When is a National Organization Responsible for the Sexual Abuse of a Minor that Occurs at a Local Chapter in Tennessee?

Analysis:  A very interesting Tennessee Court of Appeals decision was recently decided on an issue that often comes up in sexual abuse cases.  The question is whether a national organization or entity can be held responsible for actions that occurred by the local organization or their members or volunteers.  The Tennessee Court of Appeals decision of Ms. B., individually and on behalf of minor child, John Doe, “N” v. Boys and Girls Club of Middle Tennessee, et al, No. M-2013-00812-COA-R3-CV, 2014 WL 890892 (Tenn. Ct. App. 2014) involved a lawsuit that was filed for the alleged sexual abuse of a minor child by a volunteer associated with the local Boys and Girls Club of Middle Tennessee.  The national entity, Boys and Girls Club of America, was also sued in this case.  The trial court granted the national entity’s motion for summary judgment and that ruling was appealed to the Tennessee Court of Appeals. 

The question before the Tennessee Court of Appeals was whether the national Boys and Girls Club of America had a legal responsibility to the minor child in this context.  The court noted that it is well settled in Tennessee that “there is no duty to protect others against risks of harm by third parties.”  Ms. B. at 4.  However, the court went on to state that, “an exception arises, however, when a special relationship exists between the defendant and either the person at risk or the actor who is the source of the risk or danger.”  Ms. B. at 4.  Further, “[i]f an individual stands in a special relationship to another individual who is the source of the danger or who is foreseeably at risk from the danger, then the individual assumes an affirmative duty to exercise reasonable care to either control the danger or protect the vulnerable.”  Ms. B. at 4. 

The Tennessee Court of Appeals in this case framed the specific issue in dispute as follows:

The question of whether a duty should be imposed on BBBSA to take reasonable measures to prevent sexual abuse of children participating in programs offered by BBBSMT, its affiliate in Middle Tennessee, turns on whether BBBSA possesses the means and ability to control the affiliate's operations.”  Ms. B. at 6. 

The Court therefore conducted a fact specific inquiry to determine the extent of the “means and ability” to control the local organization.  The agreement between the national entity and the local entity stated that the national entity “does not control the day-to-day operations and affairs of” the local entity.  The national entity also asserted it had no “operational control” over how the Tennessee entity implemented their programs.  Ms. B. at 4.  The Tennessee Court of Appeals, however, found that the parameters of the agreement between the national entity and the local entity were not dispositive as to whether the national entity could potentially be held responsible for the sexual abuse of a minor in this context. Ms. B. at 6. 

Despite the fact that certain language in the agreements provides the local entity is subject to local control and not subject to the operational control of the national entity, there were other documents that made it clear the national entity exerted a significant amount of control.  The Court noted “read together in their entirety, the Agreement and Standards state that BBBSA will not control or administer affiliate programs, and then sets out, to a large extent, the manner in which the affiliates must operate and the practices which they are required to follow.” Ms. B. at 7.  Although there is broad sweeping language about the independence of the local entity, the document also provides a lot of specific requirements for the local entity that imply a much greater level of ability to control.

Ultimately, the Tennessee Court of Appeals found as follows in the key paragraph in the opinion:

The strong public policy of preventing sexual child abuse unambiguously expressed by our General Assembly, coupled with the foreseeability and gravity of harm, weigh heavily in favor of imposing a duty of care on BBBSA to supervise its affiliates so as to protect against sexual child abuse. As noted above, however, the duty to control the conduct of a third-party, in this case, BBBSMT, does not arise in the absence of “the means and ability to control the third party.” Id. (quoting Newton v. Tinsley, 970 S.W.2d 490, 492 (Tenn. Ct. App. 1997)). Regardless of the extent to which BBBSA chooses to exercise any right or ability to control its affiliates, BBBSA has failed to carry its burden in this case to affirmatively demonstrate that it did not possess the means and ability to control the acts of BBBSMT for the purposes of affirmatively negating Mother's claims of negligent supervision and screening of Mr. Arnold; negligent failure to monitor N; negligent failure to ensure a safe environment; and negligence in the failure to ensure that the match specialist assigned to N was complying with organizational policy and procedures.

As a result, just because a national entity attempts to draft contracts, standards, and agreements with local entities that disavow any “control”, “operational authority” or “liability” for any actions of the local entity, does not mean this will be upheld by the courts.  Many national organizations want to claim independence from the local entities so they cannot be sued when things go wrong, however, the national organizations do not, in fact, act like the local entities are truly independent.  This is true for religious organizations as well as non-religious organizations.  Obviously, every situation is different and involves a fact specific assessment that needs to be completed in each case, however, this case makes clear that a national entity cannot simply disavow by agreement their potential responsibility to monitor a local entity’s activity.  It is of note that this case specifically dealt with child sexual abuse allegations but I could certainly see this legal theory expanded to other types of cases in the future (for instance non-sexual abuse violence).