Negligent hiring suit reinstated

The Supreme Court of Virginia has reversed the early dismissal of a lawsuit against two church bodies accused of negligent hiring and retention of a pastor who – after his official retirement – allegedly molested a 13-year-old girl.

The lawsuit alleged the Church of God organizations were on notice of a “progressive pattern” of sexual misconduct by the pastor and still allowed him to act as a spiritual advisor on behalf of the church.

Although the lawsuit was dismissed in its entirety by Waynesboro Circuit Judge Charles L. Ricketts III in 2019, the Supreme Court reversed and reinstated claims of negligent hiring or retention, vicarious liability and negligent infliction of emotional distress.

Trial lawyers welcomed the decision as a signal that disputed claims should be resolved by a jury and not cut short by a judge.

The court’s unanimous April 29 opinion is Doe v. Baker (VLW 021-6-028).

The trouble with Pastor King

Jonathan Eugene King served as a pastor with the Church of God for more than 40 years, from 1967 until his announced retirement in 2011, according to allegations of an amended complaint summarized by the court. In 1995, he was hired as a pastor by Celebration, a Church of God congregation in Waynesboro.

While there were two vague allegations of “inappropriate behavior” at other Virginia churches before King joined the Waynesboro church, the allegations were far more specific during his service in Waynesboro, the suit said. A letter from one of King’s daughters referenced “multiple incidents” of “sexual misconduct and predatory behavior.”

A church official in Virginia directed King to counseling in 2002, the lawsuit said. Members of the treatment team reported that King “needed to set healthy boundaries with women” and “need[ed] someone to hold him accountable” for inappropriate actions. King should meet regularly with that person, the report said. The report was filed with the Virginia office of the Church of God.

More letters followed. Two women wrote in 2005 to report persistent sexual advances to one of the letter writers, the suit said. King allegedly offered money for pictures of the woman in “various states of undress.” Another of King’s daughters vouched for that report in a separate letter. A grandson asked that officials “quit overlooking” King’s inappropriate behavior. The church organizations took no further action against King.

Retirement

When King announced his retirement in 2011, he reportedly stated he “continued to maintain a close relationship and serve as a spiritual leader to certain former congregation members from Waynesboro Celebration.”

The incident at issue in the lawsuit took place July 8, 2016, more than five years after King’s retirement, the suit said. The plaintiff and her mother went to King’s home to bring tomatoes from a farmers market. Left alone with the young plaintiff, King, without consent, touched her in a sexual manner and kissed her on the mouth, the lawsuit said.

In the lawsuit that followed, plaintiff “Jane Doe” sued King, undertook discovery, then amended the complaint to include church officials and both the national and state church organizations. At some point, Doe nonsuited King.

‘Agent of the church’

Whether termination of employment is a “logical and practical boundary” for negligent hiring or retention claims is an issue that has “divided our sister courts,” the Supreme Court said in its opinion written by Justice Stephen R. McCullough.

But Doe’s amended complaint suggested a continuing relationship, the court said. It alleged King was an “agent, volunteer, and/or employee.” It stated that King maintained church responsibilities after retirement.

“A reasonable inference from the allegations…is that King retired as pastor but remained an agent of the church. Another possibility is that King was rehired as an employee or agent,” the court said. “Further evidentiary development” is required to determine King’s status as an employee or agent at the time of the tort, the court said.

The allegations would not support a claim of negligent hiring in 1995, but they sufficiently state a claim that the church defendants were alerted that King presented a risk of sexual battery.

“It is true that the alleged sexual battery against Jane occurred in 2016, more than 10 years after the allegations of King’s conduct in 2005 surfaced. Still, the amended complaint depicts a progressive pattern of worsening conduct, as well as an apparent failure of the counseling in 2002 to reform King’s behavior,” McCullough wrote.

Vicarious liability

The court concluded King’s alleged misbehavior was so closely linked to his purported pastoral duties of spiritual guidance and comfort that the question of the church’s vicarious liability was a matter for a jury.

“It is certainly possible to retire from full time ministry as a pastor and, nevertheless, retain a role within the church as an employee, volunteer, or agent,” McCullough wrote.

“Although it is difficult to conceive that, when King touched Jane’s genitals and kissed her, his actions stemmed from anything other than a desire for self-gratification and also constituted a ‘marked and unusual deviation from his employer’s business,’ … our precedent … combined with the long-established standard under which we review the grant of a demurrer, constrains us to reverse and remand,” McCullough wrote for the court.

But, given the more than 10-year gap between the 2005 allegations and the 2016 incident at issue, the allegations did not rise to the level of gross or willful and wanton negligence on the part of the church, the court concluded.

Other counts rejected

The amended complaint satisfied the standard for a connection between a negligent act, an emotional disturbance and physical injury to support a claim for negligent infliction of emotional distress, the court held. But the allegations did not “clear the high bar” for a claim for intentional infliction of emotional distress, the court said.

The court also rejected the claim of fraud, saying the church defendants did not owe a duty to warn Jane or other congregants about the complaints against King. There was no special relationship between Jane and the church defendants and, therefore, no duty to disclose King’s inappropriate behavior, the court said.

The appeal brought friend-of-the-court briefs from both the Virginia Trial Lawyers Association and the Virginia Association of Defense Attorneys.

“It was not only foreseeable, but likely, that the intimate connections King was expected to make as a pastor would continue even after his retirement,” wrote Juli M. Porto in the VTLA amicus brief.

“The VTLA has seen a trend where cases are being tossed earlier than they should, because there are factual issues that should be going to a jury and not decided by a judge,” Porto said May 5. “We’re pleased that the court has recognized that.”

Jane Doe is represented by Jeffrey R. Adams of Staunton.

“We are pleased with the outcome in as much as it will allow our client to put her claim before a jury,” Adams said May 4.

The VADA opposed the proposed “expansion” of the torts of negligent hiring and retention because employers would be held “strictly liable for acts of former employees over whom they no longer had control.” The VADA brief was written by Melissa Y. York of Richmond, who was unavailable for comment.

The Virginia Church of God is represented by John L. Cooley of Roanoke and the national Church of God is represented by Deborah E. Kane of Des Moines, Iowa. Cooley was not available for comment.