A $2 million settlement in an Atlantic County, New Jersey, suit claiming a church choir director molested a minor is being called a harbinger of broader institutional liability for sexual abuse under the state’s recently revised Charitable Immunity Act.
The settlement was reached after Superior Court Judge Michael Winkelstein ruled that the church and its parent organization were vicariously liable for the abuse of the young church member under a 2019 amendment to the act.
The question of whether the church was liable for the choir director’s actions arose during mediation of the case, when the church, its parent organization, the pastor and the pastor’s wife claimed they were not liable for the actions of the choir director, Brian McSee. They claimed that fault should be allocated between them and McSee, and that they should not have to pay for his actions.
‘Washing Their Hands’
The issue came to a head when Michael Pender of Pender & Strickland in Atlantic City, representing the plaintiff, who was identified as John Doe, asked the court to find on summary judgment that the church defendants were vicariously liable for McSee’s acts.
Pender said that the 2019 amendments to the act were designed to ensure the protection of children by holding organizations liable and financially responsible for harm caused to those who are sexually abused by the organization’s employees, agents, servants and volunteers.
Not many courts have been called on to interpret the 2019 amendments, but the Atlantic County ruling represents a new era of accountability for nonprofit organizations that are implicated in the abuse of minors, Pender said.
“All the years of organizations, churches and others washing their hands and saying, ‘Hey, that was just some bad actor,’ and not being held responsible, that was the way it went. The pre-2019 law said that employees could be held responsible, but did not include the organization being held responsible,” Pender said.
“I think that this case shows that the 2019 amendments to the statute do what they are supposed to do, which is hold the organization financially responsible for the criminal sexual abuse of a minor by a member of that organization. That’s clearly the legislative intent. Without that, in this case, the church could have just passed off any responsibility to the abuser, and my client would be left with nothing or next to nothing,” Pender said.
Michael J. Pender, a partner with Pender & Strickland. Courtesy photoWinkelstein sided with Pender in his April 2022 bench ruling, noting that McSee lived in the parsonage with Pastor Frank Brown along with the pastor’s wife, Kelly, and other members of their family.
The judge also noted the trust that Doe and his mother placed in the church and the amount of time that Doe and McSee were alone together.
“I find that in this case, under the facts of this case, there was a non-delegable duty on behalf of the church defendants to look out for the children who came in contact and had spiritual leadership from the church,” Winkelstein said. “Under the facts of this case, I see a non-delegable duty due to the intimacy of McSee with the Browns and on living in church property, that the requirements for vicarious liability have been met.”
Following the ruling, the defendants—St. Paul’s United Methodist Church in New Gretna, the Greater New Jersey Annual Conference of the United Methodist Church, the pastor and his wife—agreed in November 2022 to pay $1.83 million to the plaintiff.
The Port Republic Board of Education, which hired McSee as a contractor to be choir director at the school attended by plaintiff, agreed in December to pay $175,000.
Doe alleged that from ages 13 to 17 he was sexually abused by McSee. At 17, he reported the abuse to the police, and McSee was sentenced to five years in prison in 2018 after pleading guilty to second-degree endangering the welfare of a child, according to NJ.com.
Gregory Irwin of Harwood Lloyd in Hackensack, representing the church and its parent organization; Kevin Donnelly of Fishman McIntyre in East Hanover, representing the pastor and his wife; and Jessica Anderson of Anderson Shah in Cherry Hill, representing the school district, did not respond to calls about the case.
