VICARIOUS AND PRECARIOUS LIABILTY FOR CHURCH LEADERS IN AN EVOLVING SOCIETY

A PAPER DELIVERED AT THE 2022 LEIC NIGERIA CONFERENCE OF THE PRIESTHOOD LEADERSHIP DEVELOPMENT INITIATIVE (PLDI) ON THURSDAY 25TH AUGUST. 2022.

Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondent, superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, knowledge is not an element of vicarious liability.

Most church leaders today especially in sub-saharan Africa are not aware of the great responsibility they carry in discharging their duties of care, safety and security of their congregants. 

Many a time church leaders have found themselves in avoidable legal and criminally liable situations as a result of ignorance or negligence of duty of care.

A case in question is the celebrated Sotitobire church in Akure where a child got missing in the children department and the church leader was held liable and prosecuted even as he was not physically present at the scene of crime.

Another scenario played out in a church in Lagos where a congregants got burnt during a spiritual prayer session using inflammable perfume.

A lot of cases have also been reported either of people dying in churches or during seclusion or even during spiritual excursions.

All these are pointer to the fact that as church leaders we are under both vicarious and precarious liability when it concerns our congregation.

In the eyes of the law, the church is like a factory where workers, customers and passers-by congregate and the onus of safety lies squarely on the leader and by extension the management team.

 The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others especially when they are likened to an agency agreement,  hence ommissions and commissions of church workers and employees may affect the employer, in this instance the G.O, pastor, shepherd etc as the case may be.

The most important of such relationship for practical purposes is that of employer and employee.

Churches are exposed to legal liability as a result of a number of acts and omissions, some of which have been addressed earlier on.

 This  church liability can be based on four types of negligence—

1. Vicarious liability for the negligence of employees;

2. Negligent selection;

3. Negligent retention; and

4. Negligent supervision, plus liability based on counseling, breach of fiduciary duty, ratification, and defamation.

Negligence refers to conduct that creates an unreasonable and foreseeable risk of harm to another's person or property, and that in fact results in the foreseeable harm. Churches can be liable on the basis of negligence in a variety of ways, four of which are addressed been addressed in this presentation.

To illustrate further, churches can be vicariously liable for the negligence of employees committed within the course of their employment under the legal principle of respondeat superior. Churches also may be liable on the basis of negligence in the selection, retention, or supervision of employees and volunteer workers including during crusades, outreaches, vigil or even during normal church services.

In recent years, some courts have found churches liable on the basis of a breach of a fiduciary duty for injuries occurring on their premises or in the course of their activities. This paper also  addresses church liability for defamation, and surveys a number of defenses available to churches that are sued on the basis of these theories of liability.

Thankfully, for each of the liabilities examined  "risk management" is emphasized, and churches and i will provide some suggestions to reduce their risk of legal liability.

1. The head of the church must be aware and conscious of his legal responsibilities. 

2. Background checks are very important in engaging workers either on part or full time basis.

3. Every safety precautions must be taken in and around the church premises including fire and emergency drills, muster points, emergency exits, cctv and body scanners.

4. New converts or attendees must be thoroughly screened and where possible getting to know their next of kin, or even a sponsor within the church.

5. For spiritual churches, it must be emphasised that our practices and doctrines must fall within the ambit of the law as some of our spiritual alibi cannot stand the test legally. 

Causing any bodily harm during deliverance etc is a criminal offence in the face of the law.

6. Training and retraining of our staff is essential.

7. Law enforcement agencies must have a buy-in into our security master plan and be involved at all times.

I will want to  conclude with an analysis of the liability of denominational agencies for the activities of affiliated churches and clergy. This is a question of increasing concern to many denominations.

This paper is written with two purposes in mind: 

(1) to explain several common and significant theories of church liability; and

 (2) to assist church leaders in adopting strategies to manage or reduce these risks. The good news is that by implementing relatively simple precautions, church leaders can significantly reduce the risk of church liability.

Churches can be sued for a variety of acts and omissions. 

The following are some of the other areas church liability.

* discipline and removal of ministers;

* undue influence;

* invasion of privacy;

* clergy malpractice;

* breach of contract;

* refusal to permit inspection of church records;

* church names (copyright infringement)

* removal of officers and board members

* discipline and removal of members;

* procedural irregularities in church business meetings;

* church property disputes;

* zoning law;

* violation of municipal building codes;

* violation of local landmarking ordinances;

* eminent domain;

* violation of restrictive covenants;

* adverse possession;

* premises liability;

In all of the above churches can be sued and made liable if necessary mitigations are not put in place by the organisation to thoroughly subject our actions to legal adherence.

More than ever before the society is daily becoming more enlightened and conscious of their rights under the law, hence churches must serve as the fall guy for criminal extortion, blackmail and legal liabilities. 

Thank you for listening.

Ven. Dr. Samson Kunle Popoola (JP)
Chairman

Ogun State PCRC