N.K. v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints
307 P.3d 730
Wash. Ct. App.2013Background
- In 1977, NK (age 12) was sexually abused repeatedly by Dusty Hall, an unregistered volunteer who acted as a de facto scoutmaster for Boy Scout Troop 155 chartered at an LDS church ward. Abuse occurred during troop activities and in locations the church controlled (scout cabin, meetings, campouts).
- Hall had access and authority: held a cabin key, led weekly meetings, took scouts camping and on merit-badge activities; parents and congregation regarded him as a trusted youth leader.
- NK sued (in 2009) the LDS church corporations, the Boy Scouts of America (BSA), and the local Pacific Harbors Council for negligence in selecting/supervising volunteers and failing to warn/train.
- Trial court granted summary judgment to all defendants for lack of duty; NK appealed.
- The Court of Appeals reversed as to the church (finding a triable issue on a duty arising from a protective/custodial relationship and on church knowledge), affirmed as to BSA and the local council, and reversed discovery and protective-order limits imposed on NK against the church.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether church owed duty to protect NK (protective relationship) | Church had custody/care of scouts during church-sponsored scouting; thus a duty to take reasonable precautions against foreseeable harms, including sexual abuse, even absent specific knowledge of Hall. | No duty because defendants lacked prior specific knowledge of Hall’s dangerous propensities; molestation was unforeseeable. | Reversed for church: duty exists from protective/custodial relationship; foreseeability is a jury question and specific prior knowledge is not required. |
| Whether BSA and local council owed same protective duty | BSA/local council controlled program, screened volunteers, and could exclude leaders; thus they owed a duty. | They did not have custodial, on-the-ground control or custody of scouts comparable to a school or church; no protective relationship. | Affirmed for BSA and council: no protective/custodial relationship with NK, so no duty under that theory. |
| Whether defendants had special-relationship with tortfeasor (duty to control) requiring prior knowledge | Church had enough awareness/evidence to raise a jury issue about knowledge of Hall’s propensities; duty to control may apply. | Duty-to-control requires actual knowledge of the tortfeasor’s dangerous propensities; defendants lacked that knowledge. | For church: disputed evidence (reports/declarations) creates a jury issue on church’s knowledge; for BSA/council: no evidence they knew of Hall, so no duty to control. |
| Scope of discovery and clergy-penitent privilege | NK sought broad historic church records and disciplinary files to show general knowledge of risk and policies; relevant to foreseeability and precautions. | Church limited discovery temporally and invoked clergy-penitent privilege to withhold disciplinary files. | Discovery rulings reversed: broader temporal discovery allowed; nonprivileged material in disciplinary files must be produced (privilege narrowly construed); church must search files and extract nonprivileged information. |
Key Cases Cited
- Aba Sheikh v. Choe, 156 Wn.2d 441 (appellate review standard for summary judgment)
- Niece v. Elmview Group Home, 131 Wn.2d 39 (protective relationship can give rise to duty to prevent foreseeable sexual assaults)
- McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316 (school custodial duty; foreseeability as general field of danger)
- C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699 (church duties when children in custody and when church had actual notice)
- Taggart v. State, 118 Wn.2d 195 (duty-to-control where actor has knowledge of dangerous propensities)
- Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217 (special-relationship requirement for liability to control third parties)
- T.S. v. Boy Scouts of Am., 157 Wn.2d 416 (discovery standard and appellate review of discovery orders)
- Lowy v. PeaceHealth, 174 Wn.2d 769 (privilege cannot be used to shield nonprivileged internal records from discovery)