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American Bar Association - Defending Liberty, Pursuing Justice

Summer 2009

Vol. 5, No. 4

Litigation

 

Tort Liability of Religious Organizations

I. Introduction

A. Torts and Common Law; Application to Religious Organizations
If someone, through an impermissible act, injures another, that person will be considered to have committed a “tort.” In legal terms, a tort is “a private or civil wrong or injury resulting from the breach of a legal duty that exists by virtue of society’s expectations regarding interpersonal conduct, rather than by contract or other private relationship.” 1 A system of tort law, which provides a civilized method of obtaining legal redress for such injury, has become part of our common law. Common law has been developed over time by the courts, as they decide the cases that come before them. Because court cases are only binding in the jurisdiction in which they are located, our common law often evidences jurisdictional or regional differences. In fact, a decision, and thus the law in one jurisdiction, may be completely contrary to a decision in another area. This fact should be kept in mind by any party faced with an issue of tort liability.

As a general rule, churches and other religious institutions are not immune from tort liability in the modern world. For many years, the courts recognized a “charitable immunity” for certain religious and/or charitable institutions, but there is little left of such an immunity today. This follows the idea that injured parties be compensated for injuries caused by others, regardless of the intent of the actor. 2 For the most part, courts will address wrongs caused by religious organizations in much the same manner as they would any other public or private entity.

B. The Demise of Charitable Immunity
Charitable immunity originated in England in 1846, and was adopted in the United States in 1876. 3 The theories advanced for charitable immunity were varied. A “trust fund” theory held, in essence, that the monies possessed by charities were actually monies held “in trust” by the charity for distribution to others; and, as such, were not available to tort plaintiffs because the donor’s intent would be frustrated, and the operation or existence of the charity compromised. 4 Some jurisdictions recognized an “implied waiver” theory, which held that the beneficiary of a charity impliedly waived his right to sue the same charity for the negligence of its personnel, and assumed the risks of accepting the “benefits” of the aid provided. 5

Another reason advanced for charitable immunity was that the rule of respondeat superior, whereby a master is liable for the torts of his servants acting within the scope of their employment, did not apply to charities because they derived no gain or benefit of their own for services rendered. 6 Still another rationale was a vague “public policy” argument advocating immunity for charities, but typically adopting one of the other theories as validation for its application.

Charitable and religious organizations were granted immunity from tort liability by most jurisdictions in the United States until 1942, when it was abolished in the District of Columbia in the landmark case of President and Dirs. of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir. 1942). A large number of states now follow that decision or have otherwise qualified the scope of their charitable immunity law. 7 The change in the law may be attributed to changes in society. By the middle of the 20th century, charity had become “big business” and an exception to the general rule that “liability follows responsibility” no longer made sense. 8 Nevertheless, as stated, some jurisdictions still acknowledge some degree of charitable immunity. 9 Those that still observe a level of charitable immunity may observe the immunity for religious organizations, but not for charitable hospitals; or may abolish the immunity to the extent that the charity is covered by liability insurance, or to the extent that the judgment can be satisfied by funds other than those held “in trust” by the charity. Because of the remaining vestiges of immunity in certain states, any analysis of a tort claim against a religious institution should begin with an examination of the existence of whether there is still any charitable immunity within the relevant jurisdiction.

Endnote

1 Barron’s Law Dictionary 516 (4th ed. 1996).
2 See Lambert v. Bessey, T. Raym. 421, 83 Eng. Rep. 220 (K.B. 1681) (holding that “in all civil acts, the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering”).
3 See Prosser, Wade & Schwartz, Torts: Cases and Materials 634 (10th ed. 2000).
4 See Restatement (Second) of Torts § 895E, cmt. (c)(1) (1979).
5 See N.J. Stat. Ann. § 2A: 53A7(a). However, those who are not beneficiaries are not precluded from recovery. See also 25 A.L.R.4th 517 (West 2005) for an outline of which jurisdictions observe a qualified charitable immunity and which do not.
6 Restatement (Second), supra note 214, § 895E, cmt. (c)(2).
7 See 25 A.L.R.4th 517 (West 2005) (collecting cases). See also Restatement (Second), supra note 214, § 895(E) (establishing that “one engaged in a charitable, religious, or benevolent enterprise or activity is not for that reason immune from tort liability”).
8 See, e.g., Abernathy v. Sisters of Saint Mary’s, 446 S.W.2d 599 (Mo. 1969).
9 For example, in New Jersey, the Charitable Immunity Act protects any “nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes” from tort liability arising from negligence. N.J. Stat. Ann. 2A:53A-7 (West 2006); see also Schultz v. Roman Catholic Archdiocese, 472 A.2d 531 (N.J. 1984) (dismissing negligent hiring claims based on charitable immunity). Although still law, the N.J. Legislature proposed legislation that would abolish the charitable immunity with respect to claims related to sexual assault or other crimes of a sexual nature. See S. 487, 212 Leg., 2006 Sess. (N.J. 2006).

Stephen J. Riccardulli is a partner in the law firm of McDermott Will & Emery LLP, based in the firm’s New York office. As a member of the firm’s trial department and environmental group, Stephen focuses his practice on complex litigation matters, including class actions and multiparty mass tort cases. Michael D. Dillon is an attorney in the law firm of McDermott Will & Emery LLP, based in the firm’s New York office. He is a member of the firm’s trial department, focusing his practice on complex litigation matters. Amy S. Beard is an attorney in the trial department of the law firm of McDermott Will & Emery LLP. She is based in the firm’s New York office.

Note
Excerpted from Guide to Representing Religious Organizations, 2008, edited by Lisa A. Runquist, published by the American Bar Association Section of Business Law. Copyright © 2008 by the American Bar Association. Reprinted with permission.

Guide to Representing Religious Organizations

Did you find this article helpful? Do you need more information on representing religious organizations? To provide some basic assistance in this area, we are pleased to introduce the Guide to Representing Religious Organizations. This book should provide attorneys with some basic knowledge that will allow them to guide their religious organizations along the path toward legal enlightenment. It can be purchased at: http://www.abanet.org/abastore/

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