sessions said.
During the short court hearing Wednesday, Montoya said he would be hiring his own attorney. His next court appearance is scheduled for Jan. 5.
The Salt Lake County Sheriff's Office learned of the allegations late Tuesday and immediately placed Montoya on leave, said Sgt. Rosie Rivera. Montoya has worked for the Sheriff's Office since 1995.
Rivera said an internal investigation will be conducted after his court case is resolved.
"We will deal with it on our side, but we don't want to interfere with the criminal investigation at all," she said.
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2. LDS teacher faces charge of sex abuse
SYRACUSE — An LDS Primary teacher was accused of molesting young girls in his class during church and at his home.
Aaron Marcos Montoya, 32, who is also a Salt Lake County sheriff's officer, was charged with five counts of aggravated sexual abuse of a child in 2nd District Court. The charges included the aggravated enhancement because Montoya was in a position of trust in his church duties.
Two of the victims were allegedly molested at a ward of The Church of Jesus Christ of Latter-Day Saints near 4500 West and 1700 South in Syracuse on Dec. 12. The attacks allegedly occurred in Montoya's Primary classroom while other students were present, Syracuse police Sgt. Mark Sessions said.
Two victims were allegedly attacked in Montoya's house near 1300 South and 3900 West over the past month, Sessions said. The young girls were at the house visiting Montoya's children, he said.
All of the victims were girls either 5 or 6 years old, Sessions said.
Church spokesman Dale Bills said the allegations are of the utmost concern.
"The church expects the highest moral and ethical standards of its members," he said. "Local church leaders stand ready to cooperate with official investigators as requested."
Professional counseling was being provided by the church to the victims and their families, Bills said.
Montoya made a brief initial appearance in court Wednesday. Bail was set at $100,000. His next court appearance was scheduled for Jan. 5.
Police were notified of the alleged incident on Dec. 16 after one of the other Primary children told her parents what had happened, Sessions said. Montoya was arrested at his house Tuesday night.
Sessions described Montoya's neighborhood as being "outraged" over the incident.
Neighbors around 1300 South and 3900 West said it is usually a quiet neighborhood where everyone knows each other. All of the residents the Deseret Morning News talked to Wednesday asked that their names not be used but said they were "shocked" by the arrest.
One man said the feeling in the neighborhood has fluctuated between rage and extreme sadness.
Another neighbor said she was "sick" about the situation. "It's just wrong," she said. "Like one neighbor said, 'Who do you trust?' But you can't live in fear."
Most neighbors agreed that Montoya is a "nice guy" and described his family as being "very religious." All the more reason why residents said they were stunned by the arrest.
Montoya's house was vacant Wednesday. His wife and three children were reportedly visiting relatives in Georgia.
He was placed on administrative leave from the sheriff's office Tuesday night pending the outcome of the investigation, said Salt Lake County Sheriff's Sgt. Rosie Rivera.
Montoya was hired by the sheriff's office in 1995. He works security at the Matheson Courthouse.
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3. 4 more girls say they were abused | One is up to 15 years old; incidents may be as far back as 4 years
SYRACUSE — Syracuse police were scheduled to interview four more girls Thursday who say they were sexually assaulted by an LDS Primary teacher.
The girls stepped forward after hearing news reports of the arrest of 32-year-old Aaron Marcos Montoya.
Montoya, who is also a Salt Lake County corrections officer, was charged in 2nd District Court with five counts of aggravated sexual abuse of a child.
Montoya allegedly abused four girls in his Primary class at a ward of The Church of Jesus Christ of Latter-day Saints in Syracuse during church services and at his home. All the victims were girls either 5 or 6 years old, according to police.
Four more girls contacted police after hearing of Montoya's arrest, Syracuse police Sgt. Mark Sessions said.
Some of the new alleged abuse cases date back four years, Sessions said. The new alleged victims are up to 15 years old, he said.
Some of the new alleged cases occurred when Montoya was living at his previous residence outside of Syracuse, Sessions said. At least one of the alleged cases involved friends of Montoya's children who were on a camping trip, he said.
None of the new alleged cases involved his church or law enforcement positions, Sessions said.
Investigators planned to interview the children Thursday afternoon to determine if the claims were legitimate.
Montoya remained in the Davis County Jail Thursday on $100,000 bond. He was placed on administrative leave from the Salt Lake County Sheriff's Office Tuesday night, following his arrest.
Montoya's wife was aware of the arrest, Sessions said Thursday. She and her three children were visiting relatives in Georgia and now planned to stay there a little longer, he said.
Late Wednesday afternoon, the families of the four victims asked for privacy as they deal with the situation.
A spokesman for the LDS Church said counselors were being provided to the victims and their families and that the church was fully cooperating with law enforcers.
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4. Girl takes stand, alleges sex abuse | LDS ex-teacher: Child says she was "mad"; defense says he didn't do it
OGDEN - Furrowing her brow and pausing, the tiny, blond 6-year-old said she was coloring a picture of Jesus when it happened.
Her Mormon church teacher, she said, came up from behind and touched her "privates."
Although it made her feel "mad," she said she didn't tell anyone about the abuse. When she eventually did, her frantic mother drove to the home of a friend and then to the home of another girl who made the same claim. On the drive over, she pulled the car over to pray for guidance.
The first day of trial for a former Church of Jesus Christ of Latter-day Saints teacher accused of child sexual abuse began Monday against a backdrop of religion and sin in the small community of Syracuse.
Prosecutors argue Aaron Marcos Montoya fondled three kindergartners in a church class he taught with his wife. Two of the three girls testified Monday, sitting on top of a folded blanket so those in the packed courtroom could see their faces above the witness box. The alleged abuse might never have come to light had it not been for the older brother of the first girl to testify.
The 12-year-old boy said he told his mother he had overheard his sister and a friend talking about "something serious" on the school bus.
The boy testified a girl who had recently moved into the neighborhood asked his sister, "Does he touch you like this?" and grabbed her crotch. His sister, he said, replied affirmatively.
The girl's mother said she had earlier noticed her daughter was reluctant to attend church. "She said her teacher was mean," the mother testified. Although the mother asked her daughter if Montoya had touched her in a bad way, the girl said he hadn't. But her mother said the suspicion was confirmed when she confronted her daughter with the school bus conversation.
The second girl to take the witness stand told jurors Monday she was sitting on Montoya's lap praying when he reached under her skirt from behind.
"He only does it when his wife's not there," the girl said.
Defense attorney Edward Brass told jurors in his opening statement that they would see inconsistencies in what the girls allege happened.
During his cross-examination of the first girl to testify, he suggested Montoya had simply helped her retie a bow on her dress. He also pointed to inconsistent versions of whether Montoya had touched the first girl over her dress or under it.
"Not one of these children go home - and you'll see that these are all loving families with close relationships with their children - and not one child goes home and says, 'Hey, something funny, something bad happened to me in church today,' " Brass told jurors.
"And why is that? Because at the end of this case, you'll know beyond any sort of doubt, it's because he didn't do it."
Prosecutor Troy Rawlings repeatedly asked the girls if they understood the importance of telling the truth, and asked them why they were in court. One replied, "Because he touched me."
Rawlings told jurors they must look for a pattern in the girls' statements, conceding age and circumstance might not make "every exact detail" consistent.
"What I want you to know that the evidence is gonna show you is the similarities between what these three little girls are gonna tell," he said during his opening statement. "I want you to look for the similarities. I want you to look for the common theme of who, what, how and where." The trial continues today with testimony from the third girl and detectives before Judge Thomas L. Kay.
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5. Primary teacher takes stand at trial, denies molesting girls
OGDEN — Aaron Marcos Montoya took the stand in his own defense Tuesday afternoon to say he didn't molest three 5-year-old girls while he taught an LDS Primary class in 2004.
Montoya has pleaded not guilty to 10 counts of aggravated sexual abuse of a child, a first-degree felony. And the trial, which was originally scheduled to take place in Davis County, is being held in 2nd District Court in Weber County after a judge granted a change of venue.
Montoya and his wife, Angie, who also testified Tuesday, had both been asked to teach a class of 5-year-olds in late 2003.
On Dec. 12, 2004, Aaron Montoya taught the Primary class alone because his wife was at home with a baby. It was one of the first Sundays in a Syracuse ward of The Church of Jesus Christ of Latter-day Saints for a now-6-year-old girl.
The girl told a jury Tuesday that she was drawing a picture of Jesus when Montoya sneaked up behind her and put his hand under her skirt.
She said it made her feel sad.
The girl also testified she had been asked to pray at the end of a Primary class, where Montoya was the only adult present, and while she prayed he put his hand up her skirt.
She said she didn't say anything to Montoya but immediately after church, she told her 9-year-old brother what had happened.
He didn't believe her.
But the brother testified Tuesday he was feeling bad about not believing her, but at the time, he didn't think something like that would happen at church.
The girl's mother said she didn't find out about the alleged abuse until a couple of weeks later, when a parent of another child in the Primary class came to the girl's house and said the two children had discussed on the school bus not liking Montoya as a Primary teacher.
One asked the other, "Does he touch you, too?" The parents called Syracuse police.
One of the girls had been reluctant to go to church, saying it was too long and too boring, her mother said Tuesday.
Forensic nurse Karen Stilling said another girl told her parents she didn't like her teacher, and her father, who has an administrative position in the ward, asked her to give Montoya a chance because he hadn't had much experience as a Primary teacher.
At the time, the girl denied that Montoya had been mean or had touched her.
Angie Montoya said she taught most of the Primary lessons that year because Aaron Montoya was working full time as a bailiff at the Matheson Courthouse and was completing a sociology degree at Weber State University. Aaron Montoya's first time teaching a lesson alone was in July after he graduated from Weber State.
The police investigation immediately involved the Davis County Children's Justice Center.
Syracuse detective Heath Rogers, who investigated the case, said Montoya told him the only contact he had with any of the children was when he placed his flat opened hand against their backs when they prayed in front of class.
"It seemed like a way to reassure them that it's OK to be praying," Montoya told the jury.
He denied doing anything inappropriate to the girls.
He said there are three other instances he touched them.
Once, during a Sunday lesson, one of the girls had her feet up on a chair, a position that made her underwear visible. Montoya said he asked her a couple of times to put her feet on the floor and eventually grabbed her ankle and brought her foot to the floor.
Another time, one girl's dress had a decorative bow that became untied. The girl played with the two ends during class, and Montoya retied it for her.
A third girl and Montoya's son — who was also in the Primary class — were on a soccer team together, and before the game started, they asked him to lift them to the crossbar of the goal so they could hang on it. That's what he did, he said.
Tuesday, the jury heard all the evidence in the case against Montoya. Both the prosecution and the defense rested.
Closing arguments are scheduled for today, as well as the jury's instructions and deliberations.
If convicted, Montoya could face up to life in prison.
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6. Primary Teacher Denies Inappropriate Touching of Girls
OGDEN, Utah (AP) -- Aaron Marcos Montoya took the stand and denied putting his hand up the dresses of three young girls in his church Primary class.
Montoya, 33, of Syracuse, was the last witness to testify on the second day of his trial in 2nd District Court on four counts of aggravated sexual abuse of a child. The charges stem from allegations about his actions in a Syracuse Primary class for The Church of Jesus Christ of Latter-day Saints in 2004. He faces additional charges involving alleged misconduct on outings and at his home.
Montoya said he and his wife, Angela, were asked by church leaders to teach the class of 5- and 6-year-olds, and they took turns teaching.
"I didn't think I was a very good teacher," Montoya said.
The last class he taught was on Dec. 12, 2004. Montoya said he tied the bow on the dress of one of the two girls in class that day. Earlier in the year, he grabbed the ankle of another girl and put her foot on the floor because she had her feet on her chair, making her underwear visible, he said.
The Montoyas' 7-year-old son testified for the defense that he never saw his father put his hand up anyone's dress.
Two of the girls testified Monday and the third testified Tuesday. She said Montoya put his hand up her skirt and inside her underwear twice on Dec. 12, 2004. She said once was while she drew a picture of Jesus and the other time was when she said a prayer.
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7. Primary Teacher Found Guilty of Sexual Abuse
An LDS primary teacher accused of molesting three girls was found guilty on all counts. The jury reached the verdict in the case of Aaron Montoya in just three hours.
This has been a very emotional case for everyone involved. As the verdict was read, people in the packed courtroom burst into tears. Even some of the jurors began to cry.
Aaron Montoya began to shake as he heard the verdict: Guilty on all four counts of aggravated sexual abuse of a child. He was immediately taken into custody.
This case involves three girls, ages five and six, who Montoya molested in a primary class last year. During the two day trial, the jury heard from the young victims. One of them said she was coloring a picture of Jesus when Montoya came up behind her and reached up her skirt.
What's made this case even harder for everyone involved, is that Montoya worked in law enforcement. He was also a good friend of some of the victims' families.
After the verdict was read, all three of the victims' parents told the media justice has been served.
Jed Davies, Victim's Father: "The girls were honest, told the truth, they were heroes for themselves and other people, other little kids."
Bill Curtis, Victim's Father: "It was liberating, it was empowering for those children to face this perpetrator and to point out Aaron Marcus Montoya and say, 'He did this to me, he did bad things to me.'"
All along, Montoya has denied touching the girls in a sexual way. His attorney argued that there were inconsistencies in the girls' stories. He also said that Montoya never said anything to them after these incidents occurred, which indicates he wasn't trying to cover it up.
Syracuse police say Montoya has been charged in cases involving three other girls, one of them his foster child. Those cases go back four to five years. He'll be in court on those charges in October.
The judge set a sentencing date for this case on October 26.
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8. Ex-Primary teacher guilty of sex abuse
OGDEN — An eight-person jury found Aaron Marcos Montoya guilty Wednesday of four counts of aggravated sexual abuse of a child to conclude a three-day trial where the children testified they were abused in their church Primary class.
The former Salt Lake County Sheriff's Office employee was taken into custody after the four men and four women returned the guilty verdict. Montoya now faces a five years to life prison sentence, which is standard for a first-degree felony conviction.
Second District Judge Thomas Kay scheduled a sentencing on Sept. 26 after Montoya's wife, Angela, stood and asked the judge to change an earlier date so the sentencing wouldn't take place on their son's birthday.
Meanwhile, sobs and gasps came from Montoya's family members after the verdict was read.
Parents of the three girls who said Montoya, 33, sexually abused them when he was their Primary teacher stood together in the courthouse after the trial to say their daughters were vindicated. One of the girls is 6 years old and two are 7 years old.
"They told the truth. They're heroes," one father said.
Another father said a burden was lifted off his daughter after she testified against Montoya.
He also said parents need to have a tough talk with their children to teach them the difference between a good touch and a bad touch.
"It's not OK for anyone else to touch them," he said.
Syracuse detective Sgt. Mark Sessions said his department is glad this trial is over.
"Justice has been served," he said.
Montoya's attorney, Ed Brass, said the testimony from the three children was probably what compelled the jury to render a guilty verdict.
"He's shocked and he's upset as you might expect," Brass said of Montoya.
Just before the jury in Montoya's case received their instructions to deliberate at 11:55 a.m., Brass moved for a dismissal of the charges — a motion Kay denied.
The four men and four women heard two days of testimony to review and thorough closing arguments from each side.
Prosecuting attorney Troy Rawlings told jurors they now know the children from Montoya's Primary class of The Church of Jesus Christ of Latter-day Saints' Primary class — the class where three girls said Montoya had reached up their skirts and touched them.
Rawlings called the girls three young heroes who have no malicious intent against Montoya.
"This trial is about the pursuit of justice by three small children and their families,' he said.
During one hour, Rawlings outlined what he thought were important factors in the case: that Montoya was alone in the class, that the parents and children had been dealing with what they say happened for about a year, that it was out of character for one of the girls to not want to go to church or pray at home with her family and that the children were consistent in their testimonies about the important issues of the case.
He said Montoya touched the girls in a way to gratify a sexual desire and said any inconsistencies in the girls' testimonies might arise because they had been sexually abused several times.
After Rawlings' one-hour statement, Brass said he never supposed the children or their families had malicious intent.
But, he said, the children may have been susceptible to inadvertent suggestions when parents questioned them about the abuse.
Once parents who aren't trained investigators begin questioning children, a degree of contamination can and did occur, Brass said.
"Detectives want them not to have this contact . . . so they don't remember things people have told them instead of what truly happened," he said.
He said it was unbelievable that Montoya could have sexually abused the girls because of Montoya's background as a 3rd District Court bailiff and his knowledge about such crimes.
He said Montoya never threatened the girls or tried to cover up abuse because it never happened. No one ever saw the abuse happening, he said.
Brass told jurors they needed to be careful about their decision regarding the four counts of aggravated sexual abuse of a child because the crime is a first-degree felony — as serious as some murder charges.
Another trial on similar charges is scheduled for Oct. 3, according to court records, stemming from girls who had contact with Montoya about five years ago.
Two girls allege something inappropriate happened while they were using personal watercraft with Montoya at Pineview Reservoir, Sessions said.
Montoya is charged with two counts of aggravated sexual abuse of a child, according to court records.
Rawlings, who will continue to prosecute Montoya on the other charges, declined to go into details about them, but said he wants to try those charges in Weber County. This week's trial was moved to Ogden from Farmington.
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9. Montoya Sentenced; Victim Parents Criticize Judge
FARMINGTON, Utah (AP) -- A Syracuse man has been received a five years to life sentence for aggravated sexual abuse of a child that is to run consecutively to four similar sentences previously handed down for his inappropriately touching young girls in his Mormon Primary class.
Aaron Marcos Montoya, 33, pleaded guilty Thursday to one count of aggravated sexual abuse of a child that encompassed six victims over a five-year period. The previous case involved three girls abused last year in his Syracuse Primary class for The Church of Jesus Christ of Latter-day Saints in 2004.
Prosecutors agreed to dismiss two charges Montoya faced in Weber County and five of six charges in Davis County in exchange for the guilty plea.
During the hearing, three fathers and one mother of abuse victims spoke directly to Judge Thomas L. Kay, chastising him for his remarks to parents during Montoya's Sept. 26 sentencing hearing when the judge suggested they not treat their daughters like victims.
"We never once had that desire," one father said.
Montoya was sentenced to four concurrent terms of five years to life in the first case. The sentenced handed down on Thursday was to be consecutive to the other four, but the actual time served is up to the pardons board.
Montoya's plea on Thursday involved incidents with six girls ranging in age from 3 to 11 that happened at his home, in his car and at Pineview Reservoir between the summer of 2000 and 2004.
Before Kay sentenced Montoya, 33, of Syracuse, he said being a judge does not mean "putting your finger in the air and see which way the voting public is going. If you do that, you're not a judge, but a legislator."
Two of the victims, now in their teens, also spoke at the hearing.
"(Montoya) is a big creep for not admitting it. I hope you go to jail for a long time. I feel so bad for all those poor little girls," one said while fighting back tears.
The other teenage girl, also fighting tears, said she now wishes she had spoken up sooner so maybe Montoya would not have molested other girls.
Both girls said they have a difficult time being around men because of what Montoya did to them.
In her statement, the mother of one of the teens told Kay, "You added to that pain" by not sentencing Montoya to consecutive sentences in September.
"You gave Aaron the lightest possible sentence. I find that reprehensible," she said, standing near her daughter.
Kay said the reason he is recommending the latest sentence to run after the other four is because the incidents happened to multiple girls, in different places and over a long period, while the four other incidents happened at the same location during a short period.
Deputy Davis County Attorney Troy Rawlings said all six remaining victims are accounted for by Montoya's plea. The current plea and Thursday's sentencing cannot be appealed, Rawlings said.
Rawlings said Kay did everything right concerning the August trial, even though he did not agree with some of Kay's decisions. Because of Kay's decisions, Montoya has little chance of winning an appeal if he appeals the jury verdict, Rawlings said.
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10. Aaron Marcos MONTOYA
Name: Aaron Marcos MONTOYA Registration #: 8261
Aliases: Aaron M MONTOYA
Status: ActivePhysical Description
• Age: 53 (DOB: [redacted by FLOODLIT]/1972) • Height: 5'09''
• Sex: M • Weight: 165lbs
• Race: Unknown • Eyes: Brown
• Hair: Brown
• Scars/Tattoos: Scar on L_Shoulder - Front (ABOUT AN INCH LONG VERTICLE SCAR)Address
[redacted by FLOODLIT] Woods Cross, UT 84087
View Map
Other Known Addresses
Offenses
• Description: 76-5-404.1 - AGGRAVATED SEXUAL ABUSE OF A CHILD/1ST DEGREE FELONY
• Date Convicted: 10/24/2005
• Conviction State: Utah
• Release Date:
• Details:
• Counts: 5 -
11. Predator in the Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious Organizations
[note: the below is a basic copy/paste of the article content; formatting and footnotes may be messy.]
BYU Law Review
Volume 2006 Issue 2 Article 6
5-1-2006
Predator in the Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious Organizations
Morgan Fife
Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview
Part of the Organizations Law Commons, Religion Law Commons, and the Torts Commons
Recommended Citation
Morgan Fife, Predator in the Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious
Organizations, 2006 BYU L. Rev. 569 (2006).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol2006/iss2/6
This Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact hunterlawlibrary@byu.edu.6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
Predator in the Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious Organizations
I. INTRODUCTION
With family members weeping audibly in the audience, a Utah
jury found Aaron Marcos Montoya guilty of four counts of
1
aggravated sexual abuse of a child. Montoya is a former bailiff at the
Matheson Courthouse in Salt Lake City, Utah and served as a
volunteer Sunday School teacher in his local congregation of The
2 Church of Jesus Christ of Latter-day Saints (LDS Church). Most
Sundays he taught a small group of five- and six-year-old children in his Sunday School class with his wife. However, one Sunday when his wife was unable to attend the class with him, Montoya molested several children, including one girl while she drew a picture of Jesus
3
faces potential civil liabilities for his actions. But as in many cases, his victims might look beyond the individual who committed the crime and seek damages from additional parties, including the church that utilized Montoya as a volunteer. Significantly, the context in which Montoya abused his victims raises important questions concerning whether the church he belongs to can be liable for his actions, whether the fact that he was acting in a volunteer capacity affects the church’s potential liability, and whether the First Amendment limits a church’s liability for the harms caused by volunteers.
One potential source of recourse that victims of molestation and other tortious actions and their guardians may pursue is the tort of
1. Joseph M. Dougherty, Ex-Primary Teacher Guilty of Sex Abuse, DESERET MORNING NEWS, Aug. 25, 2005, at B1, available at http://deseretnews.com/dn/view/ 0,1249,600158377,00.html.
2. Joseph M. Dougherty, Primary Teacher Takes Stand at Trial, Denies Molesting Girls, DESERET MORNING NEWS, Aug. 24, 2005, at B4, available at http://deseretnews.com/dn/ view/0,1249,600158135,00.html.
and then again while she prayed.
As an individual, Montoya has been criminally prosecuted and
3. Id.
5696FIFE.FIN.DOC 5/12/2006 11:44:05 AM
BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2006
4
negligent hiring. This quickly expanding area of tort law consists of
actions in which victims seek to impose liability on third-party
employers for an employee’s tortious or criminal acts; in this way, the
5
tort of negligent hiring is similar to respondeat superior. However,
in contrast with respondeat superior, an employer potentially may
face liability for acts outside the scope of an employee’s employment
if, among other things, the employer had either actual or
constructive knowledge that the employee was unfit for the
6
liberty and excessive entanglement,7 some courts have allowed
victims of various offenses to pursue religious organizations for
8
negligent hiring. This trend has become especially apparent in the
wake of the clergy sexual abuse scandals that have rocked the
4. See generally 29 AM. JUR. TRIALS Negligent Hiring and Retention of an Employee § 1 (1982 & Supp. 2005) [hereinafter Negligent Hiring and Retention].
5. Id.
6. See James S. Barber, Workplace Violence: An Overview of Evolving Employer Liability, 83 ILL. B.J. 462, 462–63 (1995); see also Rebecca L. Andrews, Comment, So the Army Hired an Ax-Murderer: The Assault and Battery Exception to the Federal Tort Claims Act Does Not Bar Suits for Negligent Hiring, Retention and Supervision, 78 WASH. L. REV. 161, 165–66 (2003) (discussing differences between negligent hiring and respondeat superior); John C. North, Note, The Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 CHI.-KENT L. REV. 717, 717–19 (1976) (comparing respondeat superior and negligent hiring).
7. Jamie Darin Prenkert explains the following concerning the Establishment Clause of the First Amendment and the concept of excessive entanglement:
The specific concern under the Establishment Clause is that the government will “involve itself too deeply in [a religious organization’s] affairs” and become entangled in the church’s role of defining acceptable religious beliefs and practices. Such entanglement concerns stem from the three-prong Establishment Clause inquiry announced by the Supreme Court in Lemon v. Kurtzman, which prohibits an “excessive government entanglement with religion.” The Court, in Lemon, explained that the determination of whether there is excessive entanglement is determined by three factors: the character and purpose of the institution affected, the nature of the aid to or burden upon the religious organization’s affairs, and the resulting relationship between the state and the religious organization.
Jamie Darin Prenkert, Liberty, Diversity, Academic Freedom, and Survival: Preferential Hiring Among Religiously-Affiliated Institutions of Higher Education, 22 HOFSTRA LAB. & EMP. L.J. 1, 43 (2004) (citing Lemon v. Kurtzman, 403 U.S. 602, 612–13, 615 (1989)).
8. See, e.g., Jane Doe I v. Malicki, 771 So. 2d 545 (Fla. Dist. Ct. App. 2000); Jones v. Trane, 591 N.Y.S.2d 927 (N.Y. Sup. Ct. 1992); Hutchinson ex rel. Hutchinson v. Luddy, 763 A.2d 826 (Pa. Super. Ct. 2000).
570
employment.
In spite of potential First Amendment bars concerning religious6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations 9
Catholic Church in the United States over the past few years. As a result of these scandals, some courts have scrutinized churches’ decisions concerning employment of clergy and nonclergy in church
10
negligent retention and negligent supervision.
In addition to issues arising in the context of the First
Amendment, it is important to examine the circumstances under which institutions using volunteers may face liability as a result of the tortious activities of volunteers acting outside of the scope of their duties. Volunteers play an essential role in providing and performing services within American society. As former President Bill Clinton explained, “Service to one’s community is an integral part of what it means to be an American.”12 Individuals acting in volunteer
9. Ira C. Lupu & Robert W. Tuttle, Sexual Misconduct and Ecclesiastical Immunity, 2004 BYU L. REV. 1789, 1789–93. Lupu and Tuttle explain:
The legal fallout from the scandal of the Catholic Church may be even more widespread and enduring than the religious consequences. Priests have gone to prison for lengthy terms. Many courts have upheld tort claims against dioceses and their officers, and First Amendment defenses once thought likely to insulate defendants against such claims have been aggressively advanced and explicitly rejected.
Id. at 1792. Lupu and Tuttle further explain:
At the beginning of the twentieth century, a person sexually molested by someone acting on behalf of a religious organization would not have contemplated legal action against the religious organization and would not have been successful in such an action had she tried. By the beginning of the twenty-first century, however, a person who had suffered such an injury might well be a successful plaintiff in a suit against the wrongdoer, the ecclesiastical officials, and the religious entity in which the individual defendants served.
Id. at 1797–98.
10. See id. at 1847–54.
11. See, e.g., Evan F. v. Hughson United Methodist Church, 10 Cal. Rptr. 2d. 748 (Cal.
Ct. App. 1992); Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo. 1996); Mendez v. Geoghan, No. 984939, 1999 WL 792202 (Mass. Super. Ct. 1999).
12. President William J. Clinton, Nurturing Citizen Service, 3 U.S. SOC’Y & VALUES, Sept. 1998, http://usinfo.state.gov/journals/itsv/0998/ijse/voluntee.htm. President Clinton further stated,
Volunteers enrich our lives every day with their generosity and compassion. They cut across the fabric of society—from government on all levels to the educational sector, from the religious community to health care. They respond to myriad unforeseen developments and critical persistent needs. They react to the plight of those who suffer from severe weather hazards—in communities devastated by mud slides, ice storms, flash floods or tornadoes. Volunteers open their hearts and homes
571
In many cases, those courts have scrutinized the decisions of churches concerning employment in the context of the tort of negligent hiring, along with its sister actions of
11
activities at unprecedented levels.6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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capacities spend innumerable hours each year teaching, tutoring, and
13
mentoring. However, some offenders have taken advantage of
relaxed supervision within organizations utilizing volunteers to
14
liability, which could derail their efforts to enrich lives.
This Comment examines in depth the potential liability of religious organizations due to volunteers acting outside the scope of their responsibilities, using the case of the LDS Church and Aaron Marcos Montoya as a framework. It argues that in terms of the tort of negligent hiring, the LDS Church likely exercises sufficient control over its volunteers for liability purposes. However, in the specific case of Montoya, the lack of actual or constructive knowledge of Montoya’s pedophilia at the time he served as a volunteer would likely protect the LDS Church from liability based upon the tort of negligent hiring. Furthermore, this Comment argues that the First Amendment should bar such an action against the LDS Church based on the excessive entanglement of church and state that could result from a court’s examination of the church’s
policies and procedures and its analysis of a reasonable bishop.
Part II of the Comment provides a brief description of the LDS Church, its policies, and its organization. It also briefly recounts the facts of the Montoya crimes and trial. Part III provides a brief history of the tort of negligent hiring and examines the elements of the tort. Part IV analyzes the potential questions that arise in applying the tort to institutions utilizing volunteers and to religious institutions
to offer not only shelter and food, but, most important, the hope and support people desperately need to begin putting their lives back together. This spirit of citizen service has deep and strong roots in America’s past. By nurturing this spirit we can help ensure a better future for our nation.
Id.
13. See Jean Baldwin Grossman & Kathryn Furano, Making the Most of Volunteers, LAW
& CONTEMP. PROBS., Autumn 1999, at 199–200.
14. See generally Mark C. Lear, Note, Just Perfect for Pedophiles? Charitable
Organizations that Work with Children and Their Duty To Screen Volunteers, 76 TEX. L. REV. 143 (1997).
572
In light of the essential role that volunteers play in American civil society and the potential that exists for harm to those that volunteer organizations seek to serve, it becomes very important to determine the duty that organizations employing volunteers owe to those receiving their services. Unless the duty owed in hiring volunteers is clear, those organizations using volunteers could face potentially smothering
commit terrible offenses against children and others.6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations
generally. In terms of applying the tort of negligent hiring to organizations utilizing volunteers, this Part demonstrates that courts have generally found that organizations may be liable for volunteers’ tortious actions if the organizations have a right to control their volunteers. Furthermore, this Part shows that a split in authority exists concerning whether the First Amendment would bar the application of the tort of negligent hiring to religious institutions. Part V analyzes the Montoya case under the negligent hiring elements and under the conflicting First Amendment jurisprudence on negligent hiring by religious institutions, concluding that the LDS Church would not be liable for the molestation because it likely had neither actual nor constructive knowledge that Montoya was a pedophile at the time he was asked to serve as a primary teacher. This Part also finds that the First Amendment should bar a claim of negligent hiring against the LDS Church for the actions of Montoya because the requisite judicial examination of internal church polices and procedures and the creation of a reasonable bishop standard would result in excessive entanglement in church and state. Finally, Part VI provides a brief conclusion.
II. FACTUAL BACKGROUND: THE LDS CHURCH AND AARON MARCOS MONTOYA
Similar to other churches in the United States, the LDS Church faces the challenge of providing meaningful religious services to its members while protecting them from individuals who take advantage of volunteer and religious organizations to perpetrate terrible crimes on children and others. The Aaron Marcos Montoya case is illustrative of the difficulties modern churches confront. This Part provides a general description of the organization of the LDS Church and some of its practices and procedures. Furthermore, it provides a background for the crimes committed by Montoya in his Syracuse, Utah LDS Church congregation.
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A. The LDS Church15
The LDS Church, headquartered in Salt Lake City, Utah, has a
16
branches and numbered 26,670 as of April 2005.
Church meetings are generally held in a three-hour block of
time. During that block, congregants meet together for an hour in what is known as “sacrament meeting.” In the remaining two hours, children, young adults, and adults meet separately. Additional special activities and meetings are sometimes held during the week.
Children participate in an organization called Primary and spend time both in individual classes, divided up by age, and in a general meeting, in which all of the children participate regardless of age. The Primary is an organized program of religious instruction in
18
worldwide membership of well over twelve million members. church has established congregations in all fifty states and in many countries across the world. Those congregations are called wards and
17
It also serves to occupy the children during the course of the adult meetings.
which children learn basic church beliefs.
The LDS Church has a lay clergy in which its leaders render services to the church and their congregations while maintaining secular employment and caring for their families. The leader of a ward is referred to as a “bishop” and the leader of a branch is referred to as the “branch president.” Within the wards and branches of the LDS Church, church leaders, usually a bishop or branch president, ask members to serve in certain positions that range from teaching classes to providing janitorial services for the buildings that house the congregations. This invitation to serve is referred to as a “calling,” and each congregant is free to accept or decline the calling when the church leader presents it.
Among the positions in which LDS Church members serve are various positions working with children in the Primary. Those positions include leaders, teachers, choristers, pianists, and other support positions. Each position works directly with the children in
15. Much of the information below is taken from the author’s firsthand experience. However, descriptions of the LDS Church’s organization, membership, beliefs, and other information can be found at http://mormon.org/learn/0,8672,968-1,00.html. Additional general information can be found at www.mormon.org and www.lds.org.
16. F. Michael Watson, Statistical Report, ENSIGN, May 2005, at 25.
17. Id.
18. Organizations Within the Congregation, http://mormon.org/learn/0,8672,969-
1,00.html (last visited Mar. 3, 2006). 574
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569] Negligent Hiring and Volunteers in Religious Organizations
the congregation, and teachers can be alone with children for as long as forty-five minutes to an hour at a time. Primary teachers often teach in pairs, but this is not always possible.
As explained by the LDS Church’s General Handbook of
Instructions, “Primary leaders and teachers have the sacred
responsibility to help parents teach their children the gospel of Jesus
Christ.”19 In addition, Primary teachers are instructed by the LDS
Church “to seek inspiration from the Holy Ghost in fulfilling [their]
important callings,” to “love each child and develop a caring
relationship with him or her,” and to “help open the way for each
child to receive a testimony of the gospel and the blessing of the
Lord.”20 The LDS Church cites scripture as the foundation of these
21
supervision and administration of the Primary. The LDS Church’s
central leadership instructs, “The bishopric watches over and
nurtures children in the ward, working closely with parents and
primary leaders to help each child ‘come unto Christ.’”22
Furthermore, the bishopric, which consists of the bishop and two
counselors, is instructed to prepare and interview children for
baptism, interview children for movement from Primary to the
general Sunday School, and oversee the ward Primary organization
23
An essential part of the bishopric’s duties in overseeing the ward
24
Primary is the calling of leaders and teachers. The General
Handbook of Instructions charges the ward leadership as follows:
The bishop calls and sets apart a woman to be the ward Primary president. The bishop or an assigned counselor calls and sets apart women to serve (1) as first and second counselor to the ward Primary president and (2) as secretary. A member of the bishopric also calls and sets apart men or women to serve as Primary teachers
19. THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, 2 CHURCH HANDBOOK OF INSTRUCTIONS 229 (1998) [hereinafter HANDBOOK OF INSTRUCTIONS].
20. Id.
21. Id. (citing Mark 10:14 (“Suffer the little children to come unto me, and forbid them not: for of such is the kingdom of God.”); 3 Nephi 22:13 (“All thy children shall be taught of the Lord; and great shall be the peace of thy children.”); Moroni 6:4).
responsibilities.
The ward and branch leadership plays an important part in the
as a whole.
22. Id. at 230–31 (citing Moroni 10:32).
23. Id. at 231.
24. Id.
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and in other ward Primary callings as needed. The Primary president makes recommendations for these callings, but they are
25
As a practical matter, the bishop and his counselors stand as gatekeepers to the Primary organization and its potential volunteers.
B. The Case of Aaron Marcos Montoya
In late 2003, Aaron Marcos Montoya and his wife began teaching a Primary class of five-year olds together in their Syracuse,
26
27
Sunday meetings. After his graduation from Weber State
University, Montoya became more involved in the class and taught
subject to the bishopric’s approval.
Utah LDS ward.
alone because Aaron Montoya worked full time as a bailiff at the Matheson Courthouse while working towards completing a degree at Weber State University and was therefore often unable to attend
Initially, Mrs. Montoya taught most of the classes
28
On December 12, 2004, Montoya taught the Primary class alone
29
30
An eight-person jury found Aaron Marcos Montoya
his first lesson in July 2004.
because his wife was at home with their baby.
the class, Montoya molested a five-year old girl twice: first while she was drawing a picture of Jesus and then while she was praying at the
end of the class.
Montoya also molested two other girls in the
Primary class.
31
32
Montoya has subsequently pled guilty to additional charges involving
the sexual molestation of six different victims ranging in age from
33
25. Id.
26. Dougherty, supra note 2, at B4.
27. Id.
28. Id.
29. Id.
30. Id.
31. Dougherty, supra note 1, at B1.
32. Id.
33. Associated Press, Ex-LDS Primary Teacher Gets Another Sentence, DESERET
MORNING NEWS, Oct. 24, 2005, at B5, available at http://deseretnews.com/dn/view/ 0,1249,635155625,00.html [hereinafter Another Sentence].
576
guilty of four counts of aggravated sexual abuse of a child.
three to eleven.
During the course of6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations III. THE TORT OF NEGLIGENT HIRING
As it exists today, the tort of negligent hiring provides plaintiffs with a mechanism for holding employers liable for the tortious actions of their employees that fall outside of the scope of their employment. This is legally significant because employers may be held liable in situations in which no liability would exist under respondeat superior. The following briefly describes the origins and development of the tort and then examines the elements of a prima facie negligent hiring claim.
A. The History of the Tort of Negligent Hiring
The tort of negligent hiring emerged initially as an exception to
34
the common law fellow servant rule. The fellow servant rule
traditionally absolved employers from the liability they would
37
35
early employers often escaped liability for workplace violence and
otherwise face for torts committed among employees.
For example,
36
harshness of the fellow servant rule, courts began allowing causes of
unlawful harassment among their employees.
actions for the negligent hiring of employees in the early 1900s. Where employees were previously unable to pursue an action against their employers for the actions of fellow employees, negligent hiring
38
Courts first recognized the cause of action of negligent hiring in
now allowed them to seek such recourse.
this initial form in Ballard’s Administratrix v. Louisville & Nashville
39
34. Mark Minuti, Note, Employer Liability Under the Doctrine of Negligent Hiring: Suggested Methods for Avoiding the Hiring of Dangerous Employees, 13 DEL. J. CORP. L. 501, 502 (1988).
35. Id. See generally WILLIAM L. PROSSER, THE LAW OF TORTS § 80, at 525–37 (4th ed. 1971).
36. See Lindbergh Porter, Jr., Employment Torts: High Risk Components of Wrongful Discharge Lawsuits, 548 PRAC. L. INST./LIT. 65, 102 (Oct. 1996) (discussing origin of tort of negligent hiring).
37. Amanda Richman, Note, Restoring the Balance: Employer Liability and Employee Privacy, 86 IOWA L. REV. 1337, 1339 (2001).
Railroad Co. in 1908.
held that “an employer could be liable for negligently hiring an employee who caused injury to a fellow employee if the act that
In this case, the Kentucky Supreme Court
To ameliorate the
38. See North, supra note 6, at 720.
39. 110 S.W. 296 (Ky. 1908).
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caused the injury was within the employee’s scope of employment.”40 Courts subsequently expanded the tort to include employee actions
41
and other decisions was a logical extension of a widely recognized common law doctrine requiring employers to ensure the safety of the
42
equally as dangerous as a defective machine.”43
With time, courts also began to extend the cause of action
beyond the realm of employees “to create a duty between employers and third parties based upon the third party’s relationship with the employer.”44 For example, where a department store employee pushed and injured a store patron, a Missouri court held that
[a] merchant owes to his customer, who comes upon his premises by invitation, the positive duty of using ordinary care to keep the premises in a reasonably safe condition for use by the customer in the usual way; and this doubtless includes the duty of using
45
Thus, because of the relationship between the plaintiff-customer and the defendant-department store, the court held that the department
outside the scope of employment.
The exception to the fellow servant rule resulting from Ballard
Subsequently, this duty progressed from a duty to maintain a safe work place to “providing safe employees because a dangerous fellow employee was seen as being
workplace for their employees.
ordinary care to employ competent and law-abiding servants.
46 Courts further expanded the doctrine in subsequent cases to
store had a duty to exercise ordinary care when hiring employees.
40. Minuti, supra note 34, at 503.
41. See, e.g., Mo., Kan. & Tex. Ry. Co. v. Day, 136 S.W. 435 (Tex. 1911) (holding a company liable for negligently hiring an employee who committed an assault on another employee); see also North, supra note 6, at 720.
42. North, supra note 6, at 719.
43. Id.
44. Minuti, supra note 34, at 503; see, e.g., Foster v. Loft, Inc., 526 N.E.2d 1309 (Mass.
App. Ct. 1988) (customer brought suit after being assaulted by employee on company premises); White v. Consol. Planning, Inc., 603 S.E.2d 147 (N.C. Ct. App. 2004) (customer brought suit after funds were misappropriated by investment firm).
45. Priest v. F.W. Woolworth Five & Ten Cent Store, 62 S.W.2d 926, 927 (Mo. 1933) (internal quotation marks omitted) (citing Smothers v. Welch & Co. House Furnishing, 274 S.W. 678, 679 (Mo. 1925)).
46. See id.; see also Prugue v. Monley, 28 P.3d 1046, 1050 (Kan. Ct. App. 2001) (citing Schmidt v. HTG, Inc., 961 P.2d 677 (Kan. 1998)) (“[T]he existence of a duty to the injured party was based on actions against a customer or co-worker which took place on the working premises during the time employment services were normally rendered.”).
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569] Negligent Hiring and Volunteers in Religious Organizations landlords and their employees47 and to actions by employees beyond
50
Most jurisdictions today require a plaintiff asserting a claim of
negligent hiring to prove (1) that the employer owed the third party
a duty; (2) that the employee was incompetent; (3) that the
employer knew or should have known that the employee was
incompetent for the position; and (4) that the employer’s negligence
was both the actual and the proximate cause of the third party’s
52
injury. In addition, it is necessary to show that an employment
47. See, e.g., Malloy v. O’Neil, 69 So. 2d 313 (Fla. 1954); Or v. Edwards, 818 N.E.2d 163 (Mass. App. Ct. 2004) (finding a landlord liable for rape and murder of child by employee).
48. See, e.g., Fleming v. Bronfin, Inc. 80 A.2d 915 (D.C. 1951) (finding employer liable for attacks made by employee delivering groceries to apartment); Hare v. Cole, 25 S.W.3d 617 (Mo. Ct. App. 2000) (permitting a claim against pizza delivery business for wreck caused by driver).
49. See Broderick v. King’s Way Assembly of God Church, 808 P.2d 1211, 1221 n.25 (Alaska 1991) (rejecting as “without merit” the argument that the negligent hiring doctrine does not require screening of an unpaid volunteer); Big Brother/Big Sister, Inc. v. Terrell, 359 S.E.2d 241, 243 (Ga. Ct. App. 1987) (observing negligent hiring principles by noting that plaintiffs must prove that the defendant knew or should have known of a volunteer’s criminal propensities before the defendant could be found liable for negligent selection). But see Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996) (finding that the negligent hiring doctrine did not apply to impose a duty on the Boy Scouts of America or its local council to screen a volunteer scoutmaster because the council did not hire the volunteer).
50. See Negligent Hiring and Retention, supra note 4, § 1.
51. Cindy M. Haerle, Minnesota Developments, Employer Liability for the Criminal Acts
of Employees Under Negligent Hiring Theory: Ponticas v. K.M.S. Investments, 68 MINN. L. REV. 1303, 1307–08 (1984).
52. See Barbara A. O’Connell, Hiring and Interviewing in EMP. L. E-DESK REFERENCE, ch. 32 (2004). O’Connell explained,
In order to prove that a cause of action for negligent hiring exists, a plaintiff is usually required to prove the following: the existence of an employment relationship; the employee’s incompetence; the employer’s actual or constructive
579
48
extended the tort to situations where volunteers, rather than
the immediate area of the employer’s control.
Finally, courts have
49
of negligent hiring remains one of the fastest growing areas of tort
traditional employees, committed tortious actions.
Today, the tort
litigation.
“negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others,”51 regardless of whether the injured person is an employee or a customer, or whether the person is injured by an employee or a volunteer.
B. Elements
As it exists today, an employer will be found liable for6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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53
1. The employer’s duty
One legal writer explained, “[T]he connection between the
employment relationship in question and the plaintiff is the critical
fact upon which a defendant employer’s duty is based in a negligent
hiring or negligent retention case.”54 In addition, the duty of an
employer is greater when employees deal with children in some
55
relationship exists.
Section in the context of volunteers as employees while addressing the issues surrounding employer control of volunteers. The following discussion briefly describes each of the first four elements.
capacity.
Generally, three elements are common to a court’s finding
This last element will be discussed in the next
that an employer had a duty to use due care in hiring employees on
56
its behalf. First, at the time of the tortious action, both the
offending employee and plaintiff were in places where each rightfully
57
When the above three elements are satisfied, an employer owes a duty to exercise reasonable care in employing individuals who may pose a threat of injury to their customers and employees specifically,
knowledge of such incompetence; the employee’s act or omission caused the plaintiffs injuries; and the employer’s negligence in hiring or retaining the employee was the proximate cause of the injury. Many states require additionally that a “special relationship” exist between the injured party and the employer before any liability for negligent hiring may attach.
Id.
53. Id.
54. Negligent Hiring and Retention, supra note 4, § 6. Duty, as explained by Prosser, is a court’s “expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” PROSSER, supra note 35, at 325–26.
55. See, e.g., Machin v. Walgreen Co., 835 So. 2d 284, 284 (Fla. Dist. Ct. App. 2003) (“Persons chargeable with a duty of care and caution toward children must take the precautions which are available to them.”).
56. North, supra note 6, at 724.
57. Id.
58. Id.
59. Id.
580
could be.
direct result of the employment.”58 Third, “the employer would receive [or did receive] some benefit, even if only a potential or indirect benefit, from the meeting and the plaintiff had the wrongful act not occurred.”59
Second, the offending employee and plaintiff met “as a6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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60
have imputed to employers an additional obligation to investigate an
61
employer to investigate is greater.
In the case of organizations retaining volunteers to work with
children, the question of duty is a balancing act between the welfare of children and the concomitant costs of an increased duty for
64
As explained by Jean Baldwin
and to the community generally.
As part of this duty, some courts
applicant’s background.
duty to investigate an applicant’s background depends largely “on the position for which an employee is being hired and the likelihood that the work will subject third persons to risk of great harm.”62 Consequently, if the employer is aware that the applicant may be unfit or if the offered employment is sensitive in nature and involves the “health, safety, and welfare” of another party, the duty of the
63
Importantly, the nature of the employer’s
nonprofit organizations operating with already scarce resources. Especially important in this balancing act is the vulnerability of children. Courts in most jurisdictions have held that children are
65
entitled to a greater degree of care.
60. Rodolfo A. Camacho, How To Avoid Negligent Hiring Litigation, 14 WHITTIER L. REV. 787, 796 (quoting Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn. 1983)).
61. See, e.g., Kendall v. Gore Props, Inc., 236 F.2d 673 (D.C. 1956); Weiss v. Furniture in the Raw, 306 N.Y.S.2d 253 (N.Y. Civ. Ct. 1969); Robertson v. Church of God Int’l, 978 S.W.2d 120, 125 (Tex. App. 1997) (“One who retains the services of another has a duty to investigate the background of that individual for fitness for the position . . . .”).
62. Negligent Hiring and Retention, supra note 4, § 6.
63. Camacho, supra note 60, at 796. To determine if the imposition of a duty in a given
set of circumstances is justified, courts look to “the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.” PROSSER, supra note 35, at 325–26. Other factors include the risk involved, the foreseeability of the risk, and the likelihood of the injury. Doe v. Boys Club of Greater Dallas, Inc., 868 S.W.2d 942, 948 (Tex. App. 1994). As explained by the Texas Court of Appeals, “These factors are then weighed against the social utility of the actor’s conduct and the magnitude of the burden on the defendant.” Id. (citing Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).
64. See generally Lear, supra note 14, at 172–80.
65. See, e.g., Juarez v. Boy Scouts of Am., Inc., 97 Cal. Rptr. 2d 12, 36 (Cal. Ct. App. 2000) (“Generally, a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger.”); Machin v. Walgreen Co., 835 So. 2d 284, 284 (Fla. Dist. Ct. App. 2003) (“Persons chargeable with a duty of care and caution toward children must take the precautions which are available to them.”); Atlanta Affordable Hous. Fund Ltd. P’ship v. Brown, 588 S.E.2d 827, 833 (Ga. Ct. App. 2002) (“Children of tender years and youthful persons generally are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter, as well as to the superior knowledge of persons who come into contact with them.”); Cook v. Smith, 33 S.W.3d 548, 554 (Mo. Ct. App. 2000) (“Ordinary care may require more vigilance and caution when a child is involved if there is a potentially dangerous situation of which a supervisor is or should be aware.” (quoting Rogger
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Grossman and Kathryn Furano, when selecting volunteers, “the safety of those receiving services must be taken into account. This is especially true for volunteers who work with vulnerable populations such as children, the mentally retarded, and the fragile elderly.”66
2. Employee’s incompetence
The ways in which an employee may be incompetent are limited
67
someone whom the employer has a duty to protect.
Importantly, incompetence in this context is not limited to the
ability of the applicant or employee to perform the tasks of his employment. Even the most gifted mathematician with multiple graduate degrees in accounting would be incompetent to work for an accounting firm that audited outside companies onsite if he was a danger to those with whom he would have contact. Incompetence extends to the reliability of the employee and “all that is essential to make up a ‘reasonably’ safe person, considering the nature of the work and the general safety of those who are required to associate with such person in the general employment.”70
v. Voyles, 797 S.W.2d 844, 846 (Mo. Ct. App. 1990))); Gloria X v. Gibbs, 659 N.Y.S.2d 349, (N.Y. App. Div. 1997) (“The standard of care thereby owed to this child is indisputably higher than that which would be required for the care of an adult.”); Peyer v. Ohio Water Serv. Co., 720 N.E.2d 195, 200 (Ohio Ct. App. 1998) (citing Di Gildo v. Caponi, 247 N.E.2d 732, 733–34 (Ohio 1969)).
66. See Grossman & Furano, supra note 13, at 199. One example of this principle is the Ohio Court of Appeals decision in Peyer v. Ohio Water Service Co., 720 N.E.2d 195 (Ohio Ct. App. 1998). In Peyer, the Court said, “[C]hildren are entitled to a higher degree of care than adults and . . . the amount of care required to discharge a duty to a child is greater than that required to discharge a similar duty owed to an adult.” Id. at 200.
67. See Donald K. Armstrong, Comment, Negligent Hiring and Negligent Entrustment: The Case Against Exclusion, 52 OR. L. REV. 296, 298 (1973).
68. Id. at 99 (footnotes omitted).
69. Negligent Hiring and Retention, supra note 4, § 8. 70. Id. (citing 53 AM. JUR. 2D Master and Servant § 310).
582
For example, courts have found incompetency due to “habitual drinking of liquors; habitual carelessness, forgetfulness, inattentiveness, inexperience, a physical or mental defect; or a propensity for horseplay, recklessness, maliciousness, or viciousness.”68 More specifically, employees are incompetent when they possess qualities and/or characteristics that a reasonable employer would recognize while hiring an employee as qualities and/or characteristics that would likely result in injury to
69
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569] Negligent Hiring and Volunteers in Religious Organizations
For example, the Florida Court of Appeals held that a furniture
company negligently hired a furniture deliveryman because the
furniture company failed to require the deliveryman to fill out an
application or to ask any questions about his background even
though the employee’s duties would require him to enter customers’
71
private homes. If the furniture company had investigated the
employee, it likely would have discovered that the employee had an extensive juvenile and criminal record, had been diagnosed with
72
However, because it did not investigate the employee prior to hiring
and retaining him, the employee was permitted to enter into the
home of a customer where he caused extensive personal injuries to
73
a reasonably safe person given the nature of the work.
3. Employer’s knowledge of employee’s incompetence
After establishing an employer’s duty and the employee’s
incompetence, the plaintiff must prove that the employer had actual
74
or constructive knowledge of an employee’s incompetence. To
prove constructive knowledge in this situation, if a plaintiff demonstrates
that an employer hired or retained an employee that it knew or, in the exercise of reasonable care, should have known was incompetent for the job position assigned, then the employer may
71. Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744 (Fla. Dist. Ct. App. 1993).
72. Id. at 749.
73. Id. at 747.
74. Camacho, supra note 60, at 802; see, e.g., Total Rehab. & Med. Ctrs., Inc. v.
E.B.O., 915 So. 2d 694, 696 n.1 (Fla. Dist. Ct. App. 2005) (citing Watson v. Hialeah, 552 So. 2d 1146, 1148 n.2 (Fla. Dist. Ct. App. 1989)); Evans v. Ohio State Univ., 680 N.E.2d 161, 171 (Ohio Ct. App. 1996).
583
paranoid schizophrenia, and had used drugs and alcohol heavily.
While the employee was likely completely able to perform the job, his background manifested that he was incompetent to perform the job where he might endanger others. Given the nature of the employment—entering into the homes of customers— the employer should have taken reasonable steps to assure itself of the competence of the employee. Thus, an employee’s competence in the negligent hiring context includes not only the employee’s ability to perform the employment but also whether the employee is
that customer.6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2006 be liable for any injury to the plaintiff caused by the employee’s
75
A plaintiff establishes an employer’s actual knowledge of an
employee’s incompetence by demonstrating that the employer either
possessed evidence of the incompetence or had witnessed evidence of
76
A plaintiff demonstrates constructive knowledge on the part of the employer where “information indicating that the employee was incompetent was available to the employer and that the employer would have known of this information had it exercised reasonable care in hiring
or retaining the incompetent employee.”79
The furniture company in the previous section provides an
excellent example of a defendant held to have had constructive
80
such.
incompetence.
Of course, a plaintiff need not prove that the employer had actual knowledge of an employee’s incompetence;77 the employer will be equally liable if the plaintiff can show that the employer had
78
constructive knowledge of the employee’s incompetence.
knowledge of an employee’s incompetence.
In that case, the court
held that if the furniture company had investigated the applicant for
the deliveryman position, it likely would have discovered that the
employee had an extensive juvenile and criminal record, had been
diagnosed with paranoid schizophrenia, and had used drugs and
81
alcohol heavily.
Thus, where an investigation would have revealed a
potential employee’s incompetence, an employer’s lack of actual
knowledge concerning the incompetence does not relieve it of
82
4. Causation and proximate cause
As in other causes of action based upon a party’s negligence, plaintiffs asserting the tort of negligent hiring must prove that their injuries were “actually and proximately caused” by the employer’s
75. Negligent Hiring and Retention, supra note 4, § 9.
76. Camacho, supra note 60, at 803.
77. Id.
78. See Negligent Hiring and Retention, supra note 4, § 9.
79. Id.
80. Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744, 753 (Fla. Dist. Ct. App.
1991).
81. Id. at 749.
82. Id.
584
liability.6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations 83
failure to exercise reasonable care in hiring. In other words, plaintiffs must demonstrate that their injuries resulted as a logical consequence of an employee’s incompetence that was actually or
84
negligent hiring are set forth in the following examples that demonstrate the need for a relationship between the employee’s incompetence and the tortious conduct resulting in the plaintiff’s injuries.
1. D employs A as a maintenance employee. D knows that A has two prior convictions for assault and battery, that he is a heavy drinker and that he is frequently in trouble. D sends A to P’s apartment to fix an appliance. While in P’s apartment, A assaults and beats P causing serious injuries.
2. D employs A as a maintenance employee. D knows that A has a prior conviction for embezzlement but has no other negative aspects in his character or background. A becomes a model employee for D. One day, D sends A to P’s apartment to fix an
85
It is clear in the first example that a casual link exists because P’s
injuries resulted from those attributes that would render A
incompetent to work in the apartment complex: A’s convictions for
assault and battery, his heavy drinking, and his proclivity for
86
trouble. However, in the second example, given that A’s prior
conviction was for embezzlement, it is much more difficult to establish a causal link between A’s attributes and the sexual assault. While previous crimes of any sort may serve as an indicator of potential criminal activity, A’s attributes in the second example are
constructively known to the employer.
The principles of causation and proximate cause in the context of
Inc.
demonstrate the lack of causal link. In Strickland, the court
appliance. A fixes the appliances and sexually assaults P.
87
The facts in Strickland v. Communications and Cable of Chicago,
too attenuated for proximate cause to exist.
88
held that a cable company’s failure to perform a prehiring
83. Camacho, supra note 60, at 802.
84. Negligent Hiring and Retention, supra note 4, § 10 (citing Bensman v. Reed, 20 N.E.2d 910 (Ill. App. Ct. 1939); Halsan v. Johnson, 65 P.2d 661 (Or. 1937)).
85. Id.
86. Id.
87. Id.
88. 710 N.E.2d 55 (Ill. App. Ct. 1999).
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investigation of a cable installer’s background was not the proximate cause of a customer’s injuries from the installer’s sexual assault on
89
the customer.
The court explained that the failure to examine was
not the proximate cause because an investigation would have
revealed only that the installer tended to commit traffic infractions
and that the installer had lied about those infractions on the
90
Because the investigation would not have revealed any information that would have even hinted to the employer that the installer would commit sexual assault, no causal link could exist between the plaintiff’s injuries and the employer’s failure to
applications.
91
that the potential act is conceivable; rather, a plaintiff must allege
92
prove (1) that the employer owed the third party a duty, (2) that the employee was incompetent, (3) that the employer knew or should have known that the employee was incompetent for the position, and (4) that the employer’s negligence was both the actual and the
93
proximate cause of the third party’s injury. Also, as explained
above, plaintiffs must demonstrate that an employment relationship existed between the employer and the party that caused the plaintiff’s injuries, a finding that is especially significant in the context of volunteers.
89. Id. at 59; see also Giraldi v. Cmty. Consol. Sch. Dist. No. 62, 665 N.E.2d 332 (Ill. App. Ct. 1996). In Giraldi, the Plaintiff sued the bus company and the school district for negligently hiring the bus driver after the bus driver sexually molested the Plaintiff on a bus. Id. at 334–35. The driver had a history of arriving late to work. Id. at 335. The trial court refused to submit the negligent hiring count to the jury. Id. On appeal, the appellate court affirmed the trial court’s refusal to submit the negligent hiring claim to the jury, holding that the only conduct the bus company could have been warned of, had it investigated the driver’s past conduct, was a tendency to be late. Id. at 341. The court concluded that there was no factual or logical relationship between that knowledge and the attack on plaintiff. Id.
90. Strickland, 710 N.E.2d at 58.
91. See also Island City Flying Serv. v. Gen. Elec. Credit Corp., 585 So. 2d 274 (Fla. 1991) (finding that an employee’s tardiness, missing work, and allowing persons to ride on refueling truck did not make it foreseeable that employee would steal and crash plane); Ford v. Gildin, 613 N.Y.S.2d 139 (N.Y. App. Div. 1991) (finding that the landlord could not anticipate that doorman and tenants would form close relationship in which doorman became godfather of tenants’ child, and later molested the child in his own personal time).
92. See, e.g., Chaney v. Super. Ct., 46 Cal. Rptr. 2d 73 (Cal. Ct. App. 1995).
93. See O’Connell, supra note 52.
586
investigate the employee’s background.
It is generally not enough
facts that show the injuries were foreseeable.
In summary, plaintiffs asserting a claim of negligent hiring must6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations IV. SPECIAL CONSIDERATIONS IN THE CASES OF VOLUNTEERS
AND RELIGIOUS INSTITUTIONS
When applied to volunteers and to religious institutions, additional considerations are pertinent to the negligent hiring examination. For example, where organizations use volunteers, a court must determine whether the organization exercised sufficient control over the volunteer to merit the application of the tort of
94
Furthermore, in the case of religious institutions, attempts by a court
to apply the tort of negligent hiring naturally implicate the First
95
A. Control and the Existence of an Employment Relationship
Volunteers fill an essential role within American civil society and
96
During the course of one year, more than ninety million Americans
will give in excess of twenty billion hours of their personal time to
schools, churches, nonprofit organizations, and to the community in
negligent hiring for tortious actions on the part of the volunteer.
This Part examines the tort of negligent hiring in the context of volunteers and finds that the employer must control the volunteer for an employment relationship to exist. In addition, it examines the tort of negligent hiring as applied to religious institutions and identifies the First Amendment questions that arise, including a split in authority concerning application of the tort of negligent hiring to religious institutions.
Amendment.
provide important services, especially to nonprofit organizations.
97
volunteers for delivering services to the communities in which they
98
94. See Broderick v. King’s Way Assembly of God Church, 808 P.2d 1211, 1221 n.25 (Alaska 1991) (rejecting as “without merit” the argument that the negligent hiring doctrine does not require screening of an unpaid volunteer). Whether an employment relationship existed is an element of the negligent hiring action, but it takes on special significance in a volunteer situation given that a traditional employment relationship with consideration does not usually exist.
95. See, e.g., Ayon v. Gourley, 47 F. Supp. 2d 1246 (D. Colo. 1998); Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997).
96. See Grossman & Furano, supra note 13, at 199.
97. Id. See generally LINDA JUCOVY & KATHRYN FURANO, PUBLIC/PRIVATE VENTURES: UNITING THE EFFORTS OF VOLUNTEERS AND PAID SERVICE PROVIDERS: CURRENT PRACTICES FROM THE FIELD (1998).
98. Grossman & Furano, supra note 13, at 199 (“These volunteers serve on nonprofit boards, sing in their church choirs, participate in neighborhood clean-ups, deliver meals to the
587
general.
are located.
Nonprofit organizations are increasingly dependent upon
However, in spite of the gratuitous manner in which6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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volunteers render service, organizations may still be liable for
99
untoward actions committed by volunteers. Indeed, where
organizations exercise rights of control over volunteers similar to those rights of control associated with traditional employment, a court will treat a volunteer as an employee for liability purposes.
1. Volunteers as employees and the question of control
While an employment relationship is essential for any finding of negligent hiring,100 it takes on special significance where volunteers are involved because the right to control in a volunteer situation
102
elderly, and provide countless other services. Without this donated labor, organizations dependent on volunteers would not reach nearly the number of people or provide the level of service they do.”).
99. See, e.g., Evans v. Ohio State Univ., 680 N.E.2d 161 (Ohio Ct. App. 1996).
100. See O’Connell, supra note 52 (listing elements of negligent hiring cause of action, including “the existence of an employment relationship”). The Colorado Supreme Court explained, “It is axiomatic that a prerequisite to establishing negligent hiring is an employment or agency relationship.” Moses v. Diocese of Colo., 863 P.2d 310, 324 (Colo. 1993) (citing Stortroen v. Beneficial Fin. Co., 736 P.2d 391 (Colo. 1987)); see also Philip M. Berkowitz, Challenges of Workplace Safety and Security, 681 PRAC. L. INST./LIT. 219, 249 (Sept. 2002) (“The existence of an employment relationship is a fundamental requirement of a claim for negligent hiring or retention. Under Maine law, the test for determining the existence of an
employment relationship is whether the employer has a right to control the employee.”).
101. Given the need for the existence of an employment relationship in establishing negligent hiring, control theoretically would be an essential finding in any case. However, it is usually not considered where a traditional employment (master-servant) relationship exists. Rather, it is assumed that the proper amount of control exists. The real significance of an employment relationship arises in the volunteer setting because of the varying degrees of
control an organization may exercise over a volunteer.
102. See Broderick v. King’s Way Assembly of God Church, 808 P.2d 1211, 1221 n.25
(Alaska 1991); Big Brother/Big Sister, Inc. v. Terrell, 359 S.E.2d 241, 243 (Ga. Ct. App. 1987). But see Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996).
103. RESTATEMENT (SECOND) OF AGENCY § 225 (1958) (internal citations omitted). See also id. § 213, which states that a “person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: . . . in the employment of improper persons or instrumentalities in work involving risk of harm to others.”
588
101
most part, courts have treated volunteers as employees of the
often varies from a traditional employment relationship.
For the
organizations for whom they are engaged.
embodied in the Restatement (Second) of Agency, which states, “One who volunteers services without an agreement for or expectation of reward may be a servant of the one accepting such services.”103 Furthermore, the comment to this section adds,
This principle is6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations
Consideration is not necessary to create the relation of principal and agent, and it is not necessary in the case of master and servant. One who has no contractual capacity may be a servant, or a master. One may be a servant without having promised to give or to
104
Thus, the organization utilizing volunteer services will generally
be liable for negligent hiring if the organization can exercise control
105
over the volunteer. This principle is demonstrated in the
Restatement (Second) of Torts, which further emphasizes the necessity of the element of control in determining whether the tort of
106
continue the service.
negligent hiring has occurred.
It explains that
[i]t is negligence to permit a third person . . . to engage in an
activity which is under the control of the actor, if the actor knows or
should know that such person intends . . . to conduct himself in the
activity in such a manner as to create an unreasonable risk of harm
107
Many states have emphasized control as a factor in determining whether a volunteer is an employee in the negligent hiring context similar to the above statements by the Restatement. For example, the Colorado Supreme Court explained that the “right to control” is the key factor in deciding whether the organization can be liable for the
108
Some states have even developed specific criteria to determine whether an organization controls a volunteer in such a way that the
104. Id. § 225 cmt. a.
105. Evans v. Ohio State Univ., 680 N.E.2d 161, 174 (Ohio Ct. App. 1996) (citing Doe
v. Roman Catholic Church, 602 So. 2d 129 (La. Ct. App. 1992)).
106. See RESTATEMENT (SECOND) OF TORTS § 308 (1965).
107. Id. (emphasis added).
108. Moses v. Diocese of Colo., 863 P.2d 310, 324 (Colo. 1993) (“The most important
factor in determining whether a person is an agent is ‘the right to control, not the fact of control.’” (quoting Dana’s Housekeeping v. Butterfield, 807 P.2d 1218, 1210 (Colo. Ct. App. 1990))).
109. Evans, 680 N.E.2d at 174 (citing Roman Catholic Church, 602 So. 2d at 133). 589
to others.
actions of a volunteer.
held in Evans v. Ohio State University, “The determination of whether an unpaid volunteer is a servant ‘generally depends on the charitable organization’s right to control the activities of the volunteer.’”109
In addition, the Ohio Court of Appeals6FIFE.FIN.DOC
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[2006
110
In contrast with other right-to-control tests, the Texas test does not occupy itself with mode of payment, questions concerning profit,
112
Furthermore, the Texas test succinctly provides a framework through
which an examination can be made while still accurately
demonstrating whether the employer possessed the right to control
110. The Texas test set forth in Doe v. Boys Club of Greater Dallas, Inc., 868 S.W.2d 942, 950 (Tex. App. 1994) (citing Smith v. Univ. of Texas, 664 S.W.2d 180, 190 (Tex. App. 1984)) is primarily used in this Comment on account of its applicability to volunteers and the ease with which it is applied to the facts of the Montoya case. In contrast with other tests, the Texas test does not preoccupy itself with mode of payment, questions concerning profit, or other factors not necessary for control over a volunteer. Id. While Utah law would be controlling in the case of Montoya, Utah has not clearly spelled out the factors of its right to control test in either its negligent hiring or respondeat superior cases. See Glover ex rel. Dyson v. Boy Scouts of Am., 923 P.2d 1383, 1385–86 (Utah 1996). Furthermore, the Texas test succinctly provides a framework through which an examination can be made while still accurately demonstrating whether the employer possessed the right to control the volunteer.
111. Boys Club of Greater Dallas, 868 S.W.2d at 950 (citing Smith 664 S.W.2d at190).
112. Other “right to control” tests exist throughout the states. However, in contrast with
the Texas test, several of the factors are irrelevant in the volunteer context. For example, in Indiana the test for determining whether an employer-employee relationship exists consists of seven factors: “(1) the right to discharge; (2) mode of payment; (3) supplying tools or equipment; (4) belief by the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and (7) establishment of the work boundaries.” Southport Little League v. Vaughn, 734 N.E.2d 261, 268 n.6 (Ind. Ct. App. 2000) (determining employment relationship in respondeat superior matter). The Colorado test consists of the following six factors: (1) the degree of control over the manner in which the work is performed; (2) the worker’s opportunity for profit or loss depending on his managerial skill; (3) the worker’s investment in equipment or materials, or his employment of helpers; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; and (6) whether the service rendered is an integral part of the employer’s business. John R. Paddock, Jr., Employer Liability to Third Parties, 16 COLO. PRAC., EMP. L. & PRAC. § 14.2 (2d ed.). The federal right to control test for independent contractors consists of ten factors, while the IRS has twenty factors it uses to determine control. Myra H. Barron, Who’s an Independent Contractor? Who’s an Employee?, 14 LAB. LAW. 457, 459–62 (1999).
113. Boys Club of Greater Dallas, 868 S.W.2d at 950. 590
volunteer is an employee for liability purposes.
courts look to four criteria to determine whether an organization has control over volunteers for liability purposes, namely, “whether the employer: 1. [h]as a right to direct the duties of the volunteer; 2. [h]as an interest in the work to be accomplished; 3. [a]ccepts direct or incidental benefit derived from the volunteer’s work; and 4. [h]as a right to fire or replace the volunteer.”111
or other factors not necessary for control over a volunteer.
113
possesses the right to control a volunteer, then the employer may be
the volunteer.
Once a court does determine that an employer
Specifically, Texas6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations liable for its volunteer’s tortious actions regardless of whether the
employer pays the volunteer or not.
B. Applying Negligent Hiring to Religious Institutions
In the wake of the decline of charitable immunity114 and an increased willingness on the part of parishioners to bring suit against religious institutions for the inappropriate actions of clergy and employees,115 there is an ever-increasing number of tort actions against churches and other religious organizations that are based on
116
claims of negligent hiring.
While actions based upon respondeat
superior seldom survive a motion to dismiss in third party claims
against religious institutions for misconduct on the part of their
servants, churches are increasingly found liable for negligent
117
bars negligent hiring suits against religious institutions.
The First Amendment to the United States Constitution provides that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”120
114. See Lupu & Tuttle, supra note 9, at 1797–805.
115. See Lisa J. Kelty, Note, Malicki v. Doe: The Constitutionality of Negligent Hiring and Supervision Claims, 69 BROOK. L. REV. 1121, 1121 (2004). For a short history of sexual molestation cases against clergy, see Michael F. Aylward, Constitution, Crime, Clergy: First Amendment Implications of Sexual Abuse Claims, 70 DEF. COUNS. J. 196, 196–97 (Apr. 2003).
116. See Marjorie A. Shields, Annotation, Liability of Church or Religious Organization for Negligent Hiring, Retention, or Supervision of Priest, Minister, or Other Clergy Based on Sexual Misconduct, 101 A.L.R. 5th 1, 1 (2002).
117. Janna Satz Nugent, A Higher Authority: The Viability of Third Party Tort Actions Against a Religious Institution Grounded on Sexual Misconduct by a Member of the Clergy, 30 FLA. ST. U. L. REV. 957, 969 (2003).
118. Id. at 971.
119. See Berry v. Watchtower Bible and Tract Soc. of N.Y., Inc., 879 A.2d 1124, 1135 (N.H. 2005) (speaking of breach of fiduciary duty, common law negligence, negligent supervision and hiring, and negligent counseling); see also Malicki v. Doe, 814 So. 2d 347, 357–58 (Fla. 2002) (summarizing litigation across the country); Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1256–62 (Miss. 2005) (listing federal and state court decisions on either side of the issue).
However, “tort claims based on a religious institution’s negligent hiring . . . of a member of its clergy are highly contentious because the inquiry requires a court to evaluate the reasonableness of a Church’s employment decisions,”118 raising several First Amendment concerns. For those reasons, splits exist among both state and federal courts concerning whether the First Amendment
119
hiring.
120. U.S. CONST. amend. I.
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As a matter of practical application, “[t]he First Amendment ‘permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.’”121 In addition, “[t]he assessment of an individual’s fitness to serve as a priest is a particular ecclesiastical matter entitled to this constitutional protection.”122 If a court becomes involved in or is called upon to examine a religious institution’s discipline of its clergy, then that
123
examination of a religious institution, it does not provide a defense
124
them without proper supervision or discipline.
It is, however, important to note that difficulty arises in the
actual application of the First Amendment to questions of negligent hiring in the ecclesiastical arena given the split in authority that exists
examination implicates the First Amendment.
While the First Amendment is implicated by a court of law’s
to child abuse or other crimes.
government from involving itself in purely ecclesiastic matters, including, but not limited to church doctrine, hiring, firing and retention of church employees and or ministers.”125 Accordingly, the First Amendment may serve as a defense to negligent hiring on the part of ecclesiastical leaders that fail to dismiss clergy or to reassign
126
both among state
127
and federal courts.
128
Some courts that have
However, it does “clearly bar[]
121. Aylward, supra note 115, at 197 (quoting Wheeler v. Roman Catholic Archdiocese of Boston, 389 N.E.2d 966, 968 (Mass. 1979).
122. Id. (citing Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952)).
123. Id. at 197–98 (citing Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1577 (1st Cir. 1988); Dowd v. Soc’y of St. Columbans, 861 F.2d. 761, 763 (1st Cir. 1988)).
124. Id. at 198.
125. Id.
126. Id.
127. Authority exists in the following states supporting the conclusion that the First
Amendment is not a bar to civil litigation in cases involving religious institutions: California, Roman Catholic Bishop of San Diego v. Super. Ct., 50 Cal. Rptr. 2d 399 (Cal. Ct. App. 1996); Colorado, Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988); Connecticut, Rosado v. Bridgeport Roman Catholic Diocesan Corp., 716 A.2d 967 (Conn. 1998); Florida, Doe v. Evans, 814 So. 2d 370 (Fla. 2002); Illinois, Amato v. Greenquist, 679 N.E.2d 446 (Ill. 1997); Indiana, Konkle v. Henson, 672 N.E.2d 450 (Ind. Ct. App. 1996); Minnesota, Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426 (Minn. 2002); New Jersey, F.G. v. MacDonell, 696 A.2d 697 (N.J. 1997); New York, Kenneth R. v. Roman Catholic Diocese, 229 A.2d 159 (N.Y. 1997); North Carolina, Smith v. Privette, 495 S.E.2d 395 (N.C. 1998); Ohio, Byrd v. Faber, 565 N.E.2d 584 (Ohio 1991); Oregon, Erickson v. Christenson, 781 P.2d 383 (Or. 1989); Texas, Martinez v. Primera Asemblea de Dios, Inc., No. 05-96- 01458-CV, 1998 WL 242412 (Tex. App. 1998); Washington, C.J.C. v. Corp. of the Catholic
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569] Negligent Hiring and Volunteers in Religious Organizations
disallowed actions against religious institutions based on negligent hiring have held that that the First Amendment bars a claim of negligent hiring because the inquiry “might involve the Court in making sensitive judgments about the propriety of the church Defendants’ supervision in light of their religious beliefs.”129 In addition, the courts have found that “imposing a secular duty of supervision on the church and enforcing that duty through civil liability would restrict its freedom to interact with its clergy.”130
On the other hand, some courts that have permitted negligent hiring actions against religious institutions have found that the First Amendment does not bar a negligent supervision claim because the court’s analysis would “not require interpreting or weighing church doctrine and neutral principles of law can be applied.”131 Such decisions are often based on the Supreme Court’s holdings in
Bishop of Yakima, 985 P.2d 262 (Wash. 1999). In contrast, authority exists in the following states supporting the conclusion that the First Amendment is a bar to civil litigation in cases involving religious institutions: Louisiana, Roppolo v. Moore, 644 So. 2d 206 (La. Ct. App. 1994); Maine, Bryan R. v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 738 A.2d 839 (Me. 1999); Michigan, Teadt v. Lutheran Church Mo. Synod, 603 N.W.2d 816 (Mich. 1999); Minnesota, Mulinix v. Mulinix, No. C2-97-297, 1997 WL 585775 (Minn. Ct. App. 1997); Missouri, Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997); Rhode Island, Heroux v. Carpentier, No. C.A. PC 92-5807, 1998 WL 388298 (R.I. Super. Ct. 1998); Washington, S.H.C. v. Sheng-Yen-Lu, 54 P.3d 174 (Wash. Ct. App. 2002); Wisconsin, L.L.N. v. Clauder, 563 N.W.2d 434 (Wis. 1997).
128. Nugent, supra note 117, at 971–72. Authority exists in the following federal jurisdictions supporting the conclusion that the First Amendment is not a bar to civil litigation in cases involving religious institutions: Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir. 1999); Doe v. Norwich Roman Catholic Diocesan Corp., 268 F. Supp. 2d 139 (D. Conn. 2003); Smith v. O’Connell, 986 F. Supp. 73 (D.R.I. 1997); Doe v. Hartz, 970 F. Supp. 1375, 1431–32 (N.D. Iowa 1997), rev’d in part on other grounds, 134 F.3d 1339 (8th Cir. 1998); Sanders v. Casa View Baptist Church, 898 F. Supp. 1169 (N.D. Tex. 1995). In contrast, authority exists in the following federal jurisdictions supporting the conclusion that the First Amendment is a bar to civil litigation in cases involving religious institutions: Dausch v. Rykse, 52 F.3d 1425 (7th Cir. 1994); Ehrens v. Lutheran Church- Missouri Synod, 269 F. Supp. 2d 328 (S.D.N.Y. 2003); Ayon v. Gourley, 47 F. Supp. 2d 1246 (D. Colo. 1998); Isely v. Capuchin Province, 880 F. Supp. 1138 (E.D. Mich 1995); Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991).
129. Schmidt, 779 F. Supp. at 332, cited in Nugent, supra note 117, at 971–72 n.83; see also Isely, 880 F. Supp. 1138; Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997); Wende C. v. United Methodist Church, 776 N.Y.S.2d 390 (N.Y. App. Div. 2004); Kenneth R., 654 N.Y.S.2d 791.
130. Swanson v. Roman Catholic Bishop of Portland, 692 A.2d 441, 445 (Me. 1997), cited in Nugent, supra note 117, at 971–72 n.83.
131. Moses v. Diocese of Colo., 863 P.2d 310, 321 (Colo. 1993); see also Doe v. Hartz, 970 F. Supp. 1375, 1431–32 (N.D. Iowa 1997), cited in Nugent, supra note 117, at 971–72 n.83; Isely, 880 F. Supp. at 1151.
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133
While the above discussion addresses both Establishment Clause and Free Exercise Clause considerations, the following subsections will provide additional
considerations for the respective clauses.
1. The Establishment Clause
The Supreme Court’s decision in Lemon v. Kurtzman is the
“current guidance for application of the Establishment Clause to
claims of governmental intrusion into religious territory.”136 As the
Supreme Court explained in Lemon, the Establishment Clause of the
First Amendment serves to guard against three evils: “sponsorship,
financial support, and active involvement of the sovereign in religious
activity.”137 In Lemon, the Court said that government action is
constitutional under the Establishment Clause if it satisfies the
following three requirements: (1) it has a secular purpose, (2) its
primary effect is neither to enhance nor inhibit religion, and (3) the
action does not foster an excessive government entanglement with
139
132. 494 U.S. 872 (1990).
133. 508 U.S. 520 (1993).
134. Id. at 531.
135. See, e.g., Malicki v. Doe, 814 So. 2d 347, 365 (Fla. 2002).
136. Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1225 (Miss.
2005).
137. Kelty, supra note 115, at 1127 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612
(1971)). The following summary of the Establishment and Free Exercise Clauses is taken primarily from Kelty’s Note.
138. Id. (citing Lemon, 403 U.S. at 612–613).
139. See, e.g., Isely v. Capuchin Province, 880 F. Supp. 1138, 1150–51 (E.D. Mich. 1995) (holding that assuming a cause of action for negligent hiring existed in a priest abuse
594
and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.
the case of the Church of the Lukumi Babalu Aye, the Supreme Court explained that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”134 Therefore, courts that have permitted an action for negligent hiring to proceed in spite of the First Amendment have done so based upon the argument that the courts were merely
135
applying neutral principles of tort law.
138
The third and final prong, excessive entanglement, has played an
religion.
important role in negligent hiring cases.
To determine if excessive
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entanglement exists, a court “examine[s] the character and purposes of the institutions that are benefited, the nature of the aid that the state provides, and the resulting relationship between the government and the religious authority.”140 Furthermore, the Supreme Court has interpreted excessive entanglement to mean that “routine regulatory interaction that involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no ‘detailed monitoring and close administrative contact’ between secular and religious bodies, [will] not itself violate the nonentanglement command.”141 Therefore, “if the inverse of any of the preceding three statements are true, . . . excessive entanglement between church and state may result.”142
2. The Free Exercise Clause
The Free Exercise Clause, in contrast with the Establishment Clause, “guarantees ‘first and foremost, the right to believe and profess whatever religious doctrine one desires.’”143 Among its functions, the Free Exercise Clause shelters individuals “against laws that discriminate based on religious beliefs, as well as ordinances that regulate or prohibit conduct undertaken for religious reasons.”144 This shelter from government regulation, however, is not an absolute protection from all regulation. The Supreme Court, to ensure that governments still have some power to regulate, has explained that regulation and infringement are not synonymous; however, “any attempt to infringe on the free exercise of religion, beyond mere regulations to keep peace and order in society, must be justified by a compelling state interest.”145
When determining whether conduct is constitutionally protected under the Free Exercise Clause, “the first inquiry . . . is whether the
case, inquiry into church decisions regarding who should be permitted to become a priest would have involved excessive entanglement with religion).
140. Kelty, supra note 115, at 1127 (quoting Lemon, 403 U.S. at 615).
141. Id. at 1128 (quoting Hernandez v. Comm’r, 490 U.S. 680, 696–97 (1989)).
142. Id.
143. Id. at 1130 (quoting Malicki v. Doe, 814 So. 2d 347, 354 (Fla. 2002)).
144. Id.
145. Id. at 1131 (citing Donald T. Kramer, Annotation, Supreme Court Cases Involving
Establishment
1158 (1999)).
and Freedom of Religion Clauses of Federal Constitution, 37 L. Ed. 2d 1147,
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conduct being regulated ‘is rooted in religious belief.’”146 If the court determines that the conduct is rooted in religious belief, then it must determine whether the law “regulating the religious belief is neutral ‘both on its face and in its purpose.’”147 If the court then determines that the primary purpose of a law is to infringe upon or restrict practices on account of the practices’ religious motivation, the law is not neutral, and it is valid only if justified by a compelling
148
government need not justify it by a compelling interest.
C. Conclusion
As has been demonstrated, when the tort of negligent hiring occurs where an organization is employing a volunteer or where the organization is a religious institution, the court is forced to make additional considerations. In the context of applying the tort of negligent hiring to an organization utilizing volunteers, the plaintiff’s burden of establishing an employment relationship becomes much more pertinent than in cases involving traditional employment relationships. However, where the organization has a right to control the volunteer, an employment relationship exists for purposes of the tort.
Furthermore, the First Amendment is implicated where a plaintiff brings suit against a religious institution for the tort of negligent hiring. And as explained above, a split in authority currently exists with regards to the constitutionality of applying the principles of negligent hiring to decisions and practices of churches. Both the First Amendment considerations and the additional examination necessary for volunteers complicate the application of the tort of negligent hiring to religious institutions employing volunteers, such as the LDS Church.
146. Id. (quoting Malicki, 814 So. 2d at 354).
147. Id. (quoting Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993)).
148. Id. (citing Church of the Lukumi Babalu Aye, 508 U.S. at 533).
149. Id. (citing Church of the Lukumi Babalu Aye, 508 U.S. at 531).
596
interest narrowly tailored to advance that interest.
court determines that the law is “a neutral law of general applicability [that] only incidentally burdens religious practices,” then the
149
However, if the6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations V. THE LDS CHURCH AND THE TORT OF NEGLIGENT HIRING
The following applies the tort of negligent hiring to the LDS Church based upon the legal principles explored above. First, this Part will apply the elements of negligent hiring to the known facts of the Aaron Marcos Montoya case and general LDS Church policies and practices. Following the application of the tort of negligent hiring to the LDS Church, this Part will consider whether the First Amendment should bar an action based upon negligent hiring against the LDS Church. As a result of the discussion found herein, this Comment concludes that not all of the elements of the tort of negligent hiring were present in the LDS Church’s utilization of Montoya as a Primary teacher given that the LDS Church likely did not have either actual or constructive knowledge of his pedophilia. Furthermore, it concludes that even if each of the elements of the tort were satisfied, actions against religious institutions based on the tort of negligent hiring should be barred by the First Amendment given the excessive entanglement that would occur by a judicial examination of church policies and practices.
A. Applying the Tort of Negligent Hiring to Volunteers in the LDS Church
Because the LDS Church likely had neither actual nor constructive knowledge that Montoya was incompetent to care for children, not all of the elements of tort of negligent hiring are satisfied. As explained above, an action for negligent hiring as applied to volunteers in religious organizations has five elements that must be proven by the plaintiff: (1) the employer exercised control over the volunteer, (2) that the employer owed the third party a duty, (3) that the employee was incompetent, (4) that the employer knew or should have known that the employee was incompetent for the position, and (5) that the employee’s negligence was both the actual
150
the tort of negligent hiring is present in the case of Aaron Marcos Montoya. As part of that examination, emphasis is placed on whether the LDS Church has a right to control its volunteers, which would establish an employment relationship. In addition, special attention is
and proximate cause of the third party’s injury.
This Section will first examine whether each of the elements of
150. See Camacho, supra note 60, at 795; O’Connell, supra note 52.
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paid to the degree of care governing organizations caring for children. This Section concludes that each of the elements was likely present in the Montoya case except for the element requiring actual or constructive knowledge.
1. The LDS Church’s control over Primary teachers
Because of the control that the LDS Church exercises over Primary teachers, it is likely that a court would establish that an employment relationship exists between the church and its volunteer teachers. As explained above, a right to control, not consideration, is the key test for determining whether an organization will be liable
151
courts illustrates well those aspects of control especially pertinent to
152
for the conduct of its volunteers.
The test as applied by Texas
this examination.
In contrast with other right-to-control tests, the
Texas test does not occupy itself with mode of payment, questions
concerning profit, or other factors not necessary for control over a
153
In Texas, a volunteer is an employee when the employer (1) has a right to direct the duties of the volunteer, (2) has an interest in the work to be accomplished, (3) accepts direct or incidental benefit derived from the volunteer’s
155
Furthermore, the Texas test succinctly provides a framework through which an examination can be made while still accurately demonstrating whether the employer possessed the right
154
work, and (4) has a right to fire or replace the volunteer.
Under the Texas right-to-control test, an employment relationship likely exists between the LDS Church and volunteers working with children as teachers in the Primary. First of all, the LDS Church defines and actively directs the duties of Primary teachers. The church has created a specific organization and structure to be used in conjunction with the Primary and defined its purposes and objectives. The Church also writes and provides the
volunteer.
to control the volunteer.
151. See supra Part IV.A; see also RESTATEMENT (SECOND) OF AGENCY § 225 cmt. a (1958).
152. See, e.g., Doe v. Boys Club of Greater Dallas, Inc., 868 S.W.2d 942, 950 (Tex. App. 1994) (citing Smith v. Univ. of Tex., 664 S.W.2d 180, 190 (Tex. App. 1984)).
153. See supra Part IV.A.1.
154. Boys Club of Greater Dallas, 868 S.W.2d at 950.
155. Id.
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157
employer has an interest in the work to be accomplished. In the case of the work provided by Primary teachers, the LDS Church most definitely has an interest in the work. The Primary children are not only the future members and leaders of the church, but are also
158
Third, the LDS Church receives both direct and incidental benefit from the work of Primary teachers. The work of Primary teachers facilitates the other meetings in which adults are involved by freeing parents from their parental demands. In addition, Primary teachers serve to inculcate in children the values and beliefs of the church.
Finally, LDS Church leaders are at complete liberty to remove Primary teachers from their positions within the Primary. While church members are free to decline callings extended to them from leaders or to retire from a position once they have accepted it, the Church has an absolute right to remove or replace a member as a teacher in the Primary at any time. Under the Texas four-prong control test, the LDS Church exercises sufficient control over its
156. Naomi M. Shumway, Primary, in ENCYCLOPEDIA OF MORMONISM (1992) available at http://www.lightplanet.com/mormons/basic/organization/Primary_EOM.htm. Shumway explains,
Church leaders call and set apart lay officers and teachers to oversee the Primary; and Primary general officers and Church curriculum committees prepare handbooks, teaching guides, visual aids, lesson manuals, and a variety of training videos for their use. Monthly in-service lessons help teachers improve their teaching skills and relate appropriately to children. Periodically, the Primary general presidency and board members conduct multistake or regional training sessions. Leaders and teachers seek and receive inspiration in their Primary service.
Id.
157. Id.
158. See HANDBOOK OF INSTRUCTIONS, supra note 19, at 229 (citing Mark 10:14); see also Matthew 18:5–6, which states,
And whoso shall receive one such little child in my name receiveth me. 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.
599
156
LDS Church, where available, trains the teachers through teacher
curriculum to be taught by the Primary teachers.
Furthermore, the
development courses.
The second inquiry in the Texas control test is whether the
viewed as precious and of great intrinsic worth.
means of preparing children to take the reins of the church in the future and insure that it continues to fulfill its missions.
Primary serves as a6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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Primary teachers to create an employer-employee relationship, which gives rise to a duty of care under the negligent hiring tort.
2. Duty of the LDS Church in screening potential Primary teachers
After establishing that a Primary teacher is indeed an employee for purposes of negligent hiring, a determination of liability under that tort requires that the employee owe a duty to the third-party victim. This analysis now examines the three preliminary questions for determining whether a duty is owed and the arguments for both a greater and lesser duty of care. It concludes that the LDS Church likely did not exercise sufficient care in inviting Montoya’s to serve as a Primary teacher because LDS Church leaders generally do not investigate the background of potential teachers.
a. Preliminary questions. As explained above,159 prior to applying a duty to the volunteer organization, in this case the LDS Church, a court first determines whether the following three elements are present: (1) “the incompetent employee and plaintiff are in places where each [has] a right to be at the time that the plaintiff sustains injury”;160 (2) “the incompetent employee and the plaintiff come into contact as a direct result of the employment”;161 and (3) “the employer has received or would have received some benefit, either direct, indirect, or potential, from the meeting of the employee and the plaintiff.”162
With regard to the first element in determining whether a duty exists, it is likely that a court would find that Montoya and the individuals he molested were both in a place where they had a right to be at the time of the molestation. Because Montoya and his wife were the Primary teachers called by the LDS Church to teach the five-year-old class, Montoya had not only a right to be at the location of the molestation, but a responsibility to be there. In addition, each of the five-year old girls he molested had the right to
159. See supra Part III.A.
160. Negligent Hiring and Retention, supra note 4, § 6 (citing North, supra note 10, at
720).
161. Id.
162. Id.
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163
Montoya came into contact with his victims on account of his calling as a Primary teacher. In his position as a Primary teacher, Montoya was placed in a position of trust and care and charged with the
164
education of his victims. The very purpose of the calling requires
165
Finally, as explained in the consideration of whether the LDS Church controlled Montoya for liability purposes, the church would have received both direct and indirect benefits from Montoya’s
166
b. Determining the proper duty to investigate volunteers. Because the three elements for determining duty are each satisfied, it is proper to apply a duty of care to the LDS Church for its Primary children. Nonetheless, the extent of that duty is unclear. While the safety and welfare of individual children from potential abuse mandates a greater duty on the part of a volunteer organization in its hiring of volunteers, an elevated duty including the performance of background checks on all volunteers working with children is not currently required of most volunteer organizations. The following weighs the arguments for an elevated duty of care for organizations employing volunteers with policy considerations and determines that while an elevated duty exists, the highest possible duty is not currently required of organizations employing volunteers.
(1) The vulnerability of children and the potential harm of abuse. As previously explained, if the employment offered is of a sensitive nature in which the health, safety, or welfare of a party is involved, then the duty of the employer to investigate potential
163. See HANDBOOK OF INSTRUCTIONS, supra note 19, at 229 (“Primary Enrollment: Children ages 3 through 11 are enrolled in Primary.”); see also id. at 235 (describing Primary enrollment and advancement).
164. See id. at 229.
165. Id. (“Primary leaders and teachers should love each child and develop a caring relationship with him or her.”).
the teachers for the benefit of the children.
As to the second element in determining the existence of a duty,
contact with the children.
have come in contact with his victims without the calling, his contact with them in this case is undeniably the result of his service in the Primary.
service as a Primary teacher.
While it is possible that Montoya would
166. See supra Part V.A.1.
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167
the vulnerability of children168 and requires a greater degree of care
169
For
welfare of a party is not involved.
Furthermore, tort law recognizes
on the part of individuals and organizations working with them. Children are potentially even more vulnerable in their interactions with volunteer organizations than in other relationships given the
170
positions of authority and trust that volunteers occupy.
example, scoutmasters in the Boy Scouts occupy positions of
authority over young men under circumstances in which discipline,
order, and obedience are values the organization teaches and
172
171
of America serve in positions of great confidence and trust and often
honors.
In addition, volunteers serving in Big Brothers/Big Sisters
The authority and confidence associated with these types of volunteer positions put children in an especially vulnerable situation if a leader
find themselves in one-on-one situations with their charges.
is a potential perpetrator.
An even more compelling reason for establishing a duty of care
that adequately protects children is the “gravity of the harm”
173
In addition to the horrific experience of the abuse itself, the harm of the abuse can extend far into the future. As explained by Dr. Julia Whealin, “If child sexual abuse is not effectively treated, long-term symptoms may persist into adulthood.”174 She further explained that the long-term results of child abuse include post-traumatic stress disorder, anxiety, depression and thoughts of suicide, sexual anxiety and disorders, poor body image and low self-esteem, increased likelihood of drug
167. Camacho, supra note 60, at 796.
perpetrated on children on account of abuse.
168. Lear, supra note 14, at 173 (citing Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997) (adopting Banker v. McLaughlin, 208 S.W.2d 843, 847 (Tex. 1948), and RESTATEMENT (SECOND) OF TORTS § 339 (1965))).
169. See Peyer v. Ohio Water Serv. Co., 720 N.E.2d 195, 200 (Ohio Ct. App. 1998) (citing Di Gildo v. Caponi, 247 N.E.2d 732, 733–34 (Ohio 1969)) (“[C]hildren are entitled to a higher degree of care than adults and that the amount of care required to discharge a duty to a child is greater than that required to discharge a similar duty owed to an adult.”).
170. Lear, supra note 14, at 173.
171. Id.
172. Id.
173. Id. (citing Rob Lusk & Jill Waterman, Effects of Sexual Abuse on Children, in
SEXUAL ABUSE OF YOUNG CHILDREN 101 (Kee MacFarlane et al. eds., 1986)).
174. Julia Whealin, Child Sexual Abuse: A National Center for PTSD Fact Sheet, National Center for PTSD, http://www.ncptsd.va.gov/facts/specific/fs_child_sexual_abuse.html (last
visited on Mar. 17, 2006). 6026FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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175
(2) Additional policy considerations. Weighed against the effects of child abuse are the social utility of volunteer organizations and the magnitude of the burden that would be placed on these
176
and alcohol abuse, self-mutilation, and eating disorders. horrendous experience that is child abuse and the terrible and often permanent results of child abuse provide poignant reasons to impose a greater degree of care on organizations utilizing volunteers to work with children.
organizations if extensive screening were required of them. Volunteer organizations that work with children perform a vital function in society by “providing educational, recreational, and developmental activities for millions of youths each year.”177 The vast majority of volunteers that render their time and efforts to children and further the missions of volunteer organizations serve without any malevolent ulterior motive. This service not only benefits the children but also society as a whole by inculcating values in children and helping reduce the breadth and quantity of services that government would otherwise have to provide to youth.
The decreased cost to government provided by volunteer organizations translates to lower costs for communities nationwide, but the imposition of a greater duty on volunteer organizations would likely result in greater costs, siphoning limited resources away from the organizations. Some authors have argued that because of increased accessibility there is a duty to perform criminal background
175. Id.
176. The balance between protecting a small group of children from a terrible, life- scarring experience with providing a much larger group with positive, but much less life- changing, experiences is very difficult to do without coming out in favor of greater protections for children from potential perpetrators. However, the majority of states have done just that by not expressly mandating that all individuals that work with children pass through rigorous screening tests which include mandatory background checks. See Noy Davis & Susan Wells, Effective Screening of Child Care and Youth Service Workers, CHILD. LEGAL RTS. J. 22, 24 (Winter/Spring 1994–95). Given that the majority of states do not require the highest degree of care from private organizations in hiring individuals to work with children, this analysis will apply an intermediate duty of care. In other words, a duty of care that requires some inquiry concerning the suitability of the volunteer, but does not require references or a background check.
178
argued that a minimum reasonable background screening for a
checks where volunteers will work with children.
Others have
The
177. Lear, supra note 14, at 180–81.
178. See id. at 174–75.
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volunteer that will work with children “entails a formal application, a personal interview, and thorough reference checks.”179 Despite the fact that both state and federal governments have statutorily mandated background checks for many positions that have direct contact with children in either a supervisory or disciplinary capacity, no state currently statutorily mandates the screening of all volunteers
180
to impose [stricter screening duties], of course, is the fear that the costs entailed would drive the charitable organizations out of business.”181 While it is unlikely that a duty to perform criminal background checks would bankrupt the majority of volunteer organizations, it might force them to shift scarce resources to other purposes outside of the mission of the organization.
Finally, an increased duty to screen does not necessarily translate into increased protection for children. Criminal background checks find people only if they have criminal histories. Given the fact that child abuse is one of the most underreported crimes—with as much as ninety percent of child abuse cases going unreported—the likelihood that criminal background checks would reveal many of the
182
criminal or civil background checks.
c. Applying the duty of care to the LDS Church. A court applying an intermediate duty would likely find that the LDS Church did not comply with its duty in the case of Montoya. While courts could
179. See, e.g., id. at 173–74.
180. See Davis & Wells, supra note 176, at 24.
181. Id. at 177.
182. Federal Recordkeeping and Sex Offenders: Hearing Before the Subcomm. on Crime of
the H. Comm. on the Judiciary, 104th Cong. 44 (1996) (statement of Ernest E. Allen).
183. See Peyer v. Ohio Water Serv. Co., 720 N.E.2d 195, 200 (Ohio Ct. App. 1998) (citing Di Gildo v. Caponi, 247 N.E.2d 732, 733–34 (Ohio 1969)) (“[C]hildren are entitled to a higher degree of care than adults and . . . the amount of care required to discharge a duty
to a child is greater than that required to discharge a similar duty owed to an adult.”). 604
that work in similar capacities with children.
As explained by Mark Lear, “The main reason for the reluctance
Because no state currently mandates the screening of all volunteers that will potentially work with children, this analysis will apply an intermediate duty of care in which the party should take greater care in hiring volunteers to work with children by interviewing potential candidates, receiving references from the potential candidates, and verifying the candidates’ past by inquiring of the references,183 but will not be required to perform formal
potential abusers is small.6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
569] Negligent Hiring and Volunteers in Religious Organizations potentially articulate multiple degrees of care, this analysis will
examine the situation of Aaron Montoya according to an
184
intermediate degree of care.
However, the selection process for
Primary teachers likely would not satisfy even a less stringent duty of
care. An intermediate standard would require that the LDS Church
interview potential candidates, receive references from the potential
candidates, and verify the candidates’ past by inquiring of the
185
are usually asked to serve through a bishop or one of his counselors based on the recommendations of the woman presiding over the
references.
As briefly explained above, Primary teachers in the LDS Church
186
The lack of research into the past of potential candidates would likely constitute a breach of the church’s duty of care to Montoya’s victims. At a minimum, courts have imputed to employers with similar hiring standards a duty to interview candidates and examine their references before hiring or accepting them as volunteers. While an informal interview likely occurred in the case of Aaron Montoya, it is unlikely that it was of the rigor demanded by this duty. Furthermore, it is highly unlikely that Montoya’s bishop either asked for or received references for Montoya prior to extending to him the calling. Given these failures, the LDS Church likely breached its duty to Montoya’s victims.
184. Among the articles available concerning Aaron Montoya and the events surrounding his arrest, none of the articles indicate the specific manner in which Montoya was called as a Primary teacher.
185. See Peyer, 720 N.E.2d at 200.
186. HANDBOOK OF INSTRUCTIONS, supra note 19, at 231 (“The bishop calls and sets apart a woman to be the ward Primary president. The bishop of an assigned counselor calls and sets apart women to serve (1) as first and second counselor to the ward Primary president and (2) as secretary. A member of the bishopric also calls and sets apart men or women to serve as Primary teachers and in other ward Primary callings as needed. The Primary president makes recommendations for these callings, but they are subject to the bishopric’s approval.”).
Each call is subject to the bishop’s approval.
most part, it is unlikely that a bishop, one of his counselors, or the Primary president would make extensive inquiries into the suitability of a candidate to volunteer in the Primary beyond speaking with the individual, speaking with the leaders in the ward concerning their suitability, and praying concerning that individual.
Primary.
For the
187
187. Id.
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3. Montoya’s incompetence to serve as a Primary teacher
[2006
Following the determination of the LDS Church’s duty, the next inquiry is whether Montoya was incompetent to serve as a Primary teacher. The Montoya facts discussed earlier demonstrate Montoya’s
188
is manifested by those qualities and characteristics that alert an employer that the hiring or retaining of an employee with such qualities or characteristics will or may imperil the safety of others.”189 Furthermore, as explained above,190 negligence also extends to the reliability of the employee and “all that is essential to make up a ‘reasonably’ safe person considering the nature of the work and the general safety of those who are required to associate with such person in the general employment.”191
While Montoya may have been competent in his employ as a bailiff at the Matheson Courthouse in Salt Lake City, Utah, he was undeniably incompetent to work with children in any capacity. Considering the fact that Montoya had previously molested other children, he was unquestionably unsafe as a volunteer that was to work with very young children in an often private setting. In the four years prior to his service as a Primary teacher, Montoya had sexually
192
Given these previous offenses, Montoya was incompetent to serve near or around children and could not fairly be described as a “reasonably” safe person to work with children. However, important questions remain concerning the LDS Church’s actual or constructive knowledge and the foreseeability of the molestation. His lack of a criminal record at the time the LDS Church called Montoya to be a Primary teacher and the fact that his previous victims had not spoken openly about Montoya’s abuse makes it doubtful that the LDS Church had either the actual or constructive knowledge of the
188. See supra notes 26–33 and accompanying text.
189. Negligent Hiring and Retention, supra note 4, § 8.
190. See supra Part III.B.3.
191. Negligent Hiring and Retention, supra note 4, § 8 (quoting 53 AM. JUR. 2D Master
and Servant § 310).
192. See Another Sentence, supra note 33, at B5.
606
undeniable incompetence as a Primary teacher.
With regard to the tort of negligent hiring, “[i]ncompetence . . .
molested six different victims ranging in ages three to eleven.
4. The LDS Church’s knowledge of Montoya’s incompetence6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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193
for liability.
As explained above, actual knowledge of Montoya’s
incompetence may be proved by demonstrating that the LDS
Church possessed evidence of Montoya’s incompetence or that one
of the church’s agents had personally witnessed Montoya’s
194
incompetence.
On the other hand, the LDS Church would have
had constructive knowledge of Montoya’s incompetence if
information indicating that Montoya was incompetent was available
to the church and that the church would have known of this
information if it had exercised reasonable care in hiring or retaining
195
had either actual or constructive notice of his pedophilia. Given general church policy, if the bishop in Montoya’s ward had been aware of the prior offenses, he would not have placed Montoya in a
196
Given the fact that Montoya had no criminal record at the time of his arrest,198 it can be assumed that no such reporting took place. Furthermore, the absence of a criminal record would support the conclusion that Montoya’s ecclesiastical leaders did not have constructive knowledge of Montoya’s pedophilia, and that further inquiry on the part of the LDS Church would likely not have resulted in any indication that Montoya was a danger to the children in his class. Finally, Montoya’s prior victims had not made public Montoya’s molestation, so information was not available from his victims or their families at the time Montoya’s
199
193. See Negligent Hiring and Retention, supra note 4, § 9.
194. See id.
195. See id.
196. This is, of course, an assumption. Montoya’s bishop could have placed him in the
Primary to serve with children with either actual or constructive knowledge of Montoya’s pedophilia. In addition, such a violation of general church policy would support a claim on the part of one of the children Montoya molested that there was both knowledge of his pedophilia and a breach of duty on the part of the bishop.
197. See, e.g., UTAH CODE ANN. § 62A-4a-403 (2003).
198. Linda Thomson, Ex-Deputy Will Remain in Custody, DESERET NEWS, Feb. 12, 2005, at B3, available at http://deseretnews.com/dn/view/0,1249,600111617,00.html.
the incompetent.
In the case of Aaron Montoya, it is unlikely that the LDS Church
In addition, on account of the law in most states, including Utah, if a bishop were aware of Montoya’s previous offenses, he would be required to
197
position where Montoya could potentially reoffend.
report them to the state.
bishop called him as a Primary teacher.
199. See Another Sentence, supra note 33, at B5.
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However, the preceding argument is contingent upon several assumptions, including, but not limited to, that an examination of references would not have uncovered Montoya’s pedophilia, that none of Montoya’s traits or characteristics would have hinted at his pedophilia, and that the bishop did not have actual knowledge of Montoya’s propensities. If any of the above assumptions is faulty,200 the LDS Church likely would have had actual or constructive knowledge of the danger Montoya posed to children. However, assuming that the above assumptions are correct, the LDS Church would not have had either actual or constructive knowledge, and, therefore, would not be liable for his tortious and criminal actions.
5. The actual and proximate cause of the molestation
Because it is unlikely that the LDS Church either actually or constructively knew of Montoya’s previous offenses or his pedophilia problem, questions surrounding causation are moot in his case; however, an examination regarding causation is still valuable for purposes of the general discussion.
To prevail against the LDS Church, a potential plaintiff would have to demonstrate that “his or her injuries were a logical consequence of a specific act of negligence or intentional act by the employee and that this act was a natural and logical consequence of the employee’s incompetence that was known, either actually or constructively, by the employer.”201 As in the example of the maintenance employee with prior convictions for assault and battery who was sent to the home of a client to fix an appliance and subsequently assaulted the client,202 placing a known child abuser in a private room with children would establish more than a sufficient causal link to satisfy this requirement. However, if Montoya had previous convictions at the time of his calling for nonviolent or white collar crimes, and the LDS Church subsequently placed him in the Primary as a teacher, it is doubtful that an act of pedophilia would
200. As explained above, the limited information provided through the news media did not provide information concerning the actual or constructive knowledge of Montoya’s ecclesiastical leaders. Therefore, the above facts are based partly on assumption.
201. Negligent Hiring and Retention, supra note 4, § 10 (citing Bensman v. Reed, 20 N.E.2d 910 (Ill. App. Ct. 1939); Halsan v. Johnson, 65 P.2d 661 (Or. 1937)).
202. See supra notes 73–75 and accompanying text. 6086FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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203
tort of negligent hiring would likely be satisfied under the currently known facts of the Montoya case given that (1) the LDS Church maintains sufficient control over its volunteer Primary teachers to create an employment relationship, (2) the LDS Church has a duty to the children within the Primary that was likely breached by the bishop’s failure to sufficiently investigate Montoya’s background prior to inviting him to serve as a teacher, (3) Montoya was clearly incompetent to work with children, and (4) his employment was the proximate and actual cause of the victims’ injuries. However, based on the assumptions stated above, the LDS Church would not be liable in this case for the tort of negligent hiring because the bishop had neither actual nor constructive knowledge of Montoya’s pedophilia.
B. The First Amendment and the Tort of Negligent Hiring
An action for negligent hiring against the LDS Church would also likely fail on First Amendment grounds. Federal and state jurisdictions throughout the United States disagree concerning the
204
molestation.
In summary, four of the five requirements for liability under the
applicability of the tort of negligent hiring to religious institutions. However, an honest application of precedent to the Montoya case would likely result in the First Amendment barring such an action given the unavoidable entanglement of church and state that would result in a court’s examination of internal church policies and decisions. Extensive case law exists concerning the applicability of the First Amendment; however, “[t]he United States Supreme Court has not yet resolved the issue of whether the First Amendment protects a religious institution from liability when a church employee engages in tortious conduct against a third-party.”205 As a result, a
203. See Negligent Hiring and Retention, supra note 4, § 10 (illustrative examples).
204. See supra notes 126–33 and accompanying text.
205. Malicki v. Doe, 814 So. 2d 347, 357 (Fla. 2002). As explained by a judge on the
Wisconsin Supreme Court with regard to the applicability of third-party tort actions to religious institutions, “It is generally acknowledged that this area of the First Amendment law is in flux and the United States Supreme Court cases offer very limited guidance.” Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780, 794 (Wis. 1995) (Abrahamson, J., dissenting).
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206
As explained above, a Lemon Establishment Clause inquiry has three separate prongs: (1) whether the governmental action had a secular purpose, (2) whether the action’s primary effect is neither to enhance nor inhibit religion, and (3) whether the action does not foster an excessive government
208
In the case of Montoya and the LDS Church, the application of tort principles to the LDS Church would likely be barred by the First Amendment because it would require judicial examination of the church’s internal policies and procedures. In an action for negligent hiring against the LDS Church, an examining court would have to examine the procedure for extending assignments within the church, the role of the bishop in extending assignments, whether the bishop acted reasonably within his responsibilities, and other internal policies and procedures. As one court explained, “It is well-settled that when a court is required to interpret Canon Law or internal church policies and practices, the First Amendment is violated because such judicial inquiry would constitute excessive government
206. See Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1256–61 (Miss. 2005) (Appendices A and B provide cases from the individual states and circuits that have either held that the First Amendment is or is not a bar to an action for negligent hiring). See generally Joseph B. Conder, Annotation, Liability of Church or Religious Society for Sexual Misconduct of Clergy, 5 A.L.R. 5th 530 (1993).
207. See, e.g., Ayon v. Gourley, 47 F. Supp. 2d 1246 (D. Colo. 1998) (holding that determination involved excessive entanglement between church and state, and thus was precluded under the Establishment Clause of First Amendment); Malicki, 814 So. 2d at 347 (finding that under these facts excessive entanglement would not result, and if it would result it was excused by the application of neutral principles of law).
208. Kelty, supra note 115, at 1127 (citing Lemon v. Kurtzman, 403 U.S. 602, 612– 613, 615 (1971)).
209. Id. 610
actions for negligent hiring against a religious institution.
In determining whether the First Amendment will bar negligent hiring actions against religious institutions, the key determination in reported case law has been whether the action would result in an
207
entanglement with religion.
entanglement is excessive a court must “examine the character and purposes of the institutions that are benefited, the nature of the aid that the state provides, and the resulting relationship between the government and the religious authority.”209
excessive entanglement of church and state.
To determine whether the6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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entanglement with religion.”210 The court further explained that “[a]ny inquiry into the policies and practices of the Church Defendants in hiring and supervising their clergy raises the same kind of First Amendment problems . . . , which might involve the Court in making sensitive judgments about the propriety of the Church Defendants’ supervision in light of their religious beliefs.”211 Consequently, the court held that applying the standards of care necessary in a negligent hiring cause of action “would violate both the Free Exercise Clause and Establishment Clauses” because it “would inevitably require examination of church policy and doctrine . . . with an intent to pass on their reasonableness.”212
In Gibson v. Brewer, the Missouri State Supreme Court provided a similar rationale for disallowing actions against churches for the
213
protected religious activities that would inhibit religion. Furthermore, the court held that “judicial inquiry into hiring, ordaining, and retaining clergy would result in an endorsement of
210. Ayon, 47 F. Supp. 2d at 1249 (quoting Isely v. Capuchin Province, 880 F. Supp. 1138, 1150 (E.D. Mich. 1995) (citing Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), “and numerous other cases”)).
211. Id. (citing Schmidt v. Bishop, 779 F. Supp. 321, 332 (S.D.N.Y. 1991)). The court also cited Doe v. Hartz, 970 F. Supp. 1375, 1431 (N.D. Iowa 1997), which held that “who may become or remain a priest must, almost inevitably involve an inquiry into church doctrine or policies, barring a negligent hiring or retention claim on First Amendment grounds.” Ayon, 47 F. Supp. 2d at 1249.
212. Ayon, 47 F. Supp. 2d at 1250. The court held that it would violate the Free Exercise Clause because “[t]he choice of individuals to serve as ministers is one of the most fundamental rights belonging to a religious institution. It is one of the most important exercises of a church’s freedom from government control.” Id. Furthermore, the court held that the Establishment Clause would be violated because “[t]he application of even general tort law principles to church procedures on the choice of priests would require an inquiry into present practices with an intent to pass on their reasonableness.” Id.
213. 952 S.W.2d 239, 246–48 (Mo. 1997).
214. Id. (citing H.R.B. v. J.L.G., 913 S.W.2d 92, 98 (Mo. Ct. App. 1995)).
215. Id. at 246 (citing Presbyterian Church v. Mary Elizabeth Blue Hull Mem’l
tort of negligent hiring.
may be held civilly liable,214 it conditioned that potential liability on the application of neutral principles of law “without determining questions of religious doctrine, polity, and practice.”215 The Missouri Supreme Court then held that judicial inquiry into a religious institution’s practices of hiring, retaining, and ordaining necessarily involve an impermissible judicial interpretation of constitutionally
216
While the court affirmed that churches
Presbyterian Church, 393 U.S. 440, 449 (1969)). 216. Id. at 246–47.
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religion, by approving one model for church hiring, ordination, and retention of clergy.”217
On similar constitutional grounds the Wisconsin State Supreme Court in Pritzlaff v. Archdiocese of Milwaukee barred an action for
218
as well as other beliefs such as mercy towards an offender.
While the case of Montoya differs from the above-cited cases in that Montoya was not a member of a full-time clergy such as is found in the Catholic Church, a court examining this case for the negligent hiring of Montoya would still be excessively entangled with the LDS Church because the court would have to examine the bishop’s actions and corresponding church policies. To determine if Montoya’s bishop was negligent in calling him to serve as a Primary teacher, a court would likely have to examine, at a minimum, the process by which the bishop decided to call Montoya and his wife, the interview in which the calling was extended, any information that emerged through the interview, LDS policy concerning the process in which individuals are extended callings to work with children, LDS policy concerning who is qualified to serve with children, and other questions surrounding internal policy. Not only would the court have to ask if the bishop acted as a reasonable bishop given the circumstances and what he knew or could have discovered concerning Montoya, it would also have to examine LDS policies to determine whether they are reasonable and whether they provide a proper standard of care with regard to children. Since bishops are encouraged to call individuals by and through spiritual manifestation, an examination of church policy and bishops’ actions
217. Id. at 247 (citing Agostini v. Felton, 521 U.S. 203, 232–33 (1997)).
218. 533 N.W.2d 780 (Wis. 1995).
219. Id. (quoting James T. O’Reilly & Joann M. Strasser, Clergy Sexual Misconduct:
Confronting the Difficult Constitutional and Institutional Liability Issues, 7 ST. THOMAS L. REV. 31, 47 (1994)).
220. Id. 612
negligent hiring and retention.
action would necessarily require a court to interpret “church canons and internal church policies and procedures,” the court continued by explaining that an examination for negligent hiring and retention would require “the court to create a ‘reasonable bishop’ norm.”219 It then explained that determining the reasonableness of a bishop is complicated by “beliefs in penance, admonition and reconciliation,”
220
After determining that such an6FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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221
In the face of these inherent challenges, several courts have permitted actions of negligent hiring based upon the idea that the
222
However, the district court held that Smith’s neutral principles exception, while valid, was “not very helpful under the facts as alleged . . . [because] Plaintiff’s claims rely on general tort liability theories, which do not fit the description of ‘valid and neutral law[s] of general applicability.’”224 As explained by the district court, “[t]he law at issue in Smith was a straightforward prohibition on the possession of certain specified controlled substances. Consequently, the law in that case does not translate well to a situation in which the Defendants are charged with . . .
negligent hiring and/or supervision.”225
221. In response to an inquiry by President Martin Van Buren concerning how the LDS Church differed from all other churches, Joseph Smith, the LDS Church’s founder, responded that “we differ[] in mode of baptism, and the gift of the Holy Ghost by the laying on of hands.” JOSEPH SMITH, 4 HISTORY OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS 42 (2d ed., rev. 1980). The LDS Church’s reliance on the Holy Ghost as a revelatory tool also has a doctrinal basis outside of basic church policy. See, e.g., Moroni 6:9 (“And their meetings were conducted by the church after the manner of the workings of the Spirit, and by the power of the Holy Ghost . . . .”).
222. See supra notes 127–28.
223. Ayon v. Gourley, 47 F. Supp. 2d 1246, 1248 (D. Colo. 1998) (citing Employment
Div. v. Smith, 494 U.S. 872 (1990)).
calls into question the very heart of LDS doctrine.
efforts on the part of a court in determining the reasonableness of the actions of an LDS bishop in calling an individual such as Montoya could potentially result in the creation of judicially imposed standards of care that both curtail the religious freedom of and impose governmental control over religious institutions.
courts are merely applying neutral principles of law.
application of the neutral principles of law exception should be rejected given the excessive entanglement that results from an examination of internal church policies and procedures and the problems surrounding a reasonable bishop norm. For instance, in Ayon v. Gourley, the plaintiffs encouraged the court to allow an action for negligent hiring to go forward against an archdiocese based on Employment Division of Human Resources v. Smith in which the Supreme Court held that a court may apply “neutral principles”
223
of law to religious institutions.
Consequently,
However, this
224. Id. at 1248–49 (quoting Smith, 494 U.S. at 879).
225. Id. at 1249.
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However, many courts have accepted and applied the neutral principles of law exception in the case of religious institutions and
226
third-party tort liability. explained,
For example, the Florida Supreme Court
Substantial authority in both the state and federal courts concludes that the right to religious freedom and autonomy protected by the First Amendment is not violated by permitting the courts to adjudicate tort liability against a religious institution based on a claim that a clergy member engaged in tortious conduct such as sexual assault and battery in the course of his or her relationship
227
The Florida Supreme Court further stated that “[t]hese courts conclude that there is no impermissible interpretation of religious doctrine because the courts are applying a neutral principle of generally applicable tort law.”228
The Florida Supreme Court’s justification in part was that neutral principles may be applied to the church because the actions of the clergy member were outside the scope of employment and
229
with a parishioner.
well outside church practices and beliefs.
Other courts have also
applied tort principles to and examined church policies and actions
on the basis that the offender’s actions were outside accepted church
230
However, such a conclusion would logically justify the examination only of the offender’s actions, not those of the church. While the actions of the offending employee or volunteer would clearly be outside of the scope of almost all religious doctrine, the examination that would result for the tort of negligent hiring is not of the offender’s actions but of the actions of the church and its representatives in engaging the offender. Rather than being outside the scope of the church’s doctrine and internal policies and procedures, such an examination unavoidably passes judgment on
beliefs.
226. See, e.g., Malicki v. Doe, 814 So. 2d 347, 358 (Fla. 2002).
227. Id.
228. Id. Furthermore, the court explained that “[t]his is especially so where the religious
institution does not allege that the conduct was undertaken in furtherance of a sincerely held religious belief.” Id.
229. Id.; see also Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo. 1996); Moses v. Diocese of Colo., 863 P.2d 310 (Colo. 1993); Doe v. Evans, 814 So. 2d 370 (Fla. 2002); Konkle v. Henson, 672 N.E.2d 450 (Ind. Ct. App. 1996).
230. See, e.g., Martinez v. Primera Asemblea de Dios, No. 05-96-01458-CV, 1998 WL 242412 (Tex. App. 1998) (holding that First Amendment grants no immunity to church or clergy for secular based torts such as sexual assault).
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the propriety of such, and, therefore, results in the excessive entanglement of church and state.
In addition, as explained by the Supreme Court of Maine, those courts that have ruled that resolution of negligent supervision claims against churches is possible by applying neutral principles of law without determining questions of church law and policy “have not fully addressed the fundamental issue.”231 The court explained that even assuming a court could determine a religious institution’s control over an individual without determining questions of “church
232
doctrine or polity,” additional constitutional obstacles remain. court noted the unavoidable result of such an examination:
The
The imposition of secular duties and liability on the church as a “principal” will infringe upon its right to determine the standards governing the relationship between the church, its bishop, and the parish priest. “Beliefs in penance, admonition and reconciliation as a sacramental response to sin may be the point of attach by a challenger who wants a court to probe the tort-law reasonableness of the church’s mercy toward the offender. . . .”233
The court further explained that because constitutionally protected beliefs govern the relationship between a church and its clergy, members of the clergy constitutionally cannot be treated as
234
negligently in hiring an individual.
Supreme Court argued that the ultimate danger in determining the reasonability of the actions of religious institutions in hiring an individual was that an award of damages “would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination.”236 In other words, the result of imposing liability upon religious institutions for deviations “from the
231. Swanson v. Roman Catholic Bishop of Portland, 692 A.2d 441, 444 (Me. 1997).
232. Id. at 444–45.
233. Id. at 445 (citations omitted).
234. Id.
Because different denominations have “their own intricate principles of governance as to which the state has no rights of visitation, . . . [i]t would . . . be inappropriate and unconstitutional” for a court to attempt to determine, after the fact, whether ecclesiastical authorities acted
235
any other common law employee.
235. Id.
236. Id.
Furthermore, the Maine State
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secular standard is to impair the free exercise of religion and to control denominational governance.”237
The application of tort principles to religious institutions in third-party tort actions results in tangible impairments to the free exercise of religion and governmental control of churches. Given the excessive entanglement that would result in a court’s examination of the LDS Church’s internal policies and procedures surrounding the extending of callings, and the governmental control that would result from such an examination, the First Amendment should bar an action against the LDS Church for the negligent hiring of Montoya as a Primary teacher.
In summary, in the case of Montoya and the LDS Church, there are two independent grounds on which the church should not be liable under the tort of negligent hiring. First, the church likely had neither actual nor constructive knowledge of Montoya’s pedophilia. Furthermore, as is shown above, if not for the First Amendment, the tort of negligent hiring would apply to the LDS Church and its volunteer Primary teachers because a right to control the teachers exists on the part of the LDS Church. However, given the excessive entanglement that would result from judicial inquiry into the reasonableness of LDS leaders in calling individuals to different capacities, the First Amendment should block an action for negligent hiring.
VI. CONCLUSION
Without question, the offenses committed by Aaron Marcos Montoya against the young members of his Primary class were horrendous and appalling. Montoya deservedly will spend a substantial part of his life in prison because of his pedophilia. However, to impute Montoya’s crimes to the LDS Church is improper. While Montoya was undoubtedly incompetent to serve as a Primary teacher, the LDS Church likely did not have either actual or constructive knowledge of Montoya’s pedophilia, and, therefore, cannot be held liable for negligently hiring and retaining him. More importantly, the First Amendment would likely preclude such an action against the LDS Church since the Establishment Clause prohibits excessive entanglement between church and state that would unavoidably occur if a court were to examine the church’s
237. Id. 6166FIFE.FIN.DOC 5/12/2006 11:44:05 AM
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internal policies and procedures in extending callings to church members. This outcome is supported by the impairment of free exercise and the governmental control that would result from a court’s examination of church policies and the actions of a church’s leaders in fulfilling doctrinally based roles within the church.
Morgan Fife
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