Law Joon Ki Chung

Argument

I.       The BMCC is vicariously liable for Petrillo’s money damage resulting from Rooks’ tort related conduct.

In order to hold the BMCC liable under the Alabama common law of respondeat superior, Petrillo is required to establish the master/servant relationship by proving that Rev. Rooks was an employee of the BMCC and, additionally, that Rooks’ conduct induced Petrillo to invest her money into his R & B business was within the scope of employment.

A.     Rev. Rooks was an employee of the BMCC.

The Alabama Supreme Court has established that when a principal retains a “right to control” the activity of a worker, the worker is to be considered an employee. Dickinson v. City of Huntsville 822 So.2d 411 (Ala. 2001) Whether control was maintained is determined according to four factors. Id. These four factors are: (1) direct evidence of the right of or exercise of control; (2) the method of payment used; (3) whether the alleged principal maintained the right to terminate employment; and (4) the right to control another individual's time.

Id. Furthermore, in Martin By and Through Martin v. Goodies Distribution, the Alabama Supreme Court held that whether or not the right of control is actually exercised is not a material factor required to determine one's status, but that the court should investigate whether the employer had reserved the right of control over the method in which the person's work will be performed. Martin By and Through Martin v. Goodies Distribution 695 So.2d 1175 (Ala. 1997).

In this instance, Rev. Rooks was an employee of the BMCC rather than an independent contractor pursuant to the criteria listed in Dickinson v. City of Huntsville. First, the BMCC had the right or exercise of control of Rev. Rooks’ counseling through Rev. Yun's ultimate supervisory authority and responsibilities for the associate and assistant pastors. In the fact, Yun stated that “as the senior partner, I have ultimate supervisory authority and responsibility for the associate and assistant pastor.” This statement is enough to be considered direct evidence that the church possesses right to control its pastors.

According to Yun and Epperson’s depositions, however, the church did not actually exercise any specific control on regards to Rooks’ counseling works. As in Dickinson, the evidence showing the church’s actual exercise of control remains immaterial. Furthermore, despite the church’s available power to control its pastors, the reason why the church did not limit Rooks’ conduct in any way could have originated from the nature of his job. On a common sense level, a professional counselor is required to make an independent judgment on her clients in order to achieve certain goals which may be different from one another.

If the BMCC devised rules or guidelines in order to direct Rooks’ counseling job to certain method that BMCC would favor, such action would greatly infringe on the ability of Rooks’ judgment; a judgment that should be independently based on his professional knowledge as a counselor and pastoral religious beliefs. Therefore, the church might have decided not to directly interfere with Rooks’ job although it was well within its rights to do so.

Secondly, Rev. Rooks was paid by the church and not by his counseling clients. In fact, Epperson testified that Rooks was an employee and that Rooks was paid in the same manner as individuals who were indisputably BMCC employees. This brings about the third point: BMCC also had the right to terminate its employees at any time according to the fact that Yun stated all employees were hired “at will” and the church could fire them at any time. This factor became more obvious when Yun forced Rooks to resign from his counseling position. Finally, the church had right to control Rooks’ counseling time. Although the church did not appoint exact counseling time for Rev.

Rooks, this was not because the church lacked the authority to allocate time, but rather to provide Rev. Rooks discretion in his job through saying "we are a pretty autonomous bunch, Each of us has his or her unique calling. . . [it is] God should pursue that calling." Also, Yun was concerned Rooks spent too much time in his job and was burning himself out. From this, it can reasonably be inferred that Yun may have forced Rooks to reduce his counseling time in order to avoid such a situation if Rooks’ counseling continued without disruption from the lawsuit.

Simply, this is same rationale previously mentioned: although the church did have the power to control another's time, it did not actually exercise the power since (as in Martins) it is enough to reserve the right of control instead of actually enforcing it. Martin By and Through Martin v. Goodies Distribution 695 So.2d 1175 (Ala. 1997)

B.     Rooks’ tortious conduct was within the scope of employment in BMCC.

Under the Alabama's respondeat superior doctrine, the facts demonstrate that Rev. Rooks was acting within the line and scope of employment at the time he induced Petrillo to invest in Rooks’ business.

The Supreme Court of Alabama held in Atmore Community Hospital that "an employer is liable for the intentional torts of its employee if: (1) the employee's acts are committed in furtherance of the business of the employer; and (2) the employee's acts are within the line and scope of his employment. Ex parte Atmore Community Hosp. 719 So.2d 1190 (Ala. 1998).

However, in Atmore Community Hospital, the court considered those criteria as presenting the same issue instead of requiring separate reasoning. Id. It is because the court’s inquiry for determining whether the employee was acting in furtherance of the business requires similar evidence for determining whether the employee was within the line and scope of employment.

In Shoney's Inc. v. Barnett, the court clarified this through explaining the “[d]etermination that an employee is acting within the line and scope of her employment … [would be same as] . . .such determination whether the actions of employee are in promotion of the business of the employment." Shoney's, Inc. v. Barnett. 773 So.2d 1015 (Ala. Civ. App. 1999) Thus, the first and second tests were not separate ones, but rather the second test can be determined by proving the first test.

Moreover, the court provided further explanation to determine whether the employee was within the scope of his employment in Atmore Community Hospital holding that "[an] employee's tortious acts occur within the scope of his employment if the acts are so closely connected with what the employee is employed to perform and so fairly and reasonably incidental in relation to it so that they may be regarded as methods (including improper methods) of carrying out the objectives of the employment."

Ex parte Atmore Community Hosp. 719 So.2d 1190 (Ala. 1998). Additionally, in Reynolds, the Court of Civil Appeals of Alabama held that it was a jury question "where fraud is committed within the actual or apparent scope of employment, the employer is liable even where the fraud is to the employee's own benefit and to the employer's detriment." Reynolds v. Crown Pontiac, Inc. 753 So.2d 522 (Ala. Civ. App. 1999)

Rev. Rooks' solicitation to invest Ms. Petrillo's money into his business was in the furtherance of the employment and was closely connected the employment. Because of this, he was within the scope of employment.

First, Rooks’ tortious conduct against Petrillo was utilized as one of the methods of counseling and was not originated solely from his personal goals. In fact, Rooks constantly encouraged Petrillo to take a ‘more adventurous’ step in order to develop confidence.

For that reason, Rooks used several strategies starting with making Petrillo confront Ms. Wentworth, the principal at the school where Petrillo previously worked as a teacher. At that time, Petrillo was afraid of being fired due to her confrontation with Wentworth. However, Rooks recommended her that her fear was irrational and she should confront Wentworth. After this incident, Rooks also made comments about Petrillo’s clothes which were, according to Petrillo, “dowdy” so he tried to compel her to purchase more daunting ones.

These strategies proved efficient. Petrillo stated that she “changed and gained a lot as a result of [her] therapy with Reverend Rooks.” Finally, when Petrillo informed Rooks that she invested her inherited money into CD’s and government bonds because they were considered safe and conservative financial instruments, Rooks took same strategy.

While treating her small investment as same as her dowdy dress, Rooks encouraged Petrillo to “take some small steps that would be a bit more adventurous” which involved investing into his R & B business. And after his recommendation, she decided to invest into the business. This series of events was within the scope of counseling process which purported to give Petrillo some more self-confidence. Therefore, although her investment decision was ultimately disastrous, it could not be said that Rooks tried to invest her money in order to achieve any personal goals.

Additionally, even if the R & B business was not related to the BMCC, but existed only for Rev. Rooks' personal benefit, it would not provide conclusive evidence to determine whether Rooks was acting within the scope of employment. In Reynolds, the customer sued an automobile dealer shop based on vicarious liability when the shop’s manager had appropriated a customer’s payment in order to pay his wife’s medical expenses. Reynolds v. Crown Pontiac, Inc. 753 So.2d 522 (Ala. Civ. App. 1999). The Alabama Court of Appeal held that although the manager’s act was solely for his own purpose and was not related the shop’s business the question should still be one for the jury.

The court reasoned that it was because of the manager's alleged representations to the customer would support a finding by the trier of fact that “he had made those representations while discharging duties assigned to him by [the shop], and that [the shop] is therefore liable to the plaintiffs.” Id. Therefore, as in Reynolds, even if one would argue that Rev. Rooks’ business did not benefit the church’s counseling service, the fact remains that he represented himself as the counselor of the church would make this question to go to the trier of fact.

Finally, Rev. Rooks' fraudulent solicitation was held in the course of the counseling. There were two sets of investments for the bed and breakfast retreat motel business. The business' financial issue was discussed when Ms. Petrillo and Rev. Rooks were socializing with each other during their counseling session.

This counseling session normally included some sort of socializing time in order to exchange concepts of what others think about their personal lives. This session remained one of the methods that Rev. Rooks used in order to exemplify other people's lives as well as his one. Thus, it cannot be said that Rev. Rooks did not take any advantage of his counseling sessions to recruit possible investors and, actually, Ms. Petrillo gave her first investment to the business following a conversation with Rev. Rooks held during a session.

Utilizing a counseling session as his personal recruiting tool for possible investors was a more serious influence when it came to her second investment. Ms. Petrillo stated that "it was different the second time" as he pressed more on this issue during the counseling session. She also mentioned that "these little speeches began to dominate our sessions in November and early December of 2004. I was rather annoyed by this diversion of our time together towards this single issue." Rev. Rooks, while taking most of time to inform his clients how the investment would be benefit them "because of its spiritual aspects", had succeeded in soliciting Ms. Petrillo to invest total $132,000 into the business.

In summary, Rev. Rooks' tortious act was within the scope of the employment because the investment was utilized as one of the counseling methods employed by Rev. Rooks in order to recruit possible investors. Also, even if Rooks’ tortious action was for his own personal goals, the question should still go to the jury.

II.    BMCC was negligent in hiring and supervising Rev. Rooks

The Alabama Supreme Court held in Thompson v. Havard that Alabama recognized negligent hiring and supervision as a separate cause of action. Thompson v. Havard 235 So.2d 853 (Ala. 1970). Furthermore, the court listed elements required for determining whether there was employer negligence in hiring and supervision, It did this by holding that in the employer and employee relationship, the employer would be held liable for an employee's incompetence "when notice or knowledge, either actual or presumed, of such unfitness had been brought to him." Id.

Moreover, the court stated that the moving party must demonstrate that "such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge" and this incompetency of employee would be proved by employee's specific act showing his incompetency in his job, or such nature, character and frequency that the employer should have known in exercising ordinary reasonable care. Id.

A.     BMCC was negligent in hiring Rooks because it should have known Rev. Rooks' incompetency in counseling service with ordinary reasonable care.

BMCC did not engage in due diligence in deciding to hire Rev. Rooks and there was evidence which should have triggered the church to do more research on Rooks during its hiring process. In the fact, Rooks’ predecessor was fired due to his incompetent performance as a counselor.

This event should have reasonably directed the church council or Yun to take stronger actions and closer evaluations during hiring process. However, there was no background check for Rev. Rooks performed by the church and Yun, as the Senior Pastor with the sole and ultimate power to choose pastors, depended entirely upon Dr. North's recommendation without asking any background questions other than his sexual orientation. Moreover, she did not ask whether Dr. North had heard any complaints about Rev. Rooks, such as whether or not he was involved in any litigation or disciplinary matters while in college, graduate schools, etc.

If the church council or Yun conducted a more careful investigation of Rooks, then it must produce necessary information which includes Rooks’ tortious conduct during his internship under North. Knowing about the former counselor’s ”scandal” but not performing due diligence in hiring Rooks was breach of the employer’s common duty. Thus, the church should be liable for its negligence.

B.     BMCC was negligent in supervising Rooks’ counseling.

In regards to the negligent supervision claim, the church and Rev. Yun did not properly periodically review Rev. Rooks' ministry. Rev. Yun argued that filling forms and giving him reports about his ministry were inappropriate because "Rev. Rooks was a professional person and individually ordained in his own right as a minister of the gospel." However, this does not even remotely constitute a good reason. Consider the following: in Patterson v. Augat Wiring Systems, Inc, the plaintiff, a black female employee, sued her employer for her senior employee's sexual harassment and racial discrimination under the Alabama's law of negligent supervision. Patterson v. Augat Wiring Systems, Inc. 944 F.Supp. 1509 (M.D.Ala.1996).

The Alabama district court held that since the employer had a duty to supervise its employee, the defendant did not exercise reasonable care in supervising her employee by not investigating her senior employee's tortious actions. Id. Furthermore, the court reasoned that it was clearly evident that the defendant's negligent supervision created a landscape where those tortious actions continued and escalated until the plaintiff's resignation would have compelled the employer to bring about an investigation. Id.

As similarly visible in Patterson, Rev. Rooks' tortious act remained elevated until his resignation. As mentioned previously, the first investment was not so compelled by Rooks, however, the second investment was clearly forced by him. Therefore, despite this fact the church's reasoning regarding why it did not conduct any supervision does not absolve them from liability.

In conclusion, according to the facts, BMCC was negligent in hiring because its former counselor’s misconduct should have provided the church proper reason to perform a complete investigation of Rooks in order to avoid the same problems. If an investigation had occurred it would have revealed Rooks’ tortious conduct during his internship. Additionally, BMCC was negligent in supervising Rev. Rooks without exercising ordinary reasonable care in their responsibility as the employer.