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Case seeks recognition of ‘negligent recommendation’ action

The Court of Appeals Southern District declined to recognize a “negligent recommendation” cause of action in a lawsuit alleging that a religious college gave a church the name of a pastor who went on to abuse a minor.

“The declaration of a new common-law duty, however, is not within our purview but, rather, lies squarely within the law-declaring function of our supreme court,” the Southern District said in its unsigned opinion on April 5.

David Mayer

David Mayer

David Mayer of Monsees & Mayer in Kansas City, an attorney for the plaintiffs, said he intends to ask the Missouri Supreme Court to do just that. He said it would make good public policy for institutions to be held accountable for “passing their trash.”

“I do a lot of sexual-abuse cases, unfortunately, and I think this is really critical,” he said. “It’s just reasonable for the Missouri courts to recognize this duty.”

An attorney for the defendant college, Monte P. Clithero of Taylor, Stafford, Clithero & Harris in Springfield, didn’t respond to a request for comment.

The plaintiff and his mother, referred to by pseudonyms in court records, alleged in a lawsuit that Ozark Christian College in Joplin had recommended one of its former students, Steven Butler, to be the pastor of Independence Christian Community Church in Kansas in 2004. The suit alleges the college was aware of accusations against Butler, including that he previously had resigned from an Oklahoma church after facing an allegation of sexual misconduct against a minor.

The suit alleged that Butler went on to abuse the plaintiff during a four-year period. Butler was convicted of aggravated criminal sodomy. In 2016, the Kansas Court of Appeals affirmed his conviction, which carried a life sentence without the possibility of parole for at least 25 years.

Last year, Jasper County Circuit Judge Dean Dankelson granted summary judgment to the college, finding that “the Missouri legislature has not defined such a cause of action and the Missouri Courts have not recognized one.” The Southern District agreed and said it couldn’t fault Dankelson for declining to recognize a cause of action that the Missouri Supreme Court has not.

Mayer had pointed to the Restatement (Second) of Torts, an authoritative compilation of common-law principles, for support of a negligent recommendation action. Section 324A imposes liability to a third party for physical harm resulting from negligence, but only if the defendant undertakes “to render services to another.”

The Southern District said the plaintiffs had failed to show that the college was providing a service to the Independence church by giving an employment recommendation. In a separate concurring opinion, Judge Gary W. Lynch argued that Section 324A was inapplicable and said there appeared to be no cases in other states applying it in that manner.

“Given the large quantity of employment recommendations made daily in every state in our country, this total nationwide silence about a section 324A duty in that context strongly suggests that Plaintiff is laboring under a misapprehension as to its application to the facts here to impose a duty upon [the college],” he wrote.

Other states have reached conflicting conclusions about the existence of a duty not to provide a negligent recommendation. Mayer pointed to rulings from New Mexico, Texas and California in his favor. The Southern District, however, found contrary cases from Indiana, Kentucky, Washington, Illinois and New York.

Some of the cases hinged on a different part of the Restatement, Section 311, which imposes liability on one who “negligently gives false information.” In a footnote, the Southern District said the duty in a negligence claim and the duty in a negligent misrepresentation claim aren’t quite the same.

In an interview, Mayer said the Supreme Court could still adopt a negligent recommendation cause of action, whether based on Restatement principles or simply as a matter of public policy.

“We’re not saying anyone has an affirmative duty to give a recommendation,” he said. “You don’t have to do that. But if you do do it, then you have an affirmative duty to make sure you’re making a proper recommendation, not a negligent one.”

The case is Doe v. Ozark Christian College, SD35573.

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