From the Desk of Kyle Riley: In this case, the Washington Court of Appeals held that a church owed a duty to take reasonable precautions to protect children in its care from foreseeable hazards.
Claims Pointer: Insurers should be aware that if an organization has notice of incidents of sexual abuse by individuals affiliated with the organization or the organization has endorsed the offending individual as suitable for working with children, the organization has a special duty to take reasonable care to protect children within its custody from sexual abuse. However, if an organization knows of the danger, but the children are not in its custody, and it has no ability to exercise control over the offender, the organization is not liable for the sexual abuse. If the offender was endorsed by the organization or the child was within the custody of the organization, liability will likely be an issue for the jury.
N.K. v. The Church of Jesus Christ of Latter-day Saints, in the Court of Appeals of the State of Washington, Division I, No. 67645-8-I, — P3d —-(July 22, 2013).
Throughout 1977, N.K., a Boy Scout and member of the Church of Jesus Christ of Latter-day Saints (“LDS”), was repeatedly molested by Dusty Hall, a Boy Scout volunteer leader and LDS member. The abuse occurred at N.K.’s house and at scout related properties. Hall was a transient trucker who had relocated from Juneau, Alaska to Shelton, Washington. There, he converted to the religion and began to volunteer with the local Boy Scout Troop. Although the church leaders announced that he was a troop leader, he was not an official member of the Boy Scouts of America (“BSA”) or Pacific Harbors Council (“the local council”). When N.K.’s family discovered that Hall molested N.K., Hall fled. At the time, N.K. denied that he had been abused by Hall.
In November 2009, N.K. sued BSA, the local council, the Corporation of the President of the LDS, and the Presiding Bishop of the LDS (collectively, “the defendants”). In his negligence suit, N.K. alleged that the defendants owed him a duty to protect him from Hall. Specifically, N.K. alleged that the defendants failed to investigate Hall’s background, improperly allowed him to supervise children without other adults present, and failed to train scoutmasters regarding sexual abuse in scouting. In August 2011, all of N.K.’s claims were dismissed on grounds that the defendants did not owe N.K. a duty, and he appealed.
On appeal, N.K. argued that the defendants owed a duty to protect him from reasonably foreseeable dangers because they had a special relationship with him and that the church had a duty to control Hall’s conduct due to its special relationship with Hall. N.K. further argued that the trial court erred in limiting the scope of discovery to information the church possessed regarding Hall, as opposed to information relating to the church’s handling of all sex abuse claims. The defendants countered that they did not owe N.K. a protective duty because they did not have prior knowledge that Hall was a threat.
In evaluating these arguments, the Court of Appeals held that a duty to protect another from sexual assault may arise in two situations: (1) when the defendant has a special relationship with the would-be victim, such that the defendant has an obligation to protect him and (2) when the defendant has a special relationship with the wrongdoer which obligates the defendant to control his conduct. In such circumstances, the Court noted that a defendant’s actual knowledge of the particular danger is not required if the general nature of the harm is foreseeable.
The Court found that in N.K.’s case, the church had a special relationship with the boys in his scouting troop, creating a duty to protect them. It was the custodial relationship, which typically involves on-the-ground control of day-to-day operations, which established the duty to protect N.K. from physical harm. In particular, participation in the troop was part of the church youth program, the church chapel was the registered meeting place for the troop and it actively encouraged children of the congregation to participate. Moreover, the church owned a cabin where the boys participated in scouting activities, away from the custody and protection of their parents. Hall molested N.K. while both were engaged in scouting activities, and his parents did not see Hall as a danger because the church held him out as a youth leader who could be trusted with children. In coming to its holding that the church owed a duty to N.K., the Court noted that the probability that an adult volunteer would molest a scout was not so improbable that it would hold, as a matter of law, that sexual abuse by adult volunteers was unforeseeable. Moreover, the record reflected that BSA employed a policy of two adults per scouting event. It could be inferred that such policy was intended to prevent sexual abuse by adults, precisely due to that fact that such a scenario was foreseeable.
As to BSA and the local council, the Court affirmed the trial court’s dismissal of the claims. Even though BSA was in the best position to warn scouts, parents and troops of the danger that adults who prey on children may work their way into scouting as volunteers, the ability to warn and the right to exclude such volunteers was not enough to establish a protective relationship.
Turning to N.K.’s argument that the church had a duty to control Hall’s conduct, the Court noted that the theory was dependent on proof that the church was aware of his dangerous propensities. There was evidence that the church was aware of Hall’s dangerous propensities. Hall’s fiancé reported that he molested her six year old son and a “priesthood brethren” called the church bishop to tell him that he should investigate Hall. N.K. also offered the declaration of a fellow scout, that he was told during one of the scout campouts, that a boy in their troop was molested by Hall. The declaration also stated that after reporting these allegations, the scout was threatened.
Last, the Court reversed the discovery order, limiting the scope of discovery of all information concerning the church’s knowledge and handling of previous allegations of child sex abuse in the decades leading up to 1977. The Court reasoned that this information was highly relevant to the issue of whether Hall was within the general field of danger posed by allowing troop members to be alone with an unsupervised adult volunteer.
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