Virginia Supreme Court Recognizes Negligent Retention and Vicarious Liability for Acts of Retired Employee
Doe v. Baker
In Doe v. Baker, et al., Case No. 200386, 2021 WL 1684889, -- S.E.2d ---- (Va. 2021), the Plaintiff filed suit against Jonathan King, a retired pastor of her church, and several individuals and institutional church defendants, alleging that King molested her while at his home.
The complaint alleges that prior to his employment at the Church of God, King engaged in “inappropriate behavior with women and/or young girls,” ultimately leading to his termination from a prior pastorate position. Shortly after being hired by the Church, between December 1996 and 2002, several complaints were alleged regarding King’s inappropriate behavior toward women. In 2002, the Church of God ordered King to attend a Christian counseling and mental health facility. The complaint further alleges that the facility provided a report to the Church of God, stating that King needed “to set healthy boundaries with women” and “need[ed] someone to hold him accountable” for his inappropriate actions. Notwithstanding, the complaint further alleges that, in 2005, several more women complained of sexual advances by King to include corroborating statements by King’s family members and a request that authority figures “quit overlooking” King’s inappropriate behavior. The complaint alleges that no action was taken.
King retired in April 2011, but is alleged to have “continued to maintain a close relationship [with Church of God] and served as a spiritual leader.” In June 2016, King is alleged to have molested the Plaintiff when she and her mother went to King’s home to drop off tomatoes and while the Plaintiff was alone in the living room with him. The complaint asserts that the alleged molestation occurred “under the guise of offering spiritual advice and comfort.”
Defendants filed demurrers and a motion for summary judgment. The trial court dismissed the complaint without leave to amend, and Plaintiff appealed.
Negligent Hiring or Retention
Addressing the issue for the first time, the Court held squarely that “a negligent hiring or a negligent retention claim ceases to be viable for conduct committed after the employee is no longer retained by the employer.” The Court reasoned that the torts of negligent hiring and retention are intended to hold employers liable for hiring or retaining an unfit or dangerous person where the employer knew or should have known they would likely harm others. Prior opinions, on which the Court relied, have noted the requirement for these torts that “the nature and gravity of the risk render unreasonable any mitigating response short of termination.” The Court also noted that the claims are not intended to address risk “at some other time in the possibly distant future when the employer has no control over the employee.” To do so otherwise, the Court stated, would “impose a duty of care “that is unmanageable, utterly unpredictable, and conceptually limitless.”
Importantly for the facts here, the Court stated that the “same concept of duty applies to agents.” The question for the Court then became whether King remained employed by Church of God or had been retained to serve as an agent in some capacity. Despite his retirement, the complaint alleged that King was an “agent, volunteer, and/or employee” at the time of the alleged molestation. As such, the Court deemed dismissal based on the fact of King’s retirement to be premature and remanded the case for evidentiary development on the issue.
Concerning the sufficiency of the remaining elements, the Court stated that ‘“the inquiry is focused on whether the specific danger that ultimately manifested itself,’ ‘reasonably could have been foreseen at the time of hiring.’” It found that none of the allegations gave notice of such a risk prior to when King was initially hired by Church of God.
However, as to the claim of negligent hiring or retention after King retired, the Court found that Church of God had been alerted to a specific risk, and thus, the complaint did in fact state a claim. Further, although the alleged sexual battery occurred ten years after the 2005 reports, the Court noted that the allegations showed “a progressive pattern of worsening conduct” with a known, failed attempt to reform King’s behavior.
As to the individual defendants, the Court upheld their dismissal stating that negligent hiring and retention claims are only available as to the employer even where the individuals played a role in the hiring or retaining of the employee.
The Court also reversed the circuit court’s dismissal of the vicarious liability claim against Church of God for King’s alleged tortious conduct. The Court restated the principle that a “tortious act must occur ‘while the employee was in fact performing a specific job-related service for the employer’ and must be ‘within the scope of the duties of the employment and in the execution of the service for which the employee was engaged.’”
The Court found it could not say on the face of the complaint that King was not acting within the scope of his employment at the time of the alleged sexual battery, given the allegations that the act “grew out of counseling and serving as a spiritual advisor and/or minister,” King was an agent regularly offered physical gestures of comfort, and the tortious act occurred under the guise of providing spiritual advice and comfort.
In reversing dismissal and remanding the claims, the Court noted its adherence to prior precedent.