Predator in the Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious Organizations

I. INTRODUCTION With family members weeping audibly in the audience, a Utah jury found Aaron Marcos Montoya guilty of four counts of aggravated sexual abuse of a child.1 Montoya is a former bailiff at the Matheson Courthouse in Salt Lake City, Utah and served as a volunteer Sunday School teacher in his local congregation of The Church of Jesus Christ of Latter-day Saints (LDS Church).2 Most Sundays he taught a small group of five- and six-year-old children in his Sunday School class with his wife. However, one Sunday when his wife was unable to attend the class with him, Montoya molested several children, including one girl while she drew a picture of Jesus and then again while she prayed.3 As an individual, Montoya has been criminally prosecuted and faces potential civil liabilities for his actions. But as in many cases, his victims might look beyond the individual who committed the crime and seek damages from additional parties, including the church that utilized Montoya as a volunteer. Significantly, the context in which Montoya abused his victims raises important questions concerning whether the church he belongs to can be liable for his actions, whether the fact that he was acting in a volunteer capacity affects the church's potential liability, and whether the First Amendment limits a church's liability for the harms caused by volunteers. One potential source of recourse that victims of molestation and other tortious actions and their guardians may pursue is the tort of negligent hiring.4 This quickly expanding area of tort law consists of actions in which victims seek to impose liability on third-party employers for an employee's tortious or criminal acts; in this way, the tort of negligent hiring is similar to respondeat superior.5 However, in contrast with respondeat superior, an employer potentially may face liability for acts outside the scope of an employee's employment if, among other things, the employer had either actual or constructive knowledge that the employee was unfit for the employment.6 In spite of potential First Amendment bars concerning religious liberty and excessive entanglement,7 some courts have allowed victims of various offenses to pursue religious organizations for negligent hiring.8 This trend has become especially apparent in the wake of the clergy sexual abuse scandals that have rocked the Catholic Church in the United States over the past few years.9 As a result of these scandals, some courts have scrutinized churches' decisions concerning employment of clergy and nonclergy in church activities at unprecedented levels.10 In many cases, those courts have scrutinized the decisions of churches concerning employment in the context of the tort of negligent hiring, along with its sister actions of negligent retention and negligent supervision.11 In addition to issues arising in the context of the First Amendment, it is important to examine the circumstances under which institutions using volunteers may face liability as a result of the tortious activities of volunteers acting outside of the scope of their duties. Volunteers play an essential role in providing and performing services within American society. As former President Bill Clinton explained, "Service to one's community is an integral part of what it means to be an American."12 Individuals acting in volunteer capacities spend innumerable hours each year teaching, tutoring, and mentoring.13 However, some offenders have taken advantage of relaxed supervision within organizations utilizing volunteers to commit terrible offenses against children and others.14 In light of the essential role that volunteers play in American civil society and the potential that exists for harm to those that volunteer organizations seek to serve, it becomes very important to determine the duty that organizations employing volunteers owe to those receiving their services. Unless the duty owed in hiring volunteers is clear, those organizations using volunteers could face potentially smothering liability, which could derail their efforts to enrich lives. …