By Robert Erven Brown
Recently, a church elder recently told me a story. A rented “bounce house” for a 5-year-old’s birthday party seemed harmless enough, until a sudden wind gust propelled the bounce house — and two helpless kids trapped inside — more than 100 feet through the air before crashing into an adjoining building. The children survived with minor to serious injuries. But, the number and the severity of the injuries could easily have been much worse.
This chilling tale reminded his fellow elders of the need for close supervision of all proposed activities on church property.
The church faces potential liability for damages caused by injuries that occur on its campus. Examples include:
- An enthusiastic youth pastor’s plan to rent a bounce house to create some spiritual energy at a youth event.
- A family using the church for a private party brings along “airsoft pellet guns” for the game. Sparklers are used, or a fireworks display is hosted, on church property.
- A skateboarding competition is held in the church’s parking lot.
This area of the law is called “premises liability.” In legal jargon, it’s the legal damages liability to one who’s negligently injured on the property imposed on those who “control” the use of real estate, such as the owner or the tenant of real property. Churches are held to virtually the same legal standard of care as their for-profit cousins who own land where the public is allowed to hang out. Nonprofit and for-profit owners have the same legal duty to exercise reasonable care to protect the people who enter the property from dangerous conditions.
Churches are routinely held liable for negligently injuring people on their premises. Since a church can be held liable for damages caused by negligence on its premises, what degree of care must it practice? Key questions:
- If a shopping mall provides armed security, should a church do the same?
- If a public school eliminates the use of merry-go-rounds because they “present a physical safety hazard to preschool-age children,” must the church remove its merry-go-round?
Every property owner has a duty to (a) keep its premises free of known dangerous conditions, and (b) protect people from foreseeable harm. In many jurisdictions, determining whether or not a church has a duty depends on the status of a person entering the land. The level of care imposed by the law depends on how and why the person happens to be on the property. The law states that a church owes a duty to every person who enters its premises, but the nature of this duty can vary depending on the legal status, ranging from a very low level of care for a trespasser to a very high level for those who qualify as invitees.
Generally, people entering the church property are:
- Trespassers — Those who enter the land without permission. A church is expected to refrain from injuring the trespasser by willful misconduct, and to avoid creating an attractive nuisance, such as an unfenced, dangerous, open irrigation ditch which “attracts” young children.
- Licensees — Individuals who enter with permission, but not for church purposes — an incidental pedestrian, for example. Churches are expected to warn these people of hidden dangers of which the church has knowledge or has reason to know.
- Invitees — People who are invited on the property. This includes almost everyone who comes on the campus during the hours when the church is open. For these individuals, the church’s highest duty is to use reasonable care to protect the invitee from dangers which the church knows (or should know) and to warn of unsafe conditions.
Before a bounce house goes airborne …
Before an accident happens, it’s critical to examine how your church will answer the questions from the plaintiff’s attorney about the injuries any invitees might sustain. These include:
Is there a written policy governing what type of events may be conducted on your campus?
What written information does your staff routinely obtain from those who sponsor events on your campus?
Who’s responsible to check the information on the request form for those using the campus to see if it complies with your policy governing events on the campus?
Is there a check-and-balance review to evaluate the risks involved in your youth pastor’s enthusiastic events?
What steps does your staff routinely take to insure that events are properly supervised?
Who in your organization will be responsible, for example, to check the anchors on the bounce house?
Will activities on your campus (fall festival activities, for example) create potential dangers due to poor supervision?
Do you have a “risk management” culture within your church staff? Is it part of your board culture?
What are the limits of your general liability insurance policy?
Do you require a valid insurance certificate naming the church as an insured when you allow others to use your campus?
Church leaders and staff should assume that churches generally aren’t excused from civil liability — and definitely not in matters involving
premises liability.
Robert Erven Brown is an attorney licensed to practice in Arizona. He and his nonprofit practice group work with nonprofits and churches, helping them manage key operations connected with their missions, visions and causes. As permitted by local Rules of Ethics, they collaborate with attorneys who are licensed in states other than Arizona. He is the author of Legal Realities: Silent Threats to Ministries, which describes his Campus Preservation Planning© initiative — a comprehensive program designed to manage the wide array of risks facing non-profit organizations. [silentthreats.com]
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Simply reading this material this does not create an attorney/client relationship with Brown, as this article is general legal information, not legal advice. A formal attorney/client relationship will not be established until a conflict check is completed and an engagement letter has been signed by both the attorney and the client. No “informal” legal advice will be provided by telephone. Simply sending an e-mail to Brown will not create an attorney/client relationship.
