Section 44 Negligent Supervision

• Library: Prof Liability 2005

As the Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997), Court correctly recites, Missouri already has a cause of action for negligent hiring or retention, which is set forth and discussed in Gaines v. Monsanto Co., 655 S.W.2d 568, 571 (Mo. App. E.D. 1983), and McHaffie v. Bunch, 891 S.W.2d 822, 825–26 (Mo. banc 1995), but according to the current state of the law, as enunciated by the Supreme Court, this cause of action involves an impermissible “excessive entanglement between church and state” that inhibits religion. Gibson,962 S.W.2d at 246–47.

Perhaps, however, the Supreme Court could have seen the facts and the law in this case in a different light. A state court recovery has been allowed against a religious organization for negligent supervision of children in at least one case not involving sexual abuse. Smith v. Archbishop of St. Louis, 632 S.W.2d 516 (Mo. App. E.D. 1982) ($1.25 million jury verdict affirmed because of negligent supervision by second grade teacher resulting in serious burn injuries from classroom candle).

Smith was later modified somewhat by A.R.H. v. W.H.S., 876 S.W.2d 687, 691 (Mo. App. E.D. 1994), to hold that the test for determining a breach of duty in a negligent supervision case is “whether a reasonable person would recognize that an incident of the type alleged might occur and that steps should be taken to prevent it.” G.E.T. ex rel. T.T. v. Barron, 4 S.W.3d 622, 624, n.1 (Mo. App. E.D. 1999) (citing A.R.H., 876 S.W.2d at 691, and adding emphasis to the word “might”). The test is not the balance of probabilities, but “the existence of some probability of sufficient moment to induce the reasonable mind to take precautions which would avoid it.” Barron, 4 S.W.3d at 624–25, n.1 (citing A.R.H., 876 S.W.2d at 691, and adding emphasis to the words “some probability”).

In discussing applying negligence standards to clergy, the Colorado Supreme Court has stated: “Application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution.” Moses v. Diocese of Colo., 863 P.2d 310, 320 (Colo. 1993). In Moses, the parishioner’s claimed abuse was determined by the court not to be based solely on ecclesiastical matters and not to require any review of church documents or governance. Id. at 321. The Colorado court held that the First Amendment was not a defense to the claim of negligent hiring or vicarious liability.

McHaffie, 891 S.W.2d 822, explained that the tort of negligent hiring does not...