It is well settled law in Tennessee that employers can be held vicariously liable for the negligent acts of their employees. But can churches and charity organizations be held vicariously liable for the negligent acts of their volunteers? Surprisingly, this question has never been squarely addressed by Tennessee case law. Given Tennessee’s common law agency principles and case law in other jurisdictions, a Tennessee appellate court may very well hold the answer to this question is yes.
The fancy Latin phrase for vicarious liability within the employer-employee context is respondeat superior (“let the master answer”). The principle underlying this concept is simple: Because an employer has the right to direct, supervise, and control the actions of its employees to the employer’s benefit, the employer should be legally responsible for harm caused by the negligence of employees acting within the course and scope of their employment. This same principle applies not only to clearly defined employer-employee relationships, but also to less formal relationships where one person or entity (i.e., the “principal”) directs, supervises, or controls the actions of another person or entity (i.e., the “agent”), who acts on behalf of and for the benefit of the principal.
But does this legal principle apply to situations where the purported agent is merely a volunteer of a church or charitable organization? When, if ever, can such an organization be held liable for harm caused by the negligence of a volunteer? Although no Tennessee case has ever addressed this specific factual scenario, we can predict how a Tennessee court would address this issue based on existing Tennessee case law on principal-agency relationships generally. For example, when determining whether a principal-agent relationship exists at common law in Tennessee, the principal’s right to control the acts of the agent is an important factor. See, e.g., Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 343 (Tenn. 2002) (citing White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 724 (Tenn. 2000)). Crucially, however, the amount of actual control exercised by the principal over the agent is often the determinative factor. Id. (citing McDonald v. Dunn Const. Co., 185 S.W.2d 517 (Tenn. 1945)).
Accordingly, in a situation involving harm caused by the negligence of a volunteer in Tennessee, an organization’s liability would most likely depend on the scope and degree of actual control exercised by the organization over the volunteer. This approach would be consistent with the approach taken by other jurisdictions. Missouri courts, for example, have consistently held an organization must exercise “specific and direct” control over its volunteers for a principal-agent relationship to attach. See, e.g., Woods v. Kelley, 948 S.W.2d 634, 637 (Mo. Ct. App. 1997). Further, under Missouri common law, the organization’s control over volunteers must be “complete and unqualified” and “[volunteers] rendering services but retaining control over their own movements are not servants” for purposes of determining vicarious liability. See Archer v. Outboard Marine Corp., 908 S.W.2d 701, 703 (Mo. Ct. App. 1995); Studebaker v. Nettie’s Flower Garden, Inc., 842 S.W.2d 227, 229 (Mo. Ct. App. 1992)). Under this approach, vicarious liability for organizations using volunteers is quite rare, as most organizations do not typically exercise such specific, direct, and unqualified control over their volunteers.
If and when a Tennessee appellate court does finally address this issue, I would hope we adopt the Missouri approach. From a practical standpoint, the principle underlying respondeat superior liability in an employer-employee context does not readily apply to situations involving volunteers. While an organization does “benefit” from the volunteer’s work in the sense the work helps the organization perform its mission, this benefit is qualitatively different from the direct financial benefit employers derive from the work of their employees. Most often (but not always), the causes and individuals served by these organizations, not the organizations themselves, are the ultimate beneficiaries of the volunteers’ services. Also, from a public policy standpoint, courts should refrain from attaching vicarious liability to organizations that routinely depend on volunteers to perform service work. If a series of cases were decided in which such organizations were hit with large judgments on account of negligent acts of volunteers, it is possible some organizations would decide not to accept help from non-essential volunteers for liability reasons. Although vicarious liability may be appropriate in certain volunteer situations, courts should at least be sensitive to these considerations.
If you are a church or organization of any kind who faces a lawsuit stemming from the actions of an individual acting as a volunteer when an accident occurred, please do not hesitate to contact us at (615) 256-8787.