Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations

• Publication year: 2021

STAYING NEUTRAL: HOW WASHINGTON STATE COURTS SHOULD APPROACH NEGLIGENT SUPERVISION CLAIMS AGAINST RELIGIOUS ORGANIZATIONS

Kelly H. Sheridan

Abstract: The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, but these claims typically implicate First Amendment religious freedom concerns. A short series of Washington appellate cases affirming grants of summary judgment to religious organization defendants on First Amendment grounds has made it more difficult for plaintiffs to assert negligent supervision claims against religious entities. This Comment argues that Washington courts have granted religious organizations an impermissibly broad level of First Amendment protection from claims of negligent supervision, and suggests a more deliberate analytical framework for evaluating the constitutionality of such claims.

INTRODUCTION

Despite increased public awareness following the child molestation scandals that plagued the Catholic Church during the 1990s, incidence of sexual misconduct by religious leaders is still shockingly widespread.(fn1) This misconduct is a prominent problem in American society, and the tort of negligent supervision is an essential mechanism both for preventing it and for remedying the harm it causes. When individuals file negligent supervision suits against religious organizations, state courts are forced to navigate a distinct pair of directives: the dual mandates of the First Amendment's religion clauses and the general right of the aggrieved to seek recourse through the court system.(fn2) What are courts to do if the elements of a plaintiff s claim require them to make sensitive interpretive judgments about a religion's doctrine or practice?

In the 1979 case Jones v. Wolf;(fn3) the Supreme Court articulated a framework for courts to use when analyzing whether they can adjudicate common-law claims against religious organizations without violating the First Amendment.(fn4) State courts have applied this framework in a variety of ways, including a categorical bar against such claims, a categorical allowance of such claims, and a case-by-case inquiry into whether the elements of the claims would require interpretation of the relevant religious doctrine.(fn5) In the context of common-law negligent supervision claims, the Washington State Supreme Court has expressed approval of the latter case-by-case inquiry.(fn6) Several recent Washington State Court of Appeals decisions, however, have employed broad language in rejecting negligent supervision suits on First Amendment grounds, creating strong precedent against such claims.(fn7)

This Comment begins in Part I by examining the tort of negligent supervision under Washington law. Part II contains a general exposition of recent First Amendment jurisprudence, giving special attention to the landmark Supreme Court case of Jones v. Wolf. Part III examines the various approaches state courts employ in analyzing whether tort claims against religious organizations can be permissibly adjudicated within the constraints of the First Amendment. Part IV discusses how Washington courts have previously handled this issue, and examines in detail two recent appellate cases rejecting negligent supervision suits against religious organizations on First Amendment grounds. Finally, in Part V, this Comment argues that Washington courts should read this line of cases narrowly and apply the neutral principles approach articulated in Jones v. Wolf when analyzing tort claims against religious organizations.

I. THE TORT OF NEGLIGENT SUPERVISION IMPOSES AN INDEPENDENT DUTY ON EMPLOYERS TO PREVENT EMPLOYEES FROM ENDANGERING OTHERS

The torts of negligent hiring, supervision, and retention ("negligent employment torts") place an affirmative duty on employers to prevent their employees from causing foreseeable harm to third persons using the tasks, premises, or instrumentalities entrusted to them.(fn8) This duty applies regardless of whether employees are acting within the scope of their prescribed duties, which distinguishes negligent employment claims from vicarious liability in both concept and application.(fn9) For injured parties whose claims would fail under a vicarious liability theory, the negligent supervision action is an indispensible means to recovery.

A. Negligent Supervision Imposes a Limited Duty on Employers to Prevent Employees from Causing Foreseeable Harm to Third Persons

The negligent employment torts impose a duty on employers to exercise reasonable care to prevent employees from harming others, even where the employee is acting outside of the scope of employment.(fn10) Claims for negligent hiring, supervision, and retention share similar elements, and are distinguishable only by the stage of employment in which the tortious conduct arises.(fn11) Washington courts did not begin to recognize negligent supervision as a cause of action until the latter half of the twentieth century,(fn12) and have been hesitant to assign liability to the schools, group homes, and medical clinics that are typically the target of such claims.(fn13) Washington courts, however, have definitively acknowledged the viability of these suits as a means of seeking redress where other methods of recovering for employee misconduct fail for scope of employment or statute of limitations reasons.(fn14) Plaintiffs have successfully asserted that religious organizations may be liable under the negligent supervision theory,(fn15) but such claims typically evoke strong First Amendment defenses.(fn16)

Liability for negligent supervision arises out of the employment relationship and is predicated on the employer's furnishing of places, things, or duties later used to commit negligent or intentional wrongs.(fn17) For an employer to be liable for negligent supervision, the employer must know or have reason to know of both (1) its ability to control the employee and (2) the necessity of exercising such control to prevent harm to third persons.(fn18) Washington courts have interpreted the second element to require a showing that the employer knew or had reason to know that the particular employee presented a risk of harm to others.(fn19) Furthermore, the employee must be on the employer's premises or using an employer's chattel when the harm occurs.(fn20) To establish that the employer's negligence was the proximate cause of their injury, plaintiffs must demonstrate that the negligent or intentional act of the employee was foreseeable.(fn21) Imposing liability for negligent supervision supports the public policy goals of providing a fallback remedy for injured persons and encouraging employers to take affirmative steps to prevent the foreseeable torts of their employees.(fn22)

B. The Tort of Negligent Supervision Is Functionally Distinct from Other Employment-Related Torts

Negligent supervision imposes a duty that is "analytically distinct and separate"(fn23) from the vicarious liability theory, which imposes liability on an employer for the torts of an employee who is acting on the employer's behalf.(fn24) Unlike the agency theory of the common-law doctrine of respondeat superior, which requires employers to answer for the wrongs of their employees, negligent supervision claims attach liability directly to the employer for a breach of the employer's own independent duty of due care.(fn25) Thus, claims of negligent employment can be a viable means of redress even when claims against the principal tortfeasor do not succeed due to failure of proof or statute of limitations restrictions.(fn26) Furthermore, while an employer's vicarious liability is limited to the employee's actions within the scope of that employee's employment and on the employer's behalf,(fn27) the scope of employer liability under a negligent supervision theory is limited only by the foreseeability that the employee presented a risk of harm to others.(fn28) In the context of claims based on sexual misconduct, negligent supervision is a critical means of recovery because sexual acts typically occur in contexts outside of the scope of employment.

II. FIRST AMENDMENT DOCTRINE ALLOWS COURTS TO APPLY NEUTRAL PRINCIPLES OF LAW IN TORT CASES AGAINST RELIGIOUS ORGANIZATIONS

The First Amendment's guarantee of religious freedom represents an outer constraint on the ability of federal, state, and local governments to pass or enforce laws pertaining to religious exercise. The trajectory of the United States Supreme Court's application of this principle reflects a general shift from an early paradigm of separationism to a modern paradigm of neutrality.(fn29) This trend is reflected in the Court's decisions in both the Establishment Clause and the Free Exercise Clause contexts. The shift from separationism to neutrality is exemplified by the Court's 1979 decision in...