N.K., a pseudonymous appellant, filed negligence claims against the Church of Jesus Christ of Latter-Day Saints and the Boy Scouts of America (BSA) after being molested by a volunteer scout leader in 1977. The trial court dismissed the claims, ruling the defendants had no duty to protect N.K. since they were unaware of any danger. The appellate court reversed this decision regarding the church, determining that a protective relationship existed, creating a duty to take reasonable precautions against foreseeable risks such as child sex abuse, regardless of prior knowledge of the volunteer's misconduct. The court also noted evidence that church officials were aware of the volunteer's dangerous tendencies before he left town. Additionally, the appellate court overturned restrictions on N.K.’s discovery from the church. In contrast, the court affirmed the dismissal of claims against the scouting defendants, stating there was no special relationship between them and N.K. or the volunteer. The facts presented were viewed favorably towards N.K. for the summary judgment review.
Hall volunteered with a scouting troop and was accepted by the bishopric, assuming significant responsibilities despite not being officially registered with the Boy Scouts of America (BSA). He was recognized as a scoutmaster by troop members and held regular meetings and camping trips. N.K. alleges that Hall began sexually molesting him shortly after they met in the summer of 1977, with incidents occurring at various locations, including N.K.'s home, Hall's apartment, and during scout events. N.K. reported that Hall molested him 20 to 30 times and also targeted at least two other scouts. After Worthy learned of the abuse from her son, she reported it to the bishop, who advised against contacting the police and attempted to reach Hall, who then left town. N.K. later filed a complaint in 2009 against BSA, the Pacific Harbors Council, and two church entities, alleging they failed to protect him from Hall's actions. He claimed the defendants neglected their duty by not investigating Hall’s background, allowing unsupervised interactions, and failing to educate about sexual abuse risks. In 2011, the court dismissed all defendants on the grounds of lack of duty, which N.K. is appealing, arguing that a legal duty to protect arises from special relationships or knowledge of risk. The defendants argue they had no prior knowledge of Hall being a threat.
The requirement for prior specific knowledge of a tortfeasor's dangerous tendencies is applicable only to the first type of special relationship as identified in Niece, and not to the second. In the context of a parole officer and parolee relationship, the officer is obligated to control the parolee to prevent harm if they possess information indicating the parolee may cause bodily harm. The duty arising from a protective relationship requires only awareness of the general field of danger.
In McLeod, the court allowed a lawsuit against the school district to proceed after a student was raped in a dark, unsupervised area, despite school officials lacking knowledge of the older students’ dangerous propensities. The court concluded that the potential for harm in that location fell within a general field of danger that should have been anticipated by the school district. Similar principles apply in Niece, where a vulnerable elderly patient was sexually assaulted by a staff member in a group home. The court determined that the group home could be liable as long as the risk of sexual assault was within a foreseeable range of dangers.
The defendants referenced the Supreme Court's ruling in C.J.C. v. Corporation of Catholic Bishop of Yakima, which involved a church deacon who had a history of molestation. The court found that the trial court erred in dismissing the case for lack of duty, emphasizing four critical factors: the special relationships involved and the church's knowledge of the risk. The defendants argue that these factors must all be proven to establish duty. However, the first two factors concerning the organization's relationship with the tortfeasor and the victims can independently establish a duty. Generally, a duty exists to prevent harm from a third party only when a special relationship exists with either the third party or the foreseeable victim.
The court highlighted that, in the C.J.C. case, the church had actual notice of the deacon's status as a child molester, particularly because the molestation incidents occurred in the deacon's home while babysitting, rather than on church premises or during church activities. The defendants did not endorse the deacon as a babysitter, distinguishing this case from precedents like McLeod and Niece, where the defendants held custody of the victim during the abuse. The four factors establishing a duty from the C.J.C. case apply to situations where abuse occurs outside the church's custody and care.
The C.J.C. court recognized that a church's responsibilities towards children are akin to those of a school during church activities when children are under the church’s custody. Churches, like schools, are expected to exercise reasonable care in selecting and supervising their personnel to protect vulnerable individuals. The principles from Niece and McLeod remain valid and consistent with C.J.C., indicating that proof of prior specific knowledge about a threat is not necessary to establish a duty arising from a protective relationship.
Foreseeability limits this duty, with the church arguing that the sexual abuse by an adult volunteer was unforeseeable. Foreseeability is typically a jury question unless the circumstances are exceptionally improbable. The court noted that sexual assaults are legally foreseeable if they fall within a general category of anticipated dangers. Citing Niece, the court emphasized that prior incidents of abuse and existing policies can establish foreseeability. The church claimed insufficient factors for foreseeability in this case, contrasting it with the Boy Scouts of America (BSA), which has long documented sexual abuse allegations. The extent of the LDS church's knowledge regarding such allegations remains less clear.
The record indicates that the church was not informed about the history of molestation in scouting known to the Boy Scouts of America (BSA). A BSA employee stated that parents and troop committees were not made aware of the existence of "perversion files," and Scoutmaster Danford testified that he received no training regarding sexual abuse risks. The church argues that the lack of such evidence undermines N.K.'s claim against it. The potential danger identified is that scouts could be sexually abused if a newly arrived adult was allowed to supervise them alone in isolated settings. This risk is deemed foreseeable, regardless of the church's knowledge of specific past incidents. Evidence suggests that the church should have reasonably anticipated the danger of sexual abuse by adult volunteers, particularly since BSA had advised chartered organizations to implement a "two deep" leadership policy by 1977 to mitigate such risks.
A church witness confirmed that the church adhered to a policy of having two adults present at scouting events, which, while presented as ensuring troop leadership, could also be interpreted as a measure to prevent sexual abuse. The determination of whether a duty exists in this case hinges on whether the defendants had a special relationship with the boys in Troop 155 that required them to provide protection. Legal duty to protect arises when one party is entrusted with another's well-being, akin to the relationship between a school and its students. The church’s involvement with Troop 155—including selecting scoutmasters, encouraging participation, and providing funding—establishes a similar protective relationship. N.K.'s mother allowed her son to spend time alone with Hall due to the church's endorsement of him as a trustworthy youth leader. N.K. testified that he was molested by Hall in isolated settings, including the church-owned scouting cabin.
The scouting cabin and related activities provided opportunities for Hall to isolate his victims, similar to the scenario in McLeod involving abuse in a secluded location. The church attempted to frame Hall's actions as those of a trusted family friend rather than a failure of reasonable care, noting that initial abuse incidents occurred in N.K.'s home. If abuse had only occurred at home, the situation would align more closely with Funkhouser, where establishing a special relationship would require proof of the church's knowledge of Hall's misconduct. However, since Hall abused N.K. during scout activities, the church had a responsibility to exercise reasonable care as it was acting in a parental role during those events. N.K.'s parents’ lack of awareness of Hall as a threat does not absolve the church of this duty. The church's endorsement of Hall as a troop leader contributed to the parents’ trust.
In contrast, the BSA and Pacific Harbors Council did not hold a custodial responsibility for troop members. Their relationship with N.K. was not comparable to that between a school and its students. N.K. argued that BSA and the council had a duty to protect based on their control over the program and their ability to exclude participants. Evidence showed that both organizations provided training, screened volunteers, and had policies to reject unfit individuals. Despite BSA's comprehensive knowledge of sexual abuse incidents in scouting, the existence of a warning system and exclusion rights alone do not create a protective relationship without a custodial connection. Without such a relationship, BSA and the Pacific Harbors Council were not positioned to protect N.K. from harm, leading to the conclusion that they did not have a protective relationship with him.
N.K. claims that all defendants owed him a duty of care due to a special relationship with Hall, which necessitates awareness of Hall's dangerous tendencies. However, no evidence suggests that the Boy Scouts of America (BSA) or Pacific Harbors Council were aware of Hall, thereby negating any special relationship or duty to control Hall's conduct. In contrast, the church demonstrated awareness of Hall's dangerous propensities. Bishop Gordon Anderson acknowledged receiving a report of abuse involving Hall, which he investigated, but he asserted that he only learned of serious allegations just before Hall departed in late August or early September 1977. A conflicting report from a parent, Worthy, stated that Hall had molested her son during overnight visits, which occurred after the initial report to the bishop. This discrepancy suggests that the bishop received multiple reports, indicating a potential delay in action regarding Hall's misconduct.
Additionally, Daniel Cowles, a former scout, asserted that he informed a member of the bishopric about Hall's sexual misconduct prior to a May 1977 Camporee, which contradicts the church's timeline. When Cowles later retracted the timing of his report, the church contended this was a clarification, but the two accounts are inconsistent. A jury could reasonably favor Cowles' first declaration over the second, leading to a genuine dispute regarding the church's awareness of Hall's danger to children. N.K. also argues that the registered scoutmaster, Danford, was negligent for allowing Hall to act as a de facto scoutmaster, implicating the scouting defendants in vicarious liability due to Danford's authority to exclude unfit participants from scouting activities.
Vicarious liability differs from duty arising from a special relationship, with N.K.'s opening brief mentioning 'agent' but only referencing agency law in the reply brief, which is not considered since it was introduced late. Regarding discovery, N.K. argues that the trial court's limitations on obtaining information from the church were overly restrictive, as Washington courts allow broad discovery rights. An appellate court reviews such orders for abuse of discretion. N.K. requested unprivileged information related to the church's knowledge and management of prior child sex abuse allegations dating back to 1950, but the court restricted this to knowledge about Hall specifically, deeming broader context irrelevant. This decision is seen as an analytical error, undermining the discovery orders on appeal. N.K. sought to compel testimony on multiple topics about allegations of child sexual abuse within the church or scouting from 1975 to 1977, but the church resisted, arguing relevance based on Washington negligence law, which requires prior notice of misconduct by Hall. The court denied most of N.K.'s motion, agreeing that relevant evidence must pertain specifically to Hall. However, the court's limitation was erroneous, as knowledge of Hall's specific actions is not necessary to establish a duty from the church's protective relationship with N.K.; rather, the broader context of potential danger should have been considered. The church claimed ignorance of any risks associated with unsupervised adult volunteers, but N.K.'s requested information is crucial for determining whether the church could have reasonably anticipated the danger and whether it took adequate precautions to protect N.K.
The temporal limitation on discovery regarding the church's knowledge of child sex abuse is overturned, allowing for the inclusion of records beyond one or two years prior to Hall's arrival in Shelton. Church witness Paul Rytting revealed records from the risk management division related to sexual abuse incidents from 1975-1977. The church's argument to restrict discovery of these records, claiming they pertained to litigation post-1977, is rejected. Relevant information could extend to allegations made later, such as a 2005 claim related to a 1976 incident.
The trial court also incorrectly upheld the church's assertion that inquiries about its knowledge of abuse are protected under clergy-penitent privilege. Discovery privileges must be narrowly interpreted, as established in Trammel v. U.S. The church's reliance on Jane Doe v. Corp. of President of Church of Jesus Christ of Latter-Day Saints is inappropriate; that case addressed the confidentiality of disciplinary council proceedings, not all information within disciplinary files. The church's disciplinary files likely include non-privileged information about incidents leading to disciplinary actions, as demonstrated by testimony from Gregory Dodge, manager of confidential records for the LDS church. In some instances, councils may be convened based on accusations rather than confessions, as exemplified in the Jane Doe case.
Disciplinary files that include information on similar accusations or complaints must be disclosed if such information is used to initiate an investigation or disciplinary process, regardless of its storage in a file containing privileged confessions. The church maintains an "open-door policy" for receiving abuse reports from congregation members and encourages reporting crimes to the police. The church's guidelines dictate that members should be interviewed before any church court is convened, and if they deny the accusations, further investigation is mandated. This indicates the potential existence of non-privileged documents relevant to the request for information about allegations and investigations.
The church argues that it cannot determine the contents of disciplinary files because they are solely for documenting the ecclesiastical relationship of members with the church. Access to these files is restricted to individuals with ecclesiastical purposes, such as bishops. The church contends that any search for non-privileged information would violate the sanctity of privileged communications, and no one has examined the files to identify responsive information. The church's stance is likened to an argument previously rejected by the Supreme Court, which stated that a privilege cannot obstruct the discovery of internally generated information. Allowing the church's position would effectively shield all reports and correspondence related to accusations of sexual abuse or other crimes from discovery, maintaining them within privileged disciplinary files.
An effective method must be established for the church to review disciplinary files and extract nonprivileged information. The church's claim that the First Amendment protects nonprivileged information in these files is rejected, as the First Amendment does not give churches complete immunity from tortious conduct. Liability must be based on secular actions, not interpretations of church doctrine or beliefs. This principle should guide the trial court in reevaluating discovery orders in this case and addressing new discovery issues on remand. The summary judgment in favor of BSA and Pacific Harbors Council is affirmed, while the summary judgment for the church defendants is reversed. Additionally, protective orders and denials regarding discovery requests from the church are reversed and remanded for further consideration in line with this opinion.
