Allen v. Zion Baptist Church of Braselton

• Decision Date: 11 July 2014
• Docket Number: No. A14A0079.,A14A0079.
• Court: Georgia Court of Appeals
• Parties: ALLEN et al. v. ZION BAPTIST CHURCH OF BRASELTON et al.

328 Ga.App. 208

761 S.E.2d 605

ALLEN et al.

v.ZION BAPTIST CHURCH OF BRASELTON et al.

No. A14A0079.

Court of Appeals of Georgia.

July 11, 2014.

Jeffrey R. Harris, Stephen Glenn Lowry, Savannah, Frederick Vonne Massey, Winder, Madeline Elizabeth McNeeley, for Appellant.

Carrie Lynn Christie, Courtney Marcelo Norton, Atlanta, for Appellee.

BRANCH, Judge.

On the afternoon of October 24, 2010, after a homecoming festival at Zion Baptist Church of Braselton (“Zion”), Joshua Humphrey sexually assaulted a 14–year–old boy he had met while volunteering with the church's youth group. After the boy's parents, the Allens, sued Zion and Humphrey, Zion moved for summary judgment, which the trial court granted. On appeal from this ruling, the Allens argue that genuine issues of material fact remain as to their claims that Zion negligently hired, retained, and supervised Humphrey ¹ and that Zion's spoliation of evidence also precludes a grant of summary judgment. Although we agree with the trial court's conclusion that Zion did not engage in spoliation, we also find that questions of fact remain as to the Allens' various other negligence claims. We therefore reverse the trial court's grant of summary judgment to Zion.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Walker v. Gwinnett Hosp. System, 263 Ga.App. 554, 555, 588 S.E.2d 441 (2003) (citations and punctuation omitted). A trial court's grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the non-movant. Ethridge v. Davis, 243 Ga.App. 11, 12, 530 S.E.2d 477 (2000).

Construed in favor of the Allens, the record shows that Zion's child protection policy, stated in the application given to aspiring volunteers, was that “all volunteers working with preschool, children or youth” were required to have maintained church membership for at least three months and to complete a membership class and an application, which included two reference forms and written consent to a background check. By early September 2010, Humphrey, who was 21 years old, began attending services at Zion. On Sunday, September 5, Humphrey turned in a visitor communication card indicating that he wanted to volunteer for the youth ministry. As a result, Zion youth pastor Jason Ellis invited Humphrey to observe the youth meeting on Wednesday, September 8. Humphrey attended that meeting as well as the Sunday services on September 12.

On Wednesday, September 15, 2010, Humphrey gave his completed volunteer application, including two references, to Ellis. The church's administrative assistant found Humphrey's application suspicious, felt that there was “something not right” about him, and communicated these concerns to Ellis. Ellis did not take any further action on Humphrey's application, however. ² After the September 15 youth meeting, the second attended by Humphrey, Ellis asked Humphrey to arrive early at the next meeting to assist with game night. At the game night, held on September 22, Humphrey handed out pizza, played catch football, ran laps around a makeshift trail, and took some boys to the weight room, with some of these activities taking place without any other adult present.

One of the two reference forms turned in by Humphrey bore a signature from Brandy Rowland, who later testified that she had declined to provide a reference for Humphrey, that she never filled out the reference form, and that her signature on the form was a forgery. Rowland averred that if the church had contacted her, which it did not, she would “never” have recommended Humphrey as a volunteer because she had “concerns that [Humphrey] may be a sexual predator.” At her deposition, Rowland specified that Humphrey became acquainted with Rowland's boyfriend while working at a McDonald's restaurant in Braselton, that Humphrey was a frequent visitor to her house, and that he paid special attention to her second son, who was four years old in 2010. Rowland testified that on one night that year when she, her boyfriend, two of her children, and Humphrey were all sleeping together in the same room, Humphrey, who was sleeping on the floor, repeatedly “grabb[ed]” or “hugg[ed]” the “feet” of her second son, who was also sleeping on the floor, in an effort to “pull” or “slide” the boy's body “down” toward Humphrey. Rowland testified that this happened “four or five times,” that Humphrey pretended to be asleep throughout, and that she repeatedly pulled her son away from Humphrey before pulling her son off the floor entirely and into bed with her. Although Rowland told her boyfriend that she did not want Humphrey “always around” her children, she never spoke to Humphrey about this nighttime incident, and did not bar him from spending time with her children in its aftermath.

As of October 2010, the 14–year–old victim had attended Wednesday night services at Zion three or four times as a guest of his friend D.H. Neither the victim nor any member of his family was a member at Zion, however. On one of his visits to Zion, the victim met Humphrey, describing him to his mother as a “cool” youth leader who liked the same video games the victim did. On Sunday, October 24, Zion held a fall festival that included food, children's games, and other activities. At around 2 p.m. that day, Humphrey called the victim and invited him to the festival. When the victim put his mother on the phone, Humphrey told her that he was a youth leader and asked if the victim could attend the festival. The victim's mother agreed; drove the boy and his friend J.C. to Zion, where adults and children were engaged in cleanup after the conclusion of the festival; and dropped the two boys off in the parking lot without speaking to Humphrey or any other adult.

The victim and J.C. then found D.H., who was helping his mother clean up. As D.H. and his mother prepared to leave, the victim, J.C., and Humphrey went upstairs and played pool in the youth room. While there, Humphrey told the boys that he wanted to show them “some Army moves” he learned from his drill sergeant. Humphrey then put the victim in a headlock, choked him until he passed out, and slapped him in order to revive him. Soon afterward, D.H. came upstairs to the youth room and told Humphrey, the victim, and J.C. that his mother had told him that it was time to close the youth room. Humphrey led the victim and J.C. off church property to a wooded nature trail, where Humphrey and the victim began exchanging text messages on what Humphrey described to J.C. as “private stuff.” The victim then told J.C. to wait some distance away while the victim and Humphreys talked to each other. When the victim dropped his pants to urinate, Humphrey began masturbating in front of him; moments afterward, J.C. first saw what appeared to be the victim performing oral sex on Humphrey and then saw Humphrey penetrate the victim from behind. After the victim moved away from Humphrey and pulled up his pants, he and Humphrey rejoined J.C.

Later that afternoon, the Allens called their son, the victim, and arranged to pick him and J.C. up at a fast food restaurant in Braselton. When J.C. told the Allens about the attack, the Allens confirmed his account with their son. The Allens also called D.H.'s mother, who told them that Humphrey was not a Zion youth leader, informed them that Ellis was, and obtained the Allens' permission to have Ellis call them. Ellis then called Mrs. Allen and told her that although the church had received Humphrey's application to become a youth pastor, it had not completed the background check on him required under church policy. Ellis also admitted that Humphrey should not have been allowed to have unsupervised contact with youth at the church. Humphrey was arrested and charged with one count of attempted aggravated child molestation and three counts of child molestation. He pled guilty to two counts of child molestation and was sentenced to 20 years with 15 to serve.

In May or June 2011, before the Allens filed suit against Zion and Humphrey, a Zion volunteer began an audit of employee and volunteer files for the purpose of updating “all criminal background information.” The volunteer's method was to pull files with information older than five years and to destroy files of individuals who were no longer employed by or volunteering for the church “in order to make room for current files.” On July 20, 2011, the Allens filed suit against Zion and Humphrey, alleging that Zion was negligent when it hired, retained, and supervised Humphrey as a youth group volunteer and in its supervision of and failure to warn or intervene on behalf on the victim. In October 2011, the Allens served discovery requests seeking information on Zion's procedures for selecting and screening employees and volunteers, including Zion's personnel file on Humphrey, which was produced soon afterward. In March or April 2012, the same volunteer destroyed some personnel or volunteer files, including that of Ellis's administrative assistant, who had left her job at the church. A Zion representative testified that the auditing volunteer knew that the Allens had filed suit against the church at the time she destroyed these files.

In May 2012, 10 months after filing suit, the Allens expanded their discovery request to include files on all persons who had served in Zion's youth ministry since 2007. Zion objected on the grounds that some files might not have been retained during a 2011 merger with another church, but produced the church's files on six individuals, some of whom had left the church.

Zion moved for summary judgment on multiple grounds, including that it did not owe the victim any duty of care, that it did not know of any reasonably foreseeable risk of harm, and that any failure to prevent Humphrey from associating with the victim was not the proximate cause of the victim's injuries. The...