Category: Uncategorized

CRABAPPLE TREE TORTS

Trees have the uncanny ability in winter to stick their branches straight up and appear to need no trimming. But, in the spring, throw in a few leaves and those same branches bend, curve, and dance in the wind. Those branches that bend, curve and dance in the wind will smack roofs, twang power lines and wave at moving and stationary objects. Sidewalks that could be walked along for blocks are suddenly encroached by limbs.

In Kane v Bethany Community Church, Slip. Op. (Wash. App. 2017)(unpublished opinion) the crabapple tree on church property probably picked that very night in July (about 11pm) for its limb to obscure a stop sign. Of course, because such limbs on trees are a bit sneaky, it did not block the view of the stop sign from every angle on the street. A drunk driver with a blood alcohol of .116 ran the stop sign and injured the plaintiff, a moped pilot. In a deposition in the case brought against the church over the tree limb, the drunk driver admitted the crabapple limb might have obscured his vision. He could not under oath definitively state that it had.

The appellate court affirmed summary judgment, judgment without trial, awarded to the church by the trial court. “To say that the tree would have obscured the stop sign at the vantage point shown in a photograph is not inconsistent with, and does not overcome, [the drunk driver’s] testimony that he does not know why he failed to stop.”

The outcome in favor of the church is not the lesson that should be derived. The lesson is that church property should be inspected carefully, at least annually, and even something as minor as an errant crabapple tree limb should be mitigated, especially around public right of ways like streets and even church parking lot entrances and exits. The other lesson is the church liability policies should likewise be reviewed at least annually. However good these things are to do, in volunteer organizations like churches, and because the Pastor cannot be everywhere, they will not always be done or done effectively. In the case of tree limbs that move about especially in the wind, and that grow and change with the seasons, even a good inspection may not catch it.

THE LUCK OF THE DRAW

A church received $1,000,000 from its property insurer because of hurricane damage. At about the time the money was received, the church was faced with a sexual harassment claim. The church decided the money would be safer from the sexual harassment claimant if the money was held in the trust account of the church’s lawyer. It is unknown how the church thought putting the money out of sight in their lawyer’s trust account would protect it. As it turned out, the church feared the wrong person.

The lawyer for the church transferred the money from the lawyer’s trust account to another account which appeared to be owned by the lawyer. The lawyer spent the money on himself. The theft was discovered. The lawyer fled but was captured in another state and extradited. The lawyer was convicted and drew a prison sentence of fifteen years and disbarred. Like all wrongdoers, it sometimes seems, the lawyer was gone, dead or insolvent, and in this case two of three.

However, a portion of the million dollars was used by the lawyer to make payroll in his law firm. His non-partner associate was paid from the proceeds in his routine by-monthly paycheck. The non-partner associate somehow discovered or was told about the theft, or part of it, after the fact and had no control over the trust account. The non-partner associate did not immediately report it to the church but hoped another law firm engagement would domino and that money could be used to repay the church.

The court in First United Pentecostal Church v Parker, Slip. Op. (Tex. 2017) held that the these facts stated at least a claim for breach of fiduciary duty against the non-partner associate for failing to timely report the theft. The remedy would be disgorgement of any part of the proceeds received by the non-partner associate. At trial, the non-partner associate might have other defenses; it is likely the church will be accused of unclean hands in depositing the money in the lawyer’s trust account presumably to put it out of the reach of a possible victim of sexual harassment.

Also, while the church may have had sufficient property insurance, it seems likely the church believed it did not have coverage for a sexual harassment claim such that asset protection efforts, no matter how misplaced, to the church seemed justified. In any event, if the scheme was to hide assets, which is not necessarily clear from the court opinion, hiding them in a law firm trust account is not typically going to work and most lawyers would not be a party to it. It should also be noted that clients generally do not have the means to protect themselves from their own lawyer’s avarice.

THE LAW OF CHURCH TUG OF WAR

Finally, in my fourth decade of practice, the law of Tug of War has finally been set forth by a court.

The Plaintiff was a church member and came to a church event held in a park. John v St. Thomas Indian Orthodox Church, Inc., Slip Op. (PA Sup. 2017). The Plaintiff was married so we theorize he was an adult male. He got into a Tug of War game. The opinion of the court seemed to state this was part of the organized activity of the church event. The first game of Tug of War was mentioned, too, but not whether Plaintiff was victorious or whether he was an organizer, instigator, team captain or in the critical front or rear positions.

In the second game of Tug of War, either as a prank, a life lesson, or for some other reason (e.g., rope burns, unfair balance of the sides, sudden defeat, etc.), the team opposing the Plaintiff’s team suddenly dropped the rope and the Plaintiff’s team fell in a heap. Plaintiff suffered a “torn right ACL.” (The same injury happened to me in a church softball game in the ‘90s. I thought it was the result of age.) He required surgery and had other soft tissue injuries. The Plaintiff sued alleging that the person that called for the rope to be dropped was the Pastor.

The church asserted the defense of assumption of the risk. This defense typically applies to sports. Each sport has its “inherent risks” that participants knowingly encounter. The Plaintiff responded by claiming the call to drop the rope was a game changer that was not an anticipated risk. The Plaintiff claimed he had a reasonable expectation of how the Tug of War game was to be played. (Maybe the game is played differently in other places, but the winners I have witnessed almost always end up in a tangle on the ground after the defeated team is dragged across the line, through the mud, or through the water because the moment of victory is often sudden and the command to cease tugging has to be communicated to each of the completely focused victors, which with crowd noise is not always immediate. Ropes often break under the strain putting both teams on the ground in a heap.) Apparently, the appellate court members attended a Tug of War game or two.

“It cannot be disputed that falling down and colliding with other teammates are obvious and inherent risks of tug of war.” Opinion at 8. Finally, a statement of the law of Tug of War.

MUST OREGONIAN RELIGIOUS SCHOOLS IGNORE 1 CORINTHIANS 7?

In employment cases arising from religious schools, it often seems reasonable to ask if any background inquiry was made on prospective hiring candidates, especially teaching candidates? At a religious school, unlike a private commercial employer, hiring without knowing whether the past conduct of a new hire has been consistent with the religious school’s moral imperatives would seem counterproductive.

In Richardson v Northwest Christian University, Slip Op. (D. Oregon, Eugene Div., 2017), the federal trial court wrote a very interesting opinion concluding on the record before it that the church school fired a teacher based on “marital status discrimination” and allowed a disparate treatment / pretext basis for a sex / pregnancy discrimination claim. The teacher it was learned by the school was cohabitating with the other parent of an unborn child but the couple was not married. The school gave the teacher the choice to marry, or stop cohabitating, or be terminated. The teacher more or less rejected the first two choices and was terminated.

However, the court held that the case outcome was not determined by the ministerial exception or the ecclesiastical exception doctrine. Based on the record before the court, while the religious school’s employment manual seemed to refer generally to religious principles, the manual did not appear to spell them out (at least not sufficiently for a court in the federal 9th Circuit). That may explain the court’s conclusion. The teacher in question was an instructor of “exercise science.” The court found the teacher’s duties did not include “teaching scripture or praying with students.”

Prior to knowledge of the living arrangement or expected child, the school thought the teacher was unmarried. But, the school knew the teacher had two children. The school did not, insofar as it would seem from the court opinion, inquire as to whether the teacher was married or divorced. The lesson might be that while the inquiry might not have been made directly to the teacher at the application stage, a competent pre-hiring background investigation conducted under the appropriate written release would likely have revealed either a marriage or divorce, or both. Demanding personal references from others inside the religion of the church school regarding good moral character might provide notice of a variant life style. A religious school that can abide divorce, or children without marriage, may have a hard time at a later date trying to enforce its moral position as a religious school as to cohabitation of unmarried persons. (Even many churches have decided to tolerate divorce even in leadership because of its prevalence, so tolerating cohabitation may not be as big a leap as some would think.)

Also, a religious school that does not explicitly require, through employee manuals and contracts, its teachers to participate in religious education, prayer, or other on campus worship leadership may have created what an Oregonian court might consider a secular position inside the religious school.