Court of Appeals Reverses in Sexual Assault Negligence Suit

Although many organizations seek and openly welcome volunteer support, a recent decision from the Georgia Court of Appeals, Allen v. Zion Baptist Church of Braselton, shows that one should always be cautious about those who offer their time. In Allen, the Court of Appeals needed to determine whether it was appropriate for the trial court to grant summary judgment in favor of Zion Baptist Church in a suit involving the alleged sexual assault of a minor by one of the church’s volunteers.
The alleged act of sexual assault occurred on the afternoon of October 24, 2010 following the church’s homecoming festival. The volunteer, who became a member of the church only weeks before requesting to volunteer, gave in an application to participate in the church’s youth ministry on September 15, 2010. The application detailed Zion’s child protection policy, which required that all aspiring volunteers set to work with preschool, children, or youth were required to maintain church membership for three months prior to volunteering and submit two reference forms and written consent to a background check. An administrative assistant at Zion Baptist found the application suspicious, sensed that something was odd about the volunteer, and voiced these concerns to the youth pastor. However, the youth pastor took no further action with the application, although the youth pastor maintains that he did not receive the application until October 20, 2010.

The volunteer began his services on September 22, 2010. Neither the minor who was allegedly assaulted nor either of his parents was a member of Zion Baptist, but the minor had attended Wednesday night services three or four times prior to the incident as a guest of another minor. On one of these earlier trips, the minor met the volunteer, whom the minor described as the “cool” youth leader. On October 24, 2010, Zion held its fall festival, and the volunteer phoned the minor and invited him to the event. The minor gave his mother the phone, and the volunteer stated that he was a youth leader and asked if the minor could attend. The minor’s mother agreed and drove the minor and another friend to Zion Baptist. After some time, the volunteer led the minor and his friend off church property to a wooded area. In the area, the minor told his friend to stand away while the minor and the volunteer chatted. The friend said he then saw the alleged act of sexual assault. The friend told the minor’s parents about what he saw, and the minor’s parents went to the minor to discuss what happened. The parents called the church and spoke with the youth minister, who told the parents that they had not yet completed the background check and that the volunteer should not have been afforded the opportunity to have unsupervised time with minors prior to being fully vetted. The volunteer was arrested and later pled guilty to two counts of child molestation.
The parents eventually brought suit against the volunteer and the church, alleging claims of negligent hiring, retention, and supervision. Some time before the suit had been brought but after the act of misconduct, a volunteer for the church began an audit of employee and volunteer files for the purpose of updating “all criminal background information” and destroyed files of individuals who were no longer employed by or volunteering for the church “in order to make room for current files.” Following discovery, which included issues associated with discovery of material in the now-destroyed files, the church moved for summary judgment, arguing that it could not be liable for the volunteer’s assault. The trial court granted the motion.
The Court of Appeals, however, unanimously reversed the trial court’s determination. First, with respect to liability, the court held that genuine issues of material fact precluding summary judgment existed regarding the following:  the assaulter’s status as a volunteer, Zion’s duty of care in hiring, retaining, and supervising him, and whether any breach of such duty was the proximate cause of the victim’s injuries. First, the volunteer’s status was important because a non-profit can be held liable for acts or omissions when it “solicits volunteers to perform projects on its behalf,” Piney Grove Baptist Church v. Goss, 255 Ga. App. 380, 383 (2002), and generally “a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury.” Bull Street Church of Christ v. Jensen, 233 Ga. App. 96, 99 (1998). Given the facts mentioned above, it could not be held, as a matter of law, that the attack was “wholly unrelated” to the assaulter’s position as a volunteer with the church. Next, with respect to negligence in hiring, retention, and supervision, the court focused on the church’s failure to reasonably vet the volunteer, especially since the facts showed one of his references was likely forged and the position to which he was applying was a sensitive one. Finally, the harm caused in this case was of the variety that is reasonably foreseeable when one fails to adequately vet a volunteer.
Although the plaintiffs in this case will still need to prove to a jury that the church should be held accountable for their child’s injuries, this decision is a major victory for those who have been harmed as a result of the negligence of a volunteer. Indeed, even if a person is not formally employed or paid, an organization still has a duty of reasonable care to prevent certain harms arising from the acts of its volunteers. Anyone who has been harmed as a result of the negligent conduct of an employee, volunteer, or other agent should promptly seek guidance from experienced counsel to determine what options exist for holding the employer responsible. The Atlanta injury attorneys at the Law Office of Terrence R. Bethune are well versed in the area of vicarious liability and employer negligence and are ready to assess possible claims. If you are interested in a free case consultation, feel free to contact us. We look forward to hearing your story.