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Case and Statutory Law Regarding the Liability of Youth Sport Organizations for the Pedophilic Actions of Youth Sport Co...


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1 CASE AND STATUTORY LAW REGARDING THE LIABILITY OF YOUTH SPORT ORGANIZATIONS FOR THE PEDOPHILIC ACTIONS OF YOUTH SPORT COACHES AND OFFICIALS BASED ON THE THEORI ES OF RESPONDEAT SUPERIOR, NEGLIGENT HIRING, AND NEGLIGENT RETENTION By THOMAS A. BAKER III A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2007

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2 2007 Thomas A. Baker III

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3 To my parents, Tom and Catherine Baker.

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4 ACKNOWLEDGMENTS I would first like to thank my parents and my si ster for their love and support. I would also like to thank the members of my committee for thei r guidance, time, and patie nce. In particular, I would like to thank Dr. Dan Connaughton, my advisor. His mentorship has been critical in my success here at the Univer sity of Florida.

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5 TABLE OF CONTENTS page ACKNOWLEDGMENTS...............................................................................................................4 LIST OF TABLES................................................................................................................. ..........7 ABSTRACT....................................................................................................................... ..............8 CHAPTER 1 INTRODUCTION................................................................................................................ ..10 Background..................................................................................................................... ........10 Statement of the Problem....................................................................................................... .11 Purpose of My Study............................................................................................................ ..16 Significance of the Study...................................................................................................... ..17 2 LITERATURE REVIEW.......................................................................................................18 Chapter Introduction........................................................................................................... ....18 Unintentional Torts: Negligence.............................................................................................18 The First Element: Duty of Care.....................................................................................20 The Second Element: Breach of Duty.............................................................................22 The Third Element: Cause In Fact...................................................................................26 The Fourth Element: Proximate Causation.....................................................................27 The Fifth Element: Actual Harm.....................................................................................30 Gross Negligence.............................................................................................................31 Willful, Wanton, and Reckless Conduct.........................................................................32 Negligence Theories and Doctrines........................................................................................32 The Doctrine of Respondeat Superior.............................................................................33 Negligent Hiring..............................................................................................................36 Negligent Retention.........................................................................................................39 Defenses....................................................................................................................... ...........41 Assumption of Risk.........................................................................................................42 Contributory Negligence and Comparative Fault............................................................43 Volunteer Immunity........................................................................................................44 Sexual Abuse of Children.......................................................................................................45 Youth Sport Organizations.....................................................................................................46 3 MATERIALS AND METHODS............................................................................................ 48 Chapter Summary................................................................................................................ ...48 Research Design................................................................................................................ .....48 Data Collection................................................................................................................ .......48 Data Analysis.................................................................................................................. ........50 Delimitations.................................................................................................................. .........51

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6 Research Questions............................................................................................................. ....52 4 RESULTS..................................................................................................................... ..........53 Cases against Youth Sport Organizations...............................................................................53 Application of the Doctrine of Respondeat Superior.............................................................54 Requiring a Heightened Duty of Care....................................................................................55 Requiring Criminal Background Checks................................................................................55 Application of Volunteer Immunity Statutes..........................................................................56 5 DISCUSSION.........................................................................................................................59 Cases Against Youth Sport Organizations.............................................................................59 Application of the Doctrine of Respondeat Superior.............................................................62 States Where the Doctrine of Respondeat Superior Applies...........................................63 States Where the Doctrine of Respondeat Superior Does Not Apply.............................66 States that Remain Undecided.........................................................................................68 Requiring a Heightened Duty of Care in Negligent Hiring And Negligent Retention Cases Where the Employee has Access to Children or the Public.....................................68 Requiring Criminal Background Checks.........................................................................70 Application of Volunteer Immunity Stat utes Apply to Volunteer Organizations..................72 The Standard of Care........................................................................................................... ...74 Practical Implications......................................................................................................... ....76 6 FUTURE WORK................................................................................................................. ...80 APPENDIX STATE AND CASE LAW ANALYSIS................................................................................ 82 Alaska......................................................................................................................... ............83 Supporting Cases and Statute..........................................................................................88 Hawaii......................................................................................................................... ............92 Utah........................................................................................................................... ............124 LIST OF REFERENCES.............................................................................................................131 BIOGRAPHICAL SKETCH.......................................................................................................144

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7 LIST OF TABLES Table page 1 Results...................................................................................................................... ..........58

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8 Abstract of Dissertation Pres ented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy CASE AND STATUTORY LAW REGARDING THE LIABILITY OF YOUTH SPORT ORGANIZATIONS FOR THE PEDOPHILIC ACTIONS OF YOUTH SPORT COACHES AND OFFICIALS BASED ON THE THEORI ES OF RESPONDEAT SUPERIOR, NEGLIGENT HIRING, AND NEGLIGENT RETENTION By Thomas A. Baker III May 2007 Chair: Daniel Connaughton Major: Health and Human Performance More than 10 million children below the age of 16 play organized sports (Peterson, 2004). The majority of these childre n are coached by volunteer, unscr eened adult males (Peterson, 2004). The lack of screening on the part of youth sport organizations coupled with the access that they provide to large numbers of children cr eate a ready-made resource pool for pedophiles (Nack & Yaeger, 1999). By coaching youth sports pedophiles are given an opportunity to win over parents and gain the trust of children. Parent s and athletes alike put faith in their coaches and this faith can easily be exploited by coaches who are sexual abusers (Deak, 1999). In my study, case law for all 50 United States and the District of Co lumbia was analyzed with the purpose of determining the applicability of the tort th eories of respondeat superior, negligent hiring, and negligent re tention in terms of holding youth sport organizations liable for the pedophilic actions of their coaches and official s. My study also analyzed voluntary immunity statutes for all 50 United States to determine whether said statutes pr ovide defenses to the aforementioned tort theories for youth sport organi zations. By analyzing the law for all 50 states and the District of Columbia, I was able to de termine comparisons and differences that can be drawn between the states in how they apply the law for these tort theories and voluntary

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9 immunity statutes. Finally, my study analyzed the corresponding standard of care that is imposed on youth sport organizations for all 50 states and the District of Columbia so that youth sport organizations will know what is needed of them to avoid liability and guard against abuse.

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10 CHAPTER 1 INTRODUCTION Background It is a worst case scenario, a nightmare even. How could someone be such a monster? How could others let this happen? Unfortunately, mons ters do exist and they count on the negligence of others when targeting their victims. While these monsters pr ey on children, they are not the type that exist under beds or hide in closets. Instead, they can be found in dugouts or on the sidelines at youth sport events. Take Norman Watson for example. Watson was a leading coach and umpire for the East Base Line Little League (Nack & Yaeger, 1999) Watson was more than just a baseball coach and official, he was a part of the East Base Line family. Watson went on vacations with families of players and was invited to their homes for the holidays. Perhaps that familiarity was one of the reasons the community was so devast ated when Watson pleaded guilty to 39 counts of lewd acts with children, all of which involved his players and occu rred during his six-year tenure as coach and official for the Ea st Base Line Little League. A simple background check on the part of the League would have revealed that Watson had undergone more than five years of treatment in two state mental hospitals for child molesting (Nack & Yaeger, 1999). Further, well before charge s were filed, the League was put on notice of Watsons past by two of its board members. In stead of removing Watson from his positions as coach and official, the League ousted the two boa rd members and asked Watson if he needed a lawyer. Horror stories like this demonstrate the n eed for youth sport organizations to conduct proper background checks before gr anting individuals access to ch ildren. Further, youth sport

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11 organizations need to terminate coaches and official s when it is revealed that they pose a threat to the children in their leagues. Failure on the part of youth s port organizations to take the aforementioned measures could result in legal lia bility based on the torts of respondeat superior, negligent hiring, and negligent re tention. In todays litigious so ciety, it is imperative that youth sport organizations understand how they can be he ld liable for the pedophilic actions of coaches and officials in order to avoid legal liability. Knowledge and unders tanding of the law can assist youth sport organizations the deve lopment of policies and procedur es necessary to avoid legal liability. Further, youth sport organizations that adopt policies and procedures aimed at limiting legal liability will also reduce the risk that pe dophiles will use their organizations to victimize children. Statement of the Problem More than 10 million children below the age of 16 play organized sports (Peterson, 2004). The majority of these childre n are coached by volunteer, unscr eened adult males (Peterson, 2004). The lack of screening on the part of youth sport organizations coupled with the access that they provide to large numbers of children cr eate a ready-made resource pool for pedophiles (Nack & Yaeger, 1999). By coaching youth sports pedophiles are given an opportunity to win over parents and gain the trust of children. Parent s and athletes alike put faith in their coaches and this faith can easily be exploited by coaches who are sexual abusers (Deak, 1999). Youth sports are the perfect hunting gr ound for a type of pedophile termed the seductor (Peterson, 2004). The term seductor is given to a type of molester who seduces children the same way men and women seduce each other (Nack & Y aeger, 1999). Flirtation, affection, attention, and gifts comprise the tools of the seductor, although alcohol and drug abuse may also be used. The seductor first wins the hearts of both the fa milies and the athletes they abuse. Then the

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12 seductor scopes out the perfect victim, the child who is vulnerable and whose needs are not being met elsewhere. Watson fits the seductor descri ption. One of Watsons victim s stated that Watson first started talking to his parents before he even re ally talked to him (Nack & Yaeger, 1999). Watson would come over to the childs hous e and play games and lavish the child with presents. In fact, this victim still refers to Watson as his best coach and one of his best friends. However, Watsons charm was nothing more than a means to an end, and that end was sex with the child. The youth sport molestation case that garner ed the most media attention is the one involving Sheldon Kennedy, a former professional hoc key player in the National Hockey League (NHL). Before reaching the NHL, Kennedy was a child playing in the Canadian Hockey League (CHL) where, at the age of 14, he was first molested by his coach, Graham James (Deak, 1999). Looking back, Kennedy described himself as a lonely child who was unable to get along with his strict parents. Conversely, Jame s had previously been named Ca lgary Man of the Year in 1989 by Inside Hockey for his coaching ability and hi s stance against violence in the sport. Thus, Kennedy, the troubled youth, was the perfect vi ctim for James, the accomplished coach. Much to the dismay of the CH L, James strong ethical stance against violence on the ice did not deter him from sexually abusing his athlet es off the ice. In fact, the first time James molested Kennedy he used a gun to threaten Kennedy into sex. In 1997, James plead guilty to two counts of sexual assault against Kennedy and another unnamed player (Deak, 1999). Predators like Graham James and Norman Wa tson are not anomalies and their victims are not alone. It is estimated that one in three girls and one in se ven boys in the United States are sexually molested before the age of 18 (Earl-Hubbard, 1996). Unfortunately, these overwhelming numbers do not even represent the true extent of sexual abuse because it is

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13 estimated that only 10 to 35 per cent of incidents involving sexual exploitation are ever reported (Peterson, 2004). Some pedophiles have admitted to molesting 500-600 children before getting caught. Although no one has ever studied the number of young athletes who have been molested by their coaches, experts including the Executive Director of the National Institute for Child Centered Coaching, Stephen Bavolek, believe that sexual abuse in sports is prevalent (Deak, 1999). Children in a coach-player relationship tend to be more susceptible to sexual assault (Peterson, 2004). Coaches often take on a role sim ilar to that of a parent and children typically consent to activities they would never undert ake under the guidance of a parental figure (Appenzeller, 2000). Children also look to coaches as role models, heroes, or, in the case of Watson and his victims, best friends (Peterson, 2 004). Further, children are often told from the outset of their athletic involvement to obe y the coach and never argue with the coach. To deal with the problem, many youth sport organizations have implemented screening programs for their volunteer coaches and official s. For example, all Little League managers, coaches, and volunteers are now checked against st ate lists of convicted sex offenders (Little League, n.d.). Little League had been advising local leagues to perform background checks since 1996, when USA Baseball, the national governin g body for amateur baseball, recommended the background checks for youth baseball organizations. However, Litt le League decided to make the checks mandatory partly as a response to the sex abuse sc andal in the Roman Catholic Church. The CHL has gone even further th an Little League. In response to Kennedys abuse and in dedication to his courage, the CHL enacted a Pl ayers First report of recommendations created to lay a foundation for a safe environment for yout h hockey (Kirk, 1997). The report states that

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14 creating a safe environment for the athlet es is the CHLs paramount concern. The recommendations include: A mandatory screening procedure by whic h coaches and volunteers must allow the member club to check for police records and child abuse registries, locally and across Canada and the United States. Each applicant must have three letters of refe rence that speak to the applicants integrity and strength of character. On-going employee evaluations where players an d parents have the opportunity to evaluate coaches at midseason and again at the end of the season. Education programs for children directed at addressing sexual harassment and the internalization of guilt, and making it clear to child victims that the harassment is not their fault. Through education the CHL believes that it may be possible to improve the likelihood of early disclosure and remove the victim from harm. The appointments of community advisors w ho are appointed by the CHL, remain apart from the team, but oversee the preventative measures. The creation of a formalized policy and compla int process that includes the creation of a Complaint Investigator, independent of th e CHL, to investigate the complaint. All complaints will be deemed confidential unl ess disclosure is required by controlling law. Counseling and support for victims of harassment, including a toll-free number for players to call if they are not ready discuss their harassment face-to-face (Kirk, 1997). Based on the aforementioned recommendations it can be argued that the CHL has aggressively attacked the prolif eration of sexual abuse within its ranks. The measures that the CHL have taken go beyond what any other organi zation has done to prevent pedophile coaches or officials from using their or ganization to solicit victims. Not every youth sport organization has been so aggressive. In fact, many have not even gone as far as to adopt a volunt eer screening requirement. Ev en though the cost of background checks has been reduced to a bout forty dollars per search, some youth sport organizations

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15 believe that the benefits do not justify th e expense (Peterson, 2004). Opponents of background checks for coaches argue that the searches are an invasion of privacy, wi ll deter volunteers who have been convicted of non-sexual offenses, and can in many cases be ineffective in terms of screening pedophiles. For example, the checks do not screen for first-time offenders, or offenders who have never been caught. Even the CHL in its Players First report recognized that screening is not foolproof and is not likely to catch ma ny predators (Kirk, 1997). However, the report also states that screening may act as a deterrent to those with reason to fear a background inquiry and may even detect predators who have engaged in sexually abuse conduct before and are looking to do so again. So the question becomes, what must youth s port organizations do to protect their child athletes from pedophiles? After all, experts like Stephen Bavole k believe that the pedophilia problem is increasing in youth sports. The CHL has gone as far as to label the protection of its athletes from pedophilia a para mount concern (Kirk, 1997). In addition to the moral and ethical justifica tion for protective measures, there is a legal duty on the part of youth sport orga nizations to protect their athlet es from foreseeable risks (van der Smissen, 1990). It is possibl e that a youth sport organizati on could be found liable if the appropriate protective measures are not in place to prevent, or at least limit, the possibility of sexual harassment or abuse. It is imperative that these organizations understand how liability could be imposed on them for the actions of pe dophiles who infiltrate their ranks and abuse their athletes. My review of the literature has revealed a s ubstantial void in the research on this issue. While there are articles and rese arch on what individual states have done in terms of imposing liability on youth sport or ganizations for the pedophilic actions of their coaches and officials, no

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16 single study has ever attempted to provide a comp rehensive review for a ll 50 United States and the District of Columbia. Purpose of My Study This study analyzed case law for all 50 United St ates and the District of Columbia with the purpose of determining the applicab ility of the tort theories of respondeat superior, negligent hiring, and negligent retention in terms of holding youth sport organizations liable for the pedophilic actions of their coaches and official s. The study also analyzed voluntary immunity statutes for all 50 United States and the District of Columbia to determine whether said statutes provide defenses to the aforementioned tort theo ries for youth sport organizations. By analyzing the law of all 50 states and the District of Co lumbia, my study made comparisons that can be drawn between the states in how they apply the law for these tort theories and voluntary immunity statutes. Finally, my study analyzed the corresponding standard of care that is imposed on youth sport organizations for all 50 states and the District of Columbia so that youth sport organizations will know what is needed of them to avoid liability and guard against abuse. The scope of my study included a complete examination of existing case law for all 50 United States and the District of Columbia. It is necessary to have an expansive study that includes all 50 states and Washington D.C. because negligence is a creation of state law and the application of negligence theories vary among th e several states. However, national youth sport organizations like Little League and Pop Warner provide services in most states and need to understand the variances that may exist betw een the legal jurisdictions. Youth sport organizations need to understand how different ju risdictions apply these theories so that they know what is required of the organization to pr otect against the pedophilic actions of coaches and officials within their ranks.

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17 Significance of the Study Youth sport organizations are much more lik ely today than ever to be involved in negligence litigation. In considering cases, cour ts throughout the country issue decisions that define legal liability and create new potential av enues for legal liability. When a child is sexually victimized by a coach or athletic official, it is probable that the childs parents will seek compensation for the victimizati on through legal action. As the CHL recognized, it is impossible to expect youth sport organizati ons to completely prevent pedoph iles from having access to their athletes (Kirk, 1997). Yet, it is pos sible for a pedophile to slip th rough even the most stringent of screening processes. It is also possible to minimize that risk, and in todays litigious society is has become imperative for youth sport organizations to do so. The first step youth sport organizations can take toward minimizing the potential for liability is to understand how lia bility can be imposed against them. While the law is always subject to change, the doctrine of stare decisis provides that courts will tend to stand by their past decisions (Garner, 2004). Accordingly, the law, while malleable, does provide some degree of predictability (20 American Jurisprudence 2nd Nature and scope of doctrine, generally 129, 2005). Administrators for youth sport organizations can look to existing case law to determine how courts in their jurisdiction have resolved ce rtain types of problems. Cases can be used to help youth sport organizations understand the sta ndard of care for the sp ort industry in their jurisdiction. The results of my research project provide youth sport organizations with information they need to make policy decisions for all 50 United States and the District of Columbia on how to limit liability and guard agai nst sexual abuse within their organizations.

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18 CHAPTER 2 LITERATURE REVIEW Chapter Introduction This study concerns the potential civil liab ility of youth sport organizations for the pedophilic actions of coaches and officials who sexually abuse athl etes. Civil liability can be established through tort law or through contra ct. A tort is a civil wrong for which the law provides a remedy (Keeton, 1984). A to rt can derive from either an intentional or unintentional act or omission. A youth sport coach or official who sexually abuses an athlete is subject to civil liability for an intentional tort because the perpet rator of the tort acted with intent, meaning that he or she intended to do the tortious act (Restatement (Second) of Torts 8A, 1965). However, the aim of my study targets the poten tial liability of the youth sport organization rather than its coach or official. Since the youth sport organization is not the pedophilic actor, any civil liability on its part wi ll likely be established through use of one or more unintentional tort theories. Unintentional Torts: Negligence The term negligence is given to those unint entional torts that injure others in person, property or reputation (van der Smissen, 2003a). The difference between intentional torts and negligence turns on the probabi lity, under the circumstances know n to the actor and based on common experience that a certain consequence w ill follow from a certain act (65 Corpus Juris Secundum 14, 2005). If the consequence is desi red by the actor, or the actor knows to a substantial certainty that the consequence will follow, the action is legally intentional. Conversely, in negligence, intent is irrelevant (57A American Jurisprudence (2d) 30, 2005). Thus, the negligent actor does not desire to bring about the co nsequences, nor does the actor

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19 know that the consequences are substantially ce rtain to follow. Instead, there is merely an unreasonably great risk of su ch consequences (Keeton, 1984). Negligence can be defined as conduct involv ing an unreasonably gr eat risk of causing harm or damage; conduct that falls below the st andard established by law for the protection of others against unreasonable risk of harm (Res tatement (Second) of Torts 282, 1965). In most cases, negligence is caused by heedlessness or inadvertence (Keeton, 1984 p. 169). In fact, the term negligence denotes culpable carelessness (Garner, 2004). Negligence may result from a personal or pr ofessional decision rendered after careful consideration and based on an individuals best judgment (K eeton, 1984). Negligence does not always involve the absence of solicitude for those who may be harmed by a persons actions or inactions. In these instances, liability will be determined on whether th e actors conduct adheres to the standard of care or poses an unreasonable risk to others. The standard of care imposed by law is extern al or objective in that it is based on what society demands of its members rather than the actors personal morality or individual beliefs. Failure to conform to the standard of care, ev en if it is the result of clumsiness, stupidity, forgetfulness, an excitable temperament, or ev en ignorance, results in potential liability for negligence (Keeton, 1984, p. 169). While negligence presupposes a uniform standard of behavior, there are an infinite variety of situations that may arise to which the st andard must be applie d (Keeton, 1984). It is impossible to fix definite rules in advance fo r all conceivable human conduct and the law does not attempt to do so. Through the common law, fo rmulas have been developed to determine whether an actor has breached the standard of care. Before those formulas are discussed, it is important to first analyze the elements of negligent.

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20 There are five primary elements to negligen ce (Restatement (Third) of Torts 6, 2005). Each element must be found to exist before a pl aintiff may recover in negligence. The elements to negligence are duty of care, breach of duty, causation in fact, proximate cause, and damages. First, the defendant must have owed a duty of care to the plaintiff to conform to the standard of care necessary to prevent the unreasonable risk of harm (Epstein, 1990). Second, the plaintiff must establish that the defendant breached the ap propriate standard of car e. Third, it must be shown that the defendants breach was the factua l cause of the plaintiffs harm. Fourth, the breach must be the proximate cause of the plaint iffs harm. Fifth, the pl aintiff must establish proof of some form of propert y damage or personal injury. Si nce the negligence theories of negligent hiring and negligent retention both require a showing of each of the five elements exist, a discussion of each follows. The First Element: Duty of Care The existence of a legal duty is what dictates whether an individual or entity must conform to the standard of care (Clement, 2004). Therefore, the first question that must be addressed in assessing liability is whether youth sport organiza tions owe their athletes a duty of care to protect them from coaches who are pedophiles It is important to note that the existence of a duty of care is a question of law because it results in the conc lusion that it is appropriate to impose liability for the injuries suffered ( Tarasoff v. Regents of University of California 1976). Thus, judges bear the responsibility of determ ining whether a duty of care exis ts because questions of law are decided by judges not juries ( Phelps v. Firebird Raceway, Inc. 2005). Generally, a person does not owe a duty to protect others from third part ies absent a special relationship (Restatement (Second) of Torts 315, 1965). There are three primary ways in which a special relationship may be establishe d: (a) from a relations hip inherent, (b) from a

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21 voluntary assumption of the duty, and (c) from a duty mandated by statute (van der Smissen, 2003a). It is typically not difficult to locate the existe nce of a relationship i nherent because the duty is open and obvious based on its nature (van der Smissen, 2003a). After all, there are those types of relationships that automatically give rise to a duty to protect another from an unreasonable risk of harm. For example, there is little debate as to whether a mother owes a duty to her child or a lawyer owes a duty to his or her client. When a service is provided, typically there is also a concomitant obligation not to expose the participant using the servic e to an unreasonable risk of harm (van der Smissen, 2003a). Youth sport organizations provide services to the children who play in their leagues and for their teams. Accordingly, there is a duty on the part of youth sport organiza tions to protect their athletes from unreasonable risks. In the absence of a relationship inherent, a sp ecial relationship may still be established by voluntary assumption (van der Smissen, 2003a). For example, even though there is no duty to come to someones aid, once purported tortfeasors voluntarily begin to rend er assistance, they must proceed with reasonable care (Restatement (Second) of Torts 324, 1965). Thus, they have assumed a duty that normally they would not normally posses because there is no relationship inherent. A person may also voluntarily assume a special relationship by volunteering to assist a youth sport organization as a coach or l eague official (van der Smissen, 2003a). The final way in which a special relationship may be found is if it is set forth by statute (van der Smissen, 2003a). For example, there is a statutory prohibition against driving while intoxicated in every jurisdiction in the United St ates. If a driver negligently operates a motor vehicle and is caught driving ove r the legal limit then the driver has breached a duty owed to

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22 other drivers and pedestrians. If the intoxicated driver injures so meone as a result of the breach, then the driver may be deemed negligent per se If a defendant violates a statutory duty and is deemed negligent per se then the defendant is negligent as a matter of law (Restatement (T hird) of Torts Restatement 324, 2005). In such a case, the plaintiff need only prove the elements of causation and actual harm to prevail in court. Thus, the statute sets up both the legal duty a nd the standard of care for the plaintiff. The Second Element: Breach of Duty The second element of neglig ence requires the plaintiff to prove that the defendant breached the duty of care. Specifically, the plain tiff must establish that the defendant failed to conform to the duty of care owed to the plai ntiff (Restatement (Second) of Torts 282, 1965). To show that the duty of care was breached, the plaintiff must prove that the defendants conduct, viewed as of the time it occurred, im posed an unreasonable risk of harm (Keeton, 1984). By establishing the existence of an unreasonable risk of harm, the plaintiff is in effect showing that the defendant breach ed the standard of care that was owed under the circumstances. As previously mentioned, it is impossible to defi ne the standard of care for every possible event and thereby expose every possible unreasonable risk. Thus, the cour ts have developed a formula for determining whether each set of facts give rise to an unreasonable risk of harm (Keeton, 1984). This formula consists of the creation of a fictitious person who is often described as the reasonably prudent person and was first created in Vaughan v. Menlove (1837). The fictitious reasonably prudent person is a model individual with human qualities, but only those shortcomings that the community w ill tolerate (Keeton, 1984). The courts have gone to unusual lengths to emphasis that the reasonably prudent person is an abstraction and is not to be identified with any ordinary person. The c onduct of the reasonably prudent person will vary

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23 depending on the circumstances. Thus, the jury mu st take the circumstances into account when deciding what a person of reasona ble prudence would do (Keeton, 1984). The courts have expanded the definition of the word circumstances to include any physical attribute that the defe ndant may posses (Keeton, 1984). Fo r example, if the defendant has a specific physical disability, like blindne ss, then so does the reasonably prudent person (Restatement (Second) of Torts 283C, 1965). Howe ver, courts have not extended the term circumstances to include the specific mental characteristics of the defendant (Keeton, 1984). Thus, the intelligence of the defendant is not considered when deciding what a reasonably prudent person would do. Most jurisdictions have carved an exception to this general ru le for individuals who have a mental state that is so low that they are unable to comprehend a risk or avoid an accident (57B American Jurisprudence (2d) 1022, 2005). Conve rsely, the Restatement (Second) of Torts does not adopt the majority rule that mental defici ency may relieve a person of negligence ( 283B, 1965). Although, the Restatement does allow for a ch ilds mental deficiency to be taken into account (Restatement (Second) of Torts 283A, 1965). Courts have also created another excepti on for those individuals who posses superior knowledge, skill or intelligence (Keeton, 1984). Thus, a defendants professional and educational experience may be considered und er the circumstances. Professional persons in general, and those who undertake any task that requires special skill, are required to posses a standard minimum of special knowledge and ability that would be commonly held by members of the profession in good standing (Restatement (Sec ond) of Torts 299, 1965). Accordingly, for situations involving the need for professional ex pertise, the fictitious reasonably prudent person is transformed into the reas onably prudent professional.

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24 In some situations it may be too difficult to ascertain what a reasonably prudent person would do under the circumstances. For example, it may be too amorphous and inexact to always apply the standard to the actions of a business organization. To deal with situations where the reasonably prudent person standa rd may be too difficult to appl y, the courts have developed a balancing test to determine if the defendants conduct posed an unreasonable risk of harm to the plaintiff. The balancing test was craf ted by Judge Learned Hand in U.S. v. Carroll Towing Co. (1947). The Carroll Towing Co. case involved a barge, owned by the plaintiff in the case, which broke away from its moorings due to the negl igent manner in which th e defendant shifted the lines that moored the barge. The defendant argued that the plaintiff was also negligent because the plaintiff should have placed someone on the barge to make sure that it was secure. In addressing this fact pattern, Judge Hand did not use the reasonably prudent person to determine whether the plaintiffs failure to place an employee on the barge amounted to contributory negligence ( U.S. v. Carroll Towing 1947). Instead, Judge Hand applied a formula that balanced the burden of preventing the ha rm (B) against the gravity of the harm (L) multiplied by the probability of the harm (P). If B < L x P, then there is an unreasonable risk of harm. Applying this formula, Judge Hand found th at the substantial burden of having an employee on board at all times was outweighe d by the seriousness of the harm and the probability that the harm would occur ( U.S. v. Carroll Towing 1947). Specifically, the facts took place during wartime and ships were constantly co ming in and out of the harbor. Thus, the risk that the mooring lines would come undone and th e danger that the barge posed to other ships sufficiently outweighed the burden of placing a man on the barge.

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25 As the formula implies, the more serious the gr avity of the injury, the less probable that the injury need be before the defe ndant should guard against it to a void legal liability in negligence ( U.S. v. Carroll Towing 1947). Further, the burden in the equation is not only a cost to the individual party, but also a broa der social utility of the conduct that should be borne. Thus, the question becomes one of whether society would be better off if all like parties were permitted to act as the alleged tortfeasor has acted. The Restatement (Second) of Torts has attempted to combine the balancing test with the reasonably prudent person st andard. The Restatement (Sec ond) of Torts 291 states: [w]here an act is one which a reasonable pe rson would recognize as involving a risk of harm to another, the risk is unrea sonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done (Restatement (Second) of Torts 291, 1965). The determination of which test, between th e reasonably prudent pe rson standard and the balancing test, to use depends on the jurisdiction and the circum stances. Again, tort law varies somewhat from state to state. However, both formulas are long-standing in the common law, thus both have long histories of case law supporting their use and explaining their application. No matter the formula used, part icular attention will be paid by the court to ordinances, regulations, policies, standards, or even guideli nes that attempt to establish the appropriate standard of care (van der Smissen, 2003a). Ge nerally accepted practices or custom of the profession may instead be accepted as proof of th e standard of care in the absence of published standards. Often, this information will be intr oduced into evidence through expert testimony. Thus, a plaintiff will need to establish that the youth sport organization did not act reasonably and therefore breached a duty of care owed to the plaintiff. In doing so, the

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26 jurisdiction may use the reasonably prudent person formula or the balancing test. Either way, the issue will turn on whether the defendants acti ons posed an unreasonable risk of harm to the plaintiff. In other words, the question can be posed as whether the defendant breached the standard of care owed to the plai ntiff. In establishing the standard of care, evidence in the form of standards, guidelines, regulati ons, policies, or even custom that concerns the administration of youth sport may be considered. The Third Element: Cause In Fact Even if there is a breach of the duty of care owed to anothe r, their recovery against the defendant is not possible unless the defendants breach was the factual cause of the plaintiffs harm (Clement, 2004). In other words, there must be some reasonable, direct connection between the plaintiffs cause of action for negligence and the defendants action or omission (Keeton, 1984). An act or omission is not a cause of an ev ent if the event would have occurred without it. This maxim has been used by courts to establish a but for or sin qua non rule. Simply put, causation in fact requires a finding that but for the defendants conduct, the plaintiff would not have been hurt. A defendant may negate causation in fact if it can be shown th at another intervening cause actually caused the plaintiffs harm (Keeton, 1984). However, the law recognizes that there can be more than one cause for a plaintiffs harm. Ac cordingly, if a plaintiff can prove that any of two or more causes would have brought about th e harm, then the plaint iff may recover against any or all of the actors. In this case, the defendants would be deemed joint tortfeasors. The substantial factor test is used to determine whether multiple causes each resulted in the plaintiffs harm (Keeton, 1984). If the defendants conduct played a substantial factor in causing the plaintiffs harm, then the defendants conduct factually caused the plai ntiffs harm. Thus, if the actions or omissions of multiple defendants each played a substantial f actor in bringing about

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27 the plaintiffs harm, then those defendants woul d be deemed joint tortf easors and the plaintiff may recover against any single torf easor, or all of the tortfeasors, for compensation (Restatement (Second) of Torts 432, 1965). Accordingly, plaintiffs seeking redress ag ainst a youth sport organization will have to establish that the organization factually cause d their injuries. While the pedophile coach or administrator actually performed the harassment or molestation, it must be shown that the youth sport organization played a substantial factor in the bringing about of this specific harm. Otherwise, the plaintiff will not be ab le to establish but for causation. The Fourth Element: Proximate Causation The cause in fact requirement is not the only causation requirement Once direct causation is established, the plaintiff must also establish that the defendants negligence was the proximate cause of the injuries (Wong, 2002). The con cept of proximate cause stems from policy considerations that serve to place manageable limits on liability caused by negligent conduct (57A American Jurisprudence 2nd 427, 2003). The proximate cause requirement arises out of the judicial sense that negligent actors should not be liable for all the consequences of their actions, especially those that are far-reaching. There are two conflicting applications of the policy. The first is termed the direct causation view. It holds that defendants are liable for all consequences of their negligent act absent s uperseding intervening cau ses. The second, most popular and widely used, application is termed the foreseeability or scope of risk view (Keeton, 1984). Jurisdictions that incorporate foreseeability into their proximate cause determination require plaintiffs to prove that the injury was foreseen by the defendant, or reasonably should have been foreseen, as the natural and proba ble result of the neg ligence (57A American Jurisprudence 2nd 429, 2005). Accordingly, the fo reseeability component of proximate cause

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28 is satisfied if a person of ordi nary caution and prudence could ha ve foreseen the likelihood of injury ( Regions Bank & Trust v. Stone C ounty Skilled Nursing Facility, Inc ., 2001). Palsgraf v. Long Island Railroad Company (1928) is the seminal case on the subject of the applicability of foreseeability in a proxi mate cause determination (Gash, 2003). In Palsgraf a man carrying a package wrapped in newspaper unde r his arm, attempted to catch the defendants train by jumping onto a train car. During the jump, the man app eared unsteady, so one of the train guards reached to help him. At the same tim e, another guard attempted to assist the man by pushing him from behind. The mans package fe ll onto the tracks rev ealing its contents, fireworks. The fireworks exploded on the tracks a nd the impact of the shock caused scales on the railway passenger platform to fall onto the plai ntiff, Mrs. Palsgraf. A jury ruled in Mrs. Palsgrafs favor by finding the defendant train company liable for her in juries. The court of appeals reversed the trial cour ts decision and handed down then-Judge Cardozos now landmark opinion ( Palsgraf v. Long Island Railroad Company 1928). Judge Cardozo did not use proximate cause as a basis for his determination. Instead, he found that the defendant did not owe a duty of care to the plaintiff ( Palsgraf v. Long Island Railroad Company 1928). However, the case is used as a basis for understanding the role of foreseeability in a proximate cause inquiry ( Devellis v. Lucci 1999; Freddo v. Access Agency, Inc ., 2001; Hicks v. Nunnery 2002; Isaacs v. Larkin Electric Company 1998; Moore v. PaineWebber, Inc. 1999; Williamson v. Liptzen 2000). Judge Cardozo determined that the plaintiffs injuries were not the foreseeable resu lt from the defendants actions. In doing so, he constructed an orbit of danger something akin to a legal snapshot, that freezes the defendants actions to ascertain what risks were reasonabl y foreseeable based on the defendants actions.

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29 Consequently, only those risks included in the orbit of danger were reasonably foreseeable ( Palsgraf v. Long Island Railroad Company 1928). Looking at the facts in Palsgraf the majority held that the risks created by helping a man holding an unidentified package onto a train did not include the risk of a scale falling on a person standing on the other end of the platform. Therefore, the plaintiffs injuries were not the reasonably foreseeable consequence of the train employees actions ( Palsgraf v. Long Island Railroad Company 1928). Judge Andrews wrote a strong dissent to the majoritys decision. Judge Andrews did not agree with the limitations posed by the orbit of danger. Instead, he argued that proximate causation should extend to all consequences of negligent action, not only those that are reasonably foreseeable. Thus, he urged for the adoption of the direct causation view ( Palsgraf v. Long Island Railroad Company 1928). Arguably, a strict application of the approach to foreseeability taken by the majority in Paslgraf could pose problems for plaintiffs seeking to hold youth sport organizations liable for the actions of pedophile coaches or officials. However, proximate cause is based on policy considerations (57A Amer ican Jurisprudence 2nd Ne gligence 427, 2003). In fact, Palsgraf has been interpreted as standing for the proposition that a foreseeability finding turns on fairness, policy, and as before, a rough sense of justice ( AUSA Life Insurance Co. v. Ernst & Young 2000, p.218). Proximate cause is also a common law concept, and as such, it must evolve to reflect economic, social, a nd political developments ( AUSA Life Insurance Co. v. Ernst and Young 2000; Cullen v. BMW of North America, Inc ., 1982, p. 1102). With athletes like Sheldon Kennedy coming forw ard in the media to describe how they have been victimized and the horrific storie s provided by Norman Watson, the public is

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30 becoming more and more aware of the pedophilic problem in youth sports. Therefore, public policy may very well dictate that the concepts of foreseeability and proximate cause should evolve to reflect said developm ents. After all, the fear of pe dophile coaches and administrators accessing youth sports did not exist in 1928 when Judge Cardozo wrote the Palsgraf decision. The Fifth Element: Actual Harm For any cause of action based on negligence, so me actual harm or injury must exist as a requirement and nominal damages are not ava ilable (Restatement (Second) of Torts 907, Comment a, 1965; Wong, 2002). Proof of damage is an essential part of the plaintiffs case in negligence because negligent conduct in and of itse lf does not rise to th e type of interference with the interests of society as a whole to warrant a complaint (Keeton, 1984). Thus, for a plaintiff to recover, he must es tablish the existence of some bodily injury or emotional harm (van der Smissen, 2003a). In cases dealing with allegations of pedophilia, it is typically not difficult for a plaintiff to establish actual harm. In fact, even if the plai ntiff does not incur any pe rmanent physical loss, the plaintiff may recover for pain and suffering ( McDougald v. Garber 1989). Specifically, mental pain and suffering experienced through sexual abuse or harassment often serves as a basis for an award in tort law ( Wilson v. Safeway Stores Inc. 1997). Once actual harm or injury is established, there is a plethora of possible types of damages that may be recovered to compensate the vic tim. The types of damages available depend on the circumstances but may include compensation for physical pain and suffering, mental distress, direct economic loss, loss of consortium, and wrongful death (van der Smissen, 2003a). In some jurisdictions, there is the possibility that a plaintiff may recover punitive damages against the defendant. Punitive damages are different than compensatory damages because punitive damages are awarded to punish the defe ndant rather than compensate the victim

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31 (Keeton, 1984). However, punitive damages are onl y awarded to punish outrageous, reckless, willful, or wanton conduct (Wong, 2002). Accord ingly, punitive damages are typically not available for ordinary damages (van der Smissen, 2003a). Gross Negligence Thus far, this review has focused on what is required for ordinary negligence. However, the common law recognizes that tortuous conduct may be so great that it amounts to more than just negligence, even though it falls short of bein g intentional (Keeton, 1984). For these situations courts have disti nguished between ordinary neglig ence and situations where the defendant acts with a heightened degr ee of careless, or gross negligence ( Fidelity Leasing Corp. v. Dun & Bradstreet, Inc. 1980; Leite v. City of Providence 1978; Pilot Industries v. Southern Bell Tel. & Tel. Co. 1979). In gross negligence, the defendant s culpability is magnified so that it is at a higher degree then that which is found in ordinary negligence (57A American Jurisprudence 227, 2005). Some courts have stated that gr oss negligence amounts to a failure to exercise care even that care which a careless person would use ( Crowley v. Barto 1952; Louisville & Nashville Railroad Co. v. McCoy 1883; Whitley v. Com ., 2000). However, other courts have interpreted gross negligence to require a showing of willful, wanton, or reckless misconduct (Keeton, 1984; De Wald v. Quarnstrom 1952; In re Wrights Estate 1951; Redeout v. Winnebago Traction Co ., 1904; Rokusek v. Bertsch 1951; Thompson v. Bohlken 1981). The majority of jurisdictions dis tinguish between those acts that are willful, wanton, or reckless and those that involve gr oss negligence (Keeton, 1984). Specifically, these courts hold that gross negligence is more than just ordinary inadvertence, but less than conscious indifference (Keeton, 1984; Crowley v. Barto 1952; Fidelity Leasing Corp. v. Dun & Bradstreet, Inc. 1980; Hodge v. Borden 1966; Wyseski v. Collette 1965).

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32 Willful, Wanton, and Reckless Conduct As previously stated, some jurisdictions dist inguish between gross negligence and willful, wanton, and reckless conduct. These jurisdictions recognize situations where a defendant may act with intentional indifference to the point that her actions exceed the culpability required for gross negligence (Keeton, 1984). Even though a defendant acts with intentional indifference, the defendants actions remain negligent rather than intentional because the defendant never intended to bring about the harm. In these situat ions, the risk of harm is so great that the defendant probably knows that the harm will follow (Restatement (Second) of Torts 500, 1965). This probability falls short of the substantia l certainty required for an intentional tort. Some courts have tried to distinguish be tween willful, wanton, and reckless conduct ( Kelly v. Mallott 1905; Neary v. Northern Pacific Railway 1910). For most jurisdictions, however, these terms can be used colle ctively or interchangeably ( Mania v. Kaminski 1980). A defendant who is found liable for willful, wanton, and reck less conduct may incur civil sanction through punitive damages ( Hackbart, v. Cincinnati Bengals, Inc ., 1979). Negligence Theories and Doctrines Within the concept of legal negligence, ther e are various types of theories on which a plaintiff may rely depending on the specific circumstances at issue. What theories may be available to the plaintiff hi nge on how the defendant was negligent, or the defendants relationship to the party who actually committed the negligent act. This section of the review of literature will focus on the negligence theories mo st applicable to a cause of action against a youth sport organization for the pedophilic actions of their coaches and officials. In doing so, this section will review the literature concerning the negligence theories of respondeat superior, negligent hiring, negligent superv ision, and negligent retention.

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33 It is important to note that these individua l theories of negligen ce each require a showing that the defendant(s) acted neglig ently. Thus, the elements of ordinary negligence must still be established for a plaintiff to prev ail in negligence through use of one of these theories. Further, if the defendants conduct through one of these theori es is extreme, then the defendant may be found liable for gross negligence or willful, wanton, and reckless conduct. The Doctrine of Respondeat Superior The doctrine of respondeat superior is often re ferred to as vicarious liability because it serves as a method of holding one person vicari ously liable for the wrongs committed by another (Keeton, 1984). The phrase respondeat superior is Latin meani ng let the master answer (Garner, 2004). Under this doctrine, liability can attach to a master if the servant, while acting on the masters behalf, harms someone to whom th e master owes a duty of care (Mayer, 2005). Accordingly, if an employee (servant) acts negl igently during the course of employment, then the employer (master) may be held liable fo r the employees negligence. Simply put, the negligence of the employee is imputed to the employer. To be successful in a respondeat superior cl aim, the plaintiff must establish that the tortfeasor is liable in tort, the tortfeasor is employed by the defendant, and the employee was acting within the scope of employment when the tortuous act was committed (27 American Jurisprudence 2nd 459, 2005). Perhaps the most cri tical element of respond eat superior is the requirement that the employee was acting with in the scope of his employment (Keeton, 1984). Acts committed by the employee that exceed the sc ope of employment are considered ultra vires. Employers, are generally not vicariously liable for the ultra vires actions committed by their employees (Cotten, 2003). However, the definiti on of scope of employment has extended to include all acts committed in furtheran ce of the employers business (Keeton, 1984).

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34 Early decisions did not hold employers liable for the intentional torts committed by their employees on the assumption that employe rs would not authorize such conduct ( Maille v. Lord, 1868; McManus v. Crickett, 1800; Poulton v. London & S.W.R. Co., 1867; Wright v. Wilcox, 1838 ). Modern application of the doctrine of res pondeat superior has been extended to include intentional torts that occur during the scope of the empl oyees employment (Keeton, 1984). Thus, intentional torts are no l onger per se ultra vires acts. Criminal acts, including sexual assault, have generally been considered to be outside the scope of employment (Gibbons & Ca mpbell, 2003). The basis for this exception is that such acts are not done in furtherance of the employers ente rprise. In certain circumstances, courts have held than an employees sexual as sault falls within the scope of employment even though it was not motivated by a purpose to serve the empl oyer (DeMitchell, 2002; Lear, 1997). Most of the cases that have extended the scope of authority to include sexual abuse cases have done so where the sexual aggressor stood in an authority position over the victim. Youth sport coaches, administrators, and officials are invariably placed in authoritative positi ons of trust (Gibbons & Campbell, 2003). Jurisdictions that use a broade r definition of scope of employment provide a greater opportunity for plainti ffs to recover against the you th sport organization based on respondeat superior (Weeber, 1992). The policy behind the doctrine of respondeat superior focuses on risk allocation. The losses caused by the torts of employees, which are sure to occur, are pl aced upon the enterprise itself as a cost of doing busine ss (Keeton, 1984). After a ll, between the employer and the victim, the employer stands in a better position to prev ent the harm because the employer has control over their employees.

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35 It is central to the doctrine of respondeat superior that the employer posses some degree of control over actions of the em ployee (Keeton, 1984). For this r eason, courts have not extended the doctrine to make employers liable for the ac tions of independent contractors. After all, independent contractors are not, by their nature, employees. Instea d, they are independent parties contracted to perform a task. Independent contractors typica lly retain almost complete control over the means for accomplishing the task. Since the employer has no power of control over the manner in which the work is to be done by the contractor, the ta sk should be regarded as the contractor's own enterprise, and the contractor, rather than the employer, shou ld hold the responsibility of preventing the risk, and beari ng and distributing it (Restate ment (Second) of Torts 409, Comment b, 1965). There is an exception to this general rule for non-delega ble acts that involve ultra-hazardous activities (24 Co rpus Juris Secundum 432, 2005). Unique societal hurdles exist for plaintiffs who seek to use the doctrine of respondeat superior against volunteer organizations, esp ecially those that ar e non-profit (Lear, 1997). Imposing vicarious liability on these organizatio ns may drive them out of business even though the societal utility of the activity exceeds the ha rm. One of the often used justifications for the doctrine of respondeat superior is that employers typically have more resources than their employees (Keeton, 1984). Thus, a plaintiff has a greater chance at full recovery against the master than the servant. However, volunteer organi zations do not always amass vast reserves of wealth, earmarked for the enriched owners or investors (Lear, 1997). Ta pping the resources of volunteer organizations to compensate victims in tort may force the organizations out of business.

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36 To protect youth sport organizati ons, and in particular, the serv ices they provide the public, jurisdictions may refuse to appl y the broad definition of scope of employment. Instead, they may rely on the narrow definition that limits vicari ous liability to only those actions performed in furtherance of the employe rs enterprise (Deak, 1999). Negligent Hiring The tort of negligent hiring may provide hope for plaintiffs in juri sdictions that do not extend the doctrine of respondeat su perior to include criminal conduc t. In fact, courts appear to be more willing to accept negligent hiring as a means for holding an employer liable for sexual assaults committed employees (Gibbons & Campbell, 2003). Perhaps the basis for accommodation lies in the fact that, unlike the do ctrine of respondeat superior, the tort of negligent hiring does not strict ly impute the negligence of the employee onto the employer simply because the employer stands in the role as master of the employee (Scales, 2002). Instead, a negligent hiring action alleges cu lpability on the part of the em ployer. Particularly, the tort requires the establishment of a causal link betw een the employers negligence in hiring an individual with known harmful propensities a nd the employees subsequent violent action (Sullivan, 1998). The tort of negligent hiring stems from th e fellow servant rule (S cales, 2002), a common law defense that protected an employer against the claims of injured employee based on the theory that the injury resulted from a negligen t act or omission of a fellow employee (Lin, 2005). The tort of negligent hiring evol ved out of the modern version of the fellow servant rule, which emphasizes an employers duty to hire and retain competent employees (Lienhard, 1996; Scales, 2002). The first negligent hiring cases required that the crimes committed by employees fall within the scope of employment. However, subs equent case law expanded employer liability to include ultra vires acts (North, 1976).

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37 To prevail on a cause of acti on for negligent hiring, a plaintiff must first establish that the employer owed them a duty of care (Gibbons & Ca mpbell, 2003). As a general rule, there is no duty on the part of organizations to protect victims against the vi olent propensities of employees. However, if the plaintiff falls within a member of a class of foreseeable victims, then courts are willing to find the existence of a duty of care on the part of employers. In a youth sport setting, courts recognize that a greater degree of care is owed to children based on their lack of capac ity to appreciate ri sks and avoid danger (Gibbons & Campbell, 2003). Thus, courts have found a sp ecial relationship betw een children and the organizations that place adult caregivers in authority positions ove r children. Accordingly, youth sport participants that play in leagues established by youth organizations fall within a foreseeable class of victims that could be harmed by pedophilic coaches and officials. Therefore, a special relationship exists between youth sport organizations and the children who use their services and this relationship creates a duty of care on the part of the organizations to hire competent coaches and officials (Gibbons & Campbell, 2003). A plaintiff asserting a negligent hiring cause of action must also show (a) that the employer knew or in the exercise of or dinary care should have known of its employee's unfitness at the time of hiring; (b) that thr ough the negligent hiring of the employee, the employee's incompetence, unfitness, or dangerous characteris tics proximately caused the resulting injuries; and (c) that there is some empl oyment or agency relationship between the tortfeasor and the defendant employer (27 American Jurisprudence 2nd 392, 2005). Perhaps the most critical inquiry made in ne gligent hiring cases concerns the first element of the tort, the requirement that the employe r knew or should have known of the employees unfitness at the time of hiring (27 American Ju risprudence 2nd 392, 2005). Critical to this

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38 inquiry is the degree of knowledge of the fitness of the empl oyee. Specifically, how much knowledge is required of an employees unfitness before the employers actions in hiring the employee amount to negligence? In answering this question, negligent hiring cases may be divided into three categories (Sullivan, 1998). The first type of cases involve s situations where the employers were unaware of the employees unfitness. Employers are often re lieved of liability in situations where they had no knowledge of the employees predisposition toward harmful conduct. The second type of cases invol ving the knowledge requirement for negligent hiring actions include those cases where the employer posse sses actual knowledge of the employees predisposition towards harmful be havior (Sullivan, 1998). It is in this line of cases that the employer is particularly vulnerabl e to civil liability. However, the mere existence of a criminal record does not in and of itself mean that th e employer was negligent in hiring the employee. A reasonable investigation of the employees past ma y reveal that the employee was involved in an isolated incident and does not have a propensity towards dangerous conduct. The third type of cases con cern situations where the employer should have known of the employees violent behavior (S ullivan, 1998). The lite rature and case law is clear that an employer may be held liable for negligently hiri ng an employee if they knew or should have known of an employees propensity toward violen ce. Thus, lack of knowledge does not relieve the employer of his duty to perform an ade quate background check (van der Smissen, 2003b). This means that the employer must conduct a reasonable investigation into the employees work experience, background, character, and qual ifications (27 Ameri can Jurisprudence 2nd 393, 2005). The scope of an adequate background ch eck depends largely on the nature of the job in terms of the anticipated degree of contact th at the employee will have with other persons in

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39 performing job functions (27 American Jurisp rudence 2nd 394, 2005). If the employee's job duties will frequently bring him into contact w ith the public or involve close contact with particular persons resulting from a special rela tionship between such persons and the employer, the employer's duty expands, requiring it to go beyond the job application form and personal interview. Generally though, a reasonable routine backgr ound check includes an application, an interview, and reference checks (Lear, 1997). However, if the application, interview or reference checks reveal a problem with the employee, a more thorough independent inquiry may be required (27 American Jurisprudence 2nd 394, 2005). Even if an independent inquiry is required, such investigation typi cally does not normally extend to criminal record checks (Sullivan, 1998). The modern negligent hiring doctrine looks at the circumstances surrounding the employment relationship that may call for a height ened duty (Lear, 1997). It is possible that the circumstances involving the employees background may give rise to a heightened duty that would warrant organizations to go much furthe r than what is minimally required (Gibbons & Campbell, 2003). This may be particularly true in situations where the employee would have access to vulnerable persons, like children (Lear, 1997). However, the general rule remains that empl oyers do not have to conduct criminal record checks (Sullivan, 1998). Furthermore, employers ma y be relieved of liability for not conducting reasonable background checks if the employer esta blishes that a reasonable inquiry would not have revealed the employees unfitness (27 American Jurisprudence 2nd 394, 2005). Negligent Retention Not only should employers use reasonable care in hiring employees, but they should also use reasonable care in decidi ng whether to retain employees who demonstrate a propensity

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40 toward dangerous conduct. Failur e to exercise such care and terminate unfit employees could result in liability for the tort of negligent retention. An employer who knew or should have known of problems with an employee that indicat ed unfitness and who failed to take further action such as investigation, discharge, or rea ssignment could be found liable for torts committed by that employee against a third person (27 American Jurisprudence 2nd 396, 2005). Conversely, employers cannot be held liable if they did not have notice of an employee's propensity to commit criminal acts during the cour se of employment. This is especially true where the employer has made it cl ear to the employee that he or she should not participate in criminal acts while on the job. Like the tort of negligent hiring, negligent rete ntion also originates from the fellow servant rule (Lienhard, 1996). Also like negligent hiring, early negligent retention cases only imposed liability on the employer for those acts that the employee committed during the scope of employment. However, later cases have expanded the tort to cover ultr a vires actions, including criminal offenses. This modern view of negligent retention emphasizes an ongoing duty on the part of an employer to retain only competent employees (27 American Jurisprudence 2nd 396, 2005). Through this modern view, there are several issues that courts must consid er including: (a) the level of care the employer must exercise in making personnel decisions; (b) the foreseeable victims to whom the duty is owed ; (c) the employees characteristic that results in incompetence or unfitness, and the type of proof that evidences this trait; (d) the connection between the employee's unfitness and the plaint iff's injury; and (e) the connection between the employer and the plaintiff (Lienhard, 1996).

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41 Thus, the issues inherent in negligent re tention cases are almost identical to the requirements for negligent hiring cases. Accordingl y, the standard care in a negligent retention case is very similar to that for negligent hiring cases (B eck, 2006). However, there is one critical difference in that in a negligent retention ca se, the employee would be subject to firsthand observation by the employer. Therefore, courts may be willing to grant more latitude for plaintiffs in a negligent retention case based on the employers knowledge (Beck, 2006). The employers knowledge of the employees in competence or unfitness is critical in a negligent retention case. In fact, the success of a negligent retention claim will turn on whether the employer knew or should have known in the ex ercise of ordinary car e that their employee was unfit (27 American Juri sprudence 2nd 396, 2005). Thus, employers should perform employee appraisals on a regular and systematic schedule (Lienhard, 1996). The existence of any incidents should be noted by a supervisor immedi ately. Employers should pay close attention to personality traits that may emerge involving violent episodes or frus trations. If a pattern or trend starts to develop, then the employer should take immediate action to remove transfer or suspend the employee (Lienhard, 1996). Third parties may also establish liability agai nst employers under negligent retention where the actions taken by the employer are not properl y administered (27 American Jurisprudence 2nd 396, 2005). Further, employers could be found liable for negligent retention where the employer reasonably should have foreseen that it s actions were inadequate to protect third persons from harm resulting from a recurrence of the employee behavior of which the employer had prior notice (27 American Jurisprudence 2nd 396, 2005; Favorito v. Pannell 1994). Defenses There are several defenses that defendants can use to defeat causes of actions based in negligence. The availability of the defense depends on the facts of the case. It is also important to

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42 note that if the facts preclude the use of a defens e theory, the defendant may still prevail if the plaintiff cannot meet the burden of establishing each of the elements required for the specific tort. However, most defense theories to neglig ence claims focus on the pl aintiffs conduct at the time the tort occurred. The most common defenses to respondeat superior, negligent hiring, and negligent retention cases are assumption of risk and comparative fault/contributory negligence (Lienhard, 1996). Thus, the review of literature will include a brief discussion of these defenses. Finally, this study specifica lly deals with youth sport or ganizations which are often composed of volunteers. Many jurisdictions have enacted volunteer immunity statutes that protect volunteers from liability incurred in the activities for which they have volunteered. This section will also include a brief discussion of volunteer immunity. Assumption of Risk Assumption of risk is a defense that is avai lable when a plaintiff has voluntarily exposed himself to a known and appreciated danger (Cotte n, 2003). Assumption of risk is an absolute defense meaning that its existence precludes the plaintiff from recovering for the injuries (Keeton, 1984). Assumption of ri sk involves the assumption of well-known risks that are inherent to the activity. Put simply, when one knows the inherent dangers involved and voluntarily participates, one assume s those risks inherent in the activity and the service provider is not liable for resultin g injuries (Cotten, 2003). Three elements must exist for a valid assump tion of risk defense. These include: (a) the risk must be inherent to the activity, (b) the part icipant must voluntarily consent to be exposed to the risk, and (c) the participant must know, unders tand, and appreciate the ri sks inherent in the activity ( Leakas v. Columbia Country Club, 1993). It is unlikely that youth sport organizations will be able to satisfy the elements of assumpti on of risk when defending against claims based on the pedophilic actions of their coaches and offici als. First and foremost, pedophilia is not an

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43 inherent risk in any youth sport ( Rutter v. Northeastern Beaver County School District 1981). Second, children, as minors, cannot legally consent to risk exposure and any consent by a parent or guardian to pedophilia would mo st certainly be negated in c ourt because such consent would violate the law in every jurisd iction. Thus, assumption of risk is not a valid defense for youth sport organizations against claims brought by their athletes alleging pedophilia. Contributory Negligence and Comparative Fault Contributory negligence is a defense to ne gligence that focuses on the conduct of the plaintiff. Contributory negligence is also an abso lute defense in that it t oo precludes recovery for the plaintiff if established. The theory provides that plaintiffs may not recover if they are negligent and their negligence cont ributes proximately to their in juries. Thus, the defense is a complete one. It shifts the loss totally from the defendant to the plaintiff, even if the plaintiffs failure to exercise reasonable care is much le ss marked than that of the defendant. However, contributory negligence has been ei ther overruled or repealed by statute in most jurisdictions (Cotten, 2003). In fact, most jurisdictions have replaced contributory negligence with comparative negligence. These jurisdictions have done so be cause they are of the opinion that contributory negligence leads to unfair a nd perhaps even harsh results (Cotten, 2003). Instead, these jurisdictions have fashioned syst ems that attempt to apportion damages between the plaintiff and the defendant according to their relative degree of fault (Clement, 2004). This is the basis for comparative negligence. It is not likely that a youth sport organizat ion will be able to a ssert a defense based on either contributory negligence or comparative fa ult in a case brought on behalf of a child who has been sexually abused by a coach or official. After all, both types of jurisdiction require the defendant to prove that the plaintiff was neglig ent. Further, these defenses do not apply to

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44 intentional torts. If a child is victimized by a coach then it is not probable that the league that employed the coach will succeed on a claim that the child negligently contributed to his or her victimization. Additionally, while the league may be found negligen t for either, or both, hiring and retaining the coach, the actual act that led to the claim involved an intentional tort committed by the coach. Volunteer Immunity Commentators have called volunteers the thir d sector of the American economy, the other two being government and business (Smith, 1999) Various service providing organizations, including youth sport organizati ons, would not be able to f unction without volunteers. Thus, when insurance companies began raising premiums in response to a rash of lawsuits in the 1980s, states across the country st arted passing volunteer immunity statutes. These statutes grew out of a fear that people woul d stop volunteering and the services provided by these volunteerdependant agencies would stop (Smith, 1999). State volunteer immunity statutes are uniform in that they all seek to protect certain persons, such as Little League and youth soccer co aches, from liability for injuries resulting from ordinary negligence in connection to their coaching activities (Hurst & Knight, 2003). Some states have gone further with their coverage and have expanded the statutes to cover gross negligence and even willful, want on, and reckless conduct (Smith, 1999). To add some clarity to the law, Congress en acted its own volunteer protection statute in 1997 when it passed the Federal Volunteer Protec tion Act (FVPA; Biedzynski, 1999). The stated purpose of the Act is to "promote the interest s of social service pr ogram beneficiaries and taxpayers and to sustain the av ailability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions ...."( 42 U.S.C.A. 14501(b), 2005). Even with these statutes, however, youth sport organizatio ns may still be vulnerable to litigation.

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45 Most volunteer statutes, includ ing the FVPA, apply only to co aches or officials who serve as volunteers without compensati on in activities that benef it young people (Hurst & Knight, 2003). Thus, the organizations are not immune to liability for their own negligent actions. Further, the organizations may also be held vicariously liable for the actions of their volunteers, who independently may enjoy protection under th e statutes (Smith, 1999) Finally, statutes typically have some qualifiers that limit their application to certain specific acts. For example, the FVPA has qualified its coverage so that it do es not include crimes of violence, hate crimes, sexual offenses under controlling state law, and ci vil rights violations under either a federal or state law, or actions of the volunteer while under th e influence of alcohol or drugs at the time of the incident (Biedzynski, 1999). Thus, volunteer immunity statutes may or may not protect a youth sport organization against a claim that is brought on behalf of a child who was sexually victimized by his or her coach. The FVPA probably would not provide protection for the organization because the claim would involve a sexual offense under state law (Bie dzynski, 1999). Further, the organization itself may still be liable under the Act despite the fact that its volunteers may enjoy coverage. Therefore, the question remains open as to wh ether state immunity st atutes would provide protection for youth sport organizations for the pe dophilic actions of their coaches and officials in claims brought against the organization under the tort theories of respondeat superior, negligent hiring, and negligent retention. My re search project will attempt to answer that question for all 50 states and the District of Columbia. Sexual Abuse of Children There are two primary types of people who sexua lly abuse children. The first type is the situational offender (Edwards, 1997). A situational offender is not ty pically sexually attracted to children. The second type of offender is the pedo phile. According to Dr. Fred Berlin, a Johns

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46 Hopkins professor who founded the National Institu te for the Study, Prevention and Treatment of Sexual Trauma, a pedophile is someone with a di stinct sexual orientati on marked by persistent, and sometimes exclusive, attraction to pre pubescent children (Cloud, 2002). Outside of the medical community, however, the term pedophile is frequently extended to include people who are attracted to adolescent children as well as prepubescent children, and people who engage in sexual activity with a child (The Colu mbia Electronic Encyclopedia, 2003). Youth Sport Organizations More than 10 million children below the age of 16 play some form of organized sport (Peterson, 2004). Organized youth sp orts can range in activity and the organizations that provide these activities are equally as diverse. Some are national organizations like Little League (baseball), Pop Warner (football), and USA So ccer. Others, however, are regional and are operated by states, counties, munici palities, churches or park a nd recreation departments in the local communities for which they service. Despite the diverse nature of youth sports, there are unifying umbrella organizations that seek to advance and enhance youth sports. Orga nizations like the National Council of Youth Sports (NCYS), which has 170 members natio nwide and operates under the mission of representing these members through advancing the values of participating in youth sport (www.ncys.org, n.d.). A large number of the NC YS member organizations are national organizations. One of the primary services pr ovided by the NCYS is the development and sharing of information that promotes healthy participation of youth sports. For example, the NCYS educates coaches and officials on leader ship development. Further, the NCYS has developed recommended guideline s for background scr eening of all volunt eers who work with NCYS member organizations. NC YS member organizations each receive one hardbound copy of

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47 the NCYS background check recommendations and can purchase additional copies for $12.00 (www.ncys.org/background_screening, n.d.). The National Alliance for Youth Sports (NAYS) is another national or ganization that seeks to make the sports experience healthy for all children (www.nays.org/about, n.d.). The NAYS, however, works on the local level through its pa rtnerships with more than 3,000 community organizations, which include park and recreation departments, Boys and Girls Clubs, Catholic Youth Organizations, and Jewish Community Ce nters. Primarily, the NAYS provides children with positive instruction and works toward bu ilding basic motor skills. The NAYS seeks to ensure that administrators (bot h professional and volunteer), vol unteer coaches and officials are well trained in their roles a nd responsibilities. One way in which the NAYS assists local community organizations is by providing them w ith volunteer screening resources which include background check guidelines developed by the NAYS (www.nays.org/IntMain, n.d.)

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48 CHAPTER 3 MATERIALS AND METHODS Chapter Summary This chapter identifies the methods that were utilized to study whether youth sport organizations can be held liable for the pedophi lic actions of their coaches through the tort theories of respondeat superior, negligent hiring, and negligent retention. The scope of this study included a complete examination of existing case law for all 50 United States. The results of my study provide youth sport organizations with inform ation they need to make policy decisions on how to limit liability and in turn guard agai nst sexual abuse within their organizations. Research Design My study employed a descriptive methodology in performing a legal analysis on existing case law to determine whether youth sport organi zations can be held liable for the pedophilic actions of their coaches through the tort theories of respondeat superior, negligent hiring, and negligent retention. Volunteer im munity statutes were also st udied as they might provide defenses for youth sport organizations against cl aims asserting the aforementioned theories. As this project involved a descriptiv e study of an existi ng problem, it is in effect a documentary study incorporating case and statutory law analysis. Data Collection The data in this study consisted of case and statutory law for all 50 United States and the District of Columbia. Specificall y, the criteria for case selection extended to include all federal and state cases that applied the tort theories of respondeat superior, negligent hiring, and/or negligent retention to claims brought on behalf of children and their parents and against youth sport organizations alleging sexual abuse by their youth sport coaches and officials. Additionally, volunteer immunity statutes for th ese jurisdictions were analyzed to determine if they provide a

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49 valid defense against the aforementioned tort cl aims. Relevant cases were located and accessed through descriptive word searches on Westlaw s electronic database. Descriptive searches included the terms sexual abuse, molestation, coach, athlete, youth, respondeat superior, negligent hiring, and negligent supe rvision. Westlaw is an online legal research service providing electronic access to West's vast collection of statutes, case law materials, public records and other legal resources, as well as current news articles and business information. It was anticipated that not every jurisd iction has reported case precedent involving a lawsuit brought against a youth s port organization on behalf of a youth sport participant, alleging pedophilia by a coach or official, and based on one of these three tort theories. Analogous cases were used for these jurisdictions. Analogous cases are those that involve similar but not identical problems. An example of an analogous case may involve an athlete who alleges sexual misconduct on the part of a high school or colle ge coach. Another example may include an allegation of sexual abuse brought by a youth agai nst a Boy or Girl Scout troop leader. Because our legal system is based on precedent, cases can be used as authority for a rule, or as an example of how that rule has been applied in similar cases (Oates, Enquist, & Kunsh, 1998). Legal interpretation can be made by studying analogous case law that utilizes the theories of respondeat superior, negligent hiring, and negligen t retention to similar cases, but not identical cases. Therefore, the law for a specific jurisdic tion can be gleaned from analysis of analogous case law. There was no time frame in terms of how recen t the cases or statutes must have been. However, my study focused exclusively on contro lling case and statutory law. In other words, my study only analyzed primary authority, meaning cases that are binding on courts within the

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50 jurisdiction. Accordingly, this st udy was a comprehensive overview of the law as it applied to the problem. Data Analysis Cases and statutes were analyzed to determin e the applicable law for all 50 United States. Relevant cases were briefed according to a sta ndard comprehensive format (Ray & Ramsfield, 1993). This method for interpreting and synopsiz ing a court decision includes: (a) issue presented in the case, (b) the rules used by the court in resolving the issue, (c) the courts analysis, and (d) the courts c onclusion. Statutes were interp reted and analyzed based on a method utilized by Shapo, Walter and Fahans (1989). This method required: (a) careful reading of the text of the statute, (b) identification of stat utory issues, and (d) analys is of legislative intent that is explained by comments to annotated statutes. The cases and st atutes were then analyzed to determine how each state will lik ely rule on a case brought agains t a youth sport organization for the pedophilic actions of its coaches and officials. The first criterion for analyzing the case law for these jurisdictions was whether there are cases directly on point. Specifically, the first goa l was to determine whether each jurisdiction had directly answered the research questions. If the jurisdiction had not directly answered all of the research questions, then analogous cases were utili zed. The review of literature revealed several key questions that were used to determine whet her a jurisdiction that lacks controlling case law would be more willing to impose liability on a youth sport organiza tion for the pedophilic actions of its coaches and officials. The questions revealed through the review of literature framed the criterion used for analyzing analogous cases. These que stions were: (a) whether the doc trine of respondeat superior extends employer liability to criminal actions like molestation and harassment; (b) whether the doctrine of negligent hiring and ne gligent retention required a hei ghtened duty in cases where the

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51 employee has access to children and/or the public; a nd (c) if a heightened duty existed, did that duty extend to include criminal background chec ks in cases where the employee has access to children or the public? Volunteer immunity statutes we re analyzed to determine whether they extend to cover youth sport organizations in addition to the i ndividual volunteers. Analogous case law was not needed to determine the app lication of these statutes. Ultimately, as the law for each jurisdiction was determined, patterns appeared in how states applied the tort theories and/or voluntary immunity defense. Mine is an exploratory study, thus, there was no way of predicting patterns at th e initial stage of the st udy. However, the results of my study revealed that certain jurisdictions applied the law in ways that separate them from other jurisdictions and these states were gr ouped together and iden tified based on their commonality. Delimitations My study was limited to volunteer youth s port organizations a nd did not include interscholastic or intercollegiat e youth sport organizations. The th eories of liability used to pursue claims against volunteer youth sport organi zations are not necessarily the same as those that would be used in an interscholastic setting. For example, the doctrine of respondeat superior does not apply to state employers in th e vast majority of jurisdictions. It is also important to note that this study did not investig ate organizational requirements that may be imposed. Organizations may place re quirements on themselves that exceed what the law requires. For example, a youth sport organi zation may require criminal background checks for all new hires, however; the legal jurisdicti on may not legally require the organization to conduct such searches.

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52 Finally, most lawsuits are set tled out of court and most trial or district court decisions are not reported. Therefore, it was possible that my search would not detect some legal cases brought against youth sport organizations be cause the cases either settled ou t of court, or never reached the appellate stage. Research Questions The purpose of this study was to answ er the following research questions: Can youth sport organizations in the United States be held li able for the pedophilic actions of their coaches and officials based on the to rt theories of respond eat superior, negligent hiring, and negligent retention? Are there reported cases for each jurisdicti on involving civil liability against youth sport organizations for the pedophilic acti ons of their coaches and officials? Does the doctrine of respondeat superior ex tend employer liability to criminal actions involving sexual molestation, harassment, or abuse? Do the doctrines of negligent hiring and ne gligent retention requi re a heightened duty in cases where the employee has access to children or the public? Does the doctrine of negligent hiring exte nd to require criminal background checks in cases where the employee has acce ss to children or the public? Do volunteer immunity statutes provide youth sp ort organizations in the United States with a defense against lawsuits based on the pedophi lic actions of their coaches and officials based on tort theory of negligent hiring? What comparisons can be drawn between states in the way they apply the tort theories of respondeat superior, negligent hi ring, and negligent retention? What is the standard of care in the United St ates for youth sport orga nizations in terms of preventing or limiting their liability for th e pedophilic actions of their coaches and officials?

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53 CHAPTER 4 RESULTS The results section is divided into subsect ions with each subsection representing the research questions used to form the case law se arch criterion. The results for each research question are listed in their corr esponding sections. Detailed anal ysis of each jurisdiction are found in Appendix A. Cases against Youth Sport Organizations Only California and Indiana had reported ca ses where plaintiffs brought civil actions against youth sport organizations for the pedophilic actions of their coaches and officials. These two states had conflicting results. In California, there were actu ally two cases with both cases resulting in verdicts favoring the defendant youth sport organizations. One case was brought against a gymnastic asso ciation and coach and was upheld beca use there was no basis to overturn the jurys verdict that there wa s not enough proof to find the asso ciation and coach liable (Dawn D. et al., v. The Regents Of The University Of California, 2003). The second case was brought by th e victims of Norman Watson. In that case a California appellate court ruled that Little League Baseball, Inc. was a franchisor and that East Baseline Little League was a franchisee and that franch isors do not have contro l over the employees of franchisees. Based on this ruli ng, the plaintiffs negligent supe rvision, negligent hiring, and respondeat superior claims against Little Leag ue Baseball, Inc. faile d. The plaintiffs were allowed to pursue actions against East Baseline Little League, the local Little League Baseball affiliate (Hickman v. Little League Baseball, Inc., 2006). The Indiana case involved a claim against Southport Little Lea gue for the pedophilic actions of an equipment manager. Unlike the Califo rnia case, the plaintiffs in the Indiana case

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54 only pursued the local Little League affiliate and the league was found liable under the doctrine of respondeat superior (Southpor t Little League v. Vaughan, 2000). Application of the Doctrine of Respondeat Superior The doctrine of respondeat superior can appl y to sexual molestation and abuse cases in: Indiana; Louisiana, if the serv ant's tortious conduct is closel y connected in time, place, and causation to his duties to the mast er; Minnesota, as long as the sour ce of the attack is related to the duties of the employee, and th e assault occurs within work-rela ted limits of time and place; Mississippi; North Dakota; Oregon, if the tortious act occurred subs tantially within the time and space limits authorized by the employment, the employee was motivated, at least partially, by a purpose to serve the employer, and the employ ee's act was of a kind which the employee was hired to perform. For an overview on which states apply the doctrine of respondeat superior, see table 1. The doctrine of respondeat superior does not apply to sexual molestation or abuse claims in: Alabama, unless later ratified by employe r; Arkansas; Arizona; California; Colorado; Connecticut; District of Columbia unless the employee actuated, at least in part, by a desire to serve the master; Florida, unless the employee was assisted in accomplishing the tort by virtue of the employer/employee relationship; Georgia, unless later ratifie d by employer; Illinois; Iowa; Kentucky; Maine, unless the employee actuated, at least in part, by a desire to serve the master; Michigan; Montana; Nevada; Ne w York; North Carolina; Ohio; Oklahoma; Pennsylvania; Rhode Island; Tennessee; Texas, unless an assault is so connected with and immediately arising out of authorized employment tasks as to merge the task and the assaultive conduct into one indivisible tort; Utah; Washington; and Wisconsin. States that have not resolved the question of whether the doctrine of respondeat superior applies to sexual molestation and abuse incl ude: Alaska, Delaware, Hawaii, Idaho, Kansas,

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55 Maryland, Massachusetts, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, South Carolina, South Dakota, Vermont, Vi rginia, West Virginia, and Wyoming. Requiring a Heightened Duty of Care States that have a heightened duty of care in negligent hiring and ne gligent retention cases involving situations where the employee has acce ss to children or the public include: Colorado, the duty of care varies based on degree of contact with other persons; Florida, degree of contact varies based on degree of contact with other pers ons; Georgia; Louisiana, when an employee is to be placed in a position of supervisory and/or disciplinary authority ove r children, the employer has a duty to properly screen the ap plicant (and continue to provide screening) to determine if the applicant has been convicted of a crime (or cr imes) involving moral tu rpitude; Massachusetts, the scope of investigation is directly related to the severity of risk third parties are subjected to by an incompetent employee; New Jersey, heighten ed duty for hirings rela ted to the instruction of children; Tennessee, increased duty whenever employees have access to living quarters; and Texas, organizations whose primary function is the care and education of children owe a higher duty to their patrons to exercise care in the selection of th eir employees than would other employers. For an overview of which states ha ve a heightened duty of care, see table 1. Requiring Criminal Background Checks Only Rhode Island and Pennsylvania have cas es requiring criminal background checks as part of a reasonable background check. Several stat es have suggested that a criminal background check may be required based on the facts of the case. These states include: Colorado, but only if there are circumstances giving the employer reason to believe that a job applicant, by reason of some attribute of character or prior conduct, would cons titute an undue risk of harm to members of the public and the applicant will be in frequent contact with particular persons who stand in a special relationship to the employer and with wh om the applicant will be in close contact;

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56 Georgia, suggested if the circumstances require it, Iowa, the issue is a material question left to jury; Kentucky, no general requirement to perfor m a criminal record check, but at least one decision suggested that a check may be required when the defendant had previously agreed via contract or through some sort of policy to conduc t criminal records checks; Louisiana, could be part of reasonable search, depends on situa tion and whether person will supervise children; Maine, only if the employer contra ctually agreed to do such search es; Maryland, issue left to jury to consider the relative ease with which a crimin al record search could have been conducted, and the information that would have been obtained had the inquiry been made; Massachusetts, facts could warrant such a search and such a search ma y be contractually required if employer agreed to perform it; Missouri, there is no general duty, but the facts could necessitate a further inquiry based on knowledge of a potential employee s criminal past; North Dakota, depends on situations, i.e. situations wher e knowledge of criminal behavior exists or where the person has access to homes; Ohio, for situations where person has access to homes; Texas, there is no general requirement, but when children are i nvolved a check may be necessary; and Virginia, question left open because fact pa ttern may arise requiring a check. Conversely, Minnesota, New York, North Carolina, Florida, and Michigan have decisions stating that criminal background checks are neve r required as a part of a reasonable background search in negligent hiring cases. The remaining states, including the District of Columbia, lack reported decisions on the issue of whether criminal background checks are required when a potential employee has access to children or the public. Application of Volunte er Immunity Statutes States that have volunteer imm unity statutes that cover the organizations as well as the volunteers include: Minnesota, although it limits application to situati ons where the individual acts in a willful and wanton or reckless manner in providing the services or if the individual acts

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57 in violation of federal, local or state law; Mississippi, but it only protects the volunteer/organization against clai ms based in negligence; New Jersey, but the act expressly excludes protection of voluntee rs or agents for sexual misconduct; and Pennsylvania. States where volunteer immunity statutes do not provide protecti on for the youth sport organizations include: Alabama, Arkansas, Arizon a, Colorado, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indi ana, Kansas, Louisiana, Maryland, Massachusetts, Missouri, Montana, North Carolina, North Da kota, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, We st Virginia, and Wisconsin. The following states do not have volunteer immu nity statutes: Alaska, California [does have a statute that exempts di rectors of nonprofit organizations ], Connecticut, Iowa, Kentucky, Maine, Michigan, Nebraska, Nevada, New Hamp shire, New York, New Mexico, Ohio, Oregon, Tennessee, Vermont, Virginia Washington, and Wyoming.

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58Table 1. Research Question Results* Research Questions Yes No, with Exceptions Undecided Does Respondeat Superior LA, MN, MS, ND, AL, DC, FL, AK, DE, HI, ID, Apply to Sexual Molestation OR GA, MN, TX KS, MD, MA, MO, or Abuse? NE, NH, NJ, NM, SC, SD, VT, VA, WV, WY Is There a Heightened Duty CO, FL, GA, LA, MA, of Care Based on Access NJ, TN, TX to Children or the Public? Are Criminal Background RI, PA CO, GA, IA, KY, AL, AK, AZ, AR, CA, Searches Required? LA, ME, MD, MA, CT, DE, DC, HI, ID, MO, ND, OH, TX, VA IL, IN, KS, MS, MT, NE, NH, NJ, NM, OK, OR, SC, SD, TN, UT, VT, VA, WA, WV, WI, WY States not listed on table answered no to the research questions without exceptions.

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59 CHAPTER 5 DISCUSSION Discussion is presented in subsections w ith each subsection representing a research question. One of the research ques tions concerns comparisons that can be drawn between states in the way they apply the tort theories of re spondeat superior, neglig ent hiring, and negligent retention. There will be no specific subsection for this question as this research question will be answered within each subsection. Cases Against Youth Sport Organizations California and Indiana were the only states with reported lega l decisions of cases brought against youth sport organizations for the pedophilic actions of coaches and officials. California had two legal decisions with both cases resulting in verdicts fa voring the defendant youth sport organizations. The first decision was a clai m brought by gymnasts against a gymnastic association and coach claiming sexual misconduct on the part of the coach. A jury heard the case and resolved the matter in favor of the defendant coach and association on the basis that there was not enough evidence to find that either th e coach or the associa tion was liable for any misconduct. On appeal, the California 2nd District Court of Appeals ruled that there was no legal basis to overturn the trial cour ts decision (Dawn D. et al. v. Th e Regents Of The University Of California, 2003). The second California decision involved claims brought by th e victims of Norman Watson against Watson, East Base Line Li ttle League, and Little League Ba seball, Inc. In that decision the California 4th District Court of Appeals ru led that Little League Baseball, Inc. was a franchisor and that East Base Line Little League was a franchisee. The court ruled that as a franchisor, Little League Baseball, Inc. lacked control over its franchisees employees. Based on this lack of control, Little League Baseball, Inc. could not be held liable under the doctrines of

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60 respondeat superior or negligent hiring/retention. Speci fically, the court found that Little League Baseball, Inc. did not have control over East Base Lines hiring of Wa tson, or his continued employment after allegations of misconduct surf aced. The court did permit the plaintiffs to pursue actions against East Base Line Little Leag ue, the local Little League Baseball affiliate. The Indiana decision involved a claim agains t Southport Little League for the pedophilic actions of an equipment manager (Southpor t Little League v. Vaughan, 2000). Unlike the California Little League case, the plaintiffs in the Indiana case only pursued the local Little League affiliate and the league was found liabl e under the doctrine of respondeat superior. In Southport Little League v. Vaughan, an e quipment manager for the league wrongfully viewed child genatalia and molested child athletes. The court held that the league could be liable through the doctrine of respondeat superior if the league aut horized any of the offendor employees actions. On review, th e appellate court found that the plaintiffs designated materials raised the inference that some of the offenders acts were authorized (suc h as fitting the youths' uniforms) when he viewed the athletes genita lia for his sexual gratif ication and when he sexually molested the youths. Thus, the appellate court held that the tria l court properly denied the Little League's motion for summary judgment. Further, the court found that the youths who pa rticipated in Little League baseball were taught to respect adult authority, and it was clear to participating youths that the offender held a position of authority with Southport Little L eague (Southport Little League v. Vaughan, 2000). The court held that when an individual is cl oaked with authority by an organization in which youths are participating, such as Little League Baseball, youths will typically comply with requests or commands of the adult individual in authority. Therefore, So uthport Little League, by appointing the offender as an official, essentially authorized the offender to exert his authority

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61 over youths who participated in Little League Baseball. Because some of the offenders acts were authorized, the court believed that the de termination of whether Southport Little League was liable under the doctrine of respondeat superior for the sexual molestations was a question of fact for the jury (Southport Little League v. Vaughan, 2000). The Indiana court did address the issue of whet her a claim against Little League Baseball, Inc. for the pedophilic actions of its coaches a nd officials would survive. Accordingly, it is unclear whether the franchisor/franchisee contro l roadblock exists in Indiana for cases where plaintiffs pursue national youth s port organizations. However, Illi nois, Texas and Virginia all have decisions where national youth organi zations were relieved of liability on the franchisor/franchisee basis (Doe v. Big Brothers Big Sisters of America, 2005; Doe v. Boys Clubs of Greater Dallas, Inc., 1994; Golden Sp read Council, Inc. No. 562 of Boy Scouts of America v. Akins, 1996; Infant C. v. Boy Scouts of America, Inc., 1990). The Texas and Virginia decisions involved B oy Scouts of America, and Illinois and Texas have decisions involving Big Brothe rs, Big Sisters of America. The rationale used in all of these cases to relieve the national organizations of liab ility is identical to th at used by the California 4th District Court of Appeals in its decision re lieving Little League Baseball, Inc. of liability for the pedophilic actions of Norman Watson. Accordi ngly, Illinois, Texas a nd Virginia all have decisions that would probably provide protecti on for national youth sport organizations against sexual abuse/molestation claims brought w ithin Illinois, Texas and Virginia. The fact that only two states had decisions di rectly on point is signi ficant. The review of literature revealed that expert s believe sexual abuse in youth s ports is prevalent (Deak, 1999). However, there is a dearth of reported cases of sexual abuse involving yo uth sport organizations. Accordingly, the results do not seem to support the review of literature finding that sexual abuse

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62 and molestation are prevalent in youth sports. The search did reveal a number of cases of sexual abuse and molestation claims brought against co aches who work in a school setting, although those cases fell outside the scope of this study. There may be a legal reason for the low numb er of reported sexual abuse and molestation cases brought against youth sport organizations. It is possible that a number of cases against youth sport organizations have neve r reached the trial stage of lit igation, much less the appellate stage. If a case has been settle d out of court before it is resolv ed by a court of law then it would not be reported and would not appear on Westlaws legal database. Further, the vast majority of reported decisions are appellate cases. The basis for this is that there is little reason to publish most trial court or district court decisions because trial court and district court decisions typically do not have binding authority on future litigants. Thus, there may be legal cases brought against youth sport organizations that provided decisions that were either settled out of cour t, or resolved by a trial or district court wit hout appeal. The true scope of th e prevalence of sexual abuse in youth sports is unknown because no studies have been conducted on the population (Zaichkowsky, 2000). Application of the Doctrine of Respondeat Superior The review of literature revealed that the most critical element of respondeat superior is the requirement that the employee was acting within the scope of employment (Keeton, 1984). Acts committed by the employee that exceed the scope of employment are considered ultra vires and employers are generally not vicariously liable for the ultra vires actions committed by their employees (Cotten, 2007). The case la w research showed that states have varying definitions of the phrase scope of employment. Some states in terpret the phrase broadly to include criminal actions of sexual molestation or abuse. Conversel y, the majority of states have interpretations

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63 that are narrow in application a nd consider all actions of sexual abuse and molestation to be ultra vires as a matter of law. States Where the Doctrine of Respondeat Superior Applies The states that allow the doctrin e of respondeat superior to ap ply to sexual molestation or abuse all have one thing in common; at one time they did not permit the doctrines application to intentional sexual misconduct. These states repres ent a growing trend of legal precedent adopting a broader definition of scope of authority, and a more liberal application of the doctrine of respondeat superior. As previously stated, in Indiana an appellate court held that a local Little League Baseball, Inc. affiliate could be held li able through the doctrine of respo ndeat superior. In doing so, the court found that there were questions of fact that need to be resolved by the jury. The court in Southport Little League v. Vaughan found that the league could ha ve authorized certain acts (such as fitting the youths' uniforms) that t ook place when the offending employee viewed the athletes genitalia for his own sexual gratification and when he sexually molested the youths. Further, the court found that the League had cl oaked the employee with authority and the youths who participated in Little Lea gue Baseball were taught to respect that adult authority. Based on these facts, the court concluded that a reasonable ju ry could find in favor of the plaintiffs as there were issues of material fact (Sou thport Little League v. Vaughan, 2000). Accordingly, in Indiana it is possible to use the doctrine of respond eat superior to impose liability on a youth sport organization. For a league to be liable, it must have authorized at least some of the actions that led to the sexual abuse or molestation (S outhport Little League v. Vaughan, 2000). However, the requisite authority need ed to result in liability in Indiana is minimal because the state uses a broad definition of scope of authority. Specifically, the court in Southport Little League found authority in the fitting of uniforms on the part of the leagues

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64 employee. Coaches and officials for youth sport organizations regularly have contact with children that might lead to similar results in future cases. For example, coaches and officials might have to assist child athletes with injuri es or have physical contact with child athletes through close instruction that could provide the coach or an official with the opportunity to sexually molest or abuse an athlete. Louisiana also permits the doctrin e of respondeat superior to a pply to cases of sexual abuse or molestation. In Louisiana, the course and scope of a servant's duties to his master is dependent on whether the servant's tortious conduct was clos ely connected in time, place, and causation to his duties to the master as to be regarded as a ri sk of harm which can be fairly attributed to the master's business (Landreneau v. Fruge, 1996). Minnesotas definition of sc ope of authority is similar to Louisiana, but goes even further in expanding the applicabil ity of the doctrine of respondeat superior. Like Louisiana, in Minnesota sexual abuse or molestation can fall with in the scope of author ity as long as: (1) the source of the attack is related to the duties of the employee, and (2) the assault occurs within work-related limits of time and place (L.M. ex re l. S.M. v. Karlson, 2002). However, Minnesota courts go a step further because they have held that an employee's act need not be committed in furtherance of his employer's business to fall wi thin the scope of empl oyment (Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 1999). Instead, the master is liable for any such act of the servant which, if isolated, would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to th e master, that both acts are treated as one indivisible tort (Fahrendorff ex rel. Fahren dorff v. North Homes, Inc., 1999; Lange v. National Biscuit Co., 1973; L.M. ex rel. S.M. v. Karlson, 2002).

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65 Mississippis definition of scope of authority is very similar to the more traditional definition used by the majority of states. Howe ver, there is one Miss issippi Supreme Court decision that allowed a case of sexual abuse and molestation against a church to proceed past summary judgment. Thus, Mississipp is highest court may have imp licitly rather than expressly expanded the states definition of scope of au thority by allowing the re spondeat superior claim to continue rather than dismissing it as a matter of law. In North Dakota, the courts define "scope of employment" as an act that takes place within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulf illing those duties or engaged in doing something incidental thereto, or as sometimes stated, wh ere he is engaged in the furtherance of the employer's business (D.E.M. v. Allickson, 1996; Nelson v. Gillette, 1997). Similarly, Oregon courts define scope of employment to include sexual abuse or molestation if: (1) the tortious act occurred substantially within the time and sp ace limits authorized by the employment; (2) the employee was motivated, at least partially, by a purpose to serve the employer; and (3) the employee's act was of a kind which the employ ee was hired to perform (Chesterman v. Barmon, 1988). To satisfy the second requirement, the focus of the inquiry is not necessarily whether an employee's tortious conduct itse lf was intended to serve the employer but, rather, whether the employee engaged in conduct that was intended to serve the employer an d that conduct resulted in the acts that inju red the plaintiff (Vinsonhaler v. Quan tum Residential Corp., 2003). There are two cases, one involving a scout leader and th e other involving a pr iest where the Oregon Supreme Court found that the employee used the position of employment to cultivate abusive relationships, thus triggering the doctrine of respondeat s uperior (Fearing v. Bucher, 1999; Lourim v. Swensen, 1999).

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66 States Where the Doctrine of Resp ondeat Superior Does Not Apply The majority of states do not allow parties to use the doctrine of respondeat superior in claims alleging sexual abuse or molestation. These states are uniform in their rationale for not allowing the use of respondeat superior for these types of cas es. The basis for disallowing respondeat superior for sexual abus e or molestation cases is that such behavior falls outside the scope of authority. The review of literature revealed that the traditional interpretation of scope of authority excludes actions that employees commit that were not motivated by a purpose to serve the employer (DeMitchell, 2002; Lear, 1997). Ther efore, because acts of sexual abuse and molestation are typically perf ormed for purely selfish purposes by employees, those acts are traditionally held to be ultra vires and an employ er cannot be held accountable for ultra vires acts through the doctrine of respondeat superior as a matter of law. Accordingly, plaintiffs who attempt use the doctrine of respondeat superi or against a youth spor t organization for the pedophilic actions of coaches and offi cials in states that utilize th e traditional definition of scope of authority will probably have their cases dismissed as a matter of law. There are other states that adopt the traditional definition of scope of authority, but have exceptions that will extend the doctrine of re spondeat superior to in clude sexual abuse or molestation. Alabama and Georgia have exceptions for situations where the actions were later ratified by the employer. The District of Columb ia has an exception that extends the doctrine where the employee actuated, at least in part, by a desire to serve the master. Florida and Maine make exceptions in situations where the empl oyee was assisted in accomplishing the tort by virtue of the employer/employee relationship. Texa s has an exception to the rule for situations where an assault is so connected with and im mediately arising out of authorized employment tasks as to merge the task and the assaultive co nduct into one indivisible tort, thus allowing the tort to be imputed to the employer.

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67 Utah is a bit of an anomaly in terms of how the state applie s its definition of scope of authority. Utah has a definition very similar to that used by Minnesota, North Dakota, and Oregon. In Utah, there are three basic elements for determining whether an employee is acting within the scope of his or her employment for purpos es of respondeat superior liability. First, the employee's conduct must be of a general kind and nature that the employee is hired to perform (Birkner v. Salt Lake County, 1989; Jackson v. Righter, 1995; Phillips v. JCM Dev. Corp., 1983). The employee's acts must be generally directed toward the accomplishment of the employee's duty and authority. Second, the cond uct must occur within the hours of the employee's work and the ordina ry spatial boundaries of the employment. Third, the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest. Thus, Utahs requirements are very similar to th ose used by courts in Minnesota, North Dakota, and Oregon, However, the Utah Supreme Court applied the required elements to relieve an employer of liability for acts of sexual abuse committed by an employee. The case involved a situation where a patrolman molested members of an explorer s club (J.H. by D.H. v. West Valley City, 1992). The court found that the first two elements were satisfied, but ruled that the third element was not satisfied because the offending employee was obviously not hired to perform acts of a sexual nature on the explorers under hi s supervision. The plaintiffs argued that the employee was employed to instruct and direct them in areas involving police work a nd that his actions in molesting the explorers were carri ed out pursuant to this type of instruction and supervision. The court held that the argument fails however, because it is not the instruction and supervision of the employer of which the plaintiff complained. The employee was not hire d or authorized to instruct the explorers in sexual matters, nor was he authorized to touch the explorers in any

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68 manner. His acts of molestation were not in any way part of the instruct ion and supervision of the explorers but were in fact a complete abando nment of that instructi on and of his employment (J.H. by D.H. v. West Valley City, 1992). States that Remain Undecided The research revealed that there is a group of states that either ha ve never addressed the issue of whether the doctrine of respondeat superior a pplies to cases of sexual molestation or abuse, or have left the issue open for further review. New Jersey does not have a case that directly permits the application of the doctrine of resondeat superior to apply to sexual abuse or molestation. However, the states interpretation of scope of empl oyment is similar to the broad interpretations used by courts in Minnesota, North Dakota, and Oregon. Specifically, New Jerseys interpretation of sc ope of employment is broad enough to cover sexual molestation, harassment or abuse because it includes all cond uct that the servant is employed to perform; conduct which occurs substantially within the au thorized time and space limits; and is actuated, at least in part, by a purpo se to serve the master. Requiring a Heightened Duty of Care in Negl igent Hiring And Negligent Retention Cases Where the Employee has Access to Children or the Public Only eight states require a heightened dut y of care in negligent hiring and negligent retention cases where potential or current employ ees have access to children or the public. For these states, the standard of care becomes more strenuous in th at the employer must exercise increased care in the hiring or re taining of employees. The research showed that the states that do impose a heightened duty of care in certain situa tions are not uniform in how they increase or heighten the duty of care. In Colorado, the scope of duty depends on th e employee's anticipated degree of contact with other persons in carrying out the duties of employment. The requi site degree of care

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69 increases, and may require expanded inquiry in to the employee's background when the employer expects the employee to have frequent contact w ith the public, or when the employment fosters close contact and a special relationship between particular persons and the employee (Connes v. Molalla Transport System, Inc., 1992). Like Co lorado, the states of Florida, Georgia and Massachusetts also vary the degree of care base d on the extent to which employee's duties will require contact with others (Garcia v. Duffy, 19 86; Munroe v. Universal Health Services, Inc., 2004). In these four states employers must de termine how much contact potential employees have with the public and adjust the degree of scrutiny given to applications of potential employees accordingly. In Louisiana, a heightened duty of care exis ts when an employee is to be placed in a position of supervisory and/or di sciplinary authority over childre n. In such cases, the employer has a duty to properly screen the ap plicant, and continue to provid e screening, to determine if the applicant has been convicted of a crime(s) involving moral turpitude (Williams v. Butler, 1991). Similarly, New Jersey and Texas also place a he ightened or increased duty on employers for hirings related to the care or instruction of children (Doe v. Boys Clubs of Greater Dallas, Inc.,1994; Frugis v. Bracigliano, 2003; Hard wicke v. American Boychoir School, 2006). Accordingly, employers in these three states must be cautious when hiring or retaining employees that will have supervisory or instru ctional responsibility ove r children. Louisiana goes a step further in its requirement that employers look to the potential employees fitness in terms of moral turpitude. Tennessee recognizes an increased or heighten ed duty of care, but only for situations where employees have access to living quarter s (Doe v. Linder Const. Co., 1992). It remains unclear whether Tennessee is willing to expand the heightened duty of care to other fact patterns.

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70 Requiring Criminal Background Checks Only Pennsylvania and Rhode Island have cas es requiring criminal background checks as a part of a reasonable search for all positions, not just those where the employee has access to children or the public. Accordingly, youth sport or ganizations in these tw o jurisdictions should conduct criminal background searches or risk expos ure to liability if the employees are unfit for employment and their unfitness could have b een detected through a cr iminal record check. Conversely, Florida, Michigan, Minnesota, Ne w York and North Carolina have decisions holding that a criminal record check is never requ ired as part of a reas onable background search. Courts in these states base their decisions on th e expense and degree of effort needed to conduct criminal records checks. However, the cost for cr iminal records checks c ontinues to decrease and the advent of the Internet has made criminal r ecords checks more convenien t. In fact, the primary authority on this issue from New York was d ecided in 1968. Thus, a court in New York may reach a different conclusion if presente d with this issue in the future. There are 13 states that have decisions that either expressly leav e the question open for later resolution, or suggest that criminal records checks may be required under certain circumstances. One Virginia decision expres sly left the question open based on the courts recognition that it could be presen ted with a factual situation that may require a criminal record search (Southeast Apartments Management, Inc. v. Jackman, 1999). Thus, it is unclear how these states would resolve a negligent hiring case wher e the plaintiff argues that a criminal record check should have been performed. Colorado requires a search only if there are circumstances giving the employer reason to believe that a job applicant, by reason of some attribute of ch aracter or prior conduct, would constitute an undue risk of harm to members of the public (Connes v. Molalla Transport System, Inc., 1992). Further, the job has to be one where the applicant will be in frequent contact with

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71 particular persons who stand in a special relati onship to the employer. A youth sport organization would probably fit the sec ond requirement in that the vulnerab ility of children typically places them in a special relationship with supervis ing or instructing organizations (Lear, 1997). Although, the establishment of a spec ial relationship is just one of two hurdles that a plaintiff must overcome in Colorado because plaintiffs still must overcome the more difficult hurdle of demonstrating that the employer was on notice that the employee posed a threat. Like Colorado, Missouri and North Dakota also have decisions suggesting that a criminal records check may be required if the employer had knowledge of the employees criminal past. North Dakota, however, also requ ires the fact patter n to involve the hiring of employees who will have access to homes. Ohio mandates that cr iminal records checks be performed when the employee has access to homes. In Iowa and Maryland the issu e of whether a criminal records check is necessary is a material question that is left to the jury to decide. Maryla nd, however, goes further by listing factors that the jury must consider in making its decision as to whether a criminal records check should have been performed by the employer. Sp ecifically, in Maryland, the jury must first consider the relative ease with which a criminal records check could have been conducted, and the information that would have been obtained had the inquiry been made (Cramer v. Housing Opportunities Com'n of Montgom ery County, 1985). Other factors must also be considered, including: (a) the availa bility of such information; (b) the cost and inconvenience; (c) delay in obtaining it; (d) whether other so urces, including a previous em ployment record in the same field, are sufficient to justify a finding of fitness; and (e) whet her unanswered questions, negative indicators, or other red flags have surfaced during routine investigation. No single factor is dispositive.

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72 Kentucky, Maine, and Massachusetts, all fa il to recognize a gene ral requirement for employers to perform criminal record checks, bu t all three states have cases suggesting that a check may be required when the defendant had prev iously agreed via contract or through some sort of policy to conduct criminal records ch ecks. Many youth sport orga nizations, like Little League Baseball, Inc., now requi re their affiliates to conduct criminal records checks. These policies could be used in court to place a requirement to conduct a criminal records check where no such check would ordinarily be required. Fi nally, Louisiana and Texa s both have decisions stating that a criminal records check could be part of reasonable s earch when the potential employee will have supervisory control over child ren. The remaining states do not have reported decisions addressing this issue. Application of Volunteer Immunity Stat utes Apply to Volunteer Organizations Depending on the jurisdiction, a youth sport or ganization may seek the protection of a volunteer immunity statute to guard against a laws uit alleging sexual molestation or abuse on the part of coaches or officials. The research reveal ed, however, that the volun teer immunity statutes for most states do not afford protection to yout h sport organizations, but instead limit their protection to volunteers. In f act, only Minnesota, Mississippi, New Jersey, and Pennsylvania have volunteer immunity statutes that extend protection from volunteers to the organization. Further, three out of the four states that do provide protection do so with either limitations or qualifications. For example, in Minnesota, volunteers are not protected from acts committed in a willful and wanton or reckless manner (M.S.A. 604A.11). Additionally, volunteers are not protected if they act in violation of federal, local, or st ate law. These limitations may also extend to the organization seeking shelter under the statute an d if that is the case, then youth sport organizations would not be prot ected against cases alleging sexua l molestation or abuse because

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73 those actions extend beyond willful, wanton or reck less behavior in that they are intentional. Further, sexual molestation and abuse violate Minnesotas crimin al code. Minnesota is a state that allows plaintiffs to use the doctrine of respondeat superior against employers for cases alleging sexual molestation or a buse on the part of employees. If respondeat superior is the basis for a plaintiffs claim ag ainst a youth sport organization then the volunteer immunity st atute will probably not afford protection to the organization because the organization would stand in the shoes of the employee in that they are vicariously liable for the employees actions. Thus, because th e volunteer employee would not be able to use the volunteer immunity statute for protection, it is unlikely that the organization would be able to seek protection under the statute. However, the statute may provide protection for the organization if the plaintiff sues under a negl igent hiring/retention th eory. The statute does provide protection for ordinary negligence; therefore the case will turn on whether the organization was willful, wanton or reckless in it s selection and/or retention of the pedophilic employee. Similarly, New Jersey has a statute that cove rs the organization from its own negligence (N.J.S.A. 2A:53A-7). Though, the act also expressl y excludes protection of volunteers or agents who commit acts of sexual misconduct. Therefore, the statute leaves open the question as to whether the organization would remain protect ed under the act for ne gligently hiring the employee who committed the sexual misconduct. Mi ssissippi has a volunteer immunity statute that affords protection to youth sport organizations, but only pr otects organizations against claims based in negligence (Miss. Code Ann. 959-1). Pennsylvania has a statute that expressly provides protection for youth spor t organizations (42 Pa.C.S.A. 8332.1). There is a dearth of

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74 case law interpreting Pennsylvanias statute so the extent of cove rage provided under the statute is unclear. As previously stated, the vast majority of states have volunteer immunity statutes that expressly provide no protection fo r youth sport organizations. Howe ver, the research revealed that a large number of states do not even have volunteer immunity statutes. These states include: Alaska, California, Connecticut, Iowa, Kentuc ky, Maine, Michigan, Nebraska, Nevada, New Hampshire, New York, New Mexi co, Ohio, Oregon, Tennessee, Verm ont, Virginia, Washington, and Wyoming. Volunteers in these states can st ill seek protection under the Federal Volunteer Protection Act, but that act does not provide protection for youth sport organizations. The Standard of Care The standard of care is not something that ca n be set on a national level. Jurisdictions will vary in how they interpret the law and what requirements they place on youth sport organizations. In this study, two research questions dire ctly inquired into th e standard of care imposed on youth sport organizations for the pedoph ilic actions of coaches and officials. These two questions concerned the existence of a he ightened duty of care for situations where employees have access to children or the public and whether states require criminal background checks. As previously stated, there are eight states that impose a higher duty of care on employers in the selection of employees who will have access to children or the public. In these eight states youth sport organizations must be cognizant that they should exercise care exceeding what is normally required in the selection of employees For these jurisdictions employers must be thorough in their selection process and make sure to conduct interviews and check all references. However, conducting these types of backgr ound checks is often difficult for youth sport organizations who rely on volunteers. When hiring for paid positions, it is feasible to conduct

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75 rigorous background checks, but such checks are not as feasible in situations where organizations are dependant on volunteers. Yet in eight states youth sport organizations must still exercise increased care in selecting vol unteer employees. And two of thes e eight states, Louisiana and Texas, expressly impose a higher duty when the potential employee will instruct or supervise children. The use of criminal records checks could help youth sport organiza tions in these eight jurisdictions, especially considering that none of the eight jurisdictions have decisions requiring criminal records checks. In fact, in one of the st ates, Florida, criminal records checks are never required as a matter of law. Louisiana and Texas both suggest that criminal records checks may be required in situations where children are invol ved, but even these states have yet to require such searches. Conversely, two states, Pennsylva nia and Rhode Island, require criminal records checks even though these states do not impose a heightened duty of care on employers in situations where employees will have access to the public or children. For these states, youth sport organizations must conduct criminal records ch ecks or risk legal exposure if they hire an unfit employee, like a pedophile, who harms one of their child participan ts and the employees unfitness could have been detected by a criminal records check. Additionally, the states of Kentucky, Maine, and Massachusetts may require criminal records checks where the employer has policies or procedures requiring a criminal records check, or contractually agreed to conduc t a search. Little League Baseba ll, Inc. has a policy requiring all managers, coaches, and volunteers within its orga nization to be checked against state lists of convicted sex offenders (Little League, n.d.). Litt le League Baseball, In c.s policy requiring a criminal records check could be us ed against it or its a ffiliates in courts in Kentucky, Maine, and Massachusetts if a criminal reco rds check is not conducted. Accord ingly, in at le ast these three

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76 states, other youth sport organiza tions should look to their own rules and policies to determine whether they are required by their own policies or contracts to c onduct criminal records checks. Practical Implications The first step youth sport organizations can take toward minimizing the potential for liability is to understand how lia bility can be imposed against them. My study analyzed case law for all 50 United States and the District of Columbia with the purpose of determining the applicability of the tort theories of respondeat superior, ne gligent hiring, and negligent retention in terms of holding youth sport organizations liab le for the pedophilic act ions of their coaches and officials. Through my study, voluntary immunity statutes fo r all 50 United States and the District of Columbia were also analyzed to dete rmine whether said statutes provide defenses to the aforementioned tort theories for youth sport organizations. By analyzing the law for all 50 states and the District of Colu mbia, comparisons were drawn be tween the states in how they apply the law for these tort theories and voluntary immunity statutes. Accordingly, the results from my study can be used by bot h local and national youth sport organizations. Local or regional youth sport organizations can l ook to the results to understand how their specific jurisdic tion would apply the tort theories that plaintiffs would use to establish liability against youth sport orga nizations for the pedophilic actions of coaches and officials. National youth sport organizations like Little League Baseball and Pop Warner Football provide youth sport leagues in most states and need to understand the variances that exist between the legal jurisdictions. Specifically, national yout h sport organizations need to understand how different jurisdictions apply these theories so that they know what is required to legally protect themselves against the pedophilic actions of coache s and officials within their ranks. It would be advisable for national youth spor t organizations to look to stat es that provide the greatest exposure in terms of potential legal liability and adopt meas ures that will provide the

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77 organization with the greatest legal protection. Th us, the results of this research project can provide youth sport organizations with the information they need to make policy decisions for all 50 United States and the District of Columbia on how to limit liability and guard against sexual abuse within their organizations. For example, youth sport organizations in st ates that allow the doctrine of respondeat superior to be used in cases alleging sexual mo lestation or abuse should understand that they have a greater likelihood of being held liable for the pedophilic actions of their employees. The basis for this increased liability is found in the fa ct that they could be held liable for the actions of their employees even though they did not act negligently in either the hiring or supervision of said employees. The results did reveal that cour ts in states allowing the us e of the doctrine of respondeat superior in sexual abuse or molestation cases place emphasis on whether the sexual assault occurred within work-related limits of time and place. Accordingly, youth sport organizations can target times and locations for random s upervisory inspections. While the youth sport organizations cannot completely safeguard th emselves from exposing their athletes to pedophiles, they can regularly inspect locations at times when the employee is acting within the scope of employment. Taking such measures coul d help prevent unfit employees from assaulting athletes at locations and times that expose the employer to liability. Further, youth sport participants will be affo rded more protection if a pedophilic coach or official is forced to attempt se xual assaults outside of work times and locations. After all, such measures shift the potential for sexual misconduc t outside the access that coaches and officials should have with athletes. Thus, a ny additional contact that a coach or official may have with an athlete may raise a red flag w ith a parent or guardian.

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78 However, youth sport organizations are not o ff the proverbial hook just because they are located in states that do not allo w plaintiffs to use the doctrine of respondeat superior in cases alleging sexual molestation or abus e. After all, the results revealed that every jurisdiction allows plaintiffs to pursue actions ag ainst organizations unde r the doctrines of negligent hiring and retention. The doctrines of ne gligent hiring and retention re quire employers to exercise reasonable care in the hiring and retention of empl oyees. Further, the results revealed that eight states place an increased or heightened duty on em ployers to hire fit employees if the employees have access to children or the public. In these st ates employers must exercise more caution than what is required from employers in performi ng reasonable searches. Th is increased caution should come in the form of attention to bac kground checks. Youth sport organizations must perform reasonable background checks in even the most relaxed of jurisdictions. The reasonableness of a background search varies w ith each jurisdiction. Most jurisdictions only require an interview process followed by a refe rence check. Currently, only two jurisdictions require employers to perform criminal record s checks. However, 14 other jurisdictions may require criminal records check s if the circumstances suggest that one is necessary. Youth sport organizations in th ese 15 jurisdictions should con duct criminal records checks. While only two require such checks as a matter of law, the other 13 have considered such searches as necessary in certain situations. Thus, courts in these jurisdictions have allowed cases concerning the reasonableness of a criminal records check to reach the jury stage for determination. It is possible that a jury could find that youth s port organizations should conduct criminal records checks before hiring coaches or officials. After all, na tional youth sport leagues like Little League Baseball and Pop Warner F ootball mandate background checks for all their affiliates and youth sport organizations like th e National Council for Youth Sports and the

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79 National Alliance of Youth Sports actually provid e the means for other youth sport organizations to conduct criminal background checks. Thus, a ju ry may find that the actions of these sport organizations in conducting criminal record checks establishes a standard of care that should be followed by other youth sport organizations. Theref ore, it is possible for a reasonable jury in these jurisdictions to find that the circumstances surrounding the hiring of a coach or official that has access to children dictates a criminal records check. Youth sport organizations often rely on vol unteers for coaches and officials. Most jurisdictions, as well as the fe deral government, provide statutory immunity for volunteers. However, the research revealed that the vast majority of volun teer immunity statutes, including the federal statute, provide no coverage for yout h sport organizations. In fact, only Minnesota, Mississippi, New Jersey, and Pe nnsylvania have volunteer imm unity statutes that extend protection from volunteers to the organization. However, three out of those four states have qualifications or limitations that prevent or limit the statutory protection afforded to youth sport organizations. Further, the qualific ations and limitations for each th ese three statutes render their application useless in cases where a youth spor t organization needs seek s statutory protection against claims of sexual abuse or molestation by one of the organizations volunteers. Only Pennsylvania has a statute that is apparently broad enough to provide pr otection for youth sport organizations. Although, organizations in Penns ylvania should be cauti ous in relying on the statutes protection because there is a dearth of case law explaini ng how courts will interpret the statute in sexual abuse or molestation cases.

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80 CHAPTER 6 FUTURE WORK By analyzing case law for all 50 United States and the District of Columbia, information was gathered that can be used to help youth s port organizations understand the standard of care for their industry in their jurisdiction. The resu lts of this research pr oject provide youth sport organizations with information they need to ma ke policy decisions for all 50 United States and the District of Columbia on how to limit liabil ity and guard against sexual abuse within their organizations. However, this research project was just one st ep. In fact, the information gathered from my expansive case law study can be used for future research projects on this topic. Specifically, the information on the legal standards derived from th is research project can be used to develop survey instruments that can be administered to youth sport organizations in an attempt to determine if said organizations are risking legal expos ure through their actions or inactions in preventing or guarding against sexual molestation or abuse on the part of their coaches and officials. Further, because this study was expans ive in that it included all 50 United States and the District of Columbia, the information obtained during the case law study can be used to analyze the results gathered from a survey de sign study and specific, ra ther than generalized, conclusions can be drawn concerning the potential for liability in each of the 51 jurisdictions. This study only concerned youth sport orga nizations and excluded case law on sexual molestation or abuse occurring in interscholas tic settings. However, this study could be replicated to study the potential liability for interscholastic and in tercollegiate sport programs for the pedophilic actions of coaches and administrators. Additionally, this project will lead to future stud ies that can be used to establish a standard of care for youth sport organizations for all 50 st ates and the District of Columbia. A survey

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81 design study using the information gathered from this study coul d be used to determine what measures are being taken industry-wide for spec ific youth sport organizations. The information obtained through this study can be used to de velop survey questions designed to illicit information from youth sport organizations to de termine if they are taking appropriate steps necessary to avoid legal liability and prev ent pedophiles from infiltrating their ranks. Accordingly, the results from additional stud ies utilizing survey re search along with the information gathered from this study could be used by organizations in their evaluation as to whether they are risking potenti al legal exposure through their m easures in comparison to what other organizations are doing and taking into consideration the cu rrent legal standards for their specific jurisdiction.

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82 APPENDIX STATE AND CASE LAW ANALYSIS Alabama Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? The doctrine does not apply to sexual harassment or sexual molestation cases unless the actions were later ratified by the employer. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? No reported Alabama cases require cr iminal background checks. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No, it does not. Supporting Cases and Statute Question 1 : No supporting cases. Question 2 : Meyer v. Wal-Mart Stores, Inc., 813 So.2d 832 (Ala. 2001) (criminal acts like assault and battery could fall w ithin the ambits of respondeat superior as long as the acts did not derive from purely personal reasons ); USA Petroleum Corp. v. Hines, 770 So.2d 589 (Ala. 2000) (respondeat superior does not extend to in clude sexual harassment or other malicious acts unless the master later ratified or authorized said acts); citing, Mardis v. Robbins Tire & Rubber Co. 669 So.2d 885 (Ala 1995); Norman v. Southern Guar. Ins. Co., 191 F.Supp.2d 1321 (M.D. Ala. 1991); Nabe r McCrory & Sumwalt Construction Company, 393 So.2d. 973 (Ala. 1981); United St ates Steel Company v. Butler, 260 Ala. 190, 69 So.2d 685 (1953); Anderson v. Tadloc k, 27 Ala. App. 513, 175 So. 312 (1937); Seaboard Air Line Railway Comp any v. Glenn, 213 Ala. 284 (1925). Question 3 : No supporting cases. Question 4 : No supporting cases. Question 5 : Ala.Code 1975 6-5-336.

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83 Alaska Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? The Supreme Court of Alaska left this question open, but suggested that th e theory does extend to include child sexual molestation. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? No reported Alaskan cases require criminal background checks. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? Alaska does not have a volunteer im munity statute that covers youth sport volunteers or youth sport organizations. Supporting Cases and Statute Question 1 : No cases. Question 2 : Broderick v. King's Way Assembly of God Church 808 P.2d 1211 (Alaska, 2001); citing, Doe v. Samaritan Counseling Center, 791 P.2d 344, (Alaska 1990). (clinic could be held liable in respondeat superior for therapist's neg ligent mishandling of transference phenomenon, which resulted in une thical sexual relations between therapist and plaintiff-patient). Question 3 : No supporting cases. Question 4: No supporting cases. Question 5 : No volunteer immunity statute covering youth sport organizations. Arkansas Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestation, harassmen t, or abuse? Probably not. I will apply if the employee is acting in furthe rance of the employers ente rprise. However, the Supreme

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84 Court of Arkansas decided in one case th at an employer was acting purely for his own interests when he sexually molested a third party. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? The question is left open by the Arkansas Supreme Court. However, the Court did reference the possibility that the existence of a criminal record c ould be used to support a claim for negligent hiring/retention. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No they do not. Supporting Cases and Statute Question 1 : No cases. Question 2 : Porter v. Harshfield, 948 S.W.2d 83 (Ark. 1997) (Scope of employment does not extend to actions that do not benefit th e employer); Gordon v. Planters & Merchants Bancshares, 935 S.W.2d 544 (Ark. 1996); J.B. Hunt Transp., Inc. v. Doss, 899 S.W.2d (Ark. 1995). Question 3 : No supporting cases. Question 4 : Saine v. Comcast Cable Vision of Arkansas, Inc., 126 S.W.3d 339 (Ark. 2003) (Court looked at lack of criminal record as basis for concluding that no direct proof linked hiring of employee to tortuous action) ; citing, Porter v. Ha rshfield, 948 S.W.2d 83 (Ark. 1997); St. Paul Fire & Marine In s. Co. v. Knight, 764 S.W.2d 601 (Ark. 1989). Question 5 : A.C.A. 16-6-102; A.C.A. 16-6-103; A.C.A. 16-6-104. Arizona Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestation, harassmen t, or abuse? No it does not because sexual molestation, harassment, or abuse fa lls outside the scope of authority. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement.

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85 Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported case supports such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1 : No cases. Question 2 : Smith v. American Exp. Travel Related Services Co., Inc. 876 P.2d 1166 (Ariz. App.1 1994) (Employee bringing claim against employer. This decision relied on opinions from other jurisdicti ons as it was a matter of fi rst impression in Arizona). Question 3 : No supporting cases. Question 4 : No supporting cases. Question 5 : A. R. S. 12-982. California Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or offici als? Yes, there are re ported cases that were resolved in favor of the organizations. One case involved Little League Baseball and was brought by the victims of Norman Watson. In th at case a California appellate court ruled that Little League Baseball, Inc. was a franch isor and that East Base line Little League was a franchisee and that franchisors do not have control over the employees of franchisees. Based on this ruling, a negligent supervisi on/hiring/respondeat supe rior action against Little League Baseball, Inc. failed. In anot her case, a gymnastic coach and association prevailed on a claim brought by two gymnasts that they were molest ed. The court found no basis to support their claim. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? The doctrine both applies and does not apply based on the offender. Specifical ly, the doctrine does not apply to sexual assault cases unless the cases involve police o fficers using their power while they are on duty. Additionally, California has expanded the do ctrine of respondeat superior in limited situations involving priests fo r matters where the abuse was foreseeable. This expansion has not been applied to any other fact patterns. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement.

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86 Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported cases support such a requirement. However, Californi a does have a penal st atute allowing youth organizations to check the criminal records for those whom they employ. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? California does not have a volunteer immunity statute that covers youth sport volunteers or youth sport organizations. However, California does have a statute that exempts volunteer directors of nonprofit organizations from liability. Supporting Cases and Statute Question 1 : Hickman v. Little League Baseba ll, Inc., 2006 WL 3456486 (Cal.App. 4 Dist. Nov 30, 2006) (this decision is not reported a nd therefore California law prevents it from being cited or relied upon); Dawn D. et al., v. The Regents Of The University Of California, 2003 WL 21404925 (Cal.App. 2 Dist 2003) (a gymnastics coach prevailed against allegations of sexual mi sconduct brought by two youth gymnasts). Question 2 : Jeffrey E. v. Central Baptist Chur ch,197 Cal.App.3d 718 (Cal. 1988), (church not liable for sexual abuse of minor by Sunday school teacher); Rita M. v. Roman Catholic Archbishop, 232 Cal.Rptr. 685 (Cal. App. 3d. 1986,) (archbishop not liable for sexual relations between seven priests and minor parishioner); Milla v. Roman Catholic Archbiosis of Los Angeles, 187 Cal. Appl.3d (1986) (expanding the doctrine of respondeat superior in situations where sexual abuse was foreseeable). Question 3 : No supporting cases. Question 4 : West's Ann.Cal.Penal Code 11105.2. Question 5 : Ann.Cal.Corp.Code 5239 (concerning i mmunity for directors of nonprofit organizations). Colorado Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestation, harassmen t, or abuse? No it does not because sexual molestation, harassment, and abuse fall outside the scope of authority. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? Yes. The scope of duty depends on the employee's an ticipated degree of contact with other persons in carrying out the duties of employme nt. The requisite degree of care increases, and may require expanded inquiry into the employee's background when the employer expects the employee to have frequent contac t with the public, or when the employment

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87 fosters close contact and a special relati onship between particul ar persons and the employee. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? Only if there are circumstances giving the employer reason to be lieve that a job applicant, by reason of some attribute of character or prior conduct, would constitute an undue risk of harm to members of the public and the applicant will be in frequent contact or to particular persons who stand in a special relationship to the empl oyer and with whom the applicant will be in close contact. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. It applies only to the volunteers or the board of directors of said organizations. Supporting Cases and Statute Question 1 : No cases. Question 2 : Moses v. Diocese of Colorado 863 P.2d 310 (Colo. 1993)(priest accused of abusing parishioner). Question 3 : Moses 863 P.2d 310; Connes v. Molalla Tr ansport System, Inc., 831 P.2d 1316 (Colo.1992) (hiring of dangerous drivers). Question 4 : Connes v. Molalla Transport System, Inc., 831 P.2d 1316 (Colo. 1992). Question 5 : C.R.S.A. 13-21-116; Cooper v. Aspen Skiing Co., 48 P.3d 1129 (Colo. 2002). Connecticut Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or offi cials? There are thr ee sexual abuse cases dealing with coaches employed by school syst ems, but no reported cases dealing with youth sport organizations. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? No. Connecticut courts have held as a matter of law that when the tortfeasor-employee's activity with the alleged victim became sexual, the employee abandoned and ceas ed to further the employer's business. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement.

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88 Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? The only precedent on point is a trial court decision finding liability on the part of an agency that did not perform a check. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statutory protection exists. Supporting Cases and Statute Question 1 : No relevant supporting cases. Question 2 : Doe v. Burns, WL 2210320 (Conn.Super .2005) (junior high coach abused athlete); Gutierrez v. Thorne, 537 A.2d 527 (Conn. 1988)(employee of facility for mentally challenged persons assaulted patient); Nu tt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66 (D.Conn.1995) (priest abused alter boys). Question 3 : No supporting cases. Question 4 : Pattavina v. Mills, WL 1626960 (Conn.S uper. 2000) (health care provider found liable at trial court level for failing to perform a proper background search which the court felt included a criminal records check). Question 5 : No statute. Delaware Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mo lestation, harassment, or abuse? This question was intentionally left unanswered by Delaware c ourt decision that con cerned the doctrines application to Title VII claim of sexual harassment. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute

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89 Question 1 : No relevant supporting cases. Question 2 : Konstantopoulos v. Westvaco Co rp., 690 A.2d 936 (Del.Supr. Oct 02, 1996) (Title VII workplace harassment case). Question 3 : No supporting cases. Question 4 : No supporting cases. Question 5 : 10 Del.C. 8133. District of Columbia Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? Generally no. Sexual assaults typically fall outside the scope of employment because they are typically done solely for the employees benefit. However, while it may be probable that the vast majority of sexual assaults arise from purely personal motives, it is nevertheless possible that an employee's conduct may amount to a sexual assault and still be "actuated, at least in part, by a desire to serve [the employer's] interest. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported cases require criminal background check s. Just reasonable investiga tion into the employees past employment history. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? The statute doe s not exempt the corporation from liability for the conduct of the volunteer, but the corporation shall be liab le only to the extent of the applicable limit of insurance coverage it maintains. Supporting Cases and Statute Question 1 : No relevant supporting cases. Question 2 : Brown v. Argenbright Sec., Inc ., 782 A.2d 752 (D.C. 2001)(action brought against company by person who was allegedly sexually assaulted by employee of company while being detained by s ecurity guard); Weinberg v. Johnson, 518 A.2d 985 (D.C. 1986)(customer brought action against laundrama t for violent actions of employee);Boykin

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90 v. District of Columbia, 484 A.2d 560 (D.C. 1984)(minor sued store owner for sexual assault allegedly committed by security guard); Jordan v. Medley, 711 F.2d 211 (D.C.Cir. 1983)(tenant brought action against la ndlord for violent behavior). Question 3 : No supporting cases. Question 4 : Brown v. Argenbright Sec ., Inc., 782 A.2d 752 (D.C. 2001). Question 5 : DC ST 29-301.113. Florida Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2: Does the doctrine of respondeat su perior extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? Generally, sexual assaults and batteries by employees are held to be outside the scope of an employee's employment, and therefore, insufficient to impose vicarious liability on the employer. An exception may exist where the tortfeasor was assisted in accomplishing the tort by virtue of the employer/employee relationship. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? Yes. Extent to which employer must inquire as to employee's background, in order to be relieved of liability for neg ligent hiring, varies depending upo n extent to which employee's duties will require contact with others. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? Even where the circumstances dictate the need for some independent inquiry, however, there is no requirement, as a matter of law, that the em ployer make an inquiry with law enforcement agencies about an employee's possible crimin al record, even where the employee is to regularly deal with members of the public. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1: No releva nt supporting cases. Question 2 : Iglesia Cristiana La Casa Del Se nor, Inc. v. L.M., 783 So.2d 353 (Fla.App. Dist. 2001)(parishioner brought action agains t church for sexual assault by priest); Nazareth v. Herndon Ambulance Service, Inc., 467 So.2d 1076 (Fla.App. 5 Dist. 1985). ExceptionAgriturf Mgmt., Inc. v. Ro e, 656 So.2d 954 (Fla. 2d. DCA 1995); Hennagan

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91 v. Department of Highway Safety and Motor Vehicles, 467 So.2d 748 (Fla.App. 1 Dist. 1985)(minor assaulted by highway patrolman). Question 3: Garcia v. Duff y, 492 So.2d 435 (Fla.App. 2d. 1986). Question 4 : Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978). Question 5 : F.S.A. 768.1355. Georgia Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? No it does not. It is well settled in Georgia law that employers are not liable for the sexual misconduct of their employees as such conduct falls outside the scope of authority. An exception exists if the employer later ratifies the conduct. Question 3: Do the doctrines of negligen t hiring and negligent retention require a heightened duty in cases where the employ ee has access to children or the public? Yes there is a heightened duty. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? Criminal background checks of employees ar e statutorily-mandated in cer tain industries. See, e.g., OCGA 49-5-60 et seq. (requi ring employee records checks for day-care centers and other child-caring institutions). Ho wever, while there may be no statutory requirement that employers in other businesses conduct back ground or criminal checks on potential employees, the Georgia Supreme Court reject s the position that em ployers who fail to conduct such searches can never be found liable for negligent hiring because of this failure. Whether or not an employer's investigative e fforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? Th e statute is silent on the issue. Supporting Cases and Statute Question 1 : No relevant supporting cases. Question 2 : Big Brother/Big Sister of Metro Atlanta, Inc. v. Terrell, 359 S.E.2d 241 (Ga.App.1987)(parent and child lo st on action against youth vol unteer service organization for the sexual misconduct of volunteer employee) ; see also, Travis Pruitt & Associates, P.C. v. Hooper, 625 S.E.2d 445 (Ga.App.1. 2005); Mears v. Gulfstream Aerospace Corp.,

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92 484 S.E.2d 659 (Ga.App.1. 1997); Trimble v. Circ uit City Stores, Inc., 469 S.E.2d 776 Ga.App.1. 1996); Newsome v. Cooper-Wiss, Inc., 347 S.E.2d 619 (Ga.App.1. 1986). Question 3 : See supporting Georgia Supreme Cour t case listed below for Question 4. Question 4 : Munroe v. Universal Health Servic es, Inc., 596 S.E.2d 604 (Ga. 2004)(mental health patient sued health care provider because employee of company medicated and raped her). Question 5 : Ga. Code Ann., 51-1-20.1. Hawaii Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? The Hawaii courts have not directly answered this question. However, the Hawaii Supreme Court has held on two occasions that the doctrine was not applicable to two different cases involving allegations of sexual molestation and harassment on the ba sis that the conduct wa s outside the scope of employment. Accordingly, th e answer appears to be no. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported cases require criminal background checks. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1 : No relevant supporting cases. Question 2 : Doe Parents No. 1 v. State, Dept. of Educ., 58 P.3d 545 (Hawai'i 2002)(action brought by parents of middle school children w ho were molested by teacher); Sharples v. State 793 P.2d 175 (Hawaii 1990)(harassment acti on brought by seduced patient against seducer psychiatrist). Question 3 : No supporting cases. Question 4 : Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001) (Hawaii courts recognized this D.C. decision).

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93 Question 5 : HRS 662D et. seq. Idaho Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? No reported cases answer the question. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported cases require criminal background checks. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? The st atute does not extend protection to the organizations, but is silent as to their exposure to liability. Supporting Cases and Statute Question 1 : No relevant supporting cases. Question 2 : No relevant supporting cases. Question 3 : No supporting cases. Question 4 : No supporting cases. Question 5 : I.C. 6-1605. Illinois Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or offi cials? No reported cases against volunteer youth sport organizations. However, there is a case where a coach sexually abused a manager on a high school wrestling team. There we re pleading deficiencies in the case and the case was dismissed, but without prejudice meaning that the plaintiffs were allowed to resubmit their complaints for all but one claim. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? There is a very analogous case involving Big Brothers, Big Sist ers of America in which an action was brought against the

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94 national organization for abuse committed against a child in Illinois. An Illinois appellate court sustained a summary judgment motion agai nst the plaintiffs on the basis that the organization did not owe a duty to the child to protect him against offenses committed by a volunteer at a local office. The basis for this decision was that the national organization had no control over the actions of the volunteer who committed the offense. Further, the court refused to extend liability through vol untary undertaking because Illinois requires malfeasance rather than nonfeasance for the tort Also, Illinois has a ge neral rule providing that employers do not have a duty to protec t third parties from harm committed by their employees unless the victim was a: (a). cu stomer of a common carrier, (b). business invitee, (c) guest of an innk eeper, (d) protectee of a voluntar y custodian. Finally, even if one of these relationships exist, sexual assaults have been held to fall outside the scope of authority in Illinois becaus e they do not further the employers business interests. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? An Illinois appellate court refused to expand wh at is required under the restatement for a general background check for a situation wh ere an employee would have home entry access. No other court decisions discuss the existence for a heightened duty. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No it does not. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No, it expressly excludes the organizations. Supporting Cases and Statute Question 1 : Mueller by Math v. Community Cons ol. School Dist. 54, 678 N.E.2d 660 (Ill.App. 1 1997). Question 2 : Doe v. Big Brothers Big Sisters of America, 359 Ill.App.3d 684, 296 Ill. App.1 2005). For general rule see, Strickla nd v. Communications and Cable of Chicago, Inc., 710 N.E.2d 55 (Ill.App. 1 1999). For sexual a ssault rule see, Ster n v. Ritz Carlton Chicago, 702 N.E.2d 194 (Ill.App. 1 1998). Question 3 : Strickland v. Communica tions and Cable of Chicago, Inc., 710 N.E.2d 55 (Ill.App. 1 1999). Question 4 : See the case listed for Question 3. Question 5 : IL ST CH 70 P 700, et. seq. Indiana Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or offi cials? Yes. The case was against Southport Little League and involved a situation wh ere an equipment manager for the league

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95 wrongfully viewed child genatalia and molested child athletes. The court held that the league could be liable through the doctrine of respondeat superior if the league authorized any of the offendor employees actions. On review the appellate court held that because the plaintiffs designated materials raise the infe rence that some of the offenders acts were authorized (such as fitting the youths' uniforms) when he viewed the athletes genitalia for his sexual gratification and when he sexually molested the youths, they held that the trial court properly denied the Litt le League's motion for summary judgment. Further, the court found that the youths who participated in Lit tle League baseball were taught to respect adult authority, and it was clear to participating youths that the offender held a position of authority with the Little League. The court held that when an indivi dual is clothed with authority by an organization in which youths ar e participating, such as Little League baseball, youths will typically comply with requests or commands of the adult individual in authority. Thus, the Little League, by appoint ing the offender as an official, essentially authorized the offender to exert his authority over youths who participated in Little League baseball. Because some of the offenders acts were authorized, the court believed that the determination of whether the Little League was liable under the doctrine of respondeat superior for the sexual molestations was a question of fact for the jury. Question 2: Does the doctrine of respondeat su perior extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? See above. Indiana focuses on authorization. Indiana courts ha ve established that an empl oyer can even be vicariously liable for the criminal acts of an employee, such as the sexual acts committed by Cole in the present case, the determination depends upon whether the employee's actions were at least for a time authorized by the employer. If it is determined that none of the employee's acts were authorized, there is no respondeat s uperior liability. If some of the employee's actions were authorized, the question of whether the unauthor ized acts were within the scope of employment is one for the jury. Au thorization is required even where the employee makes use of the employers faciliti es during the molestation, harassment, or abuse. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported case supports such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? The st atute does not extend protection to the organizations, but is silent as to their exposure to liability. Supporting Cases and Statute Question 1 : Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind.App. 2000).

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96 Question 2 : See also, Doe v. Lafayette School Corp., 846 N.E.2d 691(Ind.App. 2006) (school district found not liable for teacher ev en though school facilities were used during abuse because acts were not authorized by th e district; Stropes by Taylor v. Heritage House Childrens Center of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989) (nurse abused mentally disabled children at center for mentally disabled children). Question 3 : No supporting cases. Question 4 : No supporting cases. Question 5 : IC 34-30-19-3. Iowa Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? No. Iowa appellate courts have held that sexual harassment or abuse acts were a substantial deviation from job duties in two different cases and were not "necessa ry to accomplish the purpose of employment." While the offenders did become acquainted with the victims by virtue of their position at the employers place of business., the courts c ould not conclude that their actions were committed in furtherance of their duties or the objectives of the corporations. The fact some of the alleged conduct occurred on employers' property does not make it automatically liable for offenders actions. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public ? At least one case has held that the question of whether a crimin al record check is required is a material question that should be left to the jury. So criminal record checks may be required in some instances if a jury feel s that it is necessary. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? Iowa does not appear to have a volunt eer immunity statute that covers youth sport vo lunteers or organizations. Supporting Cases and Statute Question 1 : No cases. Question 2 : Riniker v. Wilson, 623 N.W.2d 220 (Iowa App. 2000); Godar v. Edwards, 588 N.W.2d 701(Iowa 1999).

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97 Question 3 : No supporting cases. Question 4 : D.R.R. v. English Enterprises, CA TV, Div. of Gator Transp., Inc., 356 N.W.2d 580 (Iowa App. 1984). Question 5 : No statute. Kansas Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abus e? There is no controlling authority that directly answ ers this question. However, a Kansas Supreme Court decision and a Kansas appellate court decision both upheld trial cour t decisions that dismissed claims because sexual harassment, molestat ion fell outside the scope of authority. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4: Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No Kansas cases directly answer the question. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1: No cases. Question 2 : Kansas State Bank & Trust Co. v. Specia lized Transp. Services, Inc., 819 P.2d 587 (Kan. Oct 25, 1991); Hollinger v. Stormont Hosp. & Training School for Nurses, 578 P.2d 1121 (Kan.App.2d 1978). Question 3 : No supporting cases. Question 4 : D.R.R. v. English Enterprises, CA TV, Div. of Gator Transp., Inc., 356 N.W.2d 580 (Iowa App. 1984). Question 5 : K.S.A. 60-3601.

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98 Kentucky Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? For it to be within the scope of its employment, the conduct must be of the sa me general nature as that authorized or incidental to the conduct aut horized. A principal is not li able under the doctrine of respondeat superior unless the intentional wrongs of the agen t were calculated to advance the cause of the principal or were appropr iate to the normal scope of the operator's employment. Ordinarily, an employer is not vicariously liable for an intentional tort of an employee not actuated by a purpose to serve th e employer but motivated, as here, solely by a desire to satisfy the empl oyee's own sexual proclivities. Question 3: Do the doctrines of negligen t hiring and negligent retention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? No general requirement to perform a criminal record chec k, but at least one deci sion suggested that a check may be required when the defendant had previously agreed via contract or through some sort of policy to conduc t criminal records checks. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2: Patterson v. Blair, 172 S.W.3d 361 (Ky. 2005)(driver blew out tires on truck); American General Life & Acc. Ins. Co. v. Hall 74 S.W.3d 688 (Ky. 2002)(sexual harassment claim brought by employee). Question 3 : No supporting cases. Question 4 : Oakley v. Flor-Shin, Inc. 964 S.W.2d 438 (Ky.App. 1998). Question 5 : No statute. Louisiana Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases.

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99 Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? The courts have suggested that the doctrine may apply if a jury can determin e if the conduct falls within the course and scope of employment. The determination of wh ether an activity is within the course and scope of a servant's duties to his master is dependent on whether th e servant's tortious conduct was closely connected in time, place, a nd causation to his duties to the master as to be regarded as a risk of harm which can be fairly attributed to the master's business. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employee has access to children or the public? Yes. In Louisiana it has been held that when an em ployee is to be placed in a position of supervisory and/or disciplinary authority over children, the employer has a duty to properly screen the applicant (and conti nue to provide screening) to determine if the applicant has been convicted of a crime (or cr imes) involving moral turpitude. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the publ ic? Because a higher duty is owed in searching the background of those who supervise ch ildren, the degree of reasonableness in terms of searching a bac kground of a potential employee is increased significantly. This search may re quire checking with local authorities to determine if an employee has a criminal record. Further, at l east one decision suggest ed that in certain situations reasonable care in hi ring may require some type of screening program necessary for the purpose of determining whether an employee such has a criminal record. A polygraph examination might even be appropria te, the employer might engage in a routine check of police records, or some other re asonable screening method might be employed. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? The statute is silent on the issue but does not expressly extend coverage to the organizations. Supporting Cases and Statute Question 1 : No cases. Question 2 : Landreneau v. Fruge 676 So.2d 701 (La.App. 3 Cir. 6/12/96) (minor female athlete was sexually abused by coach); Doe v. Roman Catholic Church for Archdiocese of New Orleans, 615 So.2d 410, 81 Ed. Law Rep. 1183 (La.App. 4 Cir. Feb 26, 1993)(minor molested by youth organization volunteer). Question 3 : Williams v. Butler, 577 So.2d 1113 (La.App. 1 Cir. 1991). Question 4 : See the case listed for Question 3. Also see; Jackson v. Ferrand, 658 So.2d 691, 94-1254 (La.App. 4 Cir. 12/28/94); Smith v. Orkin Exterminating Co., Inc., 540 So.2d 363, 13 A.L.R.5th 962 (La.App. 1 Cir. Feb 28, 1 989) (customer assau lted by pest control specialist). Question 5 : LSA-R.S. 9:2798

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100 Maine Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? For it to be within the scope of its employment, the conduct must be of the sa me general nature as that authorized or incidental to the conduct aut horized. A principal is not li able under the doctrine of respondeat superior unless the intentional wrongs of the agen t were calculated to advance the cause of the principal or were appropr iate to the normal scope of the operator's employment. Ordinarily, an employer is not vicariously liable for an intentional tort of an employee not actuated by a purpose to serve th e employer but motivated, as here, solely by a desire to satisfy the empl oyee's own sexual proclivities. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? No general requirement to perform a criminal record chec k, but at least one deci sion suggested that a check may be required when the defendant had previously agreed via contract or through some sort of policy to conduc t criminal records checks. Question 5: Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2 : Fortin v. The Roman Cat holic Bishop of Portland 871 A.2d 1208 (Me. 2005) (Catholic priest accused of molesting child parishioner). Question 3 : No supporting cases. Question 4 : No supporting cases. Question 5 : No statute. Maryland Question 1: Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases.

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101 Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? The Maryland courts have not directly answered this question with respect to molestation or abuse. A Maryland federal district court recognized this fact in a case brought before it This court looked to other jurisdictions and found that it believed Maryland courts would hold that an employer cannot be held vicariously liable for sexual assaults committed by its employees or one it may have given apparent authority. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No reported cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? The Maryland Supreme Court held that a plaintiff in a case involving a rape by an employee of her landlord was entitled to place before the jury evidence of an additional area of investigation open to the HOC [defendant], the relative ease with which it could have been conducted, and the information that would have been obtained had the inquiry been made. In Maryland, an employer can normally assume that another who offers to perform simple work, not involving danger to others, is competent. On the other hand, where the work involves a serious risk of harm if the employee is unfit, as in the hiring of a police officer, there is no presumption of competence and there may well exist a duty to conduct a criminal record investigation. Other factors must be consider ed, including th e availability of such information; the cost, inconvenien ce, and delay in obtaining it; whether other sources, including a previous employment record in the same field, are sufficient to justify a finding of fitness; and whethe r unanswered questions, negative indicators, or other red flags have surfaced during routine investiga tion. No single factor is dispositive, and the trier of fact must consider all of the circumstances to determine whether the failure to obtain a criminal history record constitute s a breach of duty in a given case. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? The statute does not expressly cove r said organizations. Supporting Cases and Statute Question 1 : No cases. Question 2 : Thomas v. Bet Sound-Stage Restau rant/BrettCo, Inc., 61 F.Supp.2d 448 (D.Md. 1999)(sexual harassment case invol ving employees of a restaurant). Question 3 : No supporting cases. Question 4 : Cramer v. Housing Opportunitie s Com'n of Montgomery County 501 A.2d 35 (Md. Dec 12, 1985). Question 5 : MD Code, Courts and J udicial Proceedings, 5-406.

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102 Massachusetts Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mo lestation, harassment, or abuse? Question remains open. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? While no court has used direct langua ge expressing a heightened dut y, courts have held that, "[t]he scope of the [prudent] i nvestigation is directly related to the severity of risk third parties are subjected to by an incompetent employee." Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public ? Courts have not directly answered the question, but have suggested that a criminal record check may be necessary. In one trial court case the court st ated, the City did not complete reasonable due diligence before hiring an employee. In that case, a check would ha ve revealed that the employee had recently served time in prison fo r rape. However, even without a criminal background check, the employees resume itsel f reflected a long, unexplained gap in his employment history representing the time he se rved in prison, which should have put the City on notice to make reasonable inquiry. Anot her trial court case held that a criminal record check could be contract ually required if it is a part of a bargain for exchange. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? It provide s no express protection to the organization. Supporting Cases and Statute Question 1 : No cases. Question 2 : The question remains open in Massachusetts. Question 3 : Or v. Edwards, 818 N.E.2d 163 (Mass. App.Ct. 2004)(ci ting a Minnesota decision and dealing with a case of a landl ord who entrusted a pass key to a shady individual). Question 4 : Brimage v. City of Boston, 13 Mass.L. Rptr. 4 (Mass.Super.,2001); Reguera v. Leduc, 20 Mass.L.Rptr. 4 (Mass.Super.,2005). Question 5 : M.G.L.A. 231 85V.

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103 Michigan Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? Michigan appellate court held that it does not believe that any factual de velopment can arise which could justify the finder of fact in concluding that the racial and sexual slurs are within the apparent scope of a teacher/coachs employment. Further, Michigan does not recognize exception to respondeat superior nonliability rule, whic h would create employer liability for the intentional torts of an empl oyee acting outside the scope of his employment when the employee was aided in accomplishing the tort by the existence of the agency relationship between the employee and the employer. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? Michigan courts have held that an employer is not obliged to "co nduct an in-depth background investigation of his employee" to discover whether there is a history of violen t propensities. Rather, "[t]he duty is to use reasonable ca re to assure that the employee known to have violent propensities is not unreasonably exposed to the public." Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2 : Gaston v. Becker, 314 N.W.2d 728 (M ich.App. 1981) (teacher allegedly verbally abused a student and this abuse i nvolved some sexual harassment/abuse); Zsigo v. Hurley Medical Center 716 N.W.2d 220 (Mich. 2006)(hosp ital employee sexually abused patient); Salinas v. Genesys Health Sy stem, 688 N.W.2d 112 (Mich.App. 2004)(Nurse sexually abused a patient). Question 3 : No cases. Question 4: Kendrick v. Ritz-Carlton Hotel Co., L.L.C., WL 2084919 (Mich.App.,2006). Question 5 : No statute.

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104 Minnesota Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? The Minnesota Supreme Court has interpreted the respondeat-superior doctrin e to hold an employer liable for even the intentional misconduct of its employees when (1) the source of the atta ck is related to the duties of the employee, and (2) the assault o ccurs within work-related limits of time and place. Further, Minnisota courts have held that an employee's act need not be committed in furtherance of his employer's business to fall within the scope of his employment. Instead, the master is liable for any such act of th e servant which, if isolated, would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to the master, that both acts are treated as one indivisible tort. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases wh ere the employee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? Minnesota has "reject[ed] the contention that, as a matter of law, there exists a duty upon an employer to make an inquiry as to a prospective employee's criminal record even where it is known that the employee is to regularly deal with memb ers of the public." An employer need not check an applicant's criminal history if the employer has made adequate inquiry or otherwise has a reasonably sufficient basis to conclude the employee is reliable and fit for the job. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? Yes it does, bu t limits application to situations where the individual acts in a willful and wanton or r eckless manner in providing the services or if the individual acts in violation of federal, local or state law. Supporting Cases and Statute Question 1 : No cases. Question 2 : L.M. ex rel. S.M. v. Karlson, 646 N.W.2d 537 (Minn.App. 2002)(parents of children brought action agains t daycare where allegedly the children were sexually abused); Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905 (Minn. 1999) (minor resident of group home sued opera tor of group home alleging sexual abuse); Lange v. National Biscuit Co., 211 N.W .2d 783 (Minn. 1973)(assault by a stores employee on the owner of another store). Question 3 : No cases.

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105 Question 4 : Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983)(apartment tenant sued landlord for giving passk ey to alleged rapist employee). Question 5 : M.S.A. 604A.11. Mississippi Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abuse? The Mississippi Supreme Court allowed a case brought on be half of a minor against a Ca tholic Diocese to survive summary judgment. So, it appears that as a matte r of law, respondeat superior can be used to impose liability for sexual mo lestation, abuse, or harassment However, liability in such cases will turn on the facts and whether the abuse fell within the scope of employment. Accordingly, the question remains somewhat open. Question 3 Do the doctrines of negligent hiri ng and negligent retention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5: Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? It does cover youth sport or ganizations, however, it only protects the volunteer/or ganization against claims based in negligence. Supporting Cases and Statute Question 1 : No cases. Question 2: Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213 (Miss. 2005)(action brought against Catholic Diocese for sexual abuse of minor parishioners) Question 3 : No cases. Question 4 : No cases. Question 5 : Miss. Code Ann. 95-9-1.

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106 Missouri Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abus e? Missouri courts have not directly answered the question, but have applied the doctrine very strictly. For example, they have held that intentional sexual mole station does not fall within the scope of authority of priests and is in fact prohibited by the church. This st rict interpretation of scope of authority is th e reason a lawsuit on behalf of minor against Boy Scouts for pedophilic actions of scout leader was based in failure to warn, a produc ts liability theory, rather than respondeat superior. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employee has access to children or the public? Yes and no. No reported cases require a heightened or increased duty of care. In fact, one case recognized that even though a cashier had re gular access to the public, this access did not increase the duty owed in terms of conduc ting a reasonable background check. However, that same decision also stated that certain circumstances may require a more intensive background check, one that may even necessitate a criminal record check. Accordingly, Missouri case law is inconsistent on this issue. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No general duty, but one Missouri court has recognized that th ere are some situations which would require certain employers to investigate an applicant's past to determine if the applicant has a criminal record and if such record would necessitate a rejection of the applicant. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? It does not expressly cover or apply to volunteer organizations. Supporting Cases and Statute Question 1 : No cases. Question 2 : Hobbs v. Boy Scouts of America, Inc., 152 S.W.3d 367 (Mo.App. W.D. 2004) (case brought against Boyscouts of Ameri ca, Inc. for child sexual abuse); Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997)(lawsuit bro ught against Catholic Diocese alleging sexual child molestation). Question 3 : Butler v. Hurlbut, 826 S. W.2d 90 (Mo.App. E.D. 1992). Question 4 : See above. See also, Reed v. Herc ules Construction Co., 693 S.W.2d. 280 (Mo.App. 1985).

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107 Question 5 : V.A.M.S. 537.118. Montana Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? M ontana courts have held that rape falls outside scope of employment. Scope of employme nt in Montana is strictly defined as acting in the "course of employment," in "furtheran ce of an employer's interest," or "for the benefit of a master ;" "in the scope of his employ ment," etc. But a servant who acts entirely for his own bene fit is generally held to be outside the scope of his employment and the master is relieved of lia bility. Further, the nondelegable duty doctrine is accepted in Montana, but only applie s to inherently da ngerous activities. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1 : No cases. Question 2 : Maguire v. State, 835 P.2d 755 (Mont. 1992)(mentally handicapped patient was allegedly raped by employee at hospita l); Stepanek v. Kober Const., 625 P.2d 51 (Mont. 1981) (construction case dealing with nondelegable duty doctrine). Question 3 : No cases. Question 4 : No cases. Question 5 : MCA 27-1-732. Nebraska Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abus e? Nebraska has no reported

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108 cases that directly answer th is question. There is one case ag ainst a Catholic Archdiocese for the sexual misconduct of a priest. Howeve r, the court could not use the doctrine of respondeat superior because the sexual contact between the prie st and the adult parishioner was consensual. The court in that case did infe r that the doctrine w ould apply to sexual behavior as long as the conduct fell within the scope of the employees authority. Unfortunately, Nebraska state c ourts have not defined scope of authority in terms of sexual misconduct/abuse. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2 : Schieffer v. Catholic Archdiocese of Omaha, 508 N.W.2d 907 (Neb. 1993). Question 3 : No cases. Question 4 : No cases. Question 5 : No statute. Nevada Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2: Does the doctrine of respondeat su perior extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? Nevada has a statute that addresses specific circumstances in which an employer is not liable for harm or injury caused by an employee's intentional conduct: An employer is not liable for harm or inju ry caused by the intentional conduct of an employee if the conduct of the employee: (a) Was a truly independent venture of the employee; (b) Was not committed in the course of the very task assigned to the employee; and (c) Was not reasonably foreseeable under th e facts and circumstances of the case

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109 considering the nature and scope of his employment. For the purposes of this subsection, conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and pruden ce could have reasonably anticipated the conduct and the probability of injury. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? No reported decisions have answered this question. Howe ver, the existence of background checks was considered under Nevadas vi carious liability statute. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2 : NRS 41.745 (Nevada statute controlli ng vicarious liability for employees intentional acts); Wood vs. Safeway, Inc ., 121 P.3d 1026 (Nev. 2005) (Guardian ad litem of mentally handicapped store employee brought action against stor e and company that provided janitorial services to store, seek ing to recover for sexual assault committed on store employee by janitorial company's employee). Question 3 : No cases. Question 4 : No cases. Question 5 : No statute. New Hampshire Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2: Does the doctrine of respondeat su perior extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? New Hampshire courts have not answered this issue. The law in this area is undeveloped. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement.

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110 Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement.. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2 : No cases. Question 3 : No cases. Question 4 : No cases. Question 5 : No statute. New Jersey Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or offi cials? No cases that are directly on point. There is a case involving a claim that a vol unteer swim coach molested a child swimmer, but the swim program was organized by a sc hool board instead of a volunteer sport organization. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abuse? Perhaps. The New Jersey Supreme Court suggested that resp ondeat superior was an appli cable theory that should be explored on remand by the court in a case invo lving claims of sexual abuse brought by a student at a non-profit school. Fu rther, New Jerseys definiti on of scope of employment is broad enough to cover sexual molestation, harassment or abuse because it includes all conduct that the servant is empl oyed to perform; conduct which occurs substantially within the authorized time and space limits; [and] is actuated, at least in part, by a purpose to serve the master. There is a possible hurdle for plaintiffs in New Jersey because the state has a statute that protects char itable organizations from liabil ity. However, this statute does expressly exclude protection of the volunteer for sexual misconduct. Fu rther, this statute was not extended to include all non-profit organizations. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employee has access to children or the public? Yes. A heightened duty has been recognized by th e courts for schools to protect children through reasonable hiring practices.

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111 Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? It does c over the organization from its own negligence. However, the act also expressly excludes pr otection of volunteers or agents for sexual misconduct. It leaves open the question as to whether the organization would remain protected under the act for negligently hiring the employee who committed the sexual misconduct. Supporting Cases and Statute Question 1 : No cases. Question 2 : Hardwicke v. American Boychoir School, 902 A.2d 900 (N.J. 2006); Singer v. Beach Trading Co., Inc., 876 A.2d 885 (N.J.Super.A.D.,2005); Di Cosala v. Kay, 450 A.2d 508 (N.J. 1982); N.J.S.A. 2A:53A-7. Question 3 : Hardwicke v. American Boychoir School, 902 A.2d 900 (N.J. 2006); Frugis v. Bracigliano, 827 A.2d 1040 (N.J. Jul 28, 2003). Question 4 : No cases. Question 5 : N.J.S.A. 2A:53A-7. New Mexico Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? There is a sexual molestation case where the New Mexico Supreme Court consid ered the applicability of the doctrine of respondeat superior. Although, the employer in this case was an out-of-state archdiocese of the Catholic Church. The court held that th e doctrine could not be used as a basis for long-arm jurisdiction. This cas e suggests that the doctrin e could apply to a sexual molestation/abuse case. However, a much older opinion by an appellate court upholding a lower courts opinion that se xual molestation by a hotel employee against a child patron fell outside the scope of authority, thus nega ting the doctrines applicability. Accordingly, while the New Mexico Supreme Court has sugges ted that the doctrine may be applicable to molestation cases, there is case precedent th at could adversely affect such a claim. Therefore, the question rema ins undecided in New Mexico.

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112 Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2: Tercero v. Roman Catholic Di ocese of Norwich, Connecticut, 48 P.3d 50 (N.M. 2002) (molestation case brought against ou t-of-state arch diocese); Pittard v. Four Seasons Motor Inn, Inc., 688 P.2d 333 (N.M.A pp. 1984) (molestation case brought against motel for actions of employee). Question 3 : No cases. Question 4 : No cases. Question 5 : No statute. New York Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abuse? No New York case has imposed vicarious liability on an employer for intentional sexual misconduct by an employee. One case involving a sexual molest ation claim against a priest attempted to expand the doctrine, but was unsuccessful. In f act, the court expressly declined to follow California precedent that allowed victim of police sexual misconduct to use the doctrine. Further, a New York appellate court also overr uled a trial court for failing to dismiss a sexual abuse claim brought against a daycare fa cility. The court agreed with the plaintiff that sexual abuse falls outside the scope of authority. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public ? There is a case

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113 from 1968 that states that employers need only perform reasonable searches into the employees background and these searches do no t include criminal record checks. The court held that to require more exhaustive investigation would place an undue burden on the employer. This issue has not b een addressed by a court since. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2 : Jones by Jones v. Trane, 591 N.Y.S.2d 927 (N.Y.Sup. 1992)(sexual molestation claim against church for actions of priest); Noto v. St. Vincent's Hosp. and Medical Center of New York, 559 N.Y. S.2d 510 (N.Y.A.D. 1 1990)(appellate court refused to extend respondeat superior to impose liability against hospital for sexual misconduct of employee); see also, Peter T. v. Children's Village, Inc., 30 A.D.3d 582 (N.Y.A.D. 2 Dept.,2006). Question 3 : No cases. Question 4 : No cases. Question 5 : No statute. North Carolina Question 1: Is there any cases involving civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? There is one state appellate court case involving a sexual harassment clai m brought by a plaintiff against an employer for the actions of an employee. The appell ate court found that th e employee was acting outside the scope of his author ity because his actions were not performed in furtherance of his employment. While the parties were at the employers place of business and the employee was working at the time of the ma lfeasance, the court found that the employee was in pursuit of his own corr upt or lascivious purpose. Question 3 Do the doctrines of negligent hiri ng and negligent retention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? In North Carolina, employers generally have no duty to perform criminal record checks and a presumption exists that an employer us es due care in hiring its employees.

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114 Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? There is protection from liability for members of nonprofit associations. However, this statute does not protect the associa tions. Accordingly, if the volunteer is working with a non-profit s port organization, then the volunteer, and not the association, is prot ected under the statute. Supporting Cases and Statute Question 1 : No cases. Question 2 Hogan v. Forsyth Country Club Co., 340 S.E.2d 116 (N.C.App. 1986). Question 3 : No cases. Question 4 : Caple v. Bullard Restaurants, Inc, 567 S.E.2d 828 (N.C.App.,2002); Stanley v. Brooks, 436 S.E.2d 272 (N.C.App. Nov 16, 1993). Question 5 : N.C.G.S.A. 59B-7. North Dakota Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abuse? The North Dakota Supreme Court has adopted the modern version of vicarious liability that allows claims for intentional torts. Further, the court has rec ognized that scope of employment can extend to cover claims involving sexual misconduct. Specifically, the court defined "scope of employment" as an act that takes place with in the period of the em ployment, at a place where the employee reasonably may be in the pe rformance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or as sometimes stated, where he is engaged in the furtheran ce of the employer's business. Further, a North Dakota Supreme Court stated that there we re grounds for reversing a lower courts dismissal of a respondeat superior claim based on sexual misconduct. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? In some situations it may. There is one case involvi ng a claim against a vacuum company whose salesperson sexually assaulted a would-be cu stomer. The court found that criminal conduct of this nature was foreseeable by the company due to prior in cidents and that coupled with the fact that employees would be entering cust omers homes presented a potential need for a criminal background check. Further, the co mpanys own manuals suggested performing

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115 criminal background checks. For these reasons, the court sent the case back to the trial level for resolution of the issue as to wh ether a criminal background check was needed. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1 : No cases. Question 2 : Nelson v. Gillette, 571 N.W.2d 332 (N.D. 1997), rehearing denied (Dec 1997) (applying vicarious liability to sexual misconduct case); D.E.M. v. Allickson, 555 N.W.2d 596 (N.D. 1996) (suggesting that lower court erred by dismi ssing respondeat superior claim for sexual misconduct. Question 3 : No cases. Question 4 : McLean v. Kirby Co., a Div. of Sc ott Fetzer Co., 490 N.W.2d 229 (N.D. 1992). Question 5 : NDCC, 32-03-46. Ohio Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? It does not appear so. Scope of employment in Ohio is narrowly defined to includ e behavior that is "calculated to facilitate or promote the business for which the servan t was employed. For example, an employer might be liable for an intenti onal tort if an employee injures a patron when removing her from the employer's business premises or blocking her entry. However, the employer would not be liable if an employee physica lly assaulted a patron without provocation. Question :Do the doctrines of negligent hi ring and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has acce ss to children or the public? In some situations it may. There is one case involvi ng a claim against a vacuum company whose salesperson sexually assaulted a would-be cu stomer. The court found that criminal conduct of this nature was foreseeable by the company due to prior in cidents and that coupled with the fact that employees would be entering cust omers homes presented a potential need for a criminal background check. Further, the co mpanys own manuals suggested performing

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116 criminal background checks. For these reasons, the court sent the case back to the trial level for resolution of the issue as to wh ether a criminal background check was needed. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? A statute wa s repealed that allowe d youth sport programs to enter into exculpatory ag reements with parents of ch ildren that bound the children. Supporting Cases and Statute Question 1 : No cases. Question 2 : Mills v. Deehr, 2004 WL 1047720 (Ohio App. 8 Dist. 2004), as amended nunc pro tunc (May 11, 2004) (case against ar chdiocese for sexual misconduct of priest); Byrd v. Faber 565 N.E.2d 584 (Ohio 1991) (parishioners suit based against church for church employees sexual misconduct with pari shioners wife); Vrabel v. Acri, 103 N.E.2d 564, (Ohio 1952) (employees physical assault on third party fe ll outside authority because motives were personal rather than job-related). Question 3 : No cases. Question 4 : No supporting cases. Question 5 : R.C. 2305.382 (repealed). Oklahoma Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abuse? Oklahoma Supreme Court addressed a case where a minister molested 12 children during his tenure. The court held that the molester/employee acted for his own personal gratification rather than for any religious purpose. He abused his position and exploited his special relationship with the children and that it is inconceivable that his act s were of the nature of those which he was hired to perform. Accordingly, the Oklahoma Supreme Court held that the molesters actions were outside the scope of authority a nd the doctrine of responde at superior was not applicable. Further the court found that its decision was in line with the majority of jurisdictions. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported cases support such a requirement.

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117 Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1 : No cases. Question 2 : N.H. v. Presbyterian Church (U.S.A .), 998 P.2d 592 (Okla. 1999) (minister molested 12 children). Question 3 : No cases. Question 4 : No cases. Question 5 : 76 Okl.St.Ann. 31. Oregon Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? In Oregon, to esta blish that the employee acted within the course and scope of employment, thus invoking the doctrine of respondeat superior, require s proof of three things: (1) the tortious act must have occurred substantially within the time a nd space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the employee's act is of a kind which the employee was hired to perform. To satisfy the second requirement, the focus of th e inquiry is not necessarily whether an employee's tortious conduct itse lf was intended to se rve the employer but, rather, whether the employee engaged in conduc t that was intended to serve the employer and that conduct resulted in the acts that in jured the plaintiff. There are two cases, one involving a scout leader and th e other involving a priest, wher e the Oregon Supreme Court found that the employee used the position of employment to cultivate abusive relationships, thus triggering the doctrine of respo ndeat superior. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute.

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118 Supporting Cases and Statute Question 1 : No cases. Question 2 : Chesterman v. Barmon, 753 P.2d 404 (Or. 1988)(woman brought claim based on sexual abuse of employee of company who was also abusing drugs at the time of abuse); Vinsonhaler v. Quantum Residentia l Corp., 73 P.3d 930 (Or.App. 2003) (woman sued company for sexual harassment comm itted by employee of company); Fearing v. Bucher, 977 P.2d 1163 (Or. 1999) (pries abused child parishioner and parents sued church); Lourim v. Swensen, 977 P.2d 1157 (Or. 1999) (action brought against Boy Scouts of America for sexual abuse committed by scout leader). Question 3 : No cases. Question 4: No cases. Question 5 : No statute. Pennsylvania Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abus e? The Pennsylvania Superior Court held that a church is not vicariously liable for the cond uct of its minister where the minister sexually abused a minor living in his neighborhood. The court reasoned that where an employee acts in an outrageous manner, which is unrelated to the performance of his job, the actions are outside the scope of employment and the employer is not vicariously responsible. Further, there is a Pennsylvania decision re leasing the Boy Scouts of America of any liability for the sexually ab usive actions of a scout leader because sexual abuse fell well outside of the leaders authorized actions. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? One case does suggest that a criminal background check is a part of a reasonable background check. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? Yes it does. Supporting Cases and Statute Question 1 : No cases.

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119 Question 2 : R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692 (Pa.Super. 2000) (minister sexually abused children and pare nts sued church); A.L.M. v. Diocese of Allentown, 2004 WL 3104798 (Pa.Com.Pl. 2004) (priest sexually abused child parishioners); A.T.S. v. Boy Scouts of America, 1992 WL 464252 (Pa.Com.Pl. 1992) (sexual abuse committed by scout leader). Question 3 : No cases. Question 4 : Keibler v. Cramer, 1998 WL 917129 (Pa.Com.Pl. 1998). Question 5 : 42 Pa.C.S.A. 8332.1. Rhode Island Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abuse? A case from 1988 suggests that the doctrine is not applicable. The case involved a priests sexual misconduct with a parishioner. In the case the court found the pr iests conduct was not with in the nature of his employment. The court found that the priest had no authority to do such acts; deviating totally from his sacred vows and the spiritua l fabric of his faith. Although it was alleged that the Bishop d had actual or constructive knowledge of the priests practices of making homosexual advances on and engaging in homosexual acts, the c ourt found that the amended complaint did not stat e or imply that the misconduct of defendant priest was a "foreseeable event" which was "characteristic of the enterprise" for which a priest is engaged. It is unclear as to whether the fore seability aspect of this case would change based on the number of allegations brought against priests since 1988. Question 3 Do the doctrines of negligent hiri ng and negligent retention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? One case does suggest that a criminal background check is a part of a reasonable background check. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No, it does not expressly c over the organization. Supporting Cases and Statute Question 1 : No cases. Question 2: Doe v. O'Connell, Gelineau, Angell, 1988 WL 1016799 (R.I.Super. Jan 28, 1988).

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120 Question 3 : No cases. Question 4 : Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436 (R.I. 1984). Question 5 : Gen.Laws 1956, 9-1-48. South Carolina Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? S outh Carolina courts have not directly answered this question. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? The only st atute close is one concerning charitable organizations. It is unclear that the statute is applicable to a volunteer sport organization. If so, then the organization is not covered. Supporting Cases and Statute Question 1 : No cases. Question 2 : No cases. Question 3 : No cases. Question 4 : No cases. Question 5 : Code 1976 33-56-180.

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121 South Dakota Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mo lestation, harassment, or abuse? South Dakota has not answered this question directly. The only case remotely on point was dismissed because respondeat superior cannot be used as a basis for liability under 1983. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? One case does suggest that a criminal background check is a part of a reasonable background check. Question 5: Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? Statute providing protection for nonprofit organizations does not protect the organization. Supporting Cases and Statute Question 1 : No cases. Question 2 : No cases. Question 3 : No cases. Question 4 : No cases. Question 5 : SDCL 47-23-29. Tennessee Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abus e? The Tennessee Supreme Court hant directly resolved the issu e, but has affirmed cases that dismissed sexual abuse claims where respondeat superior is the theory used for recovery. Once such case was against a childcare service where plaintiffs tried to use federal statute to impose vicarious liability on service where child was molested because dist rict courts dismissed respondeat superior claim because sexual abuse fell outside scope of authority.

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122 Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the empl oyee has access to children or the public? Tennessee courts have recognized a higher duty in situations where employees have access to living quarters. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No reported cases require such a search. Even in cases where there is a heightened duty the background check must only be reasonable. No reported Tennessee cas es have yet to require a criminal record check. Question 5 Does the states volunteer immunity st atute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1: No cases. Question 2 : Houghton v. Aramark Educational Resources, Inc ., 90 S.W.3d 676 (Tenn. 2002). Question 3 : Doe v. Linder Const. Co., Inc., 845 S.W.2d 173 (Tenn. 1992) (dissent). Question 4 : See case listed for Question 3. Question 5 : No statute. Texas Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or offici als? There is one case that is close to on point. It involves a sexual abuse claim agains t Boys and Girls Club of Greater Dallas. The case was brought by parents of children abused by volunteer of organi zation. The plaintiffs used negligent hiring as a basis for the action and the court agreed that this was the proper theory to use because the volunteers actions fell outside the scope of employment. However, the children were not members of the club and thus a duty was not owed. Further, the abusers criminal history involved only a drivin g while intoxicated conviction and this was not enough to put the defendants on notice in terms of his potential for sexual molestation. However, there is a case invol ving a Boy Scouts of America and a Texas Boy Scout council affiliate that could pose a probl em to potential youth sport litigants. This is because the Texas Supreme Court held that th e neither the national agency or the local affiliate had a duty to investigate a boy scout master because they were not his employers and as such had no ability to control scout masters activities. Accordingly, respondeat superior was not an applicable theory. The only duty imposed on the local boy scout council involved a duty not to recommend the scout masters appointment to the local troup if the council new that the scout mast er had a proclivity for sexually abusing children. However, the council was under no duty to search into the masters background.

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123 This decision could affect a case brought against a national or regional youth sport organization if that clai m is brought in Texas. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? It is ordinarily not within the scope of a servant's authority to commit an assa ult on a third person. But if an assault is so connected with and immediately arising out of authorized employment tasks as to merge the task and the assaultive conduct into one indivisible tort, it may be imputed to the employer. This case seems to extend scope of employment to perhaps cover sexual assault/battery. However, the Boys and Girls Club case is still good law and could prevent the doctrines application to a youth sport setti ng (these are conflicting appellate circuits in Texas). Question 3 : Do the doctrines of negligent hi ring and negligent retention require a heightened duty in cases where the employ ee has access to children or the public? Yes, organizations whose primary function is the care and education of children owe a higher duty to their patrons to exercise care in the selection of th eir employees than would other employers. Question 4 : Does the doctrine of negligent hiri ng extend to require criminal background checks in cases where the employee has access to children or the public ? The Texas courts havent explicitly stated that a criminal record check is in order, but the aforementioned decisions saying that a heightened duty exists when children are involved may require such a search. Further, in both the Boys Clubs and Boy Scouts of America cases the courts analyzed whether the criminal records of the employees i nvolved would have put either organization on notice of the potential for sexual abuse. These cases suggest that a criminal records check may be in order if a duty of care is in fact owed. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? Only the volun teer is immune and onl y if the volunteer is acting within the scope of employment. Supporting Cases and Statute Question 1 : Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942 (Tex.App.Amarillo 1994); Golden Spread Council, Inc. No. 562 of Boy Scouts of America v. Akins, 926 S.W.2d 287 (Tex. 1996). Question 2 : NCED Mental Health, Inc. v. Kidd, 2006 WL 2080674 (Tex.App.-El Paso,2000) (hospital patient sexually abused by hospital employee). Question 3 : Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942 (Tex.App.Amarillo 1994); Doe v. Taylor Independent Sc hool Dist., 975 F.2d 137 (5th Cir. 1992) (overruled but not on issue pertaining to research question). Question 4: See case listed for Question 3.

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124 Question 5 : 84.004. Volunteer Liability. Utah Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? In Utah, there are three basic elements for determining whether an employee is acting within the scope of his or her employment for purposes of respondeat superi or liability. First, the employee's conduct must be of a general kind and nature that th e employee is hired to perform. The employee's acts must be generally directed toward the accomplishment of the employee's duty and authority. Second, the conduct must occur within the hours of the employee's work and the ordinary spatial boundaries of the employment. Third, the employee's conduct must be motivated, at least in part, by the purpos e of serving the employer's interest. The employee's intent, however misguided in its means, must be to further the employer's business interests. "If the employee acts 'f rom purely personal motives ... in no way connected with the employer's interests' or if the conduct is 'unprovoked, highly unusual, and quite outrageous,' then the master is not liable." The Utah Supreme Court applied these elements to a situation where a patrolman molested members of an explorers club. The court found that the first two elements were sa tisfied, but ruled that the third element was not satisfied because the offending employee was obviously not hired to perform sexual nature on the explorers under his supervision. Plaintiffs argued that the employee was employed to instruct and direct them in areas involving police work a nd that his actions in molesting the explorers were carried out pursuant to this type of instruction and supervision. The court held that the argu ment fails, however, because it is not the instruction and supervision of the employer of which the plaintiff complained. The employee was not hired or authorized to inst ruct the explorers in sexual matters, nor was he authorized to touch the explorers in any ma nner. His acts of molestation were not in any way part of the instruction and supervision of the explorers but were in fact a complete abandonment of that instruct ion and of his employment. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1 : No cases.

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125 Question 2 : Jackson v. Righter, 891 P.2d 1387 (U tah 1995) (considering scope of employment to determine if employer was liabl e for employee's alienation of affections); J.H. by D.H. v. West Valley City, 840 P .2d 115 (Utah 1992); Phillips v. JCM Dev. Corp. 666 P.2d 876 (Utah 1983)(finding employer liable for employee's act of fraud committed within scope of employment); Birkne r v. Salt lake County, 771 P.2d 1053 (Utah 1989) (analyzing scope of employment to determin e if employer was liable for sexual battery committed by employee). Question 3 : No cases. Question 4 : No cases. Question 5 : U.C.A. 1953 78-19-2 (immunity for volunteers of nonprofit organizations). Vermont Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No reported cases. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? Vermont has not answered this question. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases support such a requirement. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1 : No cases. Question 2 : No cases. Question 3 : No cases. Question 4 : No cases. Question 5 : No statute.

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126 Virginia Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or offici als? No reported cases that are directly on point. However, Virginia is like Texas in that it has an opinion re lieving Boy Scouts of America, the national organizati on, of liability for th e negligent hire of a scoutmaster. The court held that because the national organiza tion did not select or retain group leader accused of sexual assaults against young boys wh ere national organization did not take part in leader's selection, even though leader had been accused of similar crimes while he was leader for another branch of the same national organizati on. This opinion could provide protection for a national youth sport organization in the st ate of Virginia. Although, the local branch could still be liable. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? In Virginia, an act is within the scope of the employment, thus triggering the doctrine of respondeat superior, if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistak enly or ill-advisedly, with the intent to further the employer's business, or from some impulse or emotion that was the natural consequence of an attempt to do the employer' s business. An act that arose wholly from some external, independent, and personal motiv e on the part of the [employee] to do the act upon his own account is not within the sc ope of his employment. The majority of Virginia opinions do not extend scope of employment to include sexual misconduct. However, there is one decision by the Virgin ia Supreme Court that extended the doctrine to include sexual misconduct by a psychiatri st who used his special position over a vulnerable patient for sexual misconduct. So the question remains open in a youth sport setting whether a reviewing court would follow the majority of opinions or follow the state supreme courts opinion in extending the doctrine. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? Virginia has not directly required a criminal background check an d even stated in one case that the facts did not warrant the inclusion of a criminal search as part of a reasonable background search. However, the case left open the possibility that such a search may be necessary under different facts. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1: Infant C. v. Boy Scouts of America, Inc., 391 S.E.2d 322 (Va. 1990).

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127 Question 2 : Doe v. Bruton Parish Church, 1997 WL 33575565 (Va.Cir.Ct.,1997) (sexual abuse by minister fell outside scope of author ity); Plummer v. Center Psychiatrists, Ltd., 476 S.E.2d 172 (1996) (Virginia Supreme Court ex tended doctrine to include sexual abuse by psychiatrist); Kensington Associates v. West, 362 S.E.2d 900 (Va. 1987) (respondeat superior generally); Broaddus v. Stan dard Drug Co., 179 S.E.2d 497 (Va. 1971) (respondeat superior generally). Question 3 : No cases. Question 4 : Southeast Apartments Management, Inc. v. Jackman, 513 S.E.2d 395 (Va. 1999). Question 5 : No statute. Washington Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or official s? No reported cases are directly on point. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual mole station, harassment, or abus e? Washington case law does not favor the imposition of respondeat superior or st rict liability for an employee's intentional sexual misconduct. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases require a criminal record check. One case does require a reasonable investigation of an employees work history including phone calls to former employees to determine if an employee has a criminal record. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No statute. Supporting Cases and Statute Question 1: No cases. Question 2: S.H.C. v. Lu, 54 P.3d 174 (Wash.A pp. Div. 1 2002); C.J.C. v. Corporation of Catholic Bishop of Yakima, 985 P.2d 262 (W ash. 1999) (both cases dealt with sexual abuse committed by religious leader s towards their church members). Question 3: No cases.

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128 Question 4: Carlsen v. Wackenhut Corp., 868 P.2d 882 (Wash.App. 1994). Question 5: RCWA 4.24.670. West Virginia Question 1 : Is there any cases involv ing civil liability against youth sport organizations for the pedophilic actions of their coaches or official s? No reported cases are directly on point. Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molestat ion, harassment, or abuse? We st Virginia courts have not answered this question yet. Question 3 :Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases require a criminal record check. Question 5: Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not The statute only covers directors or board members of nonprofit organizations. Supporting Cases and Statute Question 1 : No cases. Question 2 : No cases. Question 3 : No cases. Question 4 : No cases. Question 5 : W. Va. Code, 55-7C-1 (for di rectors of nonprofit organizations). Wisconsin Question 1 : Is there any cases involving civil li ability against youth sport organizations for the pedophilic actions of their coaches or officials? There is no case directly on point, but there is one case involving Soccer, USA. In that case an employee planted a video camera in the womens locker room. The vi ctim, however, was not a minor. The court granted summary judgment in favor of th e defendants because the actions were not foreseeable.

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129 Question 2 : Does the doctrine of respondeat superi or extend employer liability to criminal actions involving sexual molest ation, harassment, or abuse? For the purpose of resondeat superior, an employees action is not within the scope of employment if it is either different in kind from that au thorized by the master, or if it is too little actuated by a purpose to serve the employer or if it is motivated entirely by the employee's own purposes. Thus, if the employee steps aside from the prosecution of the employer's business to accomplish an independent purpose of his or her own, the employee is acting outside the scope of his or her employment Further, the employee's intent must be considered when determining whether his or her conduct was within the scope of employment. Normally, the scope-of-employment issue is presented to the jury because it entails factual questions regard ing an employee's intent and purpose. However, Wisconsin courts have held that when there is no ev idence that an employee's sexual, social or business relationship was motivated by a desire to serve the employer then it is outside the scope of employment. Moreover, Wisconsin courts are reluctant to find sexual relationships to fall within th e scope of employment when su ch relationships are forbidden and where civil or criminal laws prohibit the behavior. Question 3 : Do the doctrines of negligent hiri ng and negligent re tention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4 : Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases require a criminal record check. Question 5 : Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No it does not. Supporting Cases and Statute Question 1 : Gallun v. Soccer U.S.A., In c., 516 N.W.2d 789 (Wis.App.1994). Question 2 : S.J.A.J. v. First Things First, Ltd., 239 Wis.2d 233, 619 N.W.2d 307 (Wis.App. 2000) (sexual misconduct by a counsel or); L.L.N. v. Clauder, 563 N.W.2d 434, 65 USLW 2774 (Wis. 1997) (priest/counselor used position to enter into sexual relationship with parishioner); Bloc k v. Gomez, 549 N.W .2d 783 (Ct.App. 1996). Question 3 : No cases. Question 4 : No cases. Question 5 : W.S.A. 181.0670 (protection for liability for all volunteers for corporations).

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130 Wyoming Question 1Is there any cases involving civil liability against youth sport organizations for the pedophilic actions of their coaches or officials? No cases. Question 2Does the doctrine of respondeat su perior extend employer liability to criminal actions involving sexual mole station, harassment, or abuse? Wyoming courts have not directly answered this question yet. Question 3Do the doctrines of negligen t hiring and negligent retention require a heightened duty in cases where the employ ee has access to children or the public? No cases support such a requirement. Question 4Does the doctrine of negligent hiring extend to require criminal background checks in cases where the employee has access to children or the public? No cases require a criminal record check. Question 5Does the states volunteer immunity statute apply to volunteer organizations as well as the actual volunteers? No existing statute. Supporting Cases and Statute Question 1No cases. Question 2No cases. Question 3No cases. Question 4No cases.

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131 LIST OF REFERENCES 20 Am. Jur. 2nd Nature and scope of doctrine 129 (2005). 27 Am. Jur. 2nd Negligent hiring 393 (2005). 27 Am. Jur. 2nd Negligent hiring 394 (2005). 27 Am. Jur. 2nd Negligent retention. 396 (2005). 27 Am. Jur.2nd Negligent hiring. 459 (2005). 27 Am. Jur.2nd Employment Relationship 459 (2005). 57 A Am. Jur. 2nd Negligence. 57 A 30 (2005). 57 A Am. Jur. 2nd Negligence. 227(2005) 57 A Am. Jur. 2nd Negligence. 427 (2005). 57 A Am. Jur. 2nd Negligence 429 (2003). 57 B Am. Jur. 2nd Negligence. 1022 (2005). 2A C.J.S. 432 (2005). 65 C.J.S. 14 (2005). 10 Del.C. 8133. 76 Okl.St.Ann. 31. 42 Pa.C.S.A. 8332.1. 84.004. Volunteer Liability. A.C.A. 16-6-102. A.C.A. 16-6-103. A.C.A. 16-6-104. Agriturf Mgmt., Inc. v. Roe, 656 So.2d 954 (Fla. 2d. DCA 1995). Ala.Code 1975 6-5-336. A.L.M. v. Diocese of Allentow n, 2004 WL 3104798 (Pa.Com.Pl. 2004). American General Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688 (Ky. 2002).

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132 Anderson v. Tadlock, 27 Ala. App. 513, 175 So. 312 (1937). Ann.Cal.Corp.Code 5239. Appenzeller, T. (2000). Youth sport and the law Durham, NC: Carolina Academic Press. A. R. S. 12-982. A.T.S. v. Boy Scouts of America, 1992 WL 464252 (Pa.Com.Pl. 1992). AUSA Life Insurance Co. v. Erns t &Young, 206 F.3d 202 (2nd Cir. 2000). Beck, J. (2006). Entity liability for teacheron-student sexual harassment: Could state law offer greater protection than federal statutes? Journal of Law and Education 35 141-150. Biedzynski, K.W. (1999). The fede ral volunteer protection act: Does congress want to play ball? Seton Hall Legislative Journal 23 (2), 319-358. Big Brother/Big Sister of Metro Atlanta, Inc. v. Terrell, 359 S.E.2d 241 (Ga.App. 1987). Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989). Block v. Gomez, 549 N.W.2d 783 (Ct.App. 1996). Brimage v. City of Boston, 13 Mass. L.Rptr. 4 (Mass.Super. 2001). Broderick v. King's Way Assembly of God Church, 808 P.2d 1211 (Alaska, 2001). Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001). Broaddus v. Standard Drug Co., 179 S.E.2d 497 (Va. 1971). Butler v. Hurlbut, 826 S.W .2d 90 (Mo.App. E.D. 1992). Caple v. Bullard Restaurants, In c, 567 S.E.2d 828 (N.C.App. 2002). Carlsen v. Wackenhut Corp., 868 P.2d 882 (Wash.App. 1994). Chesterman v. Barmon, 753 P.2d 404 (Or. 1988). C.J.C. v. Corporation of Catholic Bi shop of Yakima, 985 P.2d 262 (Wash. 1999). Clement, A. (2004). Law in sport and physical activity Dania, FL: Sport and Law Press. Cloud, J. (2002, April 29). Pedophilia. Time Magazine 159 (17), 42-46. Code 1976 33-56-180. Connes v. Molalla Transport System, Inc., 831 P.2d 1316 (Colo. 1992).

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133 Cooper v. Aspen Skiing Co., 48 P.3d 1129 (Colo. 2002). Cotten, D.J. (2007). Defenses against liability. In Cotten, D.J., & Wolohan, J.T. (Eds.), Law for recreation and sport managers. (4th ed) (pp. 66-77). Dubuque, IA: Kendall/Hunt. Cotten, D.J. (2007). Which parties are liable? In Cotten, D.J., & Wolohan, J.T. (Eds.), Law for recreation and sport managers. (4th ed) (pp. 66-77). Dubuque, IA: Kendall/Hunt. Cramer v. Housing Opportunities Com'n of Montgomery County, 501 A.2d 35 (Md. Dec 12, 1985). Crowley v. Barto, 367 P.2d 828 (Wash. 1952). C.R.S.A. 13-21-116. Cullen v. BMW of North America, Inc., 691 F.2d 1097 (2d. Cir. 1982). Dawn D. et al., v. the Regents of the Univ ersity of California, 2003 WL 21404925 (Cal.App. 2 Dist.). DC ST 29-301.113. D.E.M. v. Allickson, 555 N.W.2d 596 (N.D. 1996). DeMitchell, T. (2002). The duty to protect: Blackstones do ctrine of in loco parentis: A lens for viewing the sexual abuse of students. Brigham Young Education & Law Journal 17 (1), 28-52. De Wald v. Quarnstrom, 60 So.2d 919 (Fla. 1952). Deak, D. (1999). Out of bounds: How sexual abuse of athletes at the hands of their coaches is costing the world of sports millions. Seton Hall Journal of Sport Law 9 (1), 171-195. Devellis v. Lucci, 697 N.Y.S.2d 337 (N.Y. 1999). Di Cosala v. Kay, 450 A.2d 508 (N.J. 1982). Doe Parents No. 1 v. State, Dept. of Educ., 58 P.3d 545 (Hawaii 2002). Doe v. Big Brothers Big Sisters of America, 359 Ill.App.3d 684, 296 (IllApp.1 2005). Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942 (Tex.App.-Amarillo 1994). Doe v. Bruton Parish Church, 1997 WL 33575565 (Va.Cir.Ct. 1997). Doe v. Burns, WL 2210320 (Conn.Super. 2005). Doe v. Lafayette School Corp., 846 N.E.2d 691(Ind.App. 2006).

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134 Doe v. Linder Const. Co., Inc., 845 S.W.2d 173 (Tenn. 1992) (dissent). Doe v. O'Connell, Gelineau, Ange ll, 1988 WL 1016799 (R.I.Super. 1988). Doe v. Roman Catholic Church for Archdiocese of New Orleans, 615 So.2d 410, 81 Ed. Law Rep. 1183 (La.App.4 Cir. 1993). Doe v. Samaritan Counseling Ce nter, 791 P.2d 344, (Alaska 1990). Doe v. Taylor Independent School Dist., 975 F.2d 137 (5th Cir. 1992). D.R.R. v. English Enterprises, CATV, Div. of Gator Transp., Inc., 356 N.W.2d 580 (Iowa App. 1984). Earl-Hubbard, M.L. (1996). The child sex offender registration laws: The punishment, liberty deprivation, and unintended resu lts associated with the scar let letter laws of the 1990s. Northwestern University Law Review 90 (2), 788-802. Edwards, M. (1997). Treatment for pedophiles; treatment for sex offenders, Pedophile Policy and Prevention, Australian Institute of Criminology Research and Public Policy Series 12 (1) 74-75. Epstein, R.A. (1990). Cases and materials on torts London: Little, Brown and Company. Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978). Fahrendorff ex rel. Fahrendorff v. Nort h Homes, Inc., 597 N.W.2d 905 (Minn. 1999). Favorito v. Pannell, 27 F.3d 716 (1st Cir. 1994). Fearing v. Bucher, 977 P.2d 1163 (Or. 1999). Fidelity Leasing Corp. v. Dun & Brad street, Inc., 494 F.Supp. 786 (E.D.Pa. 1980). Fortin v. The Roman Catholic Bishop of Portland, 871 A.2d 1208 (Me. 2005). Freddo v. Access Agency, Inc., 29 Conn. L.Reptr. 275 (Conn. 2001). Frugis v. Bracigliano, 827 A.2d 1040 (N.J. 2003). F.S.A. 768.1355. Ga. Code Ann., 51-1-20.1. Gallun v. Soccer U.S.A., Inc., 516 N.W.2d 789 (Wis.App. 1994). Garcia v. Duffy, 492 So.2d 435 (Fla.App.2d. 1986). Garner, B.A. (Ed.). (2004). Blacks law dictionary (8th ed.). St. Paul: Thompson West.

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135 Gash, J. (2003). At the intersecti on of proximate cause and terrorism : a contextual analysis of the (proposed) Restatement Third of Torts appro ach to intervening and superseding causes. Kentucky Law Journal 91 (3), 523-612. Gaston v. Becker, 314 N.W .2d 728 (Mich.App. 1981). Gen.Laws 1956, 9-1-48. Godar v. Edwards, 588 N.W.2d 701(Iowa 1999). Golden Spread Council, Inc. No. 562 of Boy Sc outs of America v. Akins, 926 S.W.2d 287 (Tex. 1996). Gordon v. Planters & Merchants Banc shares, 935 S.W.2d 544 (Ark. 1996). Gibbons, M. & Campbell, D. (2003). Liability of recreation and competitive sport organizations for sexual assaults on children by ad ministrators, coaches and volunteers. Journal of Legal Aspects of Sport 13 (3), 185-229. Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997). Guba, E.G., & Lincoln, Y.S. (1981). Effective evaluation San Francisco: Jossey-Bass. Gutierrez v. Thorne, 537 A.2d 527 (Conn. 1988). Hackbart, v. Cincinnati Bengals Inc., 601 F.2d 516 (10th Cir. 1979). Hardwicke v. American Boychoi r School, 902 A.2d 900 (N.J. 2006). Hennagan v. Department of Highway Safety and Motor Vehicles, 467 So.2d 748 (Fla.App. 1 Dist. 1985). Hickman v. Little League Baseball, Inc., 2006 WL 3456486 (Cal.App. 4 Dist. 2006). Hicks v. Nunnery, 643 N. W.2d 809 (Wis.App. 2002). Hobbs v. Boy Scouts of America, In c., 152 S.W.3d 367 (Mo.App.W.D. 2004). Hodge v. Borden, 417 P.2d 75 (Idaho 1966). Hogan v. Forsyth Country Club Co., 340 S.E.2d 116 (N.C.App. 1986). Hollinger v. Stormont Hosp. & Training Sc hool for Nurses, 578 P.2d 1121 (Kan.App.2d 1978). Houghton v. Aramark Educational Res ources, Inc.90 S.W.3d 676 (Tenn. 2002). HRS 662D et. seq.

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136 Hurst, T.R. & Knight, J.N. (2003). Coaches' liability for athletes' injuries and deaths. Seton Hall Journal of Sport Law 13 (1), 27-51. I.C. 6-1605. IC 34-30-19-3. IL ST CH 70 P 700, et. seq. Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So.2d 353 (Fla.App.Dist. 2001). Infant C. v. Boy Scouts of America, Inc., 391 S.E.2d 322 (Va. 1990). In re Wrights Estate, 228 P.2d 911 (Kan. 1951). Isaacs v. Larkin Electric Comp any, 1998 WL 906394 (OhioApp.2d 1998). Jackson v. Ferrand, 658 So.2d 691, 94-1254 (La.App.4 Cir. 1994). Jackson v. Righter, 891 P.2d 1387 (Utah 1995). J.B. Hunt Transp., Inc. v. Doss, 899 S.W.2d (Ark. 1995). Jeffrey E. v. Central Baptist Church,197 Cal.App.3d 718 (Cal. 1988). J.H. by D.H. v. West Valley City, 840 P.2d 115 (Utah 1992). Jones by Jones v. Trane, 591 N.Y.S.2d 927 (N.Y.Sup. 1992). Jordan v. Medley, 711 F.2d 211 (D.C.Cir. 1983). Kansas State Bank & Trust Co. v. Specialized Transp. Services, Inc., 819 P.2d 587 (Kan. 1991). Keeton, W. P. (1984). Prosser and Keeton on the law of torts St. Paul: West Publishing. Keibler v. Cramer, 1998 WL 917129 (Pa.Com.Pl. 1998). Kelly v. Mallott, 135 F. 74 (7th Cir. 1905). Kendrick v. Ritz-Carlton Hotel C o., L.L.C., WL 2084919 (Mich.App., 2006). Kensington Associates v. West, 362 S.E.2d 900 (Va. 1987). Kirk, G.I. (1997). Canadian Hockey League, players first Available from http://www.canoe.ca/PlayersFirst/home.html Konstantopoulos v. Westvaco Corp., 690 A.2d 936 (Del.Supr. 1996). K.S.A. 60-3601.

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137 Lagasse, P. (2003) Pedophilia. In The Columbia Encyclopedia (Vol. 26, p. 2171). New York: Columbia University Press. Landreneau v. Fruge, 676 So.2d 701, 111 Ed. Law Rep. 582, 94-553 (La.App. 3 Cir. 1996). Lange v. National Biscuit Co., 211 N.W.2d 783 (Minn. 1973). Leakas v. Columbia Country Club, 831 F.Supp. 1231 (Md. 1993). Lear, M.C. (1997). Just perfect for pedophiles? Charitabl e organizations that work with children and their duty to screen volunteers. Texas Law Review 76 (1), 143-182. Leite v. City of Providence, 463 F.Supp. 585 (D.R.I. 1978). Lienhard, R. (1996). Negligent retention of employees: An ex panding doctrine defense counsel journal employers must use care in hiring and re taining employees or they face liability for a variety of unfortunate acts and events. Defense Counsel Journal 63 389-395. Lin, A.C. (2005). Beyond tort: Compensating vi ctims of environmental toxic injury. Southern California Law Review 78 (6), 1439-1528. Little League Baseball, Inc. (no date). Little League child protection program Available from http://www.littleleague.org/com mon/childprotect/index.asp Louisville & Nashville Railroad Co. v. McCoy, 81 Ky. 403 (Ky.App. 1883). Lourim v. Swensen, 977 P.2d 1157 (Or. 1999). L.L.N. v. Clauder, 563 N.W .2d 434, 65 USLW 2774 (Wis. 1997). L.M. ex rel. S.M. v. Karlson, 646 N.W.2d 537 (Minn.App. 2002). LSA-R.S. 9:2798. Maille v. Lord, 39 N.Y. 381 (N.Y. 1868). Maguire v. State, 835 P.2d 755 (Mont. 1992). Mania v. Kaminski, 412 N.E.2d 651 (Ill.App.1 1980). Mardis v. Robbins Tire & Rubber Co. 669 So.2d 885 (Ala. 1995). Mayer, M. (2005). Stepping in to step out of liabili ty: the proper standard of liability for referees in foreseeable judgment-call situations. DePaul Journal of Sport Law and Contemporary Problems 3 54-101. McLean v. Kirby Co., a Div. of Scott Fetzer Co., 490 N.W.2d 229 (N.D. 1992). Mears v. Gulfstream Aerospace Corp., 484 S.E.2d 659 (Ga.App.1.1997).

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138 Merriam, S.B. (1988). Case study research in education San Francisco: Jossey-Bass. Meyer v. Wal-Mart Stores, Inc., 813 So.2d 832 (Ala. 2001).MCA 27-1-732. McDougald v. Garber, 536 N.E. 2d. (1989). McManus v. Crickett, 102 Eng. Rep. 43 (1800). MD Code, Courts and Judicial Proceedings, 5-406. M.G.L.A. 231 85V. Milla v. Roman Catholic Archdiosis of Los Angeles, 187 Cal. Appl.3d (1986). Mills v. Deehr, 2004 WL 1047720 (OhioApp.8 Dist. 2004). Miss. Code Ann. 95-9-1. Munroe v. Universal Health Serv ices, Inc., 596 S.E.2d 604 (Ga. 2004). Moore v. PaineWebber, Inc., 189 F.3d 165 (2nd.Cir. 1999). Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993). M.S.A. 604A.11. Mueller by Math v. Community Consol. School Dist. 54, 678 N.E.2d 660 (Ill.App. 1 1997). Naber McCrory & Sumwalt Construction Company, 393 So.2d. 973 (Ala. 1981). Nack, W. & Yaeger, D. (1999, September 13). Ever y parents nightmare: The child molester has found a home in the world of youth sports, wh ere as a coach he can gain the trust and loyalty of our kids-and then prey on them. Sports Illustrated 91 (10), 40-53. National Alliance for Youth Sports (no date). Who we are. Available from http://www.nays.org/index.cfm National Alliance for Youth Sports (no date). Volunteer screening. Available from http://www.nays.org/index.cfm Nazareth v. Herndon Ambulance Service, In c., 467 So.2d 1076 (Fla.App. 5 Dist. 1985). NCED Mental Health, Inc. v. Kidd, 2006 WL 2080674 (Tex.App-El Paso 2000). National Council of Yout h Sports (no date). About NCYS Available from http://www.ncys.org/about.html

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144 BIOGRAPHICAL SKETCH Thomas A. Baker III received a B.A. in j ournalism from the University of Southern Mississippi and a J.D. from Loyola Universi ty New Orleans School of Law. He is a member of the Louisiana Bar Association and ha s practiced law in Louisiana. His area of practice was general and commercial litigation.


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Physical Description: Mixed Material
Copyright Date: 2008

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CASE AND STATUTORY LAW REGARDING THE LIABILITY OF YOUTH SPORT
ORGANIZATIONS FOR THE PEDOPHILIC ACTIONS OF YOUTH SPORT COACHES
AND OFFICIALS BASED ON THE THEORIES OF RESPONDEAT SUPERIOR,
NEGLIGENT HIRING, AND NEGLIGENT RETENTION


















By

THOMAS A. BAKER III


A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA

2007






































O 2007 Thomas A. Baker III



































To my parents, Tom and Catherine Baker.










ACKNOWLEDGMENTS

I would first like to thank my parents and my sister for their love and support. I would also

like to thank the members of my committee for their guidance, time, and patience. In particular, I

would like to thank Dr. Dan Connaughton, my advisor. His mentorship has been critical in my

success here at the University of Florida.












TABLE OF CONTENTS


page

ACKNOWLEDGMENT S .............. ...............4.....


LI ST OF T ABLE S ................. ...............7..___ .....


AB S TRAC T ......_ ................. ............_........8


CHAPTER


1 INTRODUCTION .............. ...............10....


Background ................. ...............10.................
Statement of the Problem ................. ...............11................

Purpose of M y Study .............. ...............16....
Significance of the Study ................. ...............17................

2 LITERATURE REVIEW ................. ...............18................


Chapter Introduction ................. ...............18.................
Unintentional Torts: Negligence............... ...............1
The First Element: Duty of Care .............. ...............20....
The Second Element: Breach of Duty ................. ...............22...............
The Third Element: Cause In Fact ................. ...............26...............
The Fourth Element: Proximate Causation .............. ...............27....
The Fifth Element: Actual Harm ................. ...............30........... ...
Gross Negligence. ................. .... ........... ...............3.. 1....
Willful, Wanton, and Reckless Conduct .............. ...............32....
Negligence Theories and Doctrines ................. ...............32................
The Doctrine of Respondeat Superior ................. ...............33........... ...
Negligent Hiring ................. ...............36.................
Negligent Retention............... ...............3
D efenses......................... ...........4
Assumption of Risk ................... .......... .. ......... ............4
Contributory Negligence and Comparative Fault............... ...............43.
Volunteer Immunity .............. ...............44....
Sexual Abuse of Children ................. ...............45................
Youth Sport Organizations .............. ...............46....


3 MATERIALS AND METHODS............... ...............48


Chapter Summary .............. ...............48....
Research Design .............. ...............48....
Data Collection .............. ...............48....
Data Analysis............... ...............50
Delimitations ................. ...............51...............












Research Questions............... ...............5

4 RE SULT S .............. ...............53....


Cases against Youth Sport Organizations............... .............5
Application of the Doctrine of Respondeat Superior .........__.. ..... .__. ....._._........54
Requiring a Heightened Duty of Care .............. ...............55....
Requiring Criminal Background Checks ......__....._.__._ ......._._. ............5
Appli cation of Volunteer Immunity Statutes ......__....._.__._ ......._._. .........5

5 DISCUSSION ........._.___..... .___ ...............59.....


Cases Against Youth Sport Organizations .............. ...............59....
Application of the Doctrine of Respondeat Superior ........._.___..... ._ ......._._........62
States Where the Doctrine of Respondeat Superior Applies............_._._ ........_._. .....63
States Where the Doctrine of Respondeat Superior Does Not Apply ........._._................66
States that Remain Undecided .........._... ......... ...._. .........._. ... .................6
Requiring a Heightened Duty of Care in Negligent Hiring And Negligent Retention
Cases Where the Employee has Access to Children or the Public .................. ...............68
Requiring Criminal Background Checks..................... .. .................7
Application of Volunteer Immunity Statutes Apply to Volunteer Organizations ..................72
The Standard of Care .........._...... ...............74......... .....
Practical Implications .............. ...............76....

6 FUTURE WORK .........._...... ...............80..._...._......


APPENDIX


STATE AND CASE LAW ANALYSIS .............. ...............82....


A laska .........._ ...._ .... .. ....._ ......._. ._ .............8

Supporting Cases and Statute .............. ...............88....
Hawaii ..............._. ...............92.......__ .....
U tah .........._...... ...............124.._...._ ......


LI ST OF REFERENCE S ..............._. ...............13_ 1......... ...


BIOGRAPHICAL SKETCH ..............._ ...............144......__ ......










LIST OF TABLES

Table page
1 Re sults ................ .......__. ...............58..









Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy

CASE AND STATUTORY LAW REGARDING THE LIABILITY OF YOUTH SPORT
ORGANIZATIONS FOR THE PEDOPHILIC ACTIONS OF YOUTH SPORT COACHES
AND OFFICIALS BASED ON THE THEORIES OF RESPONDEAT SUPERIOR,
NEGLIGENT HIRING, AND NEGLIGENT RETENTION

By

Thomas A. Baker III

May 2007

Chair: Daniel Connaughton
Maj or: Health and Human Performance

More than 10 million children below the age of 16 play organized sports (Peterson, 2004).

The maj ority of these children are coached by volunteer, unscreened adult males (Peterson,

2004). The lack of screening on the part of youth sport organizations coupled with the access that

they provide to large numbers of children create a ready-made resource pool for pedophiles

(Nack & Yaeger, 1999). By coaching youth sports, pedophiles are given an opportunity to win

over parents and gain the trust of children. Parents and athletes alike put faith in their coaches

and this faith can easily be exploited by coaches who are sexual abusers (Deak, 1999).

In my study, case law for all 50 United States and the District of Columbia was analyzed

with the purpose of determining the applicability of the tort theories of respondeat superior,

negligent hiring, and negligent retention in terms of holding youth sport organizations liable for

the pedophilic actions of their coaches and officials. My study also analyzed voluntary immunity

statutes for all 50 United States to determine whether said statutes provide defenses to the

aforementioned tort theories for youth sport organizations. By analyzing the law for all 50 states

and the District of Columbia, I was able to determine comparisons and differences that can be

drawn between the states in how they apply the law for these tort theories and voluntary









immunity statutes. Finally, my study analyzed the corresponding standard of care that is imposed

on youth sport organizations for all 50 states and the District of Columbia so that youth sport

organizations will know what is needed of them to avoid liability and guard against abuse.












CHAPTER 1
INTRODUCTION

Background

It is a worst case scenario, a nightmare even. How could someone be such a monster? How

could others let this happen? Unfortunately, monsters do exist and they count on the negligence

of others when targeting their victims. While these monsters prey on children, they are not the

type that exist under beds or hide in closets. Instead, they can be found in dugouts or on the

sidelines at youth sport events.

Take Norman Watson for example. Watson was a leading coach and umpire for the East

Base Line Little League (Nack & Yaeger, 1999). Watson was more than just a baseball coach

and official, he was "a part of the East Base Line family." Watson went on vacations with

families of players and was invited to their homes for the holidays. Perhaps that familiarity was

one of the reasons the community was so devastated when Watson pleaded guilty to 39 counts of

lewd acts with children, all of which involved his players and occurred during his six-year tenure

as coach and official for the East Base Line Little League.

A simple background check on the part of the League would have revealed that Watson

had undergone more than five years of treatment in two state mental hospitals for child molesting

(Nack & Yaeger, 1999). Further, well before charges were filed, the League was put on notice of

Watson's past by two of its board members. Instead of removing Watson from his positions as

coach and official, the League ousted the two board members and asked Watson if he needed a

lawyer.

Horror stories like this demonstrate the need for youth sport organizations to conduct

proper background checks before granting individuals access to children. Further, youth sport










organizations need to terminate coaches and officials when it is revealed that they pose a threat

to the children in their leagues. Failure on the part of youth sport organizations to take the

aforementioned measures could result in legal liability based on the torts of respondeat superior,

negligent hiring, and negligent retention. In today's litigious society, it is imperative that youth

sport organizations understand how they can be held liable for the pedophilic actions of coaches

and officials in order to avoid legal liability. Knowledge and understanding of the law can assist

youth sport organizations the development of policies and procedures necessary to avoid legal

liability. Further, youth sport organizations that adopt policies and procedures aimed at limiting

legal liability will also reduce the risk that pedophiles will use their organizations to victimize

children.

Statement of the Problem

More than 10 million children below the age of 16 play organized sports (Peterson, 2004).

The maj ority of these children are coached by volunteer, unscreened adult males (Peterson,

2004). The lack of screening on the part of youth sport organizations coupled with the access that

they provide to large numbers of children create a ready-made resource pool for pedophiles

(Nack & Yaeger, 1999). By coaching youth sports, pedophiles are given an opportunity to win

over parents and gain the trust of children. Parents and athletes alike put faith in their coaches

and this faith can easily be exploited by coaches who are sexual abusers (Deak, 1999).

Youth sports are the perfect hunting ground for a type of pedophile termed the seductor

(Peterson, 2004). The term seductor is given to a type of molester who seduces children the same

way men and women seduce each other (Nack & Yaeger, 1999). Flirtation, affection, attention,

and gifts comprise the tools of the seductor, although alcohol and drug abuse may also be used.

The seductor first wins the hearts of both the families and the athletes they abuse. Then the









seductor scopes out the perfect victim, the child who is vulnerable and whose needs are not being

met elsewhere.

Watson fits the seductor description. One of Watson' s victims stated that Watson first

started talking to his parents before he even really talked to him (Nack & Yaeger, 1999). Watson

would come over to the child's house and play games and lavish the child with presents. In fact,

this victim still refers to Watson as his best coach and one of his best friends. However,

Watson's charm was nothing more than a means to an end, and that end was sex with the child.

The youth sport molestation case that garnered the most media attention is the one

involving Sheldon Kennedy, a former professional hockey player in the National Hockey League

(NHL). Before reaching the NHL, Kennedy was a child playing in the Canadian Hockey League

(CHL) where, at the age of 14, he was first molested by his coach, Graham James (Deak, 1999).

Looking back, Kennedy described himself as a lonely child who was unable to get along with his

strict parents. Conversely, James had previously been named Calgary Man of the Year in 1989

by Inside Hockey for his coaching ability and his stance against violence in the sport. Thus,

Kennedy, the troubled youth, was the perfect victim for James, the accomplished coach.

Much to the dismay of the CHL, James' strong ethical stance against violence on the ice

did not deter him from sexually abusing his athletes off the ice. In fact, the first time James

molested Kennedy he used a gun to threaten Kennedy into sex. In 1997, James plead guilty to

two counts of sexual assault against Kennedy and another unnamed player (Deak, 1999).

Predators like Graham James and Norman Watson are not anomalies and their victims are

not alone. It is estimated that one in three girls and one in seven boys in the United States are

sexually molested before the age of 18 (Earl-Hubbard, 1996). Unfortunately, these

overwhelming numbers do not even represent the true extent of sexual abuse because it is









estimated that only 10 to 35 percent of incidents involving sexual exploitation are ever reported

(Peterson, 2004). Some pedophiles have admitted to molesting 500-600 children before getting

caught. Although no one has ever studied the number of young athletes who have been molested

by their coaches, experts including the Executive Director of the National Institute for Child

Centered Coaching, Stephen Bavolek, believe that sexual abuse in sports is prevalent (Deak,

1999).

Children in a coach-player relationship tend to be more susceptible to sexual assault

(Peterson, 2004). Coaches often take on a role similar to that of a parent and children typically

consent to activities they would never undertake under the guidance of a parental figure

(Appenzeller, 2000). Children also look to coaches as role models, heroes, or, in the case of

Watson and his victims, best friends (Peterson, 2004). Further, children are often told from the

outset of their athletic involvement to obey the coach and never argue with the coach.

To deal with the problem, many youth sport organizations have implemented screening

programs for their volunteer coaches and officials. For example, all Little League managers,

coaches, and volunteers are now checked against state lists of convicted sex offenders (Little

League, n.d.). Little League had been advising local leagues to perform background checks since

1996, when USA Baseball, the national governing body for amateur baseball, recommended the

background checks for youth baseball organizations. However, Little League decided to make

the checks mandatory partly as a response to the sex abuse scandal in the Roman Catholic

Church.

The CHL has gone even further than Little League. In response to Kennedy's abuse and in

dedication to his courage, the CHL enacted a Players First report of recommendations created to

lay a foundation for a safe environment for youth hockey (Kirk, 1997). The report states that










creating a safe environment for the athletes is the CHL's paramount concern. The

recommendations include:

* A mandatory screening procedure by which coaches and volunteers must allow the
member club to check for police records and child abuse registries, locally and across
Canada and the United States.

* Each applicant must have three letters of reference that speak to the applicant' s integrity
and strength of character.

* On-going employee evaluations where players and parents have the opportunity to evaluate
coaches at midseason and again at the end of the season.

* Education programs for children directed at addressing sexual harassment and the
internalization of guilt, and making it clear to child victims that the harassment is not their
fault. Through education the CHL believes that it may be possible to improve the
likelihood of early disclosure and remove the victim from harm.

* The appointments of community advisors who are appointed by the CHL, remain apart
from the team, but oversee the preventative measures.

* The creation of a formalized policy and complaint process that includes the creation of a
Complaint Investigator, independent of the CHL, to investigate the complaint.

* All complaints will be deemed confidential unless disclosure is required by controlling
law.

* Counseling and support for victims of harassment, including a toll-free number for players
to call if they are not ready discuss their harassment face-to-face (Kirk, 1997).


Based on the aforementioned recommendations, it can be argued that the CHL has

aggressively attacked the proliferation of sexual abuse within its ranks. The measures that the

CHL have taken go beyond what any other organization has done to prevent pedophile coaches

or officials from using their organization to solicit victims.

Not every youth sport organization has been so aggressive. In fact, many have not even

gone as far as to adopt a volunteer screening requirement. Even though the cost of background

checks has been reduced to about forty dollars per search, some youth sport organizations









believe that the benefits do not justify the expense (Peterson, 2004). Opponents of background

checks for coaches argue that the searches are an invasion of privacy, will deter volunteers who

have been convicted of non-sexual offenses, and can in many cases be ineffective in terms of

screening pedophiles. For example, the checks do not screen for first-time offenders, or offenders

who have never been caught. Even the CHL in its Players First report recognized that screening

is not foolproof and is not likely to catch many predators (Kirk, 1997). However, the report also

states that screening may act as a deterrent to those with reason to fear a background inquiry and

may even detect predators who have engaged in sexually abuse conduct before and are looking

to do so again.

So the question becomes, what must youth sport organizations do to protect their child

athletes from pedophiles? After all, experts like Stephen Bavolek believe that the pedophilia

problem is increasing in youth sports. The CHL has gone as far as to label the protection of its

athletes from pedophilia "a paramount concern" (Kirk, 1997).

In addition to the moral and ethical justification for protective measures, there is a legal

duty on the part of youth sport organizations to protect their athletes from foreseeable risks (van

der Smissen, 1990). It is possible that a youth sport organization could be found liable if the

appropriate protective measures are not in place to prevent, or at least limit, the possibility of

sexual harassment or abuse. It is imperative that these organizations understand how liability

could be imposed on them for the actions of pedophiles who infiltrate their ranks and abuse their

athletes.

My review of the literature has revealed a substantial void in the research on this issue.

While there are articles and research on what individual states have done in terms of imposing

liability on youth sport organizations for the pedophilic actions of their coaches and officials, no










single study has ever attempted to provide a comprehensive review for all 50 United States and

the District of Columbia.

Purpose of My Study

This study analyzed case law for all 50 United States and the District of Columbia with the

purpose of determining the applicability of the tort theories of respondeat superior, negligent

hiring, and negligent retention in terms of holding youth sport organizations liable for the

pedophilic actions of their coaches and officials. The study also analyzed voluntary immunity

statutes for all 50 United States and the District of Columbia to determine whether said statutes

provide defenses to the aforementioned tort theories for youth sport organizations. By analyzing

the law of all 50 states and the District of Columbia, my study made comparisons that can be

drawn between the states in how they apply the law for these tort theories and voluntary

immunity statutes. Finally, my study analyzed the corresponding standard of care that is imposed

on youth sport organizations for all 50 states and the District of Columbia so that youth sport

organizations will know what is needed of them to avoid liability and guard against abuse.

The scope of my study included a complete examination of existing case law for all 50

United States and the District of Columbia. It is necessary to have an expansive study that

includes all 50 states and Washington D.C. because negligence is a creation of state law and the

application of negligence theories vary among the several states. However, national youth sport

organizations like Little League and Pop Warner provide services in most states and need to

understand the variances that may exist between the legal jurisdictions. Youth sport

organizations need to understand how different jurisdictions apply these theories so that they

know what is required of the organization to protect against the pedophilic actions of coaches

and officials within their ranks.









Significance of the Study

Youth sport organizations are much more likely today than ever to be involved in

negligence litigation. In considering cases, courts throughout the country issue decisions that

define legal liability and create new potential avenues for legal liability. When a child is sexually

victimized by a coach or athletic official, it is probable that the child's parents will seek

compensation for the victimization through legal action. As the CHL recognized, it is impossible

to expect youth sport organizations to completely prevent pedophiles from having access to their

athletes (Kirk, 1997). Yet, it is possible for a pedophile to slip through even the most stringent of

screening processes. It is also possible to minimize that risk, and in today's litigious society is

has become imperative for youth sport organizations to do so.

The first step youth sport organizations can take toward minimizing the potential for

liability is to understand how liability can be imposed against them. While the law is always

subj ect to change, the doctrine of stare decisis provides that courts will tend to stand by their past

decisions (Garner, 2004). Accordingly, the law, while malleable, does provide some degree of

predictability (20 American Jurisprudence 2nd Nature and scope of doctrine, generally @ 129,

2005).

Administrators for youth sport organizations can look to existing case law to determine

how courts in their jurisdiction have resolved certain types of problems. Cases can be used to

help youth sport organizations understand the standard of care for the sport industry in their

jurisdiction. The results of my research proj ect provide youth sport organizations with

information they need to make policy decisions for all 50 United States and the District of

Columbia on how to limit liability and guard against sexual abuse within their organizations.









CHAPTER 2
LITERATURE REVIEW

Chapter Introduction

This study concerns the potential civil liability of youth sport organizations for the

pedophilic actions of coaches and officials who sexually abuse athletes. Civil liability can be

established through tort law or through contract. A tort is a civil wrong for which the law

provides a remedy (Keeton, 1984). A tort can derive from either an intentional or unintentional

act or omission. A youth sport coach or official who sexually abuses an athlete is subj ect to civil

liability for an intentional tort because the perpetrator of the tort acted with intent, meaning that

he or she intended to do the tortious act (Restatement (Second) of Torts ( 8A, 1965).

However, the aim of my study targets the potential liability of the youth sport organization

rather than its coach or official. Since the youth sport organization is not the pedophilic actor,

any civil liability on its part will likely be established through use of one or more unintentional

tort theories.

Unintentional Torts: Negligence

The term negligence is given to those unintentional torts that injure others in person,

property or reputation (van der Smissen, 2003a). The difference between intentional torts and

negligence turns on the probability, under the circumstances known to the actor and based on

common experience that a certain consequence will follow from a certain act (65 Corpus Juris

Secundum @ 14, 2005). If the consequence is desired by the actor, or the actor knows to a

substantial certainty that the consequence will follow, the action is legally intentional.

Conversely, in negligence, intent is irrelevant (57A American Jurisprudence (2d) @ 30, 2005).

Thus, the negligent actor does not desire to bring about the consequences, nor does the actor









know that the consequences are substantially certain to follow. Instead, there is merely an

unreasonably great risk of such consequences (Keeton, 1984).

Negligence can be defined as conduct involving an unreasonably great risk of causing

harm or damage; conduct that falls below the standard established by law for the protection of

others against unreasonable risk of harm (Restatement (Second) of Torts @ 282, 1965). In most

cases, negligence is caused by heedlessnesss or inadvertence" (Keeton, 1984 p. 169). In fact, the

term negligence denotes culpable carelessness (Garner, 2004).

Negligence may result from a personal or professional decision rendered after careful

consideration and based on an individual's best judgment (Keeton, 1984). Negligence does not

always involve the absence of solicitude for those who may be harmed by a person's actions or

inactions. In these instances, liability will be determined on whether the actor's conduct adheres

to the standard of care or poses an unreasonable risk to others.

The standard of care imposed by law is external or obj ective in that it is based on what

society demands of its members rather than the actor' s personal morality or individual beliefs.

Failure to conform to the standard of care, even if it is the result of "clumsiness, stupidity,

forgetfulness, an excitable temperament, or even ignorance," results in potential liability for

negligence (Keeton, 1984, p. 169).

While negligence presupposes a uniform standard of behavior, there are an infinite variety

of situations that may arise to which the standard must be applied (Keeton, 1984). It is

impossible to fix definite rules in advance for all conceivable human conduct and the law does

not attempt to do so. Through the common law, formulas have been developed to determine

whether an actor has breached the standard of care. Before those formulas are discussed, it is

important to first analyze the elements of negligent.









There are Hyve primary elements to negligence (Restatement (Third) of Torts ( 6, 2005).

Each element must be found to exist before a plaintiff may recover in negligence. The elements

to negligence are duty of care, breach of duty, causation in fact, proximate cause, and damages.

First, the defendant must have owed a duty of care to the plaintiff to conform to the standard of

care necessary to prevent the unreasonable risk of harm (Epstein, 1990). Second, the plaintiff

must establish that the defendant breached the appropriate standard of care. Third, it must be

shown that the defendant' s breach was the factual cause of the plaintiff s harm. Fourth, the

breach must be the proximate cause of the plaintiff s harm. Fifth, the plaintiff must establish

proof of some form of property damage or personal injury. Since the negligence theories of

negligent hiring and negligent retention both require a showing of each of the Hyve elements exist,

a discussion of each follows.

The First Element: Duty of Care

The existence of a legal duty is what dictates whether an individual or entity must conform

to the standard of care (Clement, 2004). Therefore, the first question that must be addressed in

assessing liability is whether youth sport organizations owe their athletes a duty of care to protect

them from coaches who are pedophiles. It is important to note that the existence of a duty of care

is a question of law because it results in the conclusion that it is appropriate to impose liability

for the injuries suffered (TTarasoff v. Regents of University of Cahfornia, 1976). Thus, judges

bear the responsibility of determining whether a duty of care exists because questions of law are

decided by judges not juries (Phelps v. Firebird Raceway, Inc., 2005).

Generally, a person does not owe a duty to protect others from third parties absent a special

relationship (Restatement (Second) of Torts ( 315, 1965). There are three primary ways in

which a special relationship may be established: (a) from a relationship inherent, (b) from a









voluntary assumption of the duty, and (c) from a duty mandated by statute (van der Smissen,

2003a).

It is typically not difficult to locate the existence of a relationship inherent because the duty

is open and obvious based on its nature (van der Smissen, 2003a). After all, there are those types

of relationships that automatically give rise to a duty to protect another from an unreasonable

risk of harm. For example, there is little debate as to whether a mother owes a duty to her child

or a lawyer owes a duty to his or her client.

When a service is provided, typically there is also a concomitant obligation not to expose

the participant using the service to an unreasonable risk of harm (van der Smissen, 2003a).

Youth sport organizations provide services to the children who play in their leagues and for their

teams. Accordingly, there is a duty on the part of youth sport organizations to protect their

athletes from unreasonable risks.

In the absence of a relationship inherent, a special relationship may still be established by

voluntary assumption (van der Smissen, 2003a). For example, even though there is no duty to

come to someone's aid, once purported tortfeasors voluntarily begin to render assistance, they

must proceed with reasonable care (Restatement (Second) of Torts ( 324, 1965). Thus, they have

assumed a duty that normally they would not normally posses because there is no relationship

inherent. A person may also voluntarily assume a special relationship by volunteering to assist a

youth sport organization as a coach or league official (van der Smissen, 2003a).

The final way in which a special relationship may be found is if it is set forth by statute

(van der Smissen, 2003a). For example, there is a statutory prohibition against driving while

intoxicated in every jurisdiction in the United States. If a driver negligently operates a motor

vehicle and is caught driving over the legal limit then the driver has breached a duty owed to









other drivers and pedestrians. If the intoxicated driver injures someone as a result of the breach,

then the driver may be deemed negligent per se.

If a defendant violates a statutory duty and is deemed negligent per se, then the defendant

is negligent as a matter of law (Restatement (Third) of Torts Restatement @ 324, 2005). In such a

case, the plaintiff need only prove the elements of causation and actual harm to prevail in court.

Thus, the statute sets up both the legal duty and the standard of care for the plaintiff.

The Second Element: Breach of Duty

The second element of negligence requires the plaintiff to prove that the defendant

breached the duty of care. Specifically, the plaintiff must establish that the defendant failed to

conform to the duty of care owed to the plaintiff (Restatement (Second) of Torts @ 282, 1965).

To show that the duty of care was breached, the plaintiff must prove that the defendant' s

conduct, viewed as of the time it occurred, imposed an unreasonable risk of harm (Keeton,

1984).

By establishing the existence of an unreasonable risk of harm, the plaintiff is in effect

showing that the defendant breached the standard of care that was owed under the circumstances.

As previously mentioned, it is impossible to define the standard of care for every possible event

and thereby expose every possible unreasonable risk. Thus, the courts have developed a formula

for determining whether each set of facts give rise to an unreasonable risk of harm (Keeton,

1984). This formula consists of the creation of a fictitious person who is often described as the

reasonably prudent person and was first created in Vaughan v. M~enlove (1837).

The fictitious reasonably prudent person is a model individual with human qualities, but

only those shortcomings that the community will tolerate (Keeton, 1984). The courts have gone

to unusual lengths to emphasis that the reasonably prudent person is an abstraction and is not to

be identified with any ordinary person. The conduct of the reasonably prudent person will vary










depending on the circumstances. Thus, the jury must take the circumstances into account when

deciding what a person of reasonable prudence would do (Keeton, 1984).

The courts have expanded the definition of the word "circumstances" to include any

physical attribute that the defendant may posses (Keeton, 1984). For example, if the defendant

has a specific physical disability, like blindness, then so does the reasonably prudent person

(Restatement (Second) of Torts @ 283C, 1965). However, courts have not extended the term

"circumstances" to include the specific mental characteristics of the defendant (Keeton, 1984).

Thus, the intelligence of the defendant is not considered when deciding what a reasonably

prudent person would do.

Most jurisdictions have carved an exception to this general rule for individuals who have a

mental state that is so low that they are unable to comprehend a risk or avoid an accident (57B

American Jurisprudence (2d) @ 1022, 2005). Conversely, the Restatement (Second) of Torts does

not adopt the maj ority rule that mental deficiency may relieve a person of negligence (@ 283B,

1965). Although, the Restatement does allow for a child's mental deficiency to be taken into

account (Restatement (Second) of Torts @ 283A, 1965).

Courts have also created another exception for those individuals who posses superior

knowledge, skill or intelligence (Keeton, 1984). Thus, a defendant's professional and educational

experience may be considered under the circumstances. Professional persons in general, and

those who undertake any task that requires special skill, are required to posses a standard

minimum of special knowledge and ability that would be commonly held by members of the

profession in good standing (Restatement (Second) of Torts @ 299, 1965). Accordingly, for

situations involving the need for professional expertise, the fictitious reasonably prudent person

is transformed into the reasonably prudent professional.









In some situations it may be too difficult to ascertain what a reasonably prudent person

would do under the circumstances. For example, it may be too amorphous and inexact to always

apply the standard to the actions of a business organization. To deal with situations where the

reasonably prudent person standard may be too difficult to apply, the courts have developed a

balancing test to determine if the defendant' s conduct posed an unreasonable risk of harm to the

plaintiff.

The balancing test was crafted by Judge Learned Hand in U.S. v. Calrroll Towing Co.

(1947). The Calrroll Towing Co. case involved a barge, owned by the plaintiff in the case, which

broke away from its moorings due to the negligent manner in which the defendant shifted the

lines that moored the barge. The defendant argued that the plaintiff was also negligent because

the plaintiff should have placed someone on the barge to make sure that it was secure.

In addressing this fact pattern, Judge Hand did not use the reasonably prudent person to

determine whether the plaintiff~ s failure to place an employee on the barge amounted to

contributory negligence (U.S. v. Calrroll Towing, 1947). Instead, Judge Hand applied a formula

that balanced the burden of preventing the harm (B) against the gravity of the harm (L)

multiplied by the probability of the harm (P). If B < L x P, then there is an unreasonable risk of

harm.

Applying this formula, Judge Hand found that the substantial burden of having an

employee on board at all times was outweighed by the seriousness of the harm and the

probability that the harm would occur (U.S. v. Carroll Towing, 1947). Specifically, the facts took

place during wartime and ships were constantly coming in and out of the harbor. Thus, the risk

that the mooring lines would come undone and the danger that the barge posed to other ships

sufficiently outweighed the burden of placing a man on the barge.









As the formula implies, the more serious the gravity of the injury, the less probable that the

injury need be before the defendant should guard against it to avoid legal liability in negligence

(U.S. v. Calrroll Towing, 1947). Further, the burden in the equation is not only a cost to the

individual party, but also a broader social utility of the conduct that should be borne. Thus, the

question becomes one of whether society would be better off if all like parties were permitted to

act as the alleged tortfeasor has acted.

The Restatement (Second) of Torts has attempted to combine the balancing test with the

reasonably prudent person standard. The Restatement (Second) of Torts @ 291 states:

whereee an act is one which a reasonable person would recognize as involving a risk of

harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude

as to outweigh what the law regards as the utility of the act or of the particular manner in which

it is done" (Restatement (Second) of Torts @ 291, 1965).

The determination of which test, between the reasonably prudent person standard and the

balancing test, to use depends on the jurisdiction and the circumstances. Again, tort law varies

somewhat from state to state. However, both formulas are long-standing in the common law,

thus both have long histories of case law supporting their use and explaining their application.

No matter the formula used, particular attention will be paid by the court to ordinances,

regulations, policies, standards, or even guidelines that attempt to establish the appropriate

standard of care (van der Smissen, 2003a). Generally accepted practices or custom of the

profession may instead be accepted as proof of the standard of care in the absence of published

standards. Often, this information will be introduced into evidence through expert testimony.

Thus, a plaintiff will need to establish that the youth sport organization did not act

reasonably and therefore breached a duty of care owed to the plaintiff. In doing so, the










jurisdiction may use the reasonably prudent person formula or the balancing test. Either way, the

issue will turn on whether the defendant' s actions posed an unreasonable risk of harm to the

plaintiff. In other words, the question can be posed as whether the defendant breached the

standard of care owed to the plaintiff. In establishing the standard of care, evidence in the form

of standards, guidelines, regulations, policies, or even custom that concerns the administration of

youth sport may be considered.

The Third Element: Cause In Fact

Even if there is a breach of the duty of care owed to another, their recovery against the

defendant is not possible unless the defendant' s breach was the factual cause of the plaintiff s

harm (Clement, 2004). In other words, there must be some reasonable, direct connection between

the plaintiff s cause of action for negligence and the defendant' s action or omission (Keeton,

1984). An act or omission is not a cause of an event if the event would have occurred without it.

This maxim has been used by courts to establish a "but for" or "sin qua non" rule. Simply put,

causation in fact requires a finding that "but for" the defendant' s conduct, the plaintiff would not

have been hurt.

A defendant may negate causation in fact if it can be shown that another intervening cause

actually caused the plaintiff s harm (Keeton, 1984). However, the law recognizes that there can

be more than one cause for a plaintiff s harm. Accordingly, if a plaintiff can prove that any of

two or more causes would have brought about the harm, then the plaintiff may recover against

any or all of the actors. In this case, the defendants would be deemed j oint tortfeasors.

The substantial factor test is used to determine whether multiple causes each resulted in the

plaintiff s harm (Keeton, 1984). If the defendant' s conduct played a substantial factor in causing

the plaintiff s harm, then the defendant' s conduct factually caused the plaintiff s harm. Thus, if

the actions or omissions of multiple defendants each played a substantial factor in bringing about










the plaintiff~ s harm, then those defendants would be deemed j oint tortfeasors and the plaintiff

may recover against any single torfeasor, or all of the tortfeasors, for compensation (Restatement

(Second) of Torts ( 432, 1965).

Accordingly, plaintiffs seeking redress against a youth sport organization will have to

establish that the organization factually caused their injuries. While the pedophile coach or

administrator actually performed the harassment or molestation, it must be shown that the youth

sport organization played a substantial factor in the bringing about of this specific harm.

Otherwise, the plaintiff will not be able to establish "but for" causation.

The Fourth Element: Proximate Causation

The cause in fact requirement is not the only causation requirement. Once direct causation

is established, the plaintiff must also establish that the defendant' s negligence was the proximate

cause of the injuries (Wong, 2002). The concept of proximate cause stems from policy

considerations that serve to place manageable limits on liability caused by negligent conduct

(57A American Jurisprudence 2nd @ 427, 2003). The proximate cause requirement arises out of

the judicial sense that negligent actors should not be liable for all the consequences of their

actions, especially those that are far-reaching. There are two conflicting applications of the

policy. The first is termed the "direct causation" view. It holds that defendants are liable for all

consequences of their negligent act absent superseding intervening causes. The second, most

popular and widely used, application is termed the foreseeability or scope of risk view (Keeton,

1984).

Jurisdictions that incorporate foreseeability into their proximate cause determination

require plaintiffs to prove that the injury was foreseen by the defendant, or reasonably should

have been foreseen, as the natural and probable result of the negligence (57A American

Jurisprudence 2nd @ 429, 2005). Accordingly, the foreseeability component of proximate cause









is satisfied if a person of ordinary caution and prudence could have foreseen the likelihood of

injury (Regions Bank & Trust v. Stone County .\kdkJ~(Nursing Facility, Inc., 2001).

Palsguraf v. Long Islan2dRailroad Company ( 1928) is the seminal case on the subj ect of the

applicability of foreseeability in a proximate cause determination (Gash, 2003). In Palsgraf, a

man carrying a package wrapped in newspaper under his arm, attempted to catch the defendant' s

train by jumping onto a train car. During the jump, the man appeared unsteady, so one of the

train guards reached to help him. At the same time, another guard attempted to assist the man by

pushing him from behind. The man's package fell onto the tracks revealing its contents,

fireworks. The fireworks exploded on the tracks and the impact of the shock caused scales on the

railway passenger platform to fall onto the plaintiff, Mrs. Palsgraf. A jury ruled in Mrs.

Palsgraf s favor by finding the defendant train company liable for her injuries. The court of

appeals reversed the trial court' s decision and handed down then-Judge Cardozo's now landmark

opinion (Palsgraf v. Long sland Railroad Company, 1928).

Judge Cardozo did not use proximate cause as a basis for his determination. Instead, he

found that the defendant did not owe a duty of care to the plaintiff (Palsgrafy. Long Islanzd

Railroad Company, 1928). However, the case is used as a basis for understanding the role of

foreseeability in a proximate cause inquiry (Devellis v. Lucci, 1999; Freddo v. Access Agency,

Inc., 2001; Hicks v. Nunnery, 2002; Isaacs v. Larkin Electric Company, 1998; M~oore v.

Paine Webber, Inc., 1999; Williamnson v. Liptzen, 2000). Judge Cardozo determined that the

plaintiff~ s injuries were not the foreseeable result from the defendant' s actions. In doing so, he

constructed an orbit of ~~~~~~~~~dddddddddagr, something akin to a legal snapshot, that freezes the defendant' s

actions to ascertain what risks were reasonably foreseeable based on the defendant' s actions.









Consequently, only those risks included in the orbit of danger were reasonably foreseeable

(Palsgurafv. Long Islanzd Railroad Company, 1928).

Looking at the facts in Palsgraf the maj ority held that the risks created by helping a man

holding an unidentified package onto a train did not include the risk of a scale falling on a person

standing on the other end of the platform. Therefore, the plaintiff~ s injuries were not the

reasonably foreseeable consequence of the train employees' actions (Palsgurafv. Long slan2d

Railroad Company, 1928).

Judge Andrews wrote a strong dissent to the maj ority's decision. Judge Andrews did not

agree with the limitations posed by the orbit of danger. Instead, he argued that proximate

causation should extend to all consequences of negligent action, not only those that are

reasonably foreseeable. Thus, he urged for the adoption of the direct causation view (Palsgrafy.

Long sland Railroad Company, 1928).

Arguably, a strict application of the approach to foreseeability taken by the maj ority in

Pa~slgurafcould pose problems for plaintiffs seeking to hold youth sport organizations liable for

the actions of pedophile coaches or officials. However, proximate cause is based on policy

considerations (57A American Jurisprudence 2nd Negligence ( 427, 2003). In fact, Palsgrafhas

been interpreted as standing for the proposition that "a foreseeability finding turns on fairness,

policy, and as before, 'a rough sense of justice'" (AUSA Life Insurance Co. v. Ernst & Young,

2000, p.218). Proximate cause is also a common law concept, and as such, it must evolve to

reflect "economic, social, and political developments" (AUSA Life Insurance Co. v. Ernst and

Young, 2000; Cullen v. BM~W of North America, Inc., 1982, p. 1 102).

With athletes like Sheldon Kennedy coming forward in the media to describe how they

have been victimized and the horrific stories provided by Norman Watson, the public is









becoming more and more aware of the pedophilic problem in youth sports. Therefore, public

policy may very well dictate that the concepts of foreseeability and proximate cause should

evolve to reflect said developments. After all, the fear of pedophile coaches and administrators

accessing youth sports did not exist in 1928 when Judge Cardozo wrote the Palsgurafdecision.

The Fifth Element: Actual Harm

For any cause of action based on negligence, some actual harm or injury must exist as a

requirement and nominal damages are not available (Restatement (Second) of Torts ( 907,

Comment a, 1965; Wong, 2002). Proof of damage is an essential part of the plaintiff~ s case in

negligence because negligent conduct in and of itself does not rise to the type of interference

with the interests of society as a whole to warrant a complaint (Keeton, 1984). Thus, for a

plaintiff to recover, he must establish the existence of some bodily injury or emotional harm (van

der Smissen, 2003a).

In cases dealing with allegations of pedophilia, it is typically not difficult for a plaintiff to

establish actual harm. In fact, even if the plaintiff does not incur any permanent physical loss, the

plaintiff may recover for pain and suffering (M~cDougald v. Garber, 1989). Specifically, mental

pain and suffering experienced through sexual abuse or harassment often serves as a basis for an

award in tort law (Wilson v. Safeway Stores Inc., 1997).

Once actual harm or injury is established, there is a plethora of possible types of damages

that may be recovered to compensate the victim. The types of damages available depend on the

circumstances but may include compensation for physical pain and suffering, mental distress,

direct economic loss, loss of consortium, and wrongful death (van der Smissen, 2003a).

In some jurisdictions, there is the possibility that a plaintiff may recover punitive damages

against the defendant. Punitive damages are different than compensatory damages because

punitive damages are awarded to punish the defendant rather than compensate the victim










(Keeton, 1984). However, punitive damages are only awarded to punish outrageous, reckless,

willful, or wanton conduct (Wong, 2002). Accordingly, punitive damages are typically not

available for ordinary damages (van der Smissen, 2003a).

Gross Negligence

Thus far, this review has focused on what is required for ordinary negligence. However,

the common law recognizes that tortuous conduct may be so great that it amounts to more than

just negligence, even though it falls short of being intentional (Keeton, 1984). For these

situations courts have distinguished between ordinary negligence and situations where the

defendant' acts with a heightened degree of careless, or gross negligence (Fidelity Lea~sing Corp.

v. Dun & Bradstreet, hIc., 1980; Leite v. City ofProvidence, 1978; PilothIndustries v. Saidenrlll

Bell Tel. & Tel. Co., 1979). In gross negligence, the defendant's culpability is magnified so that

it is at a higher degree then that which is found in ordinary negligence (57A American

Jurisprudence @ 227, 2005). Some courts have stated that gross negligence amounts to a failure

to exercise care even that care which a careless person would use (Crowley v. Barto, 1952;

Louisville & Na~shville Railroad Co. v. M~cCoy, 1883; Whitley v. Com., 2000).

However, other courts have interpreted gross negligence to require a showing of willful,

wanton, or reckless misconduct (Keeton, 1984; De Wald v. Quarnstrom, 1952; hI re Wright 's

Estate, 1951; Redeout v. Winnebago Traction Co., 1904; Rokusek v. Bertsch, 1951; Thompson v.

Bohlken, 1981). The maj ority of jurisdictions distinguish between those acts that are willful,

wanton, or reckless and those that involve gross negligence (Keeton, 1984). Specifically, these

courts hold that gross negligence is more than just ordinary inadvertence, but less than conscious

indifference (Keeton, 1984; Crowley v. Barto,~~~~BBBBB~~~~BBBB 1952; Fidelity Lea~sing Corp. v. Dun & Bradstreet,

hIc., 1980; Hodge v. Borden, 1966; Wyseski v. Collette, 1965).









Willful, Wanton, and Reckless Conduct

As previously stated, some jurisdictions distinguish between gross negligence and willful,

wanton, and reckless conduct. These jurisdictions recognize situations where a defendant may

act with intentional indifference to the point that her actions exceed the culpability required for

gross negligence (Keeton, 1984). Even though a defendant acts with intentional indifference, the

defendant' s actions remain negligent rather than intentional because the defendant never

intended to bring about the harm. In these situations, the risk of harm is so great that the

defendant probably knows that the harm will follow (Restatement (Second) of Torts ( 500,

1965). This probability falls short of the substantial certainty required for an intentional tort.

Some courts have tried to distinguish between willful, wanton, and reckless conduct (Kelly

v. Mallott, 1905; Neaty v. Northern Pacific Railway, 1910). For most jurisdictions, however,

these terms can be used collectively or interchangeably (Mania v. Kamninski, 1980). A defendant

who is found liable for willful, wanton, and reckless conduct may incur civil sanction through

punitive damages (Hackbart, v. Cincinnati Bengals, hIc., 1979).

Negligence Theories and Doctrines

Within the concept of legal negligence, there are various types of theories on which a

plaintiff may rely depending on the specific circumstances at issue. What theories may be

available to the plaintiff hinge on how the defendant was negligent, or the defendant' s

relationship to the party who actually committed the negligent act. This section of the review of

literature will focus on the negligence theories most applicable to a cause of action against a

youth sport organization for the pedophilic actions of their coaches and officials. In doing so, this

section will review the literature concerning the negligence theories of respondeat superior,

negligent hiring, negligent supervision, and negligent retention.









It is important to note that these individual theories of negligence each require a showing

that the defendants) acted negligently. Thus, the elements of ordinary negligence must still be

established for a plaintiff to prevail in negligence through use of one of these theories. Further, if

the defendant' s conduct through one of these theories is extreme, then the defendant may be

found liable for gross negligence or willful, wanton, and reckless conduct.

The Doctrine of Respondent Superior

The doctrine of respondeat superior is often referred to as vicarious liability because it

serves as a method of holding one person vicariously liable for the wrongs committed by another

(Keeton, 1984). The phrase respondeat superior is Latin meaning "let the master answer"

(Garner, 2004). Under this doctrine, liability can attach to a master if the servant, while acting on

the master' s behalf, harms someone to whom the master owes a duty of care (Mayer, 2005).

Accordingly, if an employee (servant) acts negligently during the course of employment, then

the employer (master) may be held liable for the employee's negligence. Simply put, the

negligence of the employee is imputed to the employer.

To be successful in a respondeat superior claim, the plaintiff must establish that the

tortfeasor is liable in tort, the tortfeasor is employed by the defendant, and the employee was

acting within the scope of employment when the tortuous act was committed (27 American

Jurisprudence 2nd @ 459, 2005). Perhaps the most critical element of respondeat superior is the

requirement that the employee was acting within the scope of his employment (Keeton, 1984).

Acts committed by the employee that exceed the scope of employment are considered ultra vires.

Employers, are generally not vicariously liable for the ultra vires actions committed by their

employees (Cotten, 2003). However, the definition of scope of employment has extended to

include all acts committed in furtherance of the employer' s business (Keeton, 1984).










Early decisions did not hold employers liable for the intentional torts committed by their

employees on the assumption that employers would not authorize such conduct (Maille v. Lord,

1868; M~c2anus v. Crickett, 1800; Poulton v. London & S. WR. Co., 1867; Wright v. Wilcox,

1838). Modern application of the doctrine of respondeat superior has been extended to include

intentional torts that occur during the scope of the employee's employment (Keeton, 1984).

Thus, intentional torts are no longer per se ultra vires acts.

Criminal acts, including sexual assault, have generally been considered to be outside the

scope of employment (Gibbons & Campbell, 2003). The basis for this exception is that such acts

are not done in furtherance of the employer' s enterprise. In certain circumstances, courts have

held than an employee' s sexual assault falls within the scope of employment even though it was

not motivated by a purpose to serve the employer (DeMitchell, 2002; Lear, 1997). Most of the

cases that have extended the scope of authority to include sexual abuse cases have done so where

the sexual aggressor stood in an authority position over the victim. Youth sport coaches,

administrators, and officials are invariably placed in authoritative positions of trust (Gibbons &

Campbell, 2003). Jurisdictions that use a broader definition of scope of employment provide a

greater opportunity for plaintiffs to recover against the youth sport organization based on

respondeat superior (Weeber, 1992).

The policy behind the doctrine of respondeat superior focuses on risk allocation. The

losses caused by the torts of employees, which are sure to occur, are placed upon the enterprise

itself as a cost of doing business (Keeton, 1984). After all, between the employer and the victim,

the employer stands in a better position to prevent the harm because the employer has control

over their employees.










It is central to the doctrine of respondeat superior that the employer posses some degree of

control over actions of the employee (Keeton, 1984). For this reason, courts have not extended

the doctrine to make employers liable for the actions of independent contractors. After all,

independent contractors are not, by their nature, employees. Instead, they are independent parties

contracted to perform a task.

Independent contractors typically retain almost complete control over the means for

accomplishing the task. Since the employer has no power of control over the manner in which

the work is to be done by the contractor, the task should be regarded as the contractor's own

enterprise, and the contractor, rather than the employer, should hold the responsibility of

preventing the risk, and bearing and distributing it (Restatement (Second) of Torts ( 409,

Comment b, 1965). There is an exception to this general rule for non-delegable acts that involve

ultra-hazardous activities (24 Corpus Juris Secundum @ 432, 2005).

Unique societal hurdles exist for plaintiffs who seek to use the doctrine of respondeat

superior against volunteer organizations, especially those that are non-profit (Lear, 1997).

Imposing vicarious liability on these organizations may drive them out of business even though

the societal utility of the activity exceeds the harm. One of the often used justifications for the

doctrine of respondeat superior is that employers typically have more resources than their

employees (Keeton, 1984). Thus, a plaintiff has a greater chance at full recovery against the

master than the servant. However, volunteer organizations do not always amass vast reserves of

wealth, earmarked for the enriched owners or investors (Lear, 1997). Tapping the resources of

volunteer organizations to compensate victims in tort may force the organizations out of

business.









To protect youth sport organizations, and in particular, the services they provide the public,

jurisdictions may refuse to apply the broad definition of "scope of employment." Instead, they

may rely on the narrow definition that limits vicarious liability to only those actions performed in

furtherance of the employer' s enterprise (Deak, 1999).

Negligent Hiring

The tort of negligent hiring may provide hope for plaintiffs in jurisdictions that do not

extend the doctrine of respondeat superior to include criminal conduct. In fact, courts appear to

be more willing to accept negligent hiring as a means for holding an employer liable for sexual

assaults committed employees (Gibbons & Campbell, 2003). Perhaps the basis for

accommodation lies in the fact that, unlike the doctrine of respondeat superior, the tort of

negligent hiring does not strictly impute the negligence of the employee onto the employer

simply because the employer stands in the role as master of the employee (Scales, 2002). Instead,

a negligent hiring action alleges culpability on the part of the employer. Particularly, the tort

requires the establishment of a causal link between the employer' s negligence in hiring an

individual with known harmful propensities and the employee's subsequent violent action

(Sullivan, 1998).

The tort of negligent hiring stems from the fellow servant rule (Scales, 2002), a common

law defense that protected an employer against the claims of injured employee based on the

theory that the injury resulted from a negligent act or omission of a fellow employee (Lin, 2005).

The tort of negligent hiring evolved out of the modern version of the fellow servant rule, which

emphasizes an employer's duty to hire and retain competent employees (Lienhard, 1996; Scales,

2002). The first negligent hiring cases required that the crimes committed by employees fall

within the scope of employment. However, subsequent case law expanded employer liability to

include ultra vires acts (North, 1976).









To prevail on a cause of action for negligent hiring, a plaintiff must first establish that the

employer owed them a duty of care (Gibbons & Campbell, 2003). As a general rule, there is no

duty on the part of organizations to protect victims against the violent propensities of employees.

However, if the plaintiff falls within a member of a class of foreseeable victims, then courts are

willing to find the existence of a duty of care on the part of employers.

In a youth sport setting, courts recognize that a greater degree of care is owed to children

based on their lack of capacity to appreciate risks and avoid danger (Gibbons & Campbell,

2003). Thus, courts have found a special relationship between children and the organizations that

place adult caregivers in authority positions over children. Accordingly, youth sport participants

that play in leagues established by youth organizations fall within a foreseeable class of victims

that could be harmed by pedophilic coaches and onfcials. Therefore, a special relationship exists

between youth sport organizations and the children who use their services and this relationship

creates a duty of care on the part of the organizations to hire competent coaches and officials

(Gibbons & Campbell, 2003).

A plaintiff asserting a negligent hiring cause of action must also show (a) that the employer

knew or in the exercise of ordinary care should have known of its employee's unfitness at the

time of hiring; (b) that through the negligent hiring of the employee, the employee's

incompetence, unfitness, or dangerous characteristics proximately caused the resulting injuries;

and (c) that there is some employment or agency relationship between the tortfeasor and the

defendant employer (27 American Jurisprudence 2nd @ 392, 2005).

Perhaps the most critical inquiry made in negligent hiring cases concerns the first element

of the tort, the requirement that the employer knew or should have known of the employee' s

unfitness at the time of hiring (27 American Jurisprudence 2nd @ 392, 2005). Critical to this










inquiry is the degree of knowledge of the fitness of the employee. Specifically, how much

knowledge is required of an employee' s unfitness before the employer' s actions in hiring the

employee amount to negligence?

In answering this question, negligent hiring cases may be divided into three categories

(Sullivan, 1998). The first type of cases involves situations where the employers were unaware

of the employee' s unfitness. Employers are often relieved of liability in situations where they

had no knowledge of the employee' s predisposition toward harmful conduct.

The second type of cases involving the knowledge requirement for negligent hiring actions

include those cases where the employer possesses actual knowledge of the employee's

predisposition towards harmful behavior (Sullivan, 1998). It is in this line of cases that the

employer is particularly vulnerable to civil liability. However, the mere existence of a criminal

record does not in and of itself mean that the employer was negligent in hiring the employee. A

reasonable investigation of the employee' s past may reveal that the employee was involved in an

isolated incident and does not have a propensity towards dangerous conduct.

The third type of cases concern situations where the employer should have known of the

employee's violent behavior (Sullivan, 1998). The literature and case law is clear that an

employer may be held liable for negligently hiring an employee if they knew or should have

known of an employee's propensity toward violence. Thus, lack of knowledge does not relieve

the employer of his duty to perform an adequate background check (van der Smissen, 2003b).

This means that the employer must conduct a reasonable investigation into the employee's

work experience, background, character, and qualifications (27 American Jurisprudence 2nd i

393, 2005). The scope of an adequate background check depends largely on the nature of the j ob

in terms of the anticipated degree of contact that the employee will have with other persons in










performing job functions (27 American Jurisprudence 2nd @ 394, 2005). If the employee's job

duties will frequently bring him into contact with the public or involve close contact with

particular persons resulting from a special relationship between such persons and the employer,

the employer's duty expands, requiring it to go beyond the job application form and personal

interview.

Generally though, a reasonable routine background check includes an application, an

interview, and reference checks (Lear, 1997). However, if the application, interview or reference

checks reveal a problem with the employee, a more thorough independent inquiry may be

required (27 American Jurisprudence 2nd @ 394, 2005). Even if an independent inquiry is

required, such investigation typically does not normally extend to criminal record checks

(Sullivan, 1998).

The modern negligent hiring doctrine looks at the circumstances surrounding the

employment relationship that may call for a heightened duty (Lear, 1997). It is possible that the

circumstances involving the employee's background may give rise to a heightened duty that

would warrant organizations to go much further than what is minimally required (Gibbons &

Campbell, 2003). This may be particularly true in situations where the employee would have

access to vulnerable persons, like children (Lear, 1997).

However, the general rule remains that employers do not have to conduct criminal record

checks (Sullivan, 1998). Furthermore, employers may be relieved of liability for not conducting

reasonable background checks if the employer establishes that a reasonable inquiry would not

have revealed the employee's unfitness (27 American Jurisprudence 2nd @ 394, 2005).

Negligent Retention

Not only should employers use reasonable care in hiring employees, but they should also

use reasonable care in deciding whether to retain employees who demonstrate a propensity









toward dangerous conduct. Failure to exercise such care and terminate unfit employees could

result in liability for the tort of negligent retention. An employer who knew or should have

known of problems with an employee that indicated unfitness and who failed to take further

action such as investigation, discharge, or reassignment could be found liable for torts committed

by that employee against a third person (27 American Jurisprudence 2nd @ 396, 2005).

Conversely, employers cannot be held liable if they did not have notice of an employee's

propensity to commit criminal acts during the course of employment. This is especially true

where the employer has made it clear to the employee that he or she should not participate in

criminal acts while on the job.

Like the tort of negligent hiring, negligent retention also originates from the fellow servant

rule (Lienhard, 1996). Also like negligent hiring, early negligent retention cases only imposed

liability on the employer for those acts that the employee committed during the scope of

employment. However, later cases have expanded the tort to cover ultra vires actions, including

criminal offenses.

This modern view of negligent retention emphasizes an ongoing duty on the part of an

employer to retain only competent employees (27 American Jurisprudence 2nd @ 396, 2005).

Through this modern view, there are several issues that courts must consider including: (a) the

level of care the employer must exercise in making personnel decisions; (b) the foreseeable

victims to whom the duty is owed; (c) the employee's characteristic that results in incompetence

or unfitness, and the type of proof that evidences this trait; (d) the connection between the

employee's unfitness and the plaintiffs injury; and (e) the connection between the employer and

the plaintiff (Lienhard, 1996).










Thus, the issues inherent in negligent retention cases are almost identical to the

requirements for negligent hiring cases. Accordingly, the standard care in a negligent retention

case is very similar to that for negligent hiring cases (Beck, 2006). However, there is one critical

difference in that in a negligent retention case, the employee would be subj ect to firsthand

observation by the employer. Therefore, courts may be willing to grant more latitude for

plaintiffs in a negligent retention case based on the employer's knowledge (Beck, 2006).

The employer' s knowledge of the employee' s incompetence or unfitness is critical in a

negligent retention case. In fact, the success of a negligent retention claim will turn on whether

the employer knew or should have known in the exercise of ordinary care that their employee

was unfit (27 American Jurisprudence 2nd @ 396, 2005). Thus, employers should perform

employee appraisals on a regular and systematic schedule (Lienhard, 1996). The existence of any

incidents should be noted by a supervisor immediately. Employers should pay close attention to

personality traits that may emerge involving violent episodes or frustrations. If a pattern or trend

starts to develop, then the employer should take immediate action to remove, transfer or suspend

the employee (Lienhard, 1996).

Third parties may also establish liability against employers under negligent retention where

the actions taken by the employer are not properly administered (27 American Jurisprudence 2nd

S396, 2005). Further, employers could be found liable for negligent retention where the

employer reasonably should have foreseen that its actions were inadequate to protect third

persons from harm resulting from a recurrence of the employee behavior of which the employer

had prior notice (27 American Jurisprudence 2nd @ 396, 2005; Favorito v. Pannell, 1994).

Defenses

There are several defenses that defendants can use to defeat causes of actions based in

negligence. The availability of the defense depends on the facts of the case. It is also important to









note that if the facts preclude the use of a defense theory, the defendant may still prevail if the

plaintiff cannot meet the burden of establishing each of the elements required for the specific

tort. However, most defense theories to negligence claims focus on the plaintiff~ s conduct at the

time the tort occurred. The most common defenses to respondeat superior, negligent hiring, and

negligent retention cases are assumption of risk and comparative fault/contributory negligence

(Lienhard, 1996). Thus, the review of literature will include a brief discussion of these defenses.

Finally, this study specifically deals with youth sport organizations which are often

composed of volunteers. Many jurisdictions have enacted volunteer immunity statutes that

protect volunteers from liability incurred in the activities for which they have volunteered. This

section will also include a brief discussion of volunteer immunity.

Assumption of Risk

Assumption of risk is a defense that is available when a plaintiff has voluntarily exposed

himself to a known and appreciated danger (Cotten, 2003). Assumption of risk is an absolute

defense meaning that its existence precludes the plaintiff from recovering for the injuries

(Keeton, 1984). Assumption of risk involves the assumption of well-known risks that are

inherent to the activity. Put simply, when one knows the inherent dangers involved and

voluntarily participates, one assumes those risks inherent in the activity and the service provider

is not liable for resulting injuries (Cotten, 2003).

Three elements must exist for a valid assumption of risk defense. These include: (a) the

risk must be inherent to the activity, (b) the participant must voluntarily consent to be exposed to

the risk, and (c) the participant must know, understand, and appreciate the risks inherent in the

activity (Leakas v. Cohembia Country Chub, 1993). It is unlikely that youth sport organizations

will be able to satisfy the elements of assumption of risk when defending against claims based on

the pedophilic actions of their coaches and officials. First and foremost, pedophilia is not an









inherent risk in any youth sport (Rutter v. Northeastern Beaver County School District, 1981).

Second, children, as minors, cannot legally consent to risk exposure and any consent by a parent

or guardian to pedophilia would most certainly be negated in court because such consent would

violate the law in every jurisdiction. Thus, assumption of risk is not a valid defense for youth

sport organizations against claims brought by their athletes alleging pedophilia.

Contributory Negligence and Comparative Fault

Contributory negligence is a defense to negligence that focuses on the conduct of the

plaintiff. Contributory negligence is also an absolute defense in that it too precludes recovery for

the plaintiff if established. The theory provides that plaintiffs may not recover if they are

negligent and their negligence contributes proximately to their injuries. Thus, the defense is a

complete one. It shifts the loss totally from the defendant to the plaintiff, even if the plaintiff s

failure to exercise reasonable care is much less marked than that of the defendant. However,

contributory negligence has been either overruled or repealed by statute in most jurisdictions

(Cotten, 2003).

In fact, most jurisdictions have replaced contributory negligence with comparative

negligence. These jurisdictions have done so because they are of the opinion that contributory

negligence leads to unfair and perhaps even harsh results (Cotten, 2003). Instead, these

jurisdictions have fashioned systems that attempt to apportion damages between the plaintiff and

the defendant according to their relative degree of fault (Clement, 2004). This is the basis for

comparative negligence.

It is not likely that a youth sport organization will be able to assert a defense based on

either contributory negligence or comparative fault in a case brought on behalf of a child who

has been sexually abused by a coach or official. After all, both types of jurisdiction require the

defendant to prove that the plaintiff was negligent. Further, these defenses do not apply to









intentional torts. If a child is victimized by a coach then it is not probable that the league that

employed the coach will succeed on a claim that the child negligently contributed to his or her

victimization. Additionally, while the league may be found negligent for either, or both, hiring

and retaining the coach, the actual act that led to the claim involved an intentional tort committed

by the coach.

Volunteer Immunity

Commentators have called volunteers the third sector of the American economy, the other

two being government and business (Smith, 1999). Various service providing organizations,

including youth sport organizations, would not be able to function without volunteers. Thus,

when insurance companies began raising premiums in response to a rash of lawsuits in the

1980s, states across the country started passing volunteer immunity statutes. These statutes grew

out of a fear that people would stop volunteering and the services provided by these volunteer-

dependant agencies would stop (Smith, 1999).

State volunteer immunity statutes are uniform in that they all seek to protect certain

persons, such as Little League and youth soccer coaches, from liability for injuries resulting from

ordinary negligence in connection to their coaching activities (Hurst & Knight, 2003). Some

states have gone further with their coverage and have expanded the statutes to cover gross

negligence and even willful, wanton, and reckless conduct (Smith, 1999).

To add some clarity to the law, Congress enacted its own volunteer protection statute in

1997 when it passed the Federal Volunteer Protection Act (FVPA; Biedzynski, 1999). The stated

purpose of the Act is to "promote the interests of social service program beneficiaries and

taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental

entities that depend on volunteer contributions ...."( 42 U. S.C.A. @ 14501(b), 2005). Even with

these statutes, however, youth sport organizations may still be vulnerable to litigation.









Most volunteer statutes, including the FVPA, apply only to coaches or officials who serve

as volunteers without compensation in activities that benefit young people (Hurst & Knight,

2003). Thus, the organizations are not immune to liability for their own negligent actions.

Further, the organizations may also be held vicariously liable for the actions of their volunteers,

who independently may enjoy protection under the statutes (Smith, 1999). Finally, statutes

typically have some qualifiers that limit their application to certain specific acts. For example,

the FVPA has qualified its coverage so that it does not include crimes of violence, hate crimes,

sexual offenses under controlling state law, and civil rights violations under either a federal or

state law, or actions of the volunteer while under the influence of alcohol or drugs at the time of

the incident (Biedzynski, 1999).

Thus, volunteer immunity statutes may or may not protect a youth sport organization

against a claim that is brought on behalf of a child who was sexually victimized by his or her

coach. The FVPA probably would not provide protection for the organization because the claim

would involve a sexual offense under state law (Biedzynski, 1999). Further, the organization

itself may still be liable under the Act despite the fact that its volunteers may enj oy coverage.

Therefore, the question remains open as to whether state immunity statutes would provide

protection for youth sport organizations for the pedophilic actions of their coaches and officials

in claims brought against the organization under the tort theories of respondeat superior,

negligent hiring, and negligent retention. My research proj ect will attempt to answer that

question for all 50 states and the District of Columbia.

Sexual Abuse of Children

There are two primary types of people who sexually abuse children. The first type is the

situational offender (Edwards, 1997). A situational offender is not typically sexually attracted to

children. The second type of offender is the pedophile. According to Dr. Fred Berlin, a Johns










Hopkins professor who founded the National Institute for the Study, Prevention and Treatment of

Sexual Trauma, a pedophile is someone with a distinct sexual orientation marked by persistent,

and sometimes exclusive, attraction to prepubescent children (Cloud, 2002). Outside of the

medical community, however, the term pedophile is frequently extended to include people who

are attracted to adolescent children as well as prepubescent children, and people who engage in

sexual activity with a child (The Columbia Electronic Encyclopedia, 2003).

Youth Sport Organizations

More than 10 million children below the age of 16 play some form of organized sport

(Peterson, 2004). Organized youth sports can range in activity and the organizations that provide

these activities are equally as diverse. Some are national organizations like Little League

(baseball), Pop Warner (football), and USA Soccer. Others, however, are regional and are

operated by states, counties, municipalities, churches or park and recreation departments in the

local communities for which they service.

Despite the diverse nature of youth sports, there are unifying umbrella organizations that

seek to advance and enhance youth sports. Organizations like the National Council of Youth

Sports (NCYS), which has 170 members nationwide and operates under the mission of

representing these members through advancing the values of participating in youth sport

(www.ncys.org, n.d.). A large number of the NCYS member organizations are national

organizations. One of the primary services provided by the NCYS is the development and

sharing of information that promotes healthy participation of youth sports. For example, the

NCYS educates coaches and officials on leadership development. Further, the NCYS has

developed recommended guidelines for background screening of all volunteers who work with

NCYS member organizations. NCYS member organizations each receive one hardbound copy of









the NCYS background check recommendations and can purchase additional copies for $12.00

(www.ncys. org/background_screening, n.d.).

The National Alliance for Youth Sports (NAYS) is another national organization that seeks

to make the sports experience healthy for all children (www.nays. org/about, n.d.). The NAYS,

however, works on the local level through its partnerships with more than 3,000 community

organizations, which include park and recreation departments, Boys and Girls Clubs, Catholic

Youth Organizations, and Jewish Community Centers. Primarily, the NAYS provides children

with positive instruction and works toward building basic motor skills. The NAYS seeks to

ensure that administrators (both professional and volunteer), volunteer coaches and officials are

well trained in their roles and responsibilities. One way in which the NAYS assists local

community organizations is by providing them with volunteer screening resources which include

background check guidelines developed by the NAYS (www.nays. org/IntMain, n.d.)









CHAPTER 3
MATERIALS AND METHODS

Chapter Summary

This chapter identifies the methods that were utilized to study whether youth sport

organizations can be held liable for the pedophilic actions of their coaches through the tort

theories of respondeat superior, negligent hiring, and negligent retention. The scope of this study

included a complete examination of existing case law for all 50 United States. The results of my

study provide youth sport organizations with information they need to make policy decisions on

how to limit liability and in turn guard against sexual abuse within their organizations.

Research Design

My study employed a descriptive methodology in performing a legal analysis on existing

case law to determine whether youth sport organizations can be held liable for the pedophilic

actions of their coaches through the tort theories of respondeat superior, negligent hiring, and

negligent retention. Volunteer immunity statutes were also studied as they might provide

defenses for youth sport organizations against claims asserting the aforementioned theories. As

this project involved a descriptive study of an existing problem, it is in effect a documentary

study incorporating case and statutory law analysis.

Data Collection

The data in this study consisted of case and statutory law for all 50 United States and the

District of Columbia. Specifically, the criteria for case selection extended to include all federal

and state cases that applied the tort theories of respondeat superior, negligent hiring, and/or

negligent retention to claims brought on behalf of children and their parents and against youth

sport organizations alleging sexual abuse by their youth sport coaches and onfcials. Additionally,

volunteer immunity statutes for these jurisdictions were analyzed to determine if they provide a










valid defense against the aforementioned tort claims. Relevant cases were located and accessed

through descriptive word searches on Westlaw' s electronic database. Descriptive searches

included the terms "sexual abuse," "molestation," "coach," "athlete," "youth," "respondeat

superior," "negligent hiring," and "negligent supervision." Westlaw is an online legal research

service providing electronic access to West's vast collection of statutes, case law materials,

public records and other legal resources, as well as current news articles and business

information.

It was anticipated that not every jurisdiction has reported case precedent involving a

lawsuit brought against a youth sport organization on behalf of a youth sport participant, alleging

pedophilia by a coach or official, and based on one of these three tort theories. Analogous cases

were used for these jurisdictions. Analogous cases are those that involve similar but not identical

problems. An example of an analogous case may involve an athlete who alleges sexual

misconduct on the part of a high school or college coach. Another example may include an

allegation of sexual abuse brought by a youth against a Boy or Girl Scout troop leader. Because

our legal system is based on precedent, cases can be used as authority for a rule, or as an

example of how that rule has been applied in similar cases (Oates, Enquist, & Kunsh, 1998).

Legal interpretation can be made by studying analogous case law that utilizes the theories of

respondeat superior, negligent hiring, and negligent retention to similar cases, but not identical

cases. Therefore, the law for a specific jurisdiction can be gleaned from analysis of analogous

case law.

There was no time frame in terms of how recent the cases or statutes must have been.

However, my study focused exclusively on controlling case and statutory law. In other words,

my study only analyzed primary authority, meaning cases that are binding on courts within the










jurisdiction. Accordingly, this study was a comprehensive overview of the law as it applied to

the problem.

Data Analysis

Cases and statutes were analyzed to determine the applicable law for all 50 United States.

Relevant cases were briefed according to a standard comprehensive format (Ray & Ramsfield,

1993). This method for interpreting and synopsizing a court decision includes: (a) issue

presented in the case, (b) the rules used by the court in resolving the issue, (c) the court's

analysis, and (d) the court' s conclusion. Statutes were interpreted and analyzed based on a

method utilized by Shapo, Walter and Fahans (1989). This method required: (a) careful reading

of the text of the statute, (b) identification of statutory issues, and (d) analysis of legislative intent

that is explained by comments to annotated statutes. The cases and statutes were then analyzed to

determine how each state will likely rule on a case brought against a youth sport organization for

the pedophilic actions of its coaches and onfcials.

The first criterion for analyzing the case law for these jurisdictions was whether there are

cases directly on point. Specifically, the first goal was to determine whether each jurisdiction had

directly answered the research questions. If the jurisdiction had not directly answered all of the

research questions, then analogous cases were utilized. The review of literature revealed several

key questions that were used to determine whether a jurisdiction that lacks controlling case law

would be more willing to impose liability on a youth sport organization for the pedophilic

actions of its coaches and onfcials.

The questions revealed through the review of literature framed the criterion used for

analyzing analogous cases. These questions were: (a) whether the doctrine of respondeat superior

extends employer liability to criminal actions like molestation and harassment; (b) whether the

doctrine of negligent hiring and negligent retention required a heightened duty in cases where the










employee has access to children and/or the public; and (c) if a heightened duty existed, did that

duty extend to include criminal background checks in cases where the employee has access to

children or the public?

Volunteer immunity statutes were analyzed to determine whether they extend to cover

youth sport organizations in addition to the individual volunteers. Analogous case law was not

needed to determine the application of these statutes.

Ultimately, as the law for each jurisdiction was determined, patterns appeared in how

states applied the tort theories and/or voluntary immunity defense. Mine is an exploratory study,

thus, there was no way of predicting patterns at the initial stage of the study. However, the results

of my study revealed that certain jurisdictions applied the law in ways that separate them from

other jurisdictions and these states were grouped together and identified based on their

commonality.

Delimitations

My study was limited to volunteer youth sport organizations and did not include

interscholastic or intercollegiate youth sport organizations. The theories of liability used to

pursue claims against volunteer youth sport organizations are not necessarily the same as those

that would be used in an interscholastic setting. For example, the doctrine of respondeat superior

does not apply to state employers in the vast maj ority of jurisdictions.

It is also important to note that this study did not investigate organizational requirements

that may be imposed. Organizations may place requirements on themselves that exceed what the

law requires. For example, a youth sport organization may require criminal background checks

for all new hires, however; the legal jurisdiction may not legally require the organization to

conduct such searches.









Finally, most lawsuits are settled out of court and most trial or district court decisions are

not reported. Therefore, it was possible that my search would not detect some legal cases brought

against youth sport organizations because the cases either settled out of court, or never reached

the appellate stage.

Research Questions

The purpose of this study was to answer the following research questions:

* Can youth sport organizations in the United States be held liable for the pedophilic actions
of their coaches and officials based on the tort theories of respondeat superior, negligent
hiring, and negligent retention?

Are there reported cases for each jurisdiction involving civil liability against youth
sport organizations for the pedophilic actions of their coaches and officials?

Does the doctrine of respondeat superior extend employer liability to criminal actions
involving sexual molestation, harassment, or abuse?

Do the doctrines of negligent hiring and negligent retention require a heightened duty
in cases where the employee has access to children or the public?

Does the doctrine of negligent hiring extend to require criminal background checks in
cases where the employee has access to children or the public?

* Do volunteer immunity statutes provide youth sport organizations in the United States with
a defense against lawsuits based on the pedophilic actions of their coaches and officials
based on tort theory of negligent hiring?

* What comparisons can be drawn between states in the way they apply the tort theories of
respondeat superior, negligent hiring, and negligent retention?

* What is the standard of care in the United States for youth sport organizations in terms of
preventing or limiting their liability for the pedophilic actions of their coaches and
officials?









CHAPTER 4
RESULTS

The results section is divided into sub sections with each subsection representing the

research questions used to form the case law search criterion. The results for each research

question are listed in their corresponding sections. Detailed analysis of each jurisdiction are

found in Appendix A.

Cases against Youth Sport Organizations

Only Califomnia and Indiana had reported cases where plaintiffs brought civil actions

against youth sport organizations for the pedophilic actions of their coaches and officials. These

two states had conflicting results. In Califomnia, there were actually two cases with both cases

resulting in verdicts favoring the defendant youth sport organizations. One case was brought

against a gymnastic association and coach and was upheld because there was no basis to overturn

the jury's verdict that there was not enough proof to find the association and coach liable (Dawn

D. et al., v. The Regents Of The University Of California, 2003).

The second case was brought by the victims of Norman Watson. In that case a California

appellate court ruled that Little League Baseball, Inc. was a franchisor and that East Baseline

Little League was a franchisee and that franchisors do not have control over the employees of

franchisees. Based on this ruling, the plaintiffs' negligent supervision, negligent hiring, and

respondeat superior claims against Little League Baseball, Inc. failed. The plaintiffs were

allowed to pursue actions against East Baseline Little League, the local Little League Baseball

affiliate (Hickman v. Little League Baseball, Inc., 2006).

The Indiana case involved a claim against Southport Little League for the pedophilic

actions of an equipment manager. Unlike the Califomnia case, the plaintiffs in the Indiana case










only pursued the local Little League aff61iate and the league was found liable under the doctrine

of respondeat superior (Southport Little League v. Vaughan, 2000).

Application of the Doctrine of Respondent Superior

The doctrine of respondeat superior can apply to sexual molestation and abuse cases in:

Indiana; Louisiana, if the servant's tortious conduct is closely connected in time, place, and

causation to his duties to the master; Minnesota, as long as the source of the attack is related to

the duties of the employee, and the assault occurs within work-related limits of time and place;

Mississippi; North Dakota; Oregon, if the tortious act occurred substantially within the time and

space limits authorized by the employment, the employee was motivated, at least partially, by a

purpose to serve the employer, and the employee's act was of a kind which the employee was

hired to perform. For an overview on which states apply the doctrine of respondeat superior, see

table 1.

The doctrine of respondeat superior does not apply to sexual molestation or abuse claims

in: Alabama, unless later ratified by employer; Arkansas; Arizona; California; Colorado;

Connecticut; District of Columbia, unless the employee actuated, at least in part, by a desire to

serve the master; Florida, unless the employee was assisted in accomplishing the tort by virtue of

the employer/employee relationship; Georgia, unless later ratified by employer; Illinois; Iowa;

Kentucky; Maine, unless the employee actuated, at least in part, by a desire to serve the master;

Michigan; Montana; Nevada; New York; North Carolina; Ohio; Oklahoma; Pennsylvania; Rhode

Island; Tennessee; Texas, unless an assault is so connected with and immediately arising out of

authorized employment tasks as to merge the task and the assaultive conduct into one indivisible

tort; Utah; Washington; and Wisconsin.

States that have not resolved the question of whether the doctrine of respondeat superior

applies to sexual molestation and abuse include: Alaska, Delaware, Hawaii, Idaho, Kansas,









Maryland, Massachusetts, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico,

South Carolina, South Dakota, Vermont, Virginia, West Virginia, and Wyoming.

Requiring a Heightened Duty of Care

States that have a heightened duty of care in negligent hiring and negligent retention cases

involving situations where the employee has access to children or the public include: Colorado,

the duty of care varies based on degree of contact with other persons; Florida, degree of contact

varies based on degree of contact with other persons; Georgia; Louisiana, when an employee is

to be placed in a position of supervisory and/or disciplinary authority over children, the employer

has a duty to properly screen the applicant (and continue to provide screening) to determine if the

applicant has been convicted of a crime (or crimes) involving moral turpitude; Massachusetts,

the scope of investigation is directly related to the severity of risk third parties are subj ected to

by an incompetent employee; New Jersey, heightened duty for hirings related to the instruction

of children; Tennessee, increased duty whenever employees have access to living quarters; and

Texas, organizations whose primary function is the care and education of children owe a higher

duty to their patrons to exercise care in the selection of their employees than would other

employers. For an overview of which states have a heightened duty of care, see table 1.

Requiring Criminal Background Checks

Only Rhode Island and Pennsylvania have cases requiring criminal background checks as

part of a reasonable background check. Several states have suggested that a criminal background

check may be required based on the facts of the case. These states include: Colorado, but only if

there are circumstances giving the employer reason to believe that a job applicant, by reason of

some attribute of character or prior conduct, would constitute an undue risk of harm to members

of the public and the applicant will be in frequent contact with particular persons who stand in a

special relationship to the employer and with whom the applicant will be in close contact;










Georgia, suggested if the circumstances require it, Iowa, the issue is a material question left to

jury; Kentucky, no general requirement to perform a criminal record check, but at least one

decision suggested that a check may be required when the defendant had previously agreed via

contract or through some sort of policy to conduct criminal records checks; Louisiana, could be

part of reasonable search, depends on situation and whether person will supervise children;

Maine, only if the employer contractually agreed to do such searches; Maryland, issue left to jury

to consider the relative ease with which a criminal record search could have been conducted, and

the information that would have been obtained had the inquiry been made; Massachusetts, facts

could warrant such a search and such a search may be contractually required if employer agreed

to perform it; Missouri, there is no general duty, but the facts could necessitate a further inquiry

based on knowledge of a potential employee's criminal past; North Dakota, depends on

situations, i.e. situations where knowledge of criminal behavior exists or where the person has

access to homes; Ohio, for situations where person has access to homes; Texas, there is no

general requirement, but when children are involved a check may be necessary; and Virginia,

question left open because fact pattern may arise requiring a check.

Conversely, Minnesota, New York, North Carolina, Florida, and Michigan have decisions

stating that criminal background checks are never required as a part of a reasonable background

search in negligent hiring cases. The remaining states, including the District of Columbia, lack

reported decisions on the issue of whether criminal background checks are required when a

potential employee has access to children or the public.

Application of Volunteer Immunity Statutes

States that have volunteer immunity statutes that cover the organizations as well as the

volunteers include: Minnesota, although it limits application to situations where the individual

acts in a willful and wanton or reckless manner in providing the services or if the individual acts










in violation of federal, local or state law; Mississippi, but it only protects the

volunteer/organization against claims based in negligence; New Jersey, but the act expressly

excludes protection of volunteers or agents for sexual misconduct; and Pennsylvania.

States where volunteer immunity statutes do not provide protection for the youth sport

organizations include: Alabama, Arkansas, Arizona, Colorado, Delaware, District of Columbia,

Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Massachusetts,

Missouri, Montana, North Carolina, North Dakota, Oklahoma, Rhode Island, South Carolina,

South Dakota, Texas, Utah, West Virginia, and Wisconsin.

The following states do not have volunteer immunity statutes: Alaska, California [does

have a statute that exempts directors of nonprofit organizations], Connecticut, Iowa, Kentucky,

Maine, Michigan, Nebraska, Nevada, New Hampshire, New York, New Mexico, Ohio, Oregon,

Tennessee, Vermont, Virginia, Washington, and Wyoming.





Table 1. Research Question Results*
Research Questions


No, with Exceptions


Undecided


AL, DC, FL,
GA, MN, TX


Does Respondeat Superior
Apply to Sexual Molestation
or Abuse?


LA, MN, MS, ND,
OR


AK, DE, HI, ID,
KS, MD, MA, MO,
NE, NH, NJ, NM,
SC, SD, VT, VA, WV,
WY


Is There a Heightened Duty
of Care Based on Access
to Children or the Public?

Are Criminal Background
Searches Required?


CO, FL, GA, LA, MA,
NJ, TN, TX


RI, PA


CO, GA, IA, KY,
LA, ME, MD, MA,
MO, ND, OH, TX, VA


AL, AK, AZ, AR, CA,
CT, DE, DC, HI, ID,
IL, IN, KS, MS, MT,
NE, NH, NJ, NM, OK,
OR, SC, SD, TN, UT,
VT, VA, WA, WV, WI,
WY


* States not listed on table answered no to the research questions without exceptions.









CHAPTER 5
DISCUSSION

Discussion is presented in subsections with each subsection representing a research

question. One of the research questions concerns comparisons that can be drawn between states

in the way they apply the tort theories of respondeat superior, negligent hiring, and negligent

retention. There will be no specific subsection for this question as this research question will be

answered within each subsection.

Cases Against Youth Sport Organizations

California and Indiana were the only states with reported legal decisions of cases brought

against youth sport organizations for the pedophilic actions of coaches and officials. California

had two legal decisions with both cases resulting in verdicts favoring the defendant youth sport

organizations. The first decision was a claim brought by gymnasts against a gymnastic

association and coach claiming sexual misconduct on the part of the coach. A jury heard the case

and resolved the matter in favor of the defendant coach and association on the basis that there

was not enough evidence to find that either the coach or the association was liable for any

misconduct. On appeal, the California 2nd District Court of Appeals ruled that there was no legal

basis to overturn the trial court' s decision (Dawn D. et al. v. The Regents Of The University Of

California, 2003).

The second Califomnia decision involved claims brought by the victims of Norman Watson

against Watson, East Base Line Little League, and Little League Baseball, Inc. In that decision

the Califomnia 4th District Court of Appeals ruled that Little League Baseball, Inc. was a

franchisor and that East Base Line Little League was a franchisee. The court ruled that as a

franchisor, Little League Baseball, Inc. lacked control over its franchisee's employees. Based on

this lack of control, Little League Baseball, Inc. could not be held liable under the doctrines of









respondeat superior or negligent hiring/retention. Specifically, the court found that Little League

Baseball, Inc. did not have control over East Base Line' s hiring of Watson, or his continued

employment after allegations of misconduct surfaced. The court did permit the plaintiffs to

pursue actions against East Base Line Little League, the local Little League Baseball affiliate.

The Indiana decision involved a claim against Southport Little League for the pedophilic

actions of an equipment manager (Southport Little League v. Vaughan, 2000). Unlike the

California Little League case, the plaintiffs in the Indiana case only pursued the local Little

League affiliate and the league was found liable under the doctrine of respondeat superior.

In Southport Little League v. Vaughan, an equipment manager for the league wrongfully

viewed child genatalia and molested child athletes. The court held that the league could be liable

through the doctrine of respondeat superior if the league authorized any of the offender

employee' s actions. On review, the appellate court found that the plaintiff~ s designated materials

raised the inference that some of the offender' s acts were authorized (such as fitting the youths'

uniforms) when he viewed the athlete's genitalia for his sexual gratification and when he

sexually molested the youths. Thus, the appellate court held that the trial court properly denied

the Little League's motion for summary judgment.

Further, the court found that the youths who participated in Little League baseball were

taught to respect adult authority, and it was clear to participating youths that the offender held a

position of authority with Southport Little League (Southport Little League v. Vaughan, 2000).

The court held that when an individual is cloaked with authority by an organization in which

youths are participating, such as Little League Baseball, youths will typically comply with

requests or commands of the adult individual in authority. Therefore, Southport Little League, by

appointing the offender as an official, essentially authorized the offender to exert his authority









over youths who participated in Little League Baseball. Because some of the offender' s acts

were authorized, the court believed that the determination of whether Southport Little League

was liable under the doctrine of respondeat superior for the sexual molestation was a question of

fact for the jury (Southport Little League v. Vaughan, 2000).

The Indiana court did address the issue of whether a claim against Little League Baseball,

Inc. for the pedophilic actions of its coaches and officials would survive. Accordingly, it is

unclear whether the franchisor/franchisee control roadblock exists in Indiana for cases where

plaintiffs pursue national youth sport organizations. However, Illinois, Texas and Virginia all

have decisions where national youth organizations were relieved of liability on the

franchisor/franchisee basis (Doe v. Big Brothers Big Sisters of America, 2005; Doe v. Boys

Clubs of Greater Dallas, Inc., 1994; Golden Spread Council, Inc. No. 562 of Boy Scouts of

America v. Akins, 1996; Infant C. v. Boy Scouts of America, Inc., 1990).

The Texas and Virginia decisions involved Boy Scouts of America, and Illinois and Texas

have decisions involving Big Brothers, Big Sisters of America. The rationale used in all of these

cases to relieve the national organizations of liability is identical to that used by the California

4th District Court of Appeals in its decision relieving Little League Baseball, Inc. of liability for

the pedophilic actions of Norman Watson. Accordingly, Illinois, Texas and Virginia all have

decisions that would probably provide protection for national youth sport organizations against

sexual abuse/molestation claims brought within Illinois, Texas and Virginia.

The fact that only two states had decisions directly on point is significant. The review of

literature revealed that experts believe sexual abuse in youth sports is prevalent (Deak, 1999).

However, there is a dearth of reported cases of sexual abuse involving youth sport organizations.

Accordingly, the results do not seem to support the review of literature finding that sexual abuse









and molestation are prevalent in youth sports. The search did reveal a number of cases of sexual

abuse and molestation claims brought against coaches who work in a school setting, although

those cases fell outside the scope of this study.

There may be a legal reason for the low number of reported sexual abuse and molestation

cases brought against youth sport organizations. It is possible that a number of cases against

youth sport organizations have never reached the trial stage of litigation, much less the appellate

stage. If a case has been settled out of court before it is resolved by a court of law then it would

not be reported and would not appear on Westlaw' s legal database. Further, the vast maj ority of

reported decisions are appellate cases. The basis for this is that there is little reason to publish

most trial court or district court decisions because trial court and district court decisions typically

do not have binding authority on future litigants. Thus, there may be legal cases brought against

youth sport organizations that provided decisions that were either settled out of court, or resolved

by a trial or district court without appeal. The true scope of the prevalence of sexual abuse in

youth sports is unknown because no studies have been conducted on the population

(Zaichkowsky, 2000).

Application of the Doctrine of Respondent Superior

The review of literature revealed that the most critical element of respondeat superior is the

requirement that the employee was acting within the scope of employment (Keeton, 1984). Acts

committed by the employee that exceed the scope of employment are considered ultra vires and

employers are generally not vicariously liable for the ultra vires actions committed by their

employees (Cotten, 2007). The case law research showed that states have varying definitions of

the phrase "scope of employment." Some states interpret the phrase broadly to include criminal

actions of sexual molestation or abuse. Conversely, the maj ority of states have interpretations









that are narrow in application and consider all actions of sexual abuse and molestation to be ultra

vires as a matter of law.

States Where the Doctrine of Respondent Superior Applies

The states that allow the doctrine of respondeat superior to apply to sexual molestation or

abuse all have one thing in common; at one time they did not permit the doctrine's application to

intentional sexual misconduct. These states represent a growing trend of legal precedent adopting

a broader definition of "scope of authority," and a more liberal application of the doctrine of

respondeat superior.

As previously stated, in Indiana an appellate court held that a local Little League Baseball,

Inc. affiliate could be held liable through the doctrine of respondeat superior. In doing so, the

court found that there were questions of fact that need to be resolved by the jury. The court in

Southport Little League v. Vaughan found that the league could have authorized certain acts

(such as fitting the youths' uniforms) that took place when the offending employee viewed the

athlete's genitalia for his own sexual gratification and when he sexually molested the youths.

Further, the court found that the League had cloaked the employee with authority and the youths

who participated in Little League Baseball were taught to respect that adult authority. Based on

these facts, the court concluded that a reasonable jury could find in favor of the plaintiffs as there

were issues of material fact (Southport Little League v. Vaughan, 2000).

Accordingly, in Indiana it is possible to use the doctrine of respondeat superior to impose

liability on a youth sport organization. For a league to be liable, it must have authorized at least

some of the actions that led to the sexual abuse or molestation (Southport Little League v.

Vaughan, 2000). However, the requisite authority needed to result in liability in Indiana is

minimal because the state uses a broad definition of "scope of authority." Specifically, the court

in Southport Little League found authority in the fitting of uniforms on the part of the league' s










employee. Coaches and officials for youth sport organizations regularly have contact with

children that might lead to similar results in future cases. For example, coaches and officials

might have to assist child athletes with injuries or have physical contact with child athletes

through close instruction that could provide the coach or an official with the opportunity to

sexually molest or abuse an athlete.

Louisiana also permits the doctrine of respondeat superior to apply to cases of sexual abuse

or molestation. In Louisiana, the course and scope of a servant's duties to his master is dependent

on whether the servant's tortious conduct was closely connected in time, place, and causation to

his duties to the master as to be regarded as a risk of harm which can be fairly attributed to the

master's business (Landreneau v. Fruge, 1996).

Minnesota's definition of "scope of authority" is similar to Louisiana, but goes even

further in expanding the applicability of the doctrine of respondeat superior. Like Louisiana, in

Minnesota sexual abuse or molestation can fall within the scope of authority as long as: (1) the

source of the attack is related to the duties of the employee, and (2) the assault occurs within

work-related limits of time and place (L.M. ex rel. S.M. v. Karlson, 2002). However, Minnesota

courts go a step further because they have held that an employee's act need not be committed in

furtherance of his employer's business to fall within the scope of employment (Fahrendorff ex

rel. Fahrendorff v. North Homes, Inc., 1999). Instead, the master is liable for any such act of the

servant which, if isolated, would not be imputable to the master, but which is so connected with

and immediately grows out of another act of the servant imputable to the master, that both acts

are treated as one indivisible tort (Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 1999;

Lange v. National Biscuit Co., 1973; L.M. ex rel. S.M. v. Karlson, 2002).









Mississippi's definition of "scope of authority" is very similar to the more traditional

definition used by the maj ority of states. However, there is one Mississippi Supreme Court

decision that allowed a case of sexual abuse and molestation against a church to proceed past

summary judgment. Thus, Mississippi's highest court may have implicitly rather than expressly

expanded the state's definition of "scope of authority" by allowing the respondeat superior claim

to continue rather than dismissing it as a matter of law.

In North Dakota, the courts define "scope of employment" as an act that takes place within

the period of the employment, at a place where the employee reasonably may be in the

performance of his duties, and while he is fulfilling those duties or engaged in doing something

incidental thereto, or as sometimes stated, where he is engaged in the furtherance of the

employer's business (D.E.M. v. Allickson, 1996; Nelson v. Gillette, 1997). Similarly, Oregon

courts define scope of employment to include sexual abuse or molestation if: (1) the tortious act

occurred substantially within the time and space limits authorized by the employment; (2) the

employee was motivated, at least partially, by a purpose to serve the employer; and (3) the

employee's act was of a kind which the employee was hired to perform (Chesterman v. Barmon,

1988). To satisfy the second requirement, the focus of the inquiry is not necessarily whether an

employee's tortious conduct itself was intended to serve the employer but, rather, whether the

employee engaged in conduct that was intended to serve the employer and that conduct resulted

in the acts that injured the plaintiff (Vinsonhaler v. Quantum Residential Corp., 2003). There are

two cases, one involving a scout leader and the other involving a priest where the Oregon

Supreme Court found that the employee used the position of employment to cultivate abusive

relationships, thus triggering the doctrine of respondeat superior (Fearing v. Bucher, 1999;

Lourim v. Swensen, 1999).









States Where the Doctrine of Respondent Superior Does Not Apply

The maj ority of states do not allow parties to use the doctrine of respondeat superior in

claims alleging sexual abuse or molestation. These states are uniform in their rationale for not

allowing the use of respondeat superior for these types of cases. The basis for disallowing

respondeat superior for sexual abuse or molestation cases is that such behavior falls outside the

scope of authority. The review of literature revealed that the traditional interpretation of scope of

authority excludes actions that employees commit that were not motivated by a purpose to serve

the employer (DeMitchell, 2002; Lear, 1997). Therefore, because acts of sexual abuse and

molestation are typically performed for purely selfish purposes by employees, those acts are

traditionally held to be ultra vires and an employer cannot be held accountable for ultra vires acts

through the doctrine of respondeat superior as a matter of law. Accordingly, plaintiffs who

attempt use the doctrine of respondeat superior against a youth sport organization for the

pedophilic actions of coaches and officials in states that utilize the traditional definition of scope

of authority will probably have their cases dismissed as a matter of law.

There are other states that adopt the traditional definition of "scope of authority," but have

exceptions that will extend the doctrine of respondeat superior to include sexual abuse or

molestation. Alabama and Georgia have exceptions for situations where the actions were later

ratified by the employer. The District of Columbia has an exception that extends the doctrine

where the employee actuated, at least in part, by a desire to serve the master. Florida and Maine

make exceptions in situations where the employee was assisted in accomplishing the tort by

virtue of the employer/employee relationship. Texas has an exception to the rule for situations

where an assault is so connected with and immediately arising out of authorized employment

tasks as to merge the task and the assaultive conduct into one indivisible tort, thus allowing the

tort to be imputed to the employer.









Utah is a bit of an anomaly in terms of how the state applies its definition of "scope of

authority." Utah has a definition very similar to that used by Minnesota, North Dakota, and

Oregon. In Utah, there are three basic elements for determining whether an employee is acting

within the scope of his or her employment for purposes of respondeat superior liability. First, the

employee's conduct must be of a general kind and nature that the employee is hired to perform

(Birkner v. Salt Lake County, 1989; Jackson v. Righter, 1995; Phillips v. JCM Dev. Corp.,

1983). The employee's acts must be generally directed toward the accomplishment of the

employee's duty and authority. Second, the conduct must occur within the hours of the

employee's work and the ordinary spatial boundaries of the employment. Third, the employee's

conduct must be motivated, at least in part, by the purpose of serving the employer's interest.

Thus, Utah's requirements are very similar to those used by courts in Minnesota, North Dakota,

and Oregon,

However, the Utah Supreme Court applied the required elements to relieve an employer of

liability for acts of sexual abuse committed by an employee. The case involved a situation where

a patrolman molested members of an explorers club (J.H. by D.H. v. West Valley City, 1992).

The court found that the first two elements were satisfied, but ruled that the third element was

not satisfied because the offending employee was obviously not hired to perform acts of a sexual

nature on the explorers under his supervision. The plaintiffs argued that the employee was

employed to instruct and direct them in areas involving police work and that his actions in

molesting the explorers were carried out pursuant to this type of instruction and supervision. The

court held that the argument fails, however, because it is not the instruction and supervision of

the employer of which the plaintiff complained. The employee was not hired or authorized to

instruct the explorers in sexual matters, nor was he authorized to touch the explorers in any









manner. His acts of molestation were not in any way part of the instruction and supervision of

the explorers but were in fact a complete abandonment of that instruction and of his employment

(J.H. by D.H. v. West Valley City, 1992).

States that Remain Undecided

The research revealed that there is a group of states that either have never addressed the

issue of whether the doctrine of respondeat superior applies to cases of sexual molestation or

abuse, or have left the issue open for further review. New Jersey does not have a case that

directly permits the application of the doctrine of resondeat superior to apply to sexual abuse or

molestation. However, the state' s interpretation of "scope of employment" is similar to the broad

interpretations used by courts in Minnesota, North Dakota, and Oregon. Specifically, New

Jersey's interpretation of "scope of employment" is broad enough to cover sexual molestation,

harassment or abuse because it includes all conduct that the servant is employed to perform;

conduct which occurs substantially within the authorized time and space limits; and is actuated,

at least in part, by a purpose to serve the master.

Requiring a Heightened Duty of Care in Negligent Hiring And Negligent Retention Cases
Where the Employee has Access to Children or the Public

Only eight states require a heightened duty of care in negligent hiring and negligent

retention cases where potential or current employees have access to children or the public. For

these states, the standard of care becomes more strenuous in that the employer must exercise

increased care in the hiring or retaining of employees. The research showed that the states that do

impose a heightened duty of care in certain situations are not uniform in how they increase or

heighten the duty of care.

In Colorado, the scope of duty depends on the employee's anticipated degree of contact

with other persons in carrying out the duties of employment. The requisite degree of care









increases, and may require expanded inquiry into the employee's background when the employer

expects the employee to have frequent contact with the public, or when the employment fosters

close contact and a special relationship between particular persons and the employee (Connes v.

Molalla Transport System, Inc., 1992). Like Colorado, the states of Florida, Georgia and

Massachusetts also vary the degree of care based on the extent to which employee's duties will

require contact with others (Garcia v. Duffy, 1986; Munroe v. Universal Health Services, Inc.,

2004). In these four states employers must determine how much contact potential employees

have with the public and adjust the degree of scrutiny given to applications of potential

employees accordingly.

In Louisiana, a heightened duty of care exists when an employee is to be placed in a

position of supervisory and/or disciplinary authority over children. In such cases, the employer

has a duty to properly screen the applicant, and continue to provide screening, to determine if the

applicant has been convicted of a crimes) involving moral turpitude (Williams v. Butler, 1991).

Similarly, New Jersey and Texas also place a heightened or increased duty on employers for

hirings related to the care or instruction of children (Doe v. Boys Clubs of Greater Dallas,

Inc., 1994; Frugis v. Bracigliano, 2003; Hardwicke v. American Boychoir School, 2006).

Accordingly, employers in these three states must be cautious when hiring or retaining

employees that will have supervisory or instructional responsibility over children. Louisiana goes

a step further in its requirement that employers look to the potential employee's fitness in terms

of moral turpitude.

Tennessee recognizes an increased or heightened duty of care, but only for situations

where employees have access to living quarters (Doe v. Linder Const. Co., 1992). It remains

unclear whether Tennessee is willing to expand the heightened duty of care to other fact patterns.










Requiring Criminal Background Checks

Only Pennsylvania and Rhode Island have cases requiring criminal background checks as a

part of a reasonable search for all positions, not just those where the employee has access to

children or the public. Accordingly, youth sport organizations in these two jurisdictions should

conduct criminal background searches or risk exposure to liability if the employees are unfit for

employment and their unfitness could have been detected through a criminal record check.

Conversely, Florida, Michigan, Minnesota, New York and North Carolina have decisions

holding that a criminal record check is never required as part of a reasonable background search.

Courts in these states base their decisions on the expense and degree of effort needed to conduct

criminal records checks. However, the cost for criminal records checks continues to decrease and

the advent of the Internet has made criminal records checks more convenient. In fact, the primary

authority on this issue from New York was decided in 1968. Thus, a court in New York may

reach a different conclusion if presented with this issue in the future.

There are 13 states that have decisions that either expressly leave the question open for

later resolution, or suggest that criminal records checks may be required under certain

circumstances. One Virginia decision expressly left the question open based on the court' s

recognition that it could be presented with a factual situation that may require a criminal record

search (Southeast Apartments Management, Inc. v. Jackman, 1999). Thus, it is unclear how these

states would resolve a negligent hiring case where the plaintiff argues that a criminal record

check should have been performed.

Colorado requires a search only if there are circumstances giving the employer reason to

believe that a job applicant, by reason of some attribute of character or prior conduct, would

constitute an undue risk of harm to members of the public (Connes v. Molalla Transport System,

Inc., 1992). Further, the job has to be one where the applicant will be in frequent contact with










particular persons who stand in a special relationship to the employer. A youth sport organization

would probably fit the second requirement in that the vulnerability of children typically places

them in a special relationship with supervising or instructing organizations (Lear, 1997).

Although, the establishment of a special relationship is just one of two hurdles that a plaintiff

must overcome in Colorado because plaintiffs still must overcome the more difficult hurdle of

demonstrating that the employer was on notice that the employee posed a threat.

Like Colorado, Missouri and North Dakota also have decisions suggesting that a criminal

records check may be required if the employer had knowledge of the employee's criminal past.

North Dakota, however, also requires the fact pattern to involve the hiring of employees who

will have access to homes. Ohio mandates that criminal records checks be performed when the

employee has access to homes.

In lowa and Maryland the issue of whether a criminal records check is necessary is a

material question that is left to the jury to decide. Maryland, however, goes further by listing

factors that the jury must consider in making its decision as to whether a criminal records check

should have been performed by the employer. Specifically, in Maryland, the jury must first

consider the relative ease with which a criminal records check could have been conducted, and

the information that would have been obtained had the inquiry been made (Cramer v. Housing

Opportunities Com'n of Montgomery County, 1985). Other factors must also be considered,

including: (a) the availability of such information; (b) the cost and inconvenience; (c) delay in

obtaining it; (d) whether other sources, including a previous employment record in the same

field, are sufficient to justify a finding of fitness; and (e) whether unanswered questions, negative

indicators, or other 'red flags' have surfaced during routine investigation. No single factor is

dispositive.










Kentucky, Maine, and Massachusetts, all fail to recognize a general requirement for

employers to perform criminal record checks, but all three states have cases suggesting that a

check may be required when the defendant had previously agreed via contract or through some

sort of policy to conduct criminal records checks. Many youth sport organizations, like Little

League Baseball, Inc., now require their affiliates to conduct criminal records checks. These

policies could be used in court to place a requirement to conduct a criminal records check where

no such check would ordinarily be required. Finally, Louisiana and Texas both have decisions

stating that a criminal records check could be part of reasonable search when the potential

employee will have supervisory control over children. The remaining states do not have reported

decisions addressing this issue.

Application of Volunteer Immunity Statutes Apply to Volunteer Organizations

Depending on the jurisdiction, a youth sport organization may seek the protection of a

volunteer immunity statute to guard against a lawsuit alleging sexual molestation or abuse on the

part of coaches or officials. The research revealed, however, that the volunteer immunity statutes

for most states do not afford protection to youth sport organizations, but instead limit their

protection to volunteers. In fact, only Minnesota, Mississippi, New Jersey, and Pennsylvania

have volunteer immunity statutes that extend protection from volunteers to the organization.

Further, three out of the four states that do provide protection do so with either limitations or

qualifications.

For example, in Minnesota, volunteers are not protected from acts committed in a willful

and wanton or reckless manner (M.S.A. ( 604A. 11). Additionally, volunteers are not protected if

they act in violation of federal, local, or state law. These limitations may also extend to the

organization seeking shelter under the statute and if that is the case, then youth sport

organizations would not be protected against cases alleging sexual molestation or abuse because









those actions extend beyond willful, wanton or reckless behavior in that they are intentional.

Further, sexual molestation and abuse violate Minnesota' s criminal code. Minnesota is a state

that allows plaintiffs to use the doctrine of respondeat superior against employers for cases

alleging sexual molestation or abuse on the part of employees.

If respondeat superior is the basis for a plaintiff~ s claim against a youth sport organization

then the volunteer immunity statute will probably not afford protection to the organization

because the organization would stand in the shoes of the employee in that they are vicariously

liable for the employee's actions. Thus, because the volunteer employee would not be able to use

the volunteer immunity statute for protection, it is unlikely that the organization would be able to

seek protection under the statute. However, the statute may provide protection for the

organization if the plaintiff sues under a negligent hiring/retention theory. The statute does

provide protection for ordinary negligence; therefore the case will turn on whether the

organization was willful, wanton or reckless in its selection and/or retention of the pedophilic

employee.

Similarly, New Jersey has a statute that covers the organization from its own negligence

(N.J. S.A. 2A: 53A-7). Though, the act also expressly excludes protection of volunteers or agents

who commit acts of sexual misconduct. Therefore, the statute leaves open the question as to

whether the organization would remain protected under the act for negligently hiring the

employee who committed the sexual misconduct. Mississippi has a volunteer immunity statute

that affords protection to youth sport organizations, but only protects organizations against

claims based in negligence (Miss. Code Ann. ( 95-9-1). Pennsylvania has a statute that expressly

provides protection for youth sport organizations (42 Pa.C.S.A. ( 8332.1). There is a dearth of










case law interpreting Pennsylvania's statute so the extent of coverage provided under the statute

is unclear.

As previously stated, the vast maj ority of states have volunteer immunity statutes that

expressly provide no protection for youth sport organizations. However, the research revealed

that a large number of states do not even have volunteer immunity statutes. These states include:

Alaska, California, Connecticut, Iowa, Kentucky, Maine, Michigan, Nebraska, Nevada, New

Hampshire, New York, New Mexico, Ohio, Oregon, Tennessee, Vermont, Virginia, Washington,

and Wyoming. Volunteers in these states can still seek protection under the Federal Volunteer

Protection Act, but that act does not provide protection for youth sport organizations.

The Standard of Care

The standard of care is not something that can be set on a national level. Jurisdictions will

vary in how they interpret the law and what requirements they place on youth sport

organizations. In this study, two research questions directly inquired into the standard of care

imposed on youth sport organizations for the pedophilic actions of coaches and officials. These

two questions concerned the existence of a heightened duty of care for situations where

employees have access to children or the public and whether states require criminal background

checks.

As previously stated, there are eight states that impose a higher duty of care on employers

in the selection of employees who will have access to children or the public. In these eight states

youth sport organizations must be cognizant that they should exercise care exceeding what is

normally required in the selection of employees. For these jurisdictions employers must be

thorough in their selection process and make sure to conduct interviews and check all references.

However, conducting these types of background checks is often difficult for youth sport

organizations who rely on volunteers. When hiring for paid positions, it is feasible to conduct










rigorous background checks, but such checks are not as feasible in situations where organizations

are dependant on volunteers. Yet in eight states youth sport organizations must still exercise

increased care in selecting volunteer employees. And two of these eight states, Louisiana and

Texas, expressly impose a higher duty when the potential employee will instruct or supervise

children.

The use of criminal records checks could help youth sport organizations in these eight

jurisdictions, especially considering that none of the eight jurisdictions have decisions requiring

criminal records checks. In fact, in one of the states, Florida, criminal records checks are never

required as a matter of law. Louisiana and Texas both suggest that criminal records checks may

be required in situations where children are involved, but even these states have yet to require

such searches. Conversely, two states, Pennsylvania and Rhode Island, require criminal records

checks even though these states do not impose a heightened duty of care on employers in

situations where employees will have access to the public or children. For these states, youth

sport organizations must conduct criminal records checks or risk legal exposure if they hire an

unfit employee, like a pedophile, who harms one of their child participants and the employee' s

unfitness could have been detected by a criminal records check.

Additionally, the states of Kentucky, Maine, and Massachusetts may require criminal

records checks where the employer has policies or procedures requiring a criminal records check,

or contractually agreed to conduct a search. Little League Baseball, Inc. has a policy requiring all

managers, coaches, and volunteers within its organization to be checked against state lists of

convicted sex offenders (Little League, n.d.). Little League Baseball, Inc.'s policy requiring a

criminal records check could be used against it or its affiliates in courts in Kentucky, Maine, and

Massachusetts if a criminal records check is not conducted. Accordingly, in at least these three









states, other youth sport organizations should look to their own rules and policies to determine

whether they are required by their own policies or contracts to conduct criminal records checks.

Practical Implications

The first step youth sport organizations can take toward minimizing the potential for

liability is to understand how liability can be imposed against them. My study analyzed case law

for all 50 United States and the District of Columbia with the purpose of determining the

applicability of the tort theories of respondeat superior, negligent hiring, and negligent retention

in terms of holding youth sport organizations liable for the pedophilic actions of their coaches

and onfcials. Through my study, voluntary immunity statutes for all 50 United States and the

District of Columbia were also analyzed to determine whether said statutes provide defenses to

the aforementioned tort theories for youth sport organizations. By analyzing the law for all 50

states and the District of Columbia, comparisons were drawn between the states in how they

apply the law for these tort theories and voluntary immunity statutes.

Accordingly, the results from my study can be used by both local and national youth sport

organizations. Local or regional youth sport organizations can look to the results to understand

how their specific jurisdiction would apply the tort theories that plaintiffs would use to establish

liability against youth sport organizations for the pedophilic actions of coaches and onfcials.

National youth sport organizations like Little League Baseball and Pop Warner Football provide

youth sport leagues in most states and need to understand the variances that exist between the

legal jurisdictions. Specifically, national youth sport organizations need to understand how

different jurisdictions apply these theories so that they know what is required to legally protect

themselves against the pedophilic actions of coaches and onfcials within their ranks. It would be

advisable for national youth sport organizations to look to states that provide the greatest

exposure in terms of potential legal liability and adopt measures that will provide the









organization with the greatest legal protection. Thus, the results of this research proj ect can

provide youth sport organizations with the information they need to make policy decisions for all

50 United States and the District of Columbia on how to limit liability and guard against sexual

abuse within their organizations.

For example, youth sport organizations in states that allow the doctrine of respondeat

superior to be used in cases alleging sexual molestation or abuse should understand that they

have a greater likelihood of being held liable for the pedophilic actions of their employees. The

basis for this increased liability is found in the fact that they could be held liable for the actions

of their employees even though they did not act negligently in either the hiring or supervision of

said employees.

The results did reveal that courts in states allowing the use of the doctrine of respondeat

superior in sexual abuse or molestation cases place emphasis on whether the sexual assault

occurred within work-related limits of time and place. Accordingly, youth sport organizations

can target times and locations for random supervisory inspections. While the youth sport

organizations cannot completely safeguard themselves from exposing their athletes to

pedophiles, they can regularly inspect locations at times when the employee is acting within the

scope of employment. Taking such measures could help prevent unfit employees from assaulting

athletes at locations and times that expose the employer to liability.

Further, youth sport participants will be afforded more protection if a pedophilic coach or

official is forced to attempt sexual assaults outside of work times and locations. After all, such

measures shift the potential for sexual misconduct outside the access that coaches and onfcials

should have with athletes. Thus, any additional contact that a coach or official may have with an

athlete may raise a red flag with a parent or guardian.









However, youth sport organizations are not off the proverbial hook just because they are

located in states that do not allow plaintiffs to use the doctrine of respondeat superior in cases

alleging sexual molestation or abuse. After all, the results revealed that every jurisdiction allows

plaintiffs to pursue actions against organizations under the doctrines of negligent hiring and

retention. The doctrines of negligent hiring and retention require employers to exercise

reasonable care in the hiring and retention of employees. Further, the results revealed that eight

states place an increased or heightened duty on employers to hire fit employees if the employees

have access to children or the public. In these states employers must exercise more caution than

what is required from employers in performing reasonable searches. This increased caution

should come in the form of attention to background checks. Youth sport organizations must

perform reasonable background checks in even the most relaxed of jurisdictions. The

reasonableness of a background search varies with each jurisdiction. Most jurisdictions only

require an interview process followed by a reference check. Currently, only two jurisdictions

require employers to perform criminal records checks. However, 14 other jurisdictions may

require criminal records checks if the circumstances suggest that one is necessary.

Youth sport organizations in these 15 jurisdictions should conduct criminal records checks.

While only two require such checks as a matter of law, the other 13 have considered such

searches as necessary in certain situations. Thus, courts in these jurisdictions have allowed cases

concerning the reasonableness of a criminal records check to reach the jury stage for

determination. It is possible that a jury could find that youth sport organizations should conduct

criminal records checks before hiring coaches or officials. After all, national youth sport leagues

like Little League Baseball and Pop Warner Football mandate background checks for all their

affiliates and youth sport organizations like the National Council for Youth Sports and the










National Alliance of Youth Sports actually provide the means for other youth sport organizations

to conduct criminal background checks. Thus, a jury may find that the actions of these sport

organizations in conducting criminal record checks establishes a standard of care that should be

followed by other youth sport organizations. Therefore, it is possible for a reasonable jury in

these jurisdictions to find that the circumstances surrounding the hiring of a coach or official that

has access to children dictates a criminal records check.

Youth sport organizations often rely on volunteers for coaches and officials. Most

jurisdictions, as well as the federal government, provide statutory immunity for volunteers.

However, the research revealed that the vast maj ority of volunteer immunity statutes, including

the federal statute, provide no coverage for youth sport organizations. In fact, only Minnesota,

Mississippi, New Jersey, and Pennsylvania have volunteer immunity statutes that extend

protection from volunteers to the organization. However, three out of those four states have

qualifications or limitations that prevent or limit the statutory protection afforded to youth sport

organizations. Further, the qualifications and limitations for each these three statutes render their

application useless in cases where a youth sport organization needs seeks statutory protection

against claims of sexual abuse or molestation by one of the organizations volunteers. Only

Pennsylvania has a statute that is apparently broad enough to provide protection for youth sport

organizations. Although, organizations in Pennsylvania should be cautious in relying on the

statutes protection because there is a dearth of case law explaining how courts will interpret the

statute in sexual abuse or molestation cases.









CHAPTER 6
FUTURE WORK

By analyzing case law for all 50 United States and the District of Columbia, information

was gathered that can be used to help youth sport organizations understand the standard of care

for their industry in their jurisdiction. The results of this research proj ect provide youth sport

organizations with information they need to make policy decisions for all 50 United States and

the District of Columbia on how to limit liability and guard against sexual abuse within their

organizations.

However, this research proj ect was just one step. In fact, the information gathered from my

expansive case law study can be used for future research proj ects on this topic. Specifically, the

information on the legal standards derived from this research proj ect can be used to develop

survey instruments that can be administered to youth sport organizations in an attempt to

determine if said organizations are risking legal exposure through their actions or inactions in

preventing or guarding against sexual molestation or abuse on the part of their coaches and

officials. Further, because this study was expansive in that it included all 50 United States and

the District of Columbia, the information obtained during the case law study can be used to

analyze the results gathered from a survey design study and specific, rather than generalized,

conclusions can be drawn concerning the potential for liability in each of the 5 1 jurisdictions.

This study only concerned youth sport organizations and excluded case law on sexual

molestation or abuse occurring in interscholastic settings. However, this study could be

replicated to study the potential liability for interscholastic and intercollegiate sport programs for

the pedophilic actions of coaches and administrators.

Additionally, this proj ect will lead to future studies that can be used to establish a standard

of care for youth sport organizations for all 50 states and the District of Columbia. A survey









design study using the information gathered from this study could be used to determine what

measures are being taken industry-wide for specific youth sport organizations. The information

obtained through this study can be used to develop survey questions designed to illicit

information from youth sport organizations to determine if they are taking appropriate steps

necessary to avoid legal liability and prevent pedophiles from infiltrating their ranks.

Accordingly, the results from additional studies utilizing survey research along with the

information gathered from this study could be used by organizations in their evaluation as to

whether they are risking potential legal exposure through their measures in comparison to what

other organizations are doing and taking into consideration the current legal standards for their

sp ecifie j uri sdi cti on.









APPENDIX
STATE AND CASE LAW ANALYSIS

Alabama

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? The doctrine does not apply to
sexual harassment or sexual molestation cases unless the actions were later ratified by the
employer.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported
Alabama cases require criminal background checks.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No, it does not.

Supporting Cases and Statute

* Question 1: No supporting cases.

* Question 2: Meyer v. Wal-Mart Stores, Inc., 813 So.2d 832 (Ala. 2001) (criminal acts like
assault and battery could fall within the ambits of respondeat superior as long as the acts
did not derive from purely personal reasons); USA Petroleum Corp. v. Hines, 770 So.2d
589 (Ala. 2000) (respondeat superior does not extend to include sexual harassment or other
malicious acts unless the master later ratified or authorized said acts); citing, Mardis v.
Robbins Tire & Rubber Co. 669 So.2d 885 (Ala. 1995); Norman v. Southern Guar. Ins.
Co., 191 F.Supp.2d 1321 (M.D. Ala. 1991); Naber McCrory & Sumwalt Construction
Company, 393 So.2d. 973 (Ala. 1981); United States Steel Company v. Butler, 260 Ala.
190, 69 So.2d 685 (1953); Anderson v. Tadlock, 27 Ala. App. 513, 175 So. 312 (1937);
Seaboard Air Line Railway Company v. Glenn, 213 Ala. 284 (1925).

* Question 3: No supporting cases.

* Question 4: No supporting cases.

* Question 5: Ala.Code 1975 @ 6-5-336.









Alaska


* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? The Supreme Court of Alaska
left this question open, but suggested that the theory does extend to include child sexual
molestation.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported
Alaskan cases require criminal background checks.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? Alaska does not have a volunteer immunity statute that
covers youth sport volunteers or youth sport organizations.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Broderick v. King's Way Assembly of God Church, 808 P.2d 1211 (Alaska,
2001); citing, Doe v. Samaritan Counseling Center, 791 P.2d 344, (Alaska 1990). (clinic
could be held liable in respondeat superior for therapist's negligent mishandling of
transference phenomenon, which resulted in unethical sexual relations between therapist
and plaintiff-patient).

* Question 3: No supporting cases.

* Question 4: No supporting cases.

* Question 5: No volunteer immunity statute covering youth sport organizations.

Arkansas

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? Probably not. I will apply if
the employee is acting in furtherance of the employer' s enterprise. However, the Supreme










Court of Arkansas decided in one case that an employer was acting purely for his own
interests when he sexually molested a third party.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? The question is
left open by the Arkansas Supreme Court. However, the Court did reference the possibility
that the existence of a criminal record could be used to support a claim for negligent
hiring/retention.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No they do not.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Porter v. Harshfield, 948 S.W.2d 83 (Ark. 1997) (Scope of employment does
not extend to actions that do not benefit the employer); Gordon v. Planters & Merchants
Bancshares, 935 S.W.2d 544 (Ark. 1996); J.B. Hunt Transp., Inc. v. Doss, 899 S.W.2d
(Ark. 1995).

* Question 3: No supporting cases.

* Question 4: Saine v. Comcast Cable Vision of Arkansas, Inc., 126 S.W.3d 339 (Ark.
2003) (Court looked at lack of criminal record as basis for concluding that no direct proof
linked hiring of employee to tortuous action); citing, Porter v. Harshfield, 948 S.W.2d 83
(Ark. 1997); St. Paul Fire & Marine Ins. Co. v. Knight, 764 S.W.2d 601 (Ark. 1989).

* Question 5: A.C.A. @ 16-6-102; A.C.A. @ 16-6-103; A.C.A. @ 16-6-104.

Arizona

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? No it does not because sexual
molestation, harassment, or abuse falls outside the scope of authority.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.










* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported case
supports such a requirement.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No it does not.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Smith v. American Exp. Travel Related Services Co., Inc., 876 P.2d 1166
(Ariz. App.1 1994) (Employee bringing claim against employer. This decision relied on
opinions from other jurisdictions as it was a matter of first impression in Arizona).

* Question 3: No supporting cases.

* Question 4: No supporting cases.

* Question 5: A. R. S. @ 12-982.

California

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? Yes, there are reported cases that were
resolved in favor of the organizations. One case involved Little League Baseball and was
brought by the victims of Norman Watson. In that case a California appellate court ruled
that Little League Baseball, Inc. was a franchisor and that East Baseline Little League was
a franchisee and that franchisors do not have control over the employees of franchisees.
Based on thi s ruling, a negligent supervi sion/hiring/respondeat superior action against
Little League Baseball, Inc. failed. In another case, a gymnastic coach and association
prevailed on a claim brought by two gymnasts that they were molested. The court found no
basis to support their claim.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? The doctrine both applies and
does not apply based on the offender. Specifically, the doctrine does not apply to sexual
assault cases unless the cases involve police officers using their power while they are on
duty. Additionally, California has expanded the doctrine of respondeat superior in limited
situations involving priests for matters where the abuse was foreseeable. This expansion
has not been applied to any other fact patterns.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.










* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported cases
support such a requirement. However, California does have a penal statute allowing youth
organizations to check the criminal records for those whom they employ.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? California does not have a volunteer immunity statute that
covers youth sport volunteers or youth sport organizations. However, California does have
a statute that exempts volunteer directors of nonprofit organizations from liability.

Supporting Cases and Statute

* Question 1: Hickman v. Little League Baseball, Inc., 2006 WL 3456486 (Cal.App. 4 Dist.
Nov 30, 2006) (this decision is not reported and therefore California law prevents it from
being cited or relied upon); Dawn D. et al., v. The Regents Of The University Of
California, 2003 WL 21404925 (Cal.App. 2 Dist. 2003) (a gymnastics coach prevailed
against allegations of sexual misconduct brought by two youth gymnasts).

* Question 2: Jeffrey E. v. Central Baptist Church, 197 Cal.App.3d 718 (Cal. 1988), (church
not liable for sexual abuse of minor by Sunday school teacher); Rita M. v. Roman Catholic
Archbishop, 232 Cal.Rptr. 685 (Cal. App. 3d. 1986,) (archbishop not liable for sexual
relations between seven priests and minor parishioner); Milla v. Roman Catholic
Archbiosis of Los Angeles, 187 Cal. Appl.3d (1986) (expanding the doctrine of respondeat
superior in situations where sexual abuse was foreseeable).

* Question 3: No supporting cases.

* Question 4: West's Ann.Cal.Penal Code @ 11105.2.

* Question 5: Ann.Cal.Corp.Code ( 5239 (concerning immunity for directors of nonprofit
organizations).

Colorado

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? No it does not because sexual
molestation, harassment, and abuse fall outside the scope of authority.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? Yes.
The scope of duty depends on the employee's anticipated degree of contact with other
persons in carrying out the duties of employment. The requisite degree of care increases,
and may require expanded inquiry into the employee's background when the employer
expects the employee to have frequent contact with the public, or when the employment










fosters close contact and a special relationship between particular persons and the
employee.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? Only if there are
circumstances giving the employer reason to believe that a job applicant, by reason of
some attribute of character or prior conduct, would constitute an undue risk of harm to
members of the public and the applicant will be in frequent contact or to particular persons
who stand in a special relationship to the employer and with whom the applicant will be in
close contact.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No it does not. It applies only to the volunteers or the
board of directors of said organizations.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993)(priest accused of
abusing parishioner).

* Question 3: Moses, 863 P.2d 310; Connes v. Molalla Transport System, Inc., 831 P.2d
1316 (Colo. 1992) (hiring of dangerous drivers).

* Question 4: Connes v. Molalla Transport System, Inc., 831 P.2d 1316 (Colo. 1992).

* Question 5: C.R.S.A. @ 13-21-116; Cooper v. Aspen Skiing Co., 48 P.3d 1129 (Colo.
2002).

Connecticut

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? There are three sexual abuse cases
dealing with coaches employed by school systems, but no reported cases dealing with
youth sport organizations.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? No. Connecticut courts have
held as a matter of law that when the tortfeasor-employee's activity with the alleged victim
became sexual, the employee abandoned and ceased to further the employer's business.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.










* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? The only
precedent on point is a trial court decision finding liability on the part of an agency that did
not perform a check.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No statutory protection exists.

Supporting Cases and Statute

* Question 1: No relevant supporting cases.

* Question 2: Doe v. Burns, WL 2210320 (Conn.Super.2005) (junior high coach abused
athlete); Gutierrez v. Thorne, 537 A.2d 527 (Conn. 1988)(employee of facility for mentally
challenged persons assaulted patient); Nutt v. Norwich Roman Catholic Diocese, 921
F.Sup. 66 (D.Conn. 1995) (priest abused alter boys).

* Question 3: No supporting cases.

* Question 4: Pattavina v. Mills, WL 1626960 (Conn. Super. 2000) (health care provider
found liable at trial court level for failing to perform a proper background search which the
court felt included a criminal records check).

* Question 5: No statute.

Delaware

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? This question was
intentionally left unanswered by Delaware court decision that concerned the doctrine's
application to Title VII claim of sexual harassment.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported cases
support such a requirement.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No it does not.

Supporting Cases and Statute











*Question 1: No relevant supporting cases.


* Question 2: Konstantopoulos v. Westvaco Corp., 690 A.2d 936 (Del.Supr. Oct 02, 1996)
(Title VII workplace harassment case).

* Question 3: No supporting cases.

* Question 4: No supporting cases.

* Question 5: 10 Del.C. ( 8133.

District of Columbia

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? Generally no. Sexual assaults
typically fall outside the scope of employment because they are typically done solely for
the employee's benefit. However, while it may be probable that the vast maj ority of sexual
assaults arise from purely personal motives, it is nevertheless possible that an employee's
conduct may amount to a sexual assault and still be "actuated, at least in part, by a desire to
serve [the employer's] interest.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported cases
require criminal background checks. Just reasonable investigation into the employee's past
employment history.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? The statute does not exempt the corporation from liability
for the conduct of the volunteer, but the corporation shall be liable only to the extent of the
applicable limit of insurance coverage it maintains.

Supporting Cases and Statute

* Question 1: No relevant supporting cases.

* Question 2: Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001)(action brought
against company by person who was allegedly sexually assaulted by employee of company
while being detained by security guard); Weinberg v. Johnson, 518 A.2d 985 (D.C.
1986)(customer brought action against laundramat for violent actions of employee);Boykin









v. District of Columbia, 484 A.2d 560 (D.C. 1984)(minor sued store owner for sexual
assault allegedly committed by security guard); Jordan v. Medley, 711 F.2d 211 (D.C.Cir.
1983)(tenant brought action against landlord for violent behavior).

* Question 3: No supporting cases.

* Question 4: Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001).

* Question 5: DC ST @ 29-301.113.

Florida

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? Generally, sexual assaults and
batteries by employees are held to be outside the scope of an employee's employment, and
therefore, insufficient to impose vicarious liability on the employer. An exception may
exist where the tortfeasor was assisted in accomplishing the tort by virtue of the
employer/employee relationship.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? Yes.
Extent to which employer must inquire as to employee's background, in order to be
relieved of liability for negligent hiring, varies depending upon extent to which employee's
duties will require contact with others.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? Even where the
circumstances dictate the need for some independent inquiry, however, there is no
requirement, as a matter of law, that the employer make an inquiry with law enforcement
agencies about an employee's possible criminal record, even where the employee is to
regularly deal with members of the public.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No it does not.

Supporting Cases and Statute

* Question 1: No relevant supporting cases.

* Question 2: Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So.2d 353 (Fla.App.
Dist. 2001)(parishioner brought action against church for sexual assault by priest);
Nazareth v. Herndon Ambulance Service, Inc., 467 So.2d 1076 (Fla.App. 5 Dist. 1985).
Exception- Agriturf Mgmt., Inc. v. Roe, 656 So.2d 954 (Fla. 2d. DCA 1995); Hennagan









v. Department of Highway Safety and Motor Vehicles, 467 So.2d 748 (Fla.App. 1 Dist.
1985)(minor assaulted by highway patrolman).

* Question 3: Garcia v. Duffy, 492 So.2d 435 (Fla.App. 2d. 1986).

* Question 4: Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978).

* Question 5: F.S.A. ( 768.1355.

Georgia

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? No it does not. It is well
settled in Georgia law that employers are not liable for the sexual misconduct of their
employees as such conduct falls outside the scope of authority. An exception exists if the
employer later ratifies the conduct.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? Yes
there is a heightened duty.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? Criminal
background checks of employees are statutorily-mandated in certain industries. See, e.g.,
OCGA @ 49-5-60 et seq. (requiring employee records checks for day-care centers and other
child-caring institutions). However, while there may be no statutory requirement that
employers in other businesses conduct background or criminal checks on potential
employees, the Georgia Supreme Court rej ects the position that employers who fail to
conduct such searches can never be found liable for negligent hiring because of this failure.
Whether or not an employer's investigative efforts were sufficient to fulfill its duty of
ordinary care is dependent upon the unique facts of each case.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? The statute is silent on the issue.

Supporting Cases and Statute

* Question 1: No relevant supporting cases.

* Question 2: Big Brother/Big Sister of Metro Atlanta, Inc. v. Terrell, 3 59 S.E.2d 241
(Ga.App.1987)(parent and child lost on action against youth volunteer service organization
for the sexual misconduct of volunteer employee); see also, Travis Pruitt & Associates,
P.C. v. Hooper, 625 S.E.2d 445 (Ga.App.1. 2005); Mears v. Gulfstream Aerospace Corp.,










484 S.E.2d 659 (Ga.App.1. 1997); Trimble v. Circuit City Stores, Inc., 469 S.E.2d 776
Ga.App.1. 1996); Newsome v. Cooper-Wiss, Inc., 347 S.E.2d 619 (Ga.App.1. 1986).

* Question 3: See supporting Georgia Supreme Court case listed below for Question 4.

* Question 4: Munroe v. Universal Health Services, Inc., 596 S.E.2d 604 (Ga. 2004)(mental
health patient sued health care provider because employee of company medicated and
raped her).

* Question 5: Ga. Code Ann., @ 51-1-20.1.

Hawaii

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? The Hawaii courts have not
directly answered this question. However, the Hawaii Supreme Court has held on two
occasions that the doctrine was not applicable to two different cases involving allegations
of sexual molestation and harassment on the basis that the conduct was outside the scope
of employment. Accordingly, the answer appears to be no.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported cases
require criminal background checks.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No it does not.

Supporting Cases and Statute

* Question 1: No relevant supporting cases.

* Question 2: Doe Parents No. 1 v. State, Dept. of Educ., 58 P.3d 545 (Hawai'i 2002)(action
brought by parents of middle school children who were molested by teacher); Sharples v.
State, 793 P.2d 175 (Hawai'i 1990)(harassment action brought by seduced patient against
seducer psychiatrist).

* Question 3: No supporting cases.

* Question 4: Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001) (Hawaii courts
recognized this D.C. decision).










*Question 5: HRS @ 662D et. seq.


Idaho

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2- Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? No reported cases answer the
question.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported cases
require criminal background checks.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? The statute does not extend protection to the
organizations, but is silent as to their exposure to liability.

Supporting Cases and Statute

* Question 1: No relevant supporting cases.

* Question 2: No relevant supporting cases.

* Question 3: No supporting cases.

* Question 4: No supporting cases.

* Question 5: I.C. ( 6-1605.

[Illinois

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases against volunteer
youth sport organizations. However, there is a case where a coach sexually abused a
manager on a high school wrestling team. There were pleading deficiencies in the case and
the case was dismissed, but without prejudice meaning that the plaintiffs were allowed to
resubmit their complaints for all but one claim.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? There is a very analogous case
involving Big Brothers, Big Sisters of America in which an action was brought against the









national organization for abuse committed against a child in Illinois. An Illinois appellate
court sustained a summary judgment motion against the plaintiffs on the basis that the
organization did not owe a duty to the child to protect him against offenses committed by a
volunteer at a local office. The basis for this decision was that the national organization
had no control over the actions of the volunteer who committed the offense. Further, the
court refused to extend liability through voluntary undertaking because Illinois requires
malfeasance rather than nonfeasance for the tort. Also, Illinois has a general rule providing
that employers do not have a duty to protect third parties from harm committed by their
employees unless the victim was a: (a). customer of a common carrier, (b). business
invitee, (c) guest of an innkeeper, (d) protected of a voluntary custodian. Finally, even if
one of these relationships exist, sexual assaults have been held to fall outside the scope of
authority in Illinois because they do not further the employer' s business interests.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? An
Illinois appellate court refused to expand what is required under the restatement for a
general background check for a situation where an employee would have home entry
access. No other court decisions discuss the existence for a heightened duty.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No it does not.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No, it expressly excludes the organizations.

Supporting Cases and Statute

* Question 1: Mueller by Math v. Community Consol. School Dist. 54, 678 N.E.2d 660
(Ill.App. 1 1997).

* Question 2: Doe v. Big Brothers Big Sisters of America, 3 59 Ill.App.3d 684, 296 Ill.
App. 1 2005). For general rule see, Strickland v. Communications and Cable of Chicago,
Inc., 710 N.E.2d 55 (Ill.App. 1 1999). For sexual assault rule see, Stern v. Ritz Carlton
Chicago, 702 N.E.2d 194 (Ill.App. 1 1998).

* Question 3: Strickland v. Communications and Cable of Chicago, Inc., 710 N.E.2d 55
(Ill.App. 1 1999).

* Question 4: See the case listed for Question 3.

* Question 5: IL ST CH 70 P 700, et. seq.

Indiana

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? Yes. The case was against Southport
Little League and involved a situation where an equipment manager for the league










wrongfully viewed child genatalia and molested child athletes. The court held that the
league could be liable through the doctrine of respondeat superior if the league authorized
any of the offender employee's actions. On review, the appellate court held that because
the plaintiff~ s designated materials raise the inference that some of the offender' s acts were
authorized (such as fitting the youths' uniforms) when he viewed the athlete's genitalia for
his sexual gratification and when he sexually molested the youths, they held that the trial
court properly denied the Little League's motion for summary judgment. Further, the court
found that the youths who participated in Little League baseball were taught to respect
adult authority, and it was clear to participating youths that the offender held a position of
authority with the Little League. The court held that when an individual is clothed with
authority by an organization in which youths are participating, such as Little League
baseball, youths will typically comply with requests or commands of the adult individual
in authority. Thus, the Little League, by appointing the offender as an official, essentially
authorized the offender to exert his authority over youths who participated in Little League
baseball. Because some of the offender' s acts were authorized, the court believed that the
determination of whether the Little League was liable under the doctrine of respondeat
superior for the sexual molestation was a question of fact for the jury.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? See above. Indiana focuses on
authorization. Indiana courts have established that an employer can even be vicariously
liable for the criminal acts of an employee, such as the sexual acts committed by Cole in
the present case, the determination depends upon whether the employee's actions were at
least for a time authorized by the employer. If it is determined that none of the employee's
acts were authorized, there is no respondeat superior liability. If some of the employee's
actions were authorized, the question of whether the unauthorized acts were within the
scope of employment is one for the jury. Authorization is required even where the
employee makes use of the employer' s facilities during the molestation, harassment, or
abuse.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No reported case
supports such a requirement.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? The statute does not extend protection to the
organizations, but is silent as to their exposure to liability.

Supporting Cases and Statute

* Question 1: Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind.App. 2000).










* Question 2: See also, Doe v. Lafayette School Corp., 846 N.E.2d 691(Ind.App. 2006)
(school district found not liable for teacher even though school facilities were used during
abuse because acts were not authorized by the district; Stropes by Taylor v. Heritage
House Childrens Center of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989) (nurse abused
mentally disabled children at center for mentally disabled children).

* Question 3: No supporting cases.

* Question 4: No supporting cases.

* Question 5: IC 34-30-19-3.

Iowa

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? No. Iowa appellate courts
have held that sexual harassment or abuse acts were a substantial deviation from job duties
in two different cases and were not "necessary to accomplish the purpose of employment."
While the offenders did become acquainted with the victims by virtue of their position at
the employer' s place of business., the courts could not conclude that their actions were
committed in furtherance of their duties or the obj ectives of the corporations. The fact
some of the alleged conduct occurred on employers' property does not make it
automatically liable for offenders' actions.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? At least one case
has held that the question of whether a criminal record check is required is a material
question that should be left to the jury. So criminal record checks may be required in some
instances if a jury feels that it is necessary.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? Iowa does not appear to have a volunteer immunity statute
that covers youth sport volunteers or organizations.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Riniker v. Wilson, 623 N.W.2d 220 (Iowa App. 2000); Godar v. Edwards, 588
N.W.2d 701(lowa 1999).










*Question 3: No supporting cases.


* Question 4: D.R.R. v. English Enterprises, CATV, Div. of Gator Transp., Inc., 356
N.W.2d 580 (Iowa App. 1984).

* Question 5: No statute.

Kansas

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? There is no controlling
authority that directly answers this question. However, a Kansas Supreme Court decision
and a Kansas appellate court decision both upheld trial court decisions that dismissed
claims because sexual harassment, molestation fell outside the scope of authority.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No Kansas cases
directly answer the question.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No it does not.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Kansas State Bank & Trust Co. v. Specialized Transp. Services, Inc., 819 P.2d
587 (Kan. Oct 25, 1991); Hollinger v. Stormont Hosp. & Training School for Nurses, 578
P.2d 1121 (Kan.App.2d 1978).

* Question 3: No supporting cases.

* Question 4: D.R.R. v. English Enterprises, CATV, Div. of Gator Transp., Inc., 356
N.W.2d 580 (Iowa App. 1984).

* Question 5: K.S.A. ( 60-3601.










Kentucky


* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? For it to be within the scope of
its employment, the conduct must be of the same general nature as that authorized or
incidental to the conduct authorized. A principal is not liable under the doctrine of
respondeat superior unless the intentional wrongs of the agent were calculated to advance
the cause of the principal or were appropriate to the normal scope of the operator's
employment. Ordinarily, an employer is not vicariously liable for an intentional tort of an
employee not actuated by a purpose to serve the employer but motivated, as here, solely by
a desire to satisfy the employee's own sexual proclivities.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No general
requirement to perform a criminal record check, but at least one decision suggested that a
check may be required when the defendant had previously agreed via contract or through
some sort of policy to conduct criminal records checks.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? No statute.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Patterson v. Blair, 172 S.W.3d 361 (Ky. 2005)(driver blew out tires on truck);
American General Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688 (Ky. 2002)(sexual
harassment claim brought by employee).

* Question 3: No supporting cases.

* Question 4: Oakley v. Flor-Shin, Inc., 964 S.W.2d 438 (Ky.App. 1998).

* Question 5: No statute.

Louisiana

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.










* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? The courts have suggested that
the doctrine may apply if a jury can determine if the conduct falls within the course and
scope of employment. The determination of whether an activity is within the course and
scope of a servant's duties to his master is dependent on whether the servant's tortious
conduct was closely connected in time, place, and causation to his duties to the master as
to be regarded as a risk of harm which can be fairly attributed to the master's business.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? Yes. In
Louisiana it has been held that when an employee is to be placed in a position of
supervisory and/or disciplinary authority over children, the employer has a duty to properly
screen the applicant (and continue to provide screening) to determine if the applicant has
been convicted of a crime (or crimes) involving moral turpitude.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? Because a higher
duty is owed in searching the background of those who supervise children, the degree of
reasonableness in terms of searching a background of a potential employee is increased
significantly. This search may require checking with local authorities to determine if an
employee has a criminal record. Further, at least one decision suggested that in certain
situations reasonable care in hiring may require some type of screening program necessary
for the purpose of determining whether an employee such has a criminal record. A
polygraph examination might even be appropriate, the employer might engage in a routine
check of police records, or some other reasonable screening method might be employed.

* Question 5: Does the state's volunteer immunity statute apply to volunteer organizations
as well as the actual volunteers? The statute is silent on the issue but does not expressly
extend coverage to the organizations.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Landreneau v. Fruge, 676 So.2d 701 (La.App. 3 Cir. 6/12/96) (minor female
athlete was sexually abused by coach); Doe v. Roman Catholic Church for Archdiocese of
New Orleans, 615 So.2d 410, 81 Ed. Law Rep. 1183 (La.App. 4 Cir. Feb 26, 1993)(minor
molested by youth organization volunteer).

* Question 3: Williams v. Butler, 577 So.2d 1113 (La.App. 1 Cir. 1991).

* Question 4: See the case listed for Question 3. Also see; Jackson v. Ferrand, 658 So.2d
691, 94-1254 (La.App. 4 Cir. 12/28/94); Smith v. Orkin Exterminating Co., Inc., 540 So.2d
363, 13 A.L.R.5th 962 (La.App. 1 Cir. Feb 28, 1989) (customer assaulted by pest control
specialist).

* Question 5: LSA-R.S. 9:2798









Maine


* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.

* Question 2: Does the doctrine of respondeat superior extend employer liability to criminal
actions involving sexual molestation, harassment, or abuse? For it to be within the scope of
its employment, the conduct must be of the same general nature as that authorized or
incidental to the conduct authorized. A principal is not liable under the doctrine of
respondeat superior unless the intentional wrongs of the agent were calculated to advance
the cause of the principal or were appropriate to the normal scope of the operator's
employment. Ordinarily, an employer is not vicariously liable for an intentional tort of an
employee not actuated by a purpose to serve the employer but motivated, as here, solely by
a desire to satisfy the employee's own sexual proclivities.

* Question 3: Do the doctrines of negligent hiring and negligent retention require a
heightened duty in cases where the employee has access to children or the public? No
reported cases support such a requirement.

* Question 4: Does the doctrine of negligent hiring extend to require criminal background
checks in cases where the employee has access to children or the public? No general
requirement to perform a criminal record check, but at least one decision suggested that a
check may be required when the defendant had previously agreed via contract or through
some sort of policy to conduct criminal records checks.

* Question 5: Does the state' s volunteer immunity statute apply to volunteer organizations as
well as the actual volunteers? No statute.

Supporting Cases and Statute

* Question 1: No cases.

* Question 2: Fortin v. The Roman Catholic Bishop of Portland, 871 A.2d 1208 (Me. 2005)
(Catholic priest accused of molesting child parishioner).

* Question 3: No supporting cases.

* Question 4: No supporting cases.

* Question 5: No statute.

Maryland

* Question 1: Is there any cases involving civil liability against youth sport organizations for
the pedophilic actions of their coaches or officials? No reported cases.