NH v. Presbyterian Church (USA), 92953.

CourtSupreme Court of Oklahoma
Citation1999 Okla. 88,1999 OK 88,998 P.2d 592
Docket NumberNo. 92953.,92953.
PartiesN.H., a minor, et al., Plaintiffs/Appellants, v. PRESBYTERIAN CHURCH (U.S.A.), an unincorporated association, Defendant/Appellee.
Decision Date02 November 1999

Michael M. Blue, John M. Merritt, Oklahoma City, Oklahoma, For Plaintiffs/Appellants.

Graydon Dean Luthey, Jr. Tulsa, Oklahoma, For Defendant/Appellee.

John B. Jarboe, Tulsa, Oklahoma, Mark E. Chopko, General Counsel, Michael F. Moses, Assistant General Counsel, United States Catholic Conference, Washington, D.C., For Amici Curiae.


¶ 2 We retained this cause to consider,1 under the facts presented: 1) whether respondeat superior liability may be imposed against the defendant/appellee, Presbyterian Church (U.S.A.) (national organization), for tortious acts of its minister, Robert Bruce Brigden (Brigden); 2) whether the national organization is liable for negligence in hiring, retaining or supervising Brigden; and 3) whether a First Amendment2 analysis is necessary to resolve the issues. For the purposes of this opinion, we presume that an employer-employee relationship existed between the national organization and Brigden. Under the facts presented, we hold that the national organization is not liable for Brigden's tortious conduct. Because no basis exists to impose liability against the national organization, we decline, as we did in Bladen v. First Presbyterian Church of Sallisaw, 1993 OK 105, ¶ 29, 857 P.2d 789, 797, to determine whether the First Amendment stands as a bar to all employment-related liability of an ecclesiastical organization for its ministerial officers.


¶ 3 The cause arises from actions occurring in 1990 and in 1991 while Brigden served as a minister of the First Presbyterian Church in Alva, Oklahoma [Alva Church]. Brigden was ordained as a Presbyterian minister on July 1, 1960. Prior to his employment in Alva, Brigden served as a minister of the Presbyterian Church in Wellington, Kansas from July of 1969 to March of 1980. During this period, there were complaints from members of his congregation lodged with the church session (elders) and with a representative of the Presbytery of Southern Kansas (a group composed of several churches in the geographical area).3 The allegations concerned his relationship with minors.4 On January 27, 1980, a special congregational meeting of the Wellington church was called to approve dissolution of the ministerial relationship effective July 1,1980, or at an earlier date if Brigden received a call to another congregation.5

¶ 4 Effective March 24, 1980, Brigden transferred from the Wellington Church to Beloit, Kansas, where he served as minister until May of 1987. Upon the transfer, the Presbytery of Southern Kansas did not inform the Presbytery of Northern Kansas of any problems with the minister. Rather, Brigden was described as a "faithful Presbyter."6 At the Beloit church, concerns relating to Brigden's conduct surfaced again. Some of these complaints specifically related to his involvement with children.7 Although a representative of the Presbytery of Northern Kansas attended a session meeting where some of these concerns were voiced, the representative did not report the concerns to the regional organization. Before leaving the Beloit church, Brigden's attendance at a psychiatric facility for evaluation was approved.8 Brigden was referred to the Menninger Foundation by the Committee on Ministry of the Presbytery of Northern Kansas.9 The diagnostic interview report prepared during Brigden's stay indicated that any contact he might have with children should be monitored.10 Without having obtained a copy of the report, the Presbytery of Northern Kansas approved Brigden's move to the Cimarron Presbytery of Oklahoma representing him "as a member in good standing . . . to whose fraternal affection and fellowship this minister is hereby cordially commended.. . ."11

¶ 5 Effective, August 23, 1987, Brigden was transferred to the Alva Church at which time the Presbytery of Northern Kansas characterized the minister as a "member in good standing."12 Brigden served as a counselor at a Presbyterian children's camp from August 6-12, 1989. While there, serious allegations of inappropriate behavior with minors were raised by camp counselors. These concerns were communicated to the Chairman of the Cimarron Presbytery Committee on Ministry. However, the concerns were not shared with anyone at the Alva Church or with the general assembly of the national organization.13

¶ 6 Although ecclesiastical authorities at the session and presbytery levels of the church structure were aware of complaints involving Brigden at each of the three churches where he served, these concerns were not communicated to anyone at the national organization. Not only were worries about his behavior not shared as Brigden transferred from church-to-church, Brigden was recommended favorably to the receiving ministries.14

¶ 7 During his tenure as minister of the Alva Church, Brigden sexually molested twelve minors.15 Although some of the children molested may have been from Presbyterian families, many of the children molested were not church members or the children of members of the congregation. Rather, Brigden committed the acts during recreational activities aimed at recruiting new members and their families. Most of the acts occurred in the church manse — housing provided to Brigden and his family by the church.

¶ 8 On September 30, 1997, the minors, represented by the plaintiff/appellant, N.H. (N.H.), filed suit against the national organization of the Presbyterian Church alleging its liability for Brigden's conduct. N.H. does not assert that anyone other than Brigden actually committed the acts, and the complaint does not name the minister or his estate, the local congregation, the session (composed of elders of the local church), the presbytery (composed of several churches in the geographical area), the synod (composed of all presbyteries within a state), or the general assembly (the highest governing body).16 Rather, N.H. named only the national organization which is characterized as an unincorporated association made up of all members of the Presbyterian Church governed by the general assembly.17 N.H. sought recovery under the doctrine of respondeat superior and for negligence in hiring, retaining and supervising Brigden.18

¶ 9 The national organization filed a motion for summary judgment on July 15, 1998. It asserted that the First Amendment prevented the trial court from proceeding. The national organization also argued that any liability based upon a master/servant or principal/agent theory must fail, because it had no authority over the ordination of Brigden as a minister or his hiring at the Alva Church or elsewhere. The trial court sustained the national organization's motion for summary judgement on March 23, 1999, finding that "all of the claims and causes of actions [sic] pursued by the Plaintiffs herein are barred by the First Amendment to the United States Constitution."19 On May 11, 1999, N.H. appealed, and the parties filed a joint motion to retain. The motion was granted on June 1, 1999, and briefs were ordered. On August 19, 1999, we granted amici curiae's20 application to file a brief in support of the national organization. The final brief was filed on August 23, 1999.



¶ 11 N.H. alleges that there are material issues of fact militating against the entry of summary judgment on the existence of an employment relationship and on questions of liability under the doctrine of respondeat superior and for negligence in hiring, retaining and supervising Brigden. The national organization argues that no agency relationship existed. Assuming the relationship, it urges that liability may not be imposed, because: 1) the acts were outside the scope of employment; and 2) it had no notice of Brigden's activities or propensities.

¶ 12 Agency is generally a question of fact determined by the trier of fact.21 The burden of proving agency rests on the party asserting it.22 In the Presbyterian Church structure, the presbytery (the local congregation) is responsible for examining, ordaining, installing, dismissing and otherwise disciplining ministers.23 Even the session, composed of the presbytery's elders, may not remove a pastor without the former's consent.24 Nevertheless, the national organization has been found to exert sufficient control over a pastor and the congregation to allow jurisdiction under a long-arm statute.25 Because we presume that Brigden was the national organization's agent for the purposes of this opinion, we need not determine the exact parameters of the relationship between a Presbyterian minister and the national organization.


¶ 14 Respondeat superior is a legal doctrine holding an employer liable for the willful torts of an employee acting within the scope of employment in furtherance of assigned duties.26 Generally, an assault upon a third person is not within the scope of employment.27 Exceptions to the general rule exist if: 1) the act is fairly and naturally incident to the employer's business; 2) the act occurs while the employee is engaged in an act for the employer; or 3) the assault arises from a natural impulse growing out of or incident to the attempt to complete the master's business.28 Nevertheless, an assertion that an act is accomplished during an employment activity is insufficient to assess liability against the employer unless the act was done to accomplish the assigned work.29

¶ 15 We held in Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, ¶ 15, 867 P.2d 124l, that a nursing home employee was within the scope of employment when he struck an...

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