1

Filed 4/13/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CANDACE CONTI,

Plaintiff and Respondent,

v.

WATCHTOWER BIBLE & TRACT 

SOCIETY OF NEW YORK, INC. et al.,

Defendants and Appellants.

 A136641

 (Alameda County

 Super. Ct. No. HG11558324)

In this case we consider the duty owed by a religious organization to one of its 

members who has been harmed by another member. Candace Conti, formerly a member 

of the North Fremont Congregation of Jehovah’s Witnesses (Fremont Congregation or 

Congregation) sued the Congregation and Watchtower Bible and Tract Society of New 

York, Inc. (Watchtower), the Jehovah’s Witnesses’s headquarters at the time, for damages 

for her sexual abuse as a child by Jonathan Kendrick (Kendrick), another member of the 

Congregation. Before Conti was molested, the Congregation and Watchtower (hereafter 

collectively defendants) elders and officials learned that Kendrick had molested another 

child. Conti sought to hold defendants liable for failing to warn the Congregation or her 

parents that Kendrick was a child molester, and for failing to limit and supervise his 

participation in church activities. A jury found defendants liable for compensatory 

damages to Conti, and held Watchtower liable for punitive damages. 

We hold that defendants had no duty to warn the Congregation or Conti’s parents 

that Kendrick had molested a child, but that defendants can be held liable for failing to 

limit and supervise Kendrick’s “field service,” a church-sponsored activity where 

members go door-to-door preaching in the community. Kendrick had unsupervised 
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access to Conti during field service that he used as opportunities to molest her. Because 

breach of the alleged duty to warn was the sole basis for imposition of punitive damages 

on Watchtower, we reverse that portion of the judgment, with directions to enter 

judgment for Watchtower on the punitive damage claim. The compensatory damage 

award is affirmed. 

I. BACKGROUND

The Jehovah’s Witnesses is a religion with about 1.2 million members in 13,400 

congregations in the United States. In the 1990’s, Watchtower was in charge of the 

church’s policies. Congregations are comprised of elders, ministerial servants, and rankand-file members called “baptized publishers.” All members in good standing are 

considered “ministers.” Elders are the spiritual leaders of their congregations, 

comparable to clergy in other religions. Ministerial servants do administrative work such 

as distributing literature to members, and handling microphones at meetings. Watchtower 

admitted that Fremont Congregation elders Gary Abrahamson and Michael Clarke were 

Watchtower’s agents while acting within the course and scope of their church duties. In 

addition to Sunday and midweek meetings, Congregation activities include field service, 

where small groups, usually consisting of two or three people, go door-to-door in 

neighborhoods to spread the church’s spiritual teachings. 

Congregations are small and close knit. The average congregation has 75 to 150 

members. At different times, the Fremont Congregation had from 100 to 140 members, 

of whom 6 to 13 were elders. Evelyn Kendrick (Evelyn), who was married to Kendrick 

during the period when he molested Conti, testified that “we only socialized with people 

of that congregation. We were kind of—well, not told outright, but that we should only 

associate with people of that religion and not of any other religion because they could be 

a bad influence.” Congregation members call each other “brother” and “sister.” 

Conti and Kendrick were Fremont Congregation members in the 1990’s, and for a 

time Kendrick was a ministerial servant. Conti testified that Kendrick began molesting 

her around the time she turned nine years old in late 1994, and continued until 1996 or 
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1997, when she was age 10 or 11. Before Kendrick molested Conti, the Congregation 

elders learned that he had molested his stepdaughter. 

In November 1993, elder Clarke received a call from Evelyn or Kendrick asking 

for a consultation about Kendrick’s abuse of Evelyn’s daughter. Clarke and Abrahamson 

went to their home that week and spoke with Kendrick, Evelyn, and her daughter. The 

elders were told that, four months earlier, Kendrick had touched his stepdaughter’s breast 

around the time of her 14th birthday. The stepdaughter told Evelyn about the molestation 

minutes after it occurred, but Evelyn testified that she did not immediately report it 

because she thought it was an isolated incident and she was “trying to deal with it” within 

the family. The details of what the elders were told about the incident were disputed at 

trial. Among other things, Evelyn disputed the elders’ testimony that she told them to 

keep the incident private, and that Kendrick said he touched her daughter “inadvertently.” 

Even so, the elders did not believe the touching was accidental. 

The elders told Evelyn and her daughter that they were free to report the incident 

to the police. Abrahamson testified that they neither encouraged nor discouraged Evelyn 

and her daughter from doing so; “[i]t was up to them.” Evelyn reported the incident to 

the police in February 1994. Kendrick admitted touching his stepdaughter’s breast, and 

was convicted of a misdemeanor. Elders at the Congregation did not learn of Evelyn’s 

report to the police until a couple of years later. 

After meeting with the Kendrick family, Clarke wrote a letter to Watchtower to 

report “a case of child abuse” by Kendrick. Abrahamson testified that the Congregation 

was required to contact Watchtower for instructions in such a situation.1 The copy of the 

 

1

“Q. Why were you reporting this to Watchtower New York? [¶] A. To get 

direction. [¶] Q. And in all of your work as an elder that involves anything in this type of 

matter, you would get your direction and instruction from New York. Correct? [¶] A. In 

a lot of these cases that legal matters are involved, we are always encouraged to call the 

Legal Department because how could we know all the laws. And the laws change from 

state to state, but our Legal department could help us through this. [¶] Q. And you used 

the word ‘encouraged’ but actually you are required to call New York? [¶] A. You might 

put it that way. Yes. [¶] Q. I did put it that way. Do you agree? [¶] A. I agree you put it 

that way. [¶] Q. Do you agree that you were required to call New York? [¶] A. Yes.” 
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letter in evidence is heavily redacted. In the unredacted portion, the letter stated that the 

Congregation had phoned Watchtower about the Kendrick matter, the “legal department 

had given us some direction,” and Watchtower had asked the Congregation to submit its 

questions in writing. The letter said the elders planned to tell the Congregation that 

Kendrick would no longer be acting as a ministerial servant, and asked Watchtower to 

advise if that was an “incorrect” course of action. Clarke testified that Watchtower 

responded to his letter, but he did not provide the substance of the response and no 

written response is in evidence. The testimony was simply: “Q. And Watchtower did 

respond to the letter and he was removed as a ministerial servant? [¶] A. Correct. And 

we announced that.” 

Allen Shuster, a Watchtower official in New York, testified that Watchtower policy 

allowed a known child molester to continue to perform field service, but not alone or with 

a child. Defense expert Monica Applewhite, whose testimony is discussed further below, 

said that Watchtower policies were implemented by letters sent “to all bodies of elders in 

the United States.” However, Shuster was unable to identify any church-wide writing 

that documented the limitations on field service by known child molesters. He said this 

policy was implemented by letters to elders on a case-by-case basis.2 

Abrahamson testified that he told the Fremont Congregation elders what he 

learned at the Kendrick family meeting, and they agreed that Kendrick was no longer fit 

 

2 When Shuster was asked whether a person known to be a child molester “can be 

sent out as a baptized publisher into neighborhoods to spread the word of the gospel?” the 

following testimony ensued: “A. Yes. But not by themselves or with a child. [¶] Q. “Is 

there in writing anywhere the caveat that you just gave to us? I haven’t seen it in any of 

the exhibits. [¶] A. I believe we have something in writing, yes. I couldn’t put my finger 

on it right now, but yes. [¶] Q. Is it here with us today? [¶] A. I don’t know if it is here. 

I don’t recall. [¶] . . . [¶] “Any reason why, if there was a policy that specifically 

prohibited baptized publishers who were known to have molested children from going 

into field service with a child, that that written policy wouldn’t be right in front of you 

right now? [¶] A. That policy is specific to each individual situation. In each situation 

there are instructions given in the letter to a body of elders where that individual is and 

that instruction is given in that letter.” 
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to serve as a ministerial servant. They removed Kendrick from the position, and 

announced his removal to the Congregation without disclosing the reason for it. 

Clarke testified that the Fremont Congregation elders were following Watchtower 

policy in keeping information about the molestation confidential. That policy was set 

forth in a July 1, 1989 letter from Watchtower to all elders in the United States, and it was 

a centerpiece of Conti’s case against Watchtower. 

The letter addressed the elders’ “duties that may involve legal issues or questions.” 

Watchtower instructed the elders they “must be careful not to divulge information about 

personal matters to unauthorized persons. . . . Elders must give special heed to the 

counsel: ‘Do not reveal the confidential talk of another.’ (Proverbs 25:9) . . . Improper 

use of the tongue by an elder can result in serious legal problems for the individual, the 

congregation, and even the Society. [¶] . . . Worldly persons are quick to resort to 

lawsuits if they feel their ‘rights’ have been violated. Some who oppose the Kingdom 

preaching work readily take advantage of any legal provisions to interfere with it or 

impede its progress. Thus, elders must especially guard the use of the tongue.” 

The letter continued: “The spirit of the world has sensitized people regarding their 

legal ‘rights’ and the legal means by which they can exact punishment if such ‘rights’ are 

violated. Hence, a growing number of vindictive or disgruntled ones, as well as 

opposers, have initiated lawsuits to inflict financial penalties on the individual, the 

congregation, or the Society. Many of these lawsuits are the result of the misuse of the 

tongue. . . . [¶] . . . [¶] The legal consequences of a breach of confidentiality by the elders 

can be substantial. If the elders fail to follow the Society’s direction carefully in handling 

confidential matters, such mistakes could result in successful litigation by those offended. 

Substantial monetary damages could be assessed against the elders or congregation.” 

The letter went on to discuss “what to do in specific cases,” such as “[s]earch 

warrants and [s]ubpoenas,” “[c]rimes and [c]riminal investigations,” “[w]hen [l]awsuits 

are [t]hreatened,” and “[c]hild [c]ustody.” On the subject of “[c]hild [a]buse,” the letter 

stated: “Many states have child abuse reporting laws. When elders receive reports of 

physical or sexual abuse of a child, they should contact the Society’s Legal Department 
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immediately. Victims of such abuse need to be protected from further danger.” The letter 

concluded with “points to remember,” such as “[b]e extremely careful with written 

material,” and “[a]ppreciate the [i]mportance of [m]aintaining [c]onfidentiality.” With 

respect to confidentiality, the letter stated: “Elders must exercise extraordinary caution 

when it comes to handling confidential information about the private lives of others. Do 

not mistakenly minimize the gravity of a breach of confidentiality. Unauthorized 

disclosure of confidential information can result in costly lawsuits. Even if a lawsuit 

turns out favorably, valuable time and energy that could have been devoted to Kingdom 

interests will be lost.” 

Clarke testified that the policy stated in the letter was intended to protect 

confidential ministerial communications as well as to avoid legal liability. He thought 

that “confidentiality is important for a minister.” He asked, “Why would anybody come 

to us with their problems if they knew that as soon as they come to us we were going to 

announce it? Why would anybody confess to a Catholic priest if they knew that after 

they confessed it was going to be announced at mass next week. It is ludicrous. [¶] So 

[the policy was] put in place so that the friends would feel comfortable coming to us and 

we could keep confidence.” 

Clarke testified that the elders told Kendrick he could not “show affection to 

children, put children on his lap, work with them out in the door-to-door ministry, work 

with children in the Kingdom Hall. [¶] And we made it clear to him that we were going 

to be watching him. And we did, all, the whole body of elders.” Elder Lawrence 

Lamerdin said the Congregation had 10 to 13 elders at the time and they “made sure that 

[Kendrick] was watched.” Abrahamson saw “no need” to inform the Congregation that 

Kendrick had molested a child because the elders would have warned the parents of any 

child they saw Kendrick getting close to or isolating. 

In an August 1, 1995 policy letter to United States elders on the subject of child 

abuse, Watchtower stated: “[S]teps should be taken to protect the child, or other children, 

from further sexual abuse. Obviously, parents would be keenly interested in taking 

adequate precautions in this regard. . . . Loving elders, too, will want to act in a way that 
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demonstrates their protective care, since the word ‘overseer’ carries the thought of one 

who watches over, a guardian, a shepherd of the flock. . . . [¶] It would be appropriate to 

talk very frankly to a former child abuser, strongly cautioning him as to the dangers of 

hugging or holding children on his lap and that he should never be in the presence of a

child without another adult being present.” 

There was testimony that Jehovah’s Witnesses conduct no activities such as 

classes or trips that by their nature separate children from their parents, and Clarke 

testified that parents in the congregations are regarded as “the first line of defense” in 

preventing child sexual abuse. Parents were educated about child sexual abuse in 

Awake!, a publication distributed to all congregation members. Child abuse was 

discussed at length in the January 22, 1985 issue, which covered topics such as “Who 

Would Do a Thing Like That?” and “You Can Protect Your Child.” The subject was also 

the focus of the October 8, 1993 issue, which addressed the question “How Can We 

Protect [Our Children]?” The discussion under that heading stated: “Tragically, adult 

society often unwittingly collaborates with child abusers. How so? By refusing to be 

aware of this danger, by fostering a hush-hush attitude about it, by believing oft-repeated 

myths. Ignorance, misinformation, and silence give safe haven to abusers, not their 

victims.” Both issues addressed misconceptions about child sexual abuse, including the 

belief that such abuse is most commonly perpetrated by strangers to the victims, and the 

1985 issue gave as an example a girl who was molested by “a man who was running a 

church group.” 

Conti testified that she met Kendrick at the Fremont Congregation’s Kingdom 

Hall, a building for Congregation meetings that seats 220 people. She said that Kendrick 

insinuated himself into her family, befriended her father Neal at meetings, and then began 

coming to their house. He molested her several times a month for a couple of years. 

With one exception, the incidents occurred at Kendrick’s home, where he drove Conti

after meetings and during field service. On one occasion, Kendrick put his hand up her 

shirt while they were riding on a train with her father. 
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Kendrick began getting physical with her by repeatedly hugging her at Kingdom 

Hall. She always went to Kingdom Hall with at least one parent, but Kendrick made her 

sit on his lap during meetings. She sometimes went to field service without her parents, 

and Kendrick sometimes drove her to the group meetings that preceded the door-to door 

field service, where partners for the activity were assigned. They did field service 

together many times without either of Conti’s parents present. Conti said that the 

molestations occurred while they were supposed to be performing field service: “Our 

groups would go out, we would get our territories, and we would go out and service. And

we would do door to door. [¶] And then there were times when our groups would 

separate even further. And we would go to . . . laundry mats . . . and things like that. And 

sometimes he would take me . . . to go do some of these things and then we would end up 

at his house.” Kendrick drove her to his house, and when he finished molesting her, they 

would go “[m]aybe to the Kingdom Hall. Maybe to lunch with the rest of the service 

group.” 

Conti’s father Neal testified that he did not see Kendrick engage in any of the 

inappropriate behavior described by Conti. Neal said he was always with Conti at 

meetings and during field service, he did not allow Conti to leave meetings with 

Kendrick, and did not see Kendrick hug Conti or Conti sit on Kendrick’s lap. Conti’s 

mother Kathleen testified that she had mental health problems during the two years 

before she and Neal separated in July 1996, which prevented her from caring for Conti. 

As a result, Conti was often on her own during that time. Kendrick was always offering 

to help Conti and take her places, and Kathleen thought he was just being nice. 

Clinical social worker Laura Fraser counseled Conti and her parents from August 

1996 to April 1998. Fraser testified that Neal and Kathleen were going through a 

tumultuous divorce, and Conti had assumed a caretaker role in the family. Neal and 

Kathleen were not “psychologically well-developed,” and it was “like three children, in 

some respects, living together.” Conti’s home life was chaotic and unpredictable. There 

were a “multitude of emotional crises . . . particularly related to her mother,” and Neal’s 

work and Congregation activities left him little time for Conti. She was craving for adult 
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care at the time, and extremely vulnerable to manipulation. Fraser was not surprised that 

Conti did not disclose her sexual abuse during the counseling. Fraser had told Conti that 

she would be required to report such abuse, and Conti had “no safety” because she “was 

still rescuing both parents.” 

Congregation member Carolyn Martinez testified that she saw Kendrick and Conti

together at Kingdom Hall, and that he “was very enamored with her. He just looked at 

her inappropriately. . . . I remember them holding hands. I remember his arm around 

her.” Martinez said that she never saw Conti come to Kingdom Hall or field service 

without a parent, but more than once she saw Kendrick and Conti together in field 

service. Martinez recalled Conti sitting on Kendrick’s lap in meetings at her home. 

Elders Clarke, Abrahamson, Lamerdin, and three Congregation members testified 

that at Kingdom Hall they did not see Conti get hugs from Kendrick, sit on his lap, or 

leave with him as Conti testified. The Congregation members said they never saw Conti

do field service with Kendrick. 

An expert testified for Conti about Child Sex Abuse Accommodation Syndrome, 

which describes behaviors often exhibited by victims, including delayed reporting of their 

abuse. Physician notes in evidence state that Conti reported in August 2002 that she was 

sexually abused from around age nine to 13. Conti did not recall that doctor visit, but 

remembered disclosing the molestations to her parents in 2003. She disclosed the 

molestations to elders, including Clarke and Lamerdin, in 2009. 

A psychologist who was counseling Conti at the time of trial testified that she 

suffered from depression, anxiety, and most severely from post-traumatic stress disorder 

(PTSD). A psychiatrist treating Conti testified that she was afflicted by PTSD due to the 

sexual abuse and she would require a lifetime of therapy. A psychiatrist qualified as an 

expert in child and adolescent psychology testified that Conti reported having been 

molested hundreds of times, that she had severe, chronic PTSD, and she would require 

therapy costing $160,000. 

Anna Salter, a clinical psychologist and an expert on child sexual abuse testified 

for Conti that defendants, after learning that Kendrick had molested a child, did not meet 
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the standard of care for organizations that sponsor or promote activities that bring adults 

and children together. Salter said that, by 1993, the major religions and secular 

organizations conducting such activities had “adopted policies of transparency regarding 

known sex abusers.” United Methodist Church policies, for example, were to “[u]phold 

the rights of children, speak out when abuses occur, and advocate for the strengthening 

and strict enforcement of these rights.” Salter said that “people knew what the risk was 

when you had a child molester,” and that the standard of care “was not to keep it secret 

and let the person continue in the same activities with the same access to children.” The 

standard of care required “reporting these cases . . . and making people aware . . . if they 

had a sex offender in their midst.” 

Monica Applewhite, a clinical social worker and an expert on child sexual abuse, 

testified for defendants that Watchtower’s policy against “disclosing private 

information . . . very closely mirror[ed]” the codes of ethics of the National Association 

of Social Workers and the American Counseling Association. Based on her review of the 

evidence, Applewhite opined that the Congregation never put Kendrick “into a position 

that required or allowed him to be alone with children, to be in supervision of children, 

[or] to spend time with children away from their families.” Because the church’s 

activities did not separate children from their parents, Appelwhite opined that its best 

means of protecting children was to educate parents about child sexual abuse, and it 

exceeded the standard of care for such education in the 1990’s. According to Applewhite, 

the elders met the standard of care in Kendrick’s case when they left it up to Evelyn and 

her daughter whether to tell the police about the abuse he admitted, and “they kept a 

special watch on him and paid attention to whether or not he had any inappropriate 

contact with children within the meetings at Kingdom Hall.” 

Conti sued Watchtower, the Fremont Congregation, and Kendrick for damages for 

sexual abuse, alleging willful acts by Kendrick and negligence on the part of defendants. 

The negligence consisted of failing to warn members of the Congregation that Kendrick 

was a child molester, and failing to restrict and supervise his participation in church 

activities. Conti executed a covenant not to execute on any judgment against Kendrick, 
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in exchange for his agreement not to participate in the case, or harass Conti or her 

witnesses. Conti obtained leave to add a cause of action for “acts of malice” supporting 

punitive damages against Watchtower, arguing that Watchtower acted despicably and 

with conscious disregard for the safety of others by maintaining a “secrecy policy” with 

respect to child sexual abusers despite knowing of their “high recidivism.” The “secrecy 

policy” was set forth in the July 1989 letter we have quoted at length. Awareness of child 

abuse recidivism was exhibited in church publications such as the January 1, 1997 issue 

of The Watchtower, which stated that child sex abusers “may well molest other children. 

True, not every child molester repeats the sin, but many do.” 

The jury found Kendrick, Watchtower, and the Congregation liable, and 

apportioned fault 60 percent to Kendrick, 27 percent to Watchtower, and 13 percent to the 

Congregation. The jury awarded Conti $7,000,000 in compensatory damages, including 

$130,000 for future counseling and therapy, and $6,870,000 in non-economic damages. 

The jury awarded $21,000,001 in punitive damages against Watchtower. The court 

conditionally granted Watchtower’s motion for a new trial on punitive damages, subject 

to Conti’s acceptance of an $8,610,000 punitive damage award. Conti accepted the 

reduced punitive damages, and judgment was entered against Watchtower for 

$10,464,900, against the Congregation for $893,100, and against Watchtower and the 

Congregation jointly and severally for $130,000. Watchtower and the Congregation 

timely appeal.

II. DISCUSSION

A. Introduction

Defendants initially demurred, and have consistently argued throughout the case 

that they had no duty to prevent Conti from being molested by Kendrick. The trial court 

overruled their demurrer, and rejected their subsequent arguments that no duty was owed 

on the facts of this case. The court declined to give defendants’ proposed jury 

instructions that the Congregation had no duty to warn its members that Kendrick had 

committed an act of child sexual abuse, and that defendants were not liable unless Conti’s 

abuse occurred on church property or during a church-sponsored activity. 
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Over defendants’ objection, the court gave the following “duty” instruction to the 

jury: “The defendants . . . had a duty to take reasonable protective measures to protect 

[Conti] from the risk of sexual abuse by . . . Kendrick. In determining whether or not 

[defendants] took reasonable protective measures, you may consider the following: [¶] 1. 

The presence or absence of any warning; [¶] 2. Whether or not any educational programs 

were made available to plaintiff, her parents, or to other Jehovah’s Witnesses from the 

[Congregation] members for the purposes of sexual abuse education and prevention; 

[¶] 3. Such other facts and circumstances contained in the evidentiary record here as to 

the presence or absence of protective measures.” 

“Duty is a question of law for the court, to be reviewed de novo on appeal.” 

(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.) 

B. Failures to Warn

(1) Warning the Congregation

Conti argued that the Fremont Congregation elders had a duty to warn members of 

the Congregation that Kendrick had molested a child and, as we have said, failure to 

fulfill that alleged duty was the sole basis for the punitive damage award against 

Watchtower. Congregation elders were following Watchtower’s policy when they kept 

the molestation Kendrick reported confidential. We disagree with Conti that they had a 

legal duty to warn the Congregation about Kendrick. 

“ ‘[A]s a general rule, one owes no duty to control the conduct of another, nor to 

warn those endangered by such conduct.’ ” (Zelig v. County of Los Angeles (2002) 27 

Cal.4th 1112, 1129.) “This rule derives from the common law’s distinction between 

misfeasance and nonfeasance, and its reluctance to impose liability for the latter.” 

(Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, fn. 5.) “The 

basic idea is often referred to as the ‘no duty to aid’ rule, which remains a fundamental 

and long-standing rule of tort law. . . . ‘As a rule, one has no duty to come to the aid of 

another.’ ” (Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 727.) For instance, in Eric J. 

v. Betty M., a convicted child molester sexually abused his girlfriend’s minor child, and 

the molester’s family members who did nothing “to facilitate any molestation” were not 
13

liable for failing to warn the girlfriend about the molester’s past. (Id. at pp.717, 727.) In 

Eric J. v. Betty M., the court distinguished Pamela L. v. Farmer (1980) 112 Cal.App.3d 

206, where the wife of a child molester who knew of her husband’s past was subject to 

misfeasance liability for telling the parents of girls he sexually abused that the girls could 

safely swim at her house when she was away because her husband would be there to take 

care of them. (Id. at pp. 209-210; Eric J. v. Betty M., supra, 76 Cal.App.4th at p. 729.)

“Where, as here, a ‘complaint alleges injuries resulting from the criminal acts of 

third persons . . .“the common law, reluctant to impose liability for nonfeasance, 

generally does not impose a duty upon a defendant to control the conduct of another 

[citations], or to warn of such conduct [citations], unless the defendant stands in some 

special relationship either to the person whose conduct needs to be controlled, or to the 

foreseeable victim of such conduct.” ’ ” (Roman Catholic Bishop of San Diego v. 

Superior Court (1996) 42 Cal.App.4th 1556, 1564 (Roman Catholic Bishop), italics in 

original); see also Rest.2d Torts § 315; Nally v. Grace Community Church (1988) 47 

Cal.3d 278, 293 [“one is ordinarily not liable for the actions of another and is under no 

duty to protect another from harm, in the absence of a special relationship of custody or 

control”].) In Pamela L. v. Farmer, the wife of the child molester “assumed that special 

relationship” with his new victims when she invited them to her home and assured them 

they could safely play there. (Pamela L. v. Farmer, supra, 112 Cal.App.3d at pp. 211–

212.)

The alleged duty to warn cannot be justified in this case on the basis of a special 

relationship. Fremont Congregation elders were required, as Conti’s expert put it, to 

make Congregation members aware that “they had a sex offender in their midst” only if: 

(1) members of a church have a special relationship with the church solely by virtue of 

that membership that requires the church to take affirmative steps to safeguard them 

against harm from other congregation members; or (2) a church has a special relationship 

with any member it has reason to believe may perpetrate such harm. (See generally,

Roman Catholic Bishop, supra, 42 Cal.App.4th at p. 1564 [defendant must have a special 

relationship with the person whose conduct needs to be controlled, or the foreseeable 
14

victims of such conduct].) Conti makes neither assertion, and identifies no authority for 

any such broad duty on the part of a church to prevent its members from harming each 

other. 

Rather, her arguments for a special relationship focus on the Congregation’s 

custody or control of her and Kendrick. She maintains that the Congregation “exerted 

custody and control over [her] by assigning her to perform field service with Kendrick,” 

and “took charge of Kendrick when they determined where and with whom he was to 

perform field service.” But these arguments are material to the duty of care in 

connection with Kendrick’s field service—a matter we discuss below—not to a duty to 

warn the Congregation that he had molested a child.

A number of cases have held that, where the issue is whether the defendant had a 

duty to protect the plaintiff from harm caused by a third party, the absence of a special 

relationship is dispositive and there is no reason to conduct the analysis prescribed in 

Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland), to determine whether a duty 

nevertheless existed. “Because the traditional weighing process using [the Rowland

factors] ‘has already been done by courts over the centuries in formulating the “no duty 

to aid” rule,’ in the context of liability for nonfeasance, it is not necessary to engage in 

[that] weighing process” where no special relationship exists. (Seo v. All-Makes 

Overhead Doors (2002) 97 Cal.App.4th 1193, 1203, quoting Eric J. v. Betty M., supra, 76 

Cal.App.4th 715, 729-730; see also Suarez v. Pacific Northstar Mechanical, Inc. (2009) 

180 Cal.App.4th 430, 438; but see Nally v. Grace Community Church, supra, 47 Cal.3d at 

p. 293 [applying both the special relationship doctrine and the Rowland factors in 

analyzing whether church pastors had a duty to prevent a foreseeable suicide].) However, 

even if we were required to consider the Rowland factors, we would not conclude that the 

elders had a duty to warn the Congregation about Kendrick’s past child sexual abuse.

The Rowland factors are: “[T]he foreseeability of harm to the plaintiff; the degree 

of certainty that the plaintiff suffered injury, the closeness of the connection between the 

defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s 

conduct, the policy of preventing future harm, the extent of the burden to the defendant 
15

and consequences to the community of imposing a duty to exercise care with resulting 

liability for breach, and the availability, cost, and prevalence of insurance for the risk 

involved.” (Rowland, supra, 69 Cal.2d at p. 113.) “Forseeability and the extent of the 

burden to the defendant are ordinarily the crucial considerations, but in a given case one 

or more of the other Rowland factors may be determinative of the duty analysis.” 

(Castaneda v. Osher (2007) 41 Cal.4th 1205, 1213.)

While it is readily foreseeable that someone who has molested a child may do so 

again, the burden the duty to warn would create and the adverse social consequences the 

duty would produce outweigh its imposition. The burden would be considerable because 

the precedent could require a church to intervene whenever it has reason to believe that a 

congregation member is capable of doing harm, and the scope of that duty could not be 

limited with any precision. For example, would the duty to warn be triggered by an 

accusation, or only an admission, of misconduct? Would one warning be sufficient, or 

would continuous warnings be required to ensure that new congregation members are 

alerted to the danger? Child molestation is a particularly heinous evil, but which other 

potential harms would the church have a duty to avert? Would the duty be limited to 

crimes and, if so, which ones? Imposition of a duty to warn would also have detrimental 

social consequences. It would discourage wrongdoers from seeking potentially beneficial 

intervention, and contravene the public policy against disclosure of penitential 

communications. No moral blame can be cast on defendants for adhering to that public 

policy.

The law generally protects the confidentiality of communications with clergy like 

those of Kendrick to the elders here. Under the Child Abuse and Neglect Reporting Act 

(Pen. Code, § 11164, et seq.) clergy members such as a minister or similar functionary of 

a church or recognized denomination must report suspected child sexual abuse to law 

enforcement or a specified county agency. (Pen. Code, §§ 11165, 11165.6, 11165.7, subd. 

(a)(32), 11165.9, 11166, subd. (a).) However, this obligation does not arise when the 

clergy member is informed of the abuse during a “penitential communication,” which is 

defined to mean “a communication, intended to be in confidence, including, but not 
16

limited to, a sacramental confession, made to a clergy member who, in the course of the 

discipline or practice of his or her church, denomination, or organization, is authorized or 

accustomed to hear those communications, and under the discipline, tenets, customs, or 

practices of his or her church, denomination or organization, has a duty to keep those 

communications secret.” (Pen. Code, § 11166, subds. (a), (d)(1).)

Similarly, clergy and penitents each have a privilege not to testify about penitential 

communications. (Evid. Code, §§ 1032, 1033, 1034.) “ ‘The priest-penitent privilege 

recognizes the human need to disclose to a spiritual counselor, in total and absolute 

confidence, what are believed to be flawed acts or thoughts and to receive priestly 

consolation and guidance in return.’ ” (Roman Catholic Archbishop of Los Angeles v. Los 

Angeles Superior Court (2005) 131 Cal.App.4th 417, 443.) It has been argued that “the 

humanistic case for this privilege is stronger than the corresponding case for any other 

privilege. A person’s religious beliefs lie at the core of the decisional autonomy needed 

to develop his or her life plan. In a philosophic sense, the person’s chosen religious 

beliefs are arguably his or her most important life preferences.” (Imwinkelried, The New 

Wigmore, Evidentiary Privileges (2nd.ed. 2010) § 6.2.3.b, p. 529.) The treatise observes 

that the United States Supreme Court has recognized “a constitutional ‘right to believe . . 

. whatever religious doctrine one desires,’ ‘according to the dictates of his own 

conscience,’ ” and continues: “If the person has a constitutional right to independence in 

making religious choices, the recognition of an evidentiary privilege is an apt means of 

protecting that autonomy. If any type of relationship deserves the protection of an 

enclave shored up with an evidentiary privilege, it is a consultative relationship dealing 

with this kind of choice.” (Id. at p. 531.)

Admittedly, neither mandatory reporting to the government nor evidentiary 

privilege control in this case. The privilege for penitential communications does not 

apply unless the communication is made “in the presence of no third person so far as the 

penitent is aware,” a condition not satisfied at the Kendrick family meeting with the 

Congregation elders. (See Roman Catholic Archbishop of Los Angeles v. Los Angeles 

Superior Court, supra, 131 Cal.App.4th at pp. 444–445 [no privilege for communications 
17

in church interventions with troubled priests because participants knew communications 

would likely be shared with more than one person].) Nor is it clear that Kendrick’s 

communication was “penitential” as it is commonly understood given the elders’ 

testimony that he said he touched his stepdaughter inadvertently. (Webster’s Collegiate 

Dict. (10th Ed. 2001) p. 856 [“penitence” means “sorrow for sins or faults”].) 

However, the public policy to protect the confidentiality of penitential 

communications that underlies the privilege and reporting statutes militates strongly 

against imposition of the duty claimed here to inform congregations of such 

communications. When the clergy member privilege was codified in Evidence Code 

section 1034, the California Law Revision Commission commented: “The extent to 

which a clergyman should keep secret or reveal penitential communications is not an 

appropriate subject for legislation; the matter is better left to the discretion of the 

individual clergyman involved and the discipline of the religious body of which he is a 

member.” (7 Cal. Law Revision Com. (1965) p. 202.) Courts should likewise be wary to 

intrude in this realm.

Accordingly, we conclude that the elders of the Fremont Congregation had no duty 

to depart from Watchtower’s policy of confidentiality and warn the members of the 

Congregation that Kendrick had molested a child. Since that “secrecy policy” was the 

only basis for the punitive damages assessed against Watchtower, the punitive damage 

award must be reversed.3

(2) Failure to Warn Conti’s Parents

Congregation elders testified that they monitored Kendrick after learning that he 

had sexually abused a child, and would have disclosed his prior molestation to the parents 

of any child toward whom his behavior was inappropriate. In jury argument, Conti’s 

 

3

In view of this conclusion, we need not reach Watchtower’s arguments that the 

punitive damage award was not supported by substantial evidence, and was excessive as 

a matter of law. We also need not reach Watchtower’s contention that imposition of a 

duty to warn the Congregation would unconstitutionally require the jury to assess the 

propriety of the church’s religious beliefs. 
18

counsel asked, “Did they really watch this guy like a hawk?” Conti and Congregation 

member Martinez testified that, at Kingdom Hall, Kendrick hugged Conti repeatedly, put 

his arm around her, held hands with her, had her sit on his lap, and “looked at her 

inappropriately”—the sort of behavior the elders said they were watching for, and if they 

had seen would have caused them to warn Conti’s parents about Kendrick. Thus, if the 

elders had a duty to watch over Kendrick that included warning the parents of any child 

his actions might appear to threaten, there was substantial evidence from which to find 

that they breached the duty in Conti’s case. However, we conclude that the elders had no 

such legal duty.

The reasons for our conclusion are largely the same as those that led us to reject 

the alleged duty to warn the Congregation about Kendrick. There was no special 

relationship between the church and all of the children in the Congregation simply 

because they were members of the church. Nor did the church have a special relationship 

with Kendrick, for purposes of a duty to monitor his behavior toward children, by virtue 

of control over his conduct with them. As for the Rowland factors, it would place an 

intolerably great and uncertain burden on a church to require that it continuously monitor 

a member for inappropriate behavior, and attempt to gauge when that behavior justified a 

warning about possible harm to another member. Telling individual parents that a 

member had molested a child would also conflict with the public policy of confidentiality 

for penitential communications. While such a disclosure would do less immediate 

damage to that policy than an announcement to the entire congregation, it would be naïve 

to think that word of the molester’s behavior would not spread within the group.4

Nonetheless, the Congregation elders voluntarily undertook to watch Kendrick 

and, if necessary, warn individual parents about him, and the “negligent undertaking” 

doctrine, like the special relationship doctrine, is an exception to the “no duty to aid” rule. 

(Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 248-249.) Under the negligent 

 

4

Since we conclude that the Congregation had no duty to warn any of its members 

that Kendrick was a child molester, we need not reach defendants’ arguments that such a 

disclosure would have violated his rights to privacy and due process. 
19

undertaking doctrine, “a volunteer who, having no initial duty to do so, undertakes to 

provide protective services to another, will be found to have a duty to exercise due care in 

the performance of that undertaking if one of two conditions is met: either (a) the 

volunteer’s failure to exercise such care increases the risk of harm to the other person, or 

(b) the other person reasonably relies upon the volunteer’s undertaking and suffers injury 

as a result.” (Id. at p. 249.) Neither of those conditions for liability is met here. Nineyear-old Conti was not relying on a church undertaking, and any lack of due care by the 

elders in monitoring Kendrick’s interactions with children did not increase the risk of 

harm to her, it only failed to reduce that risk.

Therefore, defendants cannot be held liable for negligent failure by the elders to 

notice Kendrick’s behavior with Conti and warn her parents that he posed a danger. 

C. Failure to Limit and Supervise Kendrick’s Field Service

Conti’s case demonstrates the obvious threat that child molesters pose to children 

in a congregation when they perform field service. They are also a threat to children in 

the community when they engage in that activity. The prospect of children opening their 

doors to proselytizing child molesters is frightening. To avoid the risks posed by having 

child molesters in field service, Watchtower’s asserted policy was to prohibit them from 

doing the service alone or with children. Watchtower has not disclaimed a duty to 

impose those restrictions, and could not plausibly do so since the restrictions were a 

professed policy it had adopted for very good reasons.

5

However, the jury could conclude from the testimony of Watchtower official 

Shuster, quoted above in footnote 2, that Watchtower in fact had no such policy. When 

Shuster could not identify any documentation of that alleged policy, he abandoned any 

suggestion that Watchtower had uniform, church-wide rules on field service by child 

 

5 Watchtower arguably had a duty to altogether preclude field service by known 

child molesters. Evidence in Conti’s case suggested that a determined molester could 

easily circumvent Watchtower’s professed rules. According to her testimony, Kendrick 

was repeatedly able to isolate her from other congregants in the field. However, Conti

has not argued that Watchtower’s asserted policy was negligent, and we need not reach 

that issue.
20

molesters, and said that the policy was “specific to each individual situation.” He said 

that Watchtower dealt with child molesters on a case-by-case basis, with letters of 

instruction to the elders of the molester’s congregation.

Even if Watchtower had a policy of preventing known child molesters from 

performing field service alone or with children, there is no evidence that Watchtower did 

anything to implement that policy in Kendrick’s case. Elder Abrahamson testified that 

Watchtower, not the Congregation, determined how matters such as the one involving 

Kendrick were handled. (Fn. 1, supra.) Shuster said that such matters were addressed by 

Watchtower through letters of instruction to the elders of individual congregations, but no 

such letter was produced in this case. Insofar as it appears from the evidence, 

Watchtower placed no limits whatsoever on Kendrick’s field service.

Moreover, if Watchtower policy was to prevent a child molester from performing 

field service alone or with children, and even if that policy was communicated to the 

Fremont Congregation elders, substantial evidence was presented that the elders failed to 

see that the policy was carried out in Kendrick’s case. Conti and Congregant Martinez 

testified that Kendrick and Conti performed field service together on multiple occasions. 

Conti described how Kendrick would separate her from field service groups, take her to 

his home, molest her, and then take her back to Kingdom Hall or the service group. The 

jury could find from this evidence that the elders were negligent in failing to supervise 

Kendrick’s field service.

In this respect, Conti’s case is similar to Juarez v. Boy Scouts of America, Inc.

(2000) 81 Cal.App.4th 377 (Juarez). In Juarez, the plaintiff was repeatedly molested by 

a scoutmaster “during officially sanctioned scouting events, such as overnight camping 

trips. . . .” (Id. at p. 385.) Before the molestations occurred, the Boy Scouts had 

identified child sexual abuse as a serious problem, and had developed “a comprehensive 

‘Youth Protection Program’ ” designed to prevent it. (Id. at p. 398.) The program 

included guidelines prohibiting an adult from sleeping in a tent with an unrelated scout, 

and requiring that two adults be present at any scouting activity. (Id. at p. 400.) The 

offending scoutmaster broke these rules, and the other scoutmaster of the troop said that 
21

he was never informed of them. (Ibid.) The plaintiff argued that the Boy Scouts had a 

duty to take reasonable measures to protect him from the molestations, and that they 

breached this duty because, among other things, they failed to implement their child 

protection policies in his case. (Id. at pp. 385, 400.) The court reversed a summary 

judgment for the Boy Scouts, finding that a duty was owed under the special relationship 

doctrine and the Rowland factors, and that there were triable issues of fact as to whether 

the duty was breached. (Id. at pp. 400–413.)

We likewise conclude under the special relationship doctrine and the Rowland

factors that defendants had a legal duty to exercise due care to prevent Conti from being 

molested during her church-sponsored field service. They could be found to have 

breached that duty by failing to implement Watchtower’s proclaimed limitations on field 

service by child molesters like Kendrick.

For purposes of the special relationship doctrine, defendants exerted control over 

Conti and Kendrick’s field service in several ways. Watchtower determined that child 

molesters like Kendrick remained eligible to perform field service, and thus presumably 

could have banned him from that activity had it chosen to do so. The testimony showed 

that the Congregation determined when, where, and with whom field service was to be 

conducted. The members went to group meetings scheduled by the elders where partners 

and the areas of service were assigned. Elder Abrahamson testified that he controlled 

where the members went so that neighborhoods would not be inundated with 

proselytizing. Abrahamson said that a single male was never assigned to do field service 

with a single female, and that children were never partnered with adults other than their 

parents. Elder Clark said that Kendrick was not assigned to do field service with a child, 

and characterized any such assignment as “suicidal” for the elders. But Conti and 

Martinez testified that Conti and Kendrick often ended up in field service together. It 

could be reasonably inferred from this testimony that, even if Conti and Kendrick were 

never partnered together by the elders, the elders facilitated his access to her by putting 

them in the same group from which partners were assigned, and sending them out with 

the group to the same neighborhood. Most importantly, the Congregation had the ability 
22

to control Kendrick’s access to children in the field by keeping an adult with him at all 

times as required by Watchtower’s professed policy.

The Fremont Congregation states in its briefs that field service is “a personal 

ministry, not a required congregation function or activity,” and that Conti “presented no 

evidence that [defendants] had the ability to control when, or even if, a congregation 

member will decide to engage in their door-to-door ministry. Preaching from door-todoor is an activity that individual Jehovah’s Witnesses only engage in when they feel 

motivated to speak about God.” Even if the Congregation could not require field service, 

the evidence established that, when members wanted to do field service, Watchtower 

determined whether they were eligible and the Congregation controlled the manner in 

which the service was performed.

Watchtower writes in its briefing: “[Conti] . . . testified that Kendrick sexually 

abused her at his home after field service activity . . . . During closing argument, 

[Conti’s] counsel incorrectly suggested to the jury that plaintiff was abused by Kendrick 

during field service. . . . The record demonstrates, however, that [Conti] never testified to 

being molested by Kendrick during field service.” (Italics in original.) But, as we have 

said, Conti testified that Kendrick molested her while they were supposed to be 

performing field service, which to us means “during” field service. If Watchtower’s point 

is that the molestations occurred at his home, rather than in “the field,” the distinction is 

immaterial. While the Congregation may not have been able to police Kendrick’s 

behavior after scheduled field service was over, it could have controlled his access to 

Conti during the field service.

For these reasons, the facts here are distinguishable from those in Roman Catholic 

Bishop, supra, 42 Cal.App.4th 1556, on which defendants rely, where summary judgment 

was affirmed for the church in a suit based on molestation of a minor by a priest. The 

court rejected the victim’s claim that the church “ ‘entrusted [her ]to [the priest’s] care.’ ” 

(Id. at p. 1567.) There were “no specific allegations or facts the church somehow placed 

[the victim] in [the priest’s] actual custody or control. Rather, the various police 

reports . . . indicated nearly all of the contact [the victim] had with [the priest] occurred 
23

when [the priest] took [her] from her home to various public places and hotels. [The 

victim] did not attend a church school, where an affirmative duty to protect students may 

exist.” (Ibid.) Here, Conti was harmed during a church-sponsored activity, and 

defendants’ control over that activity placed them in special relationships with Kendrick 

and Conti thus requiring them to take reasonable steps to prevent the harm from 

occurring.

The Rowland factors point to the same conclusion. It is foreseeable that a child 

molester will reoffend, and the risk is heightened when the molester is put in a position, 

as Kendrick was here, to be alone with a child. Defendants will not be heavily burdened 

by a duty to take reasonable care to ensure that molesters are accompanied by another 

adult, and no children, in the field. Defendants cannot claim that imposition of this duty 

would be unduly burdensome when it was Watchtower’s avowed policy. Moreover, 

recognition of a duty of reasonable care in the supervision of known child molesters in 

the field furthers the policy of preventing future harm without affecting the 

confidentiality of penitential communications.

We therefore conclude that defendants had a duty to use reasonable care to restrict

and supervise Kendrick’s field service to prevent him from harming children in the 

community and in the Congregation. Conti’s testimony provided substantial evidence 

that defendants breached this duty. 

D. Jury Instructions

(1) Duty to Protect Conti from Harm

Over defense objection, the court instructed the jury that it could consider the

“absence of any warning” in deciding whether defendants took reasonable measures to 

protect Conti from being molested by Kendrick. In the context of this trial, in which such 

heavy emphasis was placed on the failure to give a warning—which we have concluded 

defendants were under no duty to give—this instruction was misleading to the extent it 
24

could be misunderstood to indicate that liability could be predicated on the failure to 

warn.

6

Conti argues that the error was waived. But, we cannot agree. Defendants argued 

throughout the case that they had no duty to take any action whatsoever to protect Conti

from being molested by Kendrick, an argument that subsumed objections to any 

instruction permitting a finding of liability for either a failure to warn or supervise. Thus, 

there was no waiver. (See also Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 

7 [no objection at trial required to challenge erroneous instruction on appeal].) 

“Instructional error in a civil case is prejudicial ‘where it seems probable’ that the 

error ‘prejudicially affected the verdict.’ ” (Soule v. General Motors Corp. (1994) 8 

Cal.4th 548, 580 (Soule).) Relevant considerations include: “(1) the state of the 

evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) 

any indication by the jury that it was misled.” (Id. at pp. 580–581.)

As for the state of the evidence and as we have said, there was substantial 

evidence to support a finding that the Congregation failed to take reasonable precautions

to ensure that Kendrick was accompanied by an adult during field service, and did not 

end up alone with Conti during that activity. As for the effect of other instructions, the 

duty instruction did not tell the jury that the absence of any warning was the only relevant 

factor for its consideration. The instruction stated broadly that the jury could also 

consider defendants’ efforts on sex abuse education and prevention, and “such other facts 

and circumstances contained in the evidentiary record here as to the presence or absence 

of protective measures.” 

As for the effect of counsel’s arguments, Conti’s jury arguments emphasized the 

failure to warn Congregation members that Kendrick had molested a child, consistent 

with what her counsel described as Watchtower’s “policy of secrecy which allows for an 

 

6

This is not to say that whether a warning was given will necessarily be irrelevant 

in all cases. For example, if the elders had warned the Congregation or Conti’s parents 

that Kendrick had molested a child, they would undoubtedly cite the warning in defense 

of any claim that they failed to take adequate precautions, even though the law did not 

require that the warning be given.
25

identified child sex offender to strike again.” In his opening statement, counsel argued: 

“The governing body, through this policy, had made a determination that its own needs 

would be placed above protection of children and [showed] an indifference to children 

like [Conti] who were placed at risk by the presence of known sexual abusers within the 

congregations and the secrecy that surrounded it. [¶] That is what this case is about.” In 

closing argument, counsel reiterated “we are here” because a “policy that keeps secret 

known child molesters in the congregations is wrong and needs to be changed.” 

However, Conti’s arguments were not confined to failure to warn. Her counsel 

argued that field service was where Kendrick “got the best opportunity to abuse her. 

[¶] Now, that is actually related to the Jehovah’s Witnesses because field service is what 

they do.” Counsel argued further that defendants “didn’t restrict Mr. Kendrick in any 

way that was meaningful. [¶] He is still a minister. He is still Brother Kendrick. [¶] He is 

still a member in good standing of the congregation. [¶] He is still sitting or sleeping in 

the back row or whatever it was of the Kingdom Hall there with children and adults all 

present. [¶] He is still a baptized publisher going out in the neighborhoods and collecting 

and spreading the Jehovah’s Witnesses message. [¶] He is doing all of that with children. 

[¶] Now we heard from Mr. Shuster that there is a policy. ‘No, he would never have been 

allowed to go out into field service with a child. That’s our policy.’ And when I say, 

‘Okay, well can I see it?’ [¶] No policy produced.” 

It is apparent from the punitive damage award against Watchtower that the jury 

was misled by the failure to warn theory to a certain extent. We note also that the jury’s 

allocation of fault—27 percent to Watchtower and only 13 percent to the Congregation—

in apportioning Conti’s noneconomic damages would be inconsistent with liability 

associated with field service if the only basis for that liability was failure to supervise 

Kendrick in the field. Our discussion of field service liability has focused primarily on 

that failure, and the Congregation, not Watchtower, was responsible for it. However, as 

we have explained, there were also grounds to hold Watchtower independently and 

primarily liable for negligence connected with field service. Watchtower, not the 

Congregation, dictated the conditions under which field service by child molesters was 
26

permissible. The jury could have found that Watchtower falsely claimed to have a policy 

that prevented child molesters from performing field service alone or with children, or, 

even if it had that policy, it did not impose the policy on the Congregation or Kendrick. 

Therefore, weighing the Soule factors, we do not find it reasonably probable that 

the compensatory damages verdict would have been different if the warning instruction 

had not been given.

(2) Allocation of Fault to Non-Parties

Defendants contend that the court erred in denying their request to have the jury 

consider assigning some responsibility for Conti’s injury to entities and individuals who 

are not parties to the litigation. We disagree. Defendants argue that, if the Congregation 

had a duty to warn the members that Kendrick had molested a child, then the police, the 

child welfare agency, and the district attorney who responded to the report of that 

molestation also had that duty because they “all had information [about the incident] 

superior to that possessed by Fremont Congregation elders.” But defendants did not have 

the duty to warn on which this argument is predicated. Defendants contend that Conti’s 

parents could be found at least partially responsible for the harm she suffered because 

they were negligent in supervising her and entrusting her to Kendrick’s care. However, 

the court properly refused to allow attribution of fault to Conti’s parents given the 

absence of any evidence they had reason to know Kendrick was a threat to her. (See 

Chaney v. Superior Court (1995) 39 Cal.App.4th 152, 156–158 [parent must have actual 

knowledge of threat of molestation to be liable for negligent supervision of the victim; 

such knowledge was not established by perpetrator’s allegedly “excessive” gift-giving 

and attention paid to minor].) 

III. DISPOSITION

The judgment against defendants on the negligence count is affirmed. The 

judgment against Watchtower on the cause of action for punitive damages is reversed 

with directions to enter judgment for Watchtower on punitive damages. The parties are to 

bear their own costs on appeal.
27

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Jenkins, J.
28

Trial Court: Alameda County Superior Court

Trial Judge: Robert D. McGuiness

Counsel:

Watchtower Bible & Tract Society of New York, Mark F. Moreno; Boudreau Williams, 

Jon R. Williams; Jackson Lewis, Robert J. Schnack, for Defendant and Appellant 

Watchtower Bible & Tract Society of New York.

The McCabe Law Firm, James M. McCabe for Defendant and Appellant Fremont 

California Congregation of Jehovah’s witnesses, North Unit.

Furtado, Jaspovice, & Simons, Richard J. Simons, Kelly I. Kraetsch for Plaintiff and 

Respondent, Candace Conti.