(concurring/dissenting) — While I agree with the majority in most respects, I would hold as a matter of law that the defendants in Funkhouser v. Wilson, No. 66580-0, did not owe a duty to Sheri Lewis and Janelle *730Larson to control Orin Wilson, to protect Sheri and Janelle from his criminal acts, or to warn their parents that he was a child molester. I disagree with the majority’s holding that defendants owed a duty of reasonable care to affirmatively act to prevent the harm that occurred as a result of a private, nonchurch-related child care arrangement between members of a church congregation. The majority fails to recognize the First Amendment implications of its decision, and it expands the special custodial relationship theory of liability past rational limits. I must respectfully dissent.
Facts
The negligence claims at issue are those of Ms. Lewis and Ms. Larson against Cavalry Baptist Church of Twisp and David Schulz, arising out of Wilson’s molestation of them when they were children. Wilson held unpaid positions of leadership in the church. The acts of molestation occurred at Wilson’s home when he and his wife were taking care of plaintiffs at their parents’ request. The molestation of these plaintiffs did not occur on church property nor during church-sponsored activities. Defendants did not recommend Wilson as a babysitter.
Plaintiffs contend that Schulz, also a church leader, learned through a telephone call in 1968 that Wilson was a child molester, but failed to warn anyone of danger posed by Wilson to children or to prevent Wilson from being involved with children through church activities. They urge that defendants had a duty to control Wilson and to protect plaintiffs from him. Defendants moved for summary judgment on the ground that they owed no duty of care as a matter of law. The trial court granted summary judgment of dismissal, ruling that as a matter of law defendants owed no duty.
The Court of Appeals reversed. That court held that defendants did not have a special relationship with Wilson giving rise to a duty to control him so as to prevent him from harming plaintiffs, but did have a duty arising out of *731a special relationship between defendants and Ms. Lewis and Ms. Larson. The court reasoned “that churches and the adult church workers who assume responsibility for the spiritual well-being of children of the congregation, whether as paid clergy or as volunteers, have a special relationship with those children that gives rise to a duty to protect them from reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over them.” Funkhouser v. Wilson, 89 Wn. App. 644, 660, 950 P.2d 501, review granted, E.R.B. v. Church of God, 135 Wn.2d 1001 (1998). In light of this holding, the Court of Appeals did not reach plaintiffs’ argument that a duty was owed pursuant to Restatement (Second) of Torts § 302B (1965).
The majority affirms, but does so on rather nebulous grounds. The majority does not address plaintiffs’ independent theories of special relationships and section 302B, saying the issues are not distinctly separable. Majority at 727 n.17. Instead, the majority says that the combination of four factors is decisive in finding duty is not foreclosed as a matter of law, i.e., a special relationship between the church and Wilson, a special relationship between the church and plaintiffs, alleged knowledge possessed by the church, and an alleged causal connection between Wilson’s position in the church and resulting harm. Majority at 724. The first two of these factors are legal conclusions drawn without legal analysis. The majority also says it does not “adopt wholesale” the duty described in section 302B. Majority at 728 n.17. Nevertheless, the majority uses some of the theory associated with that section, again without sufficient analysis. The majority also tosses into the mix language of principal and agent, without discussing the legal principles involved and without explaining how liability in this case may be found premised upon a principal-agent (or master-servant) relationship. Majority at 724. In addition to these concerns, there are very significant First Amendment issues which must be addressed in light of plaintiffs’ theories.
Unfortunately, in the end, the majority’s analysis is so *732vague that defining the limits of the duty announced is virtually impossible. The majority’s lack of precision is particularly troubling given the settled common-law rule that one is generally not liable for the criminal acts of third parties. Moreover, this court quite recently disapproved of this kind of intermingling of distinct theories. Niece v. Elmview Group Home, 131 Wn.2d 39, 48-49, 929 P.2d 420 (1997) (rejecting argument which combined theory of liability for negligent supervision based on special relationship between group home and resident and theory of liability for breach of duty arising out of special relationship between group home and resident; first theory does not serve to define the duty owed under second theory). Regrettably, as a result of its unclear analysis, the majority concludes that a church’s duty extends to a private, nonchurch-related, off-church-premises child care arrangement between church members. The court should address the separate theories actually advanced by plaintiffs, and hold that as a matter of law no duty is owed as the trial court correctly ruled.
Analysis
When reviewing a grant of summary judgment, the appellate court makes the same inquiry as the trial court, i.e., summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243 (1992); CR 56(c). The facts, and reasonable inferences from the facts, are considered in the light most favorable to the nonmoving party. Taggart, 118 Wn.2d at 199. Questions of law are reviewed de novo. Sherman v. State, 128 Wn.2d 164, 183, 905 P.2d 355 (1995). Existence of a duty is a question of law. Schooley v. Pinch’s Deli Market, Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998).
Plaintiffs contend the Court of Appeals erred in holding that there was no special relationship between defendants and Wilson giving rise to a duty to control Wilson, but that the Court of Appeals correctly held that a special protective relationship existed between defendants and children of *733the church giving rise to a duty. Plaintiffs also maintain that a duty was also owed because defendants had knowledge that Wilson was an accused child molester and knowingly installed him in a position where he could gain the trust of parents. Thus, according to plaintiffs, defendants created the framework for abuse and it does not matter that the abuse of Ms. Lewis and Ms. Larson occurred at Wilson’s home.
The Court of Appeals correctly held that no special relationship existed between defendants and Wilson giving rise to a duty on defendants’ part to control Wilson. Generally there is no duty to protect another from the criminal acts of third persons. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 223, 802 P.2d 1360 (1991). A duty to control the conduct of a third party so as to prevent physical harm to another may arise, however, where a special relationship exists between the actor and the third person giving rise to such a duty, or where a special protective relationship exists between the actor and the other. Hutchins, 116 Wn.2d at 227; Restatement (Second) of Torts § 315 (1965). Relations between the actor and the third party (who causes the harm) which give rise to a duty are described in Restatement (Second) of Torts §§ 316 through 319. Restatement (Second) of Torts § 315 cmt. c. Thus, under certain specified circumstances, a parent may have a duty to control the conduct of a minor child, id. § 316, a master may have a duty to control a servant acting outside the scope of employment, id. § 317, a possessor of property may have a duty to control a licensee, id. § 318, and an actor who has taken charge of a third party having dangerous propensities may have a duty to control the actions of that third party, id. § 319.
As to section 319, this court has recognized that a special relationship giving rise to a duty to control a party with known dangerous propensities may exist where there is a “ ‘definite, established and continuing relationship between the defendant and the third party.’ ” Taggart, 118 Wn.2d at 219 (quoting Honcoop v. State, 111 Wn.2d 182, 193, 759 *734P.2d 1188 (1988)). Such a duty exists, however, only where the actor has authority to control the third party’s conduct. The Court of Appeals recognized this principle. Funkhouser, 89 Wn. App at 654 (though stating that the authority must be legal authority). Thus, in Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), a state-employed psychiatrist was found to have a duty to control the conduct of a recently released state hospital psychiatric patient where the psychiatrist had treated the patient while institutionalized, knew of the patient’s dangerous propensities, and had authority to seek an additional civil commitment. In Taggart v. State, supra, parole officers were found to have a duty to control parolees where the officers had the obligation and authority to guide and supervise the parolees. A duty to control should be imposed only where the actor could conceivably satisfy that duty; in other words, the authority to actually control the third party’s conduct must exist.
Plaintiffs urge that under the Church Constitution and Covenant, to which both Wilson and defendant Schulz submitted, Wilson was subject to the church’s “comprehensive disciplinary authority in all areas of his public and private life including matters of conscience as well as behavior.” Resp’ts’ Supplemental Br. at 11. In their brief to the Court of Appeals they cited that church document for its standards applicable to church members and leaders, including obligations to nurture those in their care, to live exemplary lifestyles, and to be committed to defined spiritual standards, beliefs and standards of behavior. Appellants’ Br. on Appeal at 24-25. According to plaintiffs, the Church Constitution and Covenant provided defendants the authority to control Wilson, at all times and in all circumstances.
The difficulty with plaintiffs’ argument is twofold. First, as the Court of Appeals noted, the church document gives authority to discipline members only where there has been a written allegation of misconduct, which did not occur in this case.
*735Second, plaintiffs’ argument is that the religious standards held by the church and submitted to by its members give rise to authority to control Wilson, leading to a tort duty on defendants’ part to control his conduct. First Amendment concerns are clearly at issue. In addressing these concerns, it is important to keep in mind that the issue addressed here is whether a special relationship existed between defendants and Wilson, for purposes of section 315(b) of the Restatement (Second) of Torts. Plaintiffs rely upon the religious obligations defined by the Constitution and Covenants for the proposition that a special relationship does exist.
In order to decide whether defendants had authority to control Wilson, not only on church premises and during church-related activities, but also in his private life during nonchurch activities, a court would necessarily have to interpret church doctrine and religious principles set forth in the church document in order to determine whether the expansive authority asserted by plaintiffs existed under church law. Such an inquiry is forbidden under the First Amendment. See generally, e.g., Watson v. Jones, 80 U.S. 679, 20 L. Ed. 666 (1871); Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 73 S. Ct. 143, 97 L. Ed. 120 (1952); Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Serbian E. Orthodox Diocese for U.S. & Canada v. Milivojevich, 426 U.S. 696, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976). While there is no bar to examining a church constitution in purely secular terms, a civil court may not resolve ecclesiastical questions. Jones v. Wolf, 443 U.S. 595, 604, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979). The provisions relied upon by plaintiffs clearly involve spiritual standards, which are not for a civil court to determine.
The majority mistakenly concludes, however, that constitutional inquiry is not required because religious organizations do not have immunity to engage in tortious conduct as determined under secular standards (which the majority apparently believes is the case here). Majority at *736728.19 However, to agree with plaintiffs’ claim that the Church Constitution and Covenant defines the church’s authority, and thus control, over Wilson during all facets and all times of his life would require a court to engage in constitutionally forbidden interpretation of church doctrine and religious principles.20 Because the majority fails to identify the needed authority and control defendants could exert over Wilson, it misses the constitutional dilemma.
This court should decline to find a special relationship between defendants and Wilson giving rise to a duty on defendants’ part to control Wilson during nonchurchrelated activities and prevent the harm that occurred.
Plaintiffs next claim that a special protective relationship existed between defendants and the children of the congregation, giving rise to a duty to control Wilson and protect plaintiffs from him. See Restatement (Second) of Torts § 315(a) (1965). The majority analogizes to schoolchildren placed in the custody of school. Majority at 722. In the school situation, “the protective custody of teachers is . . . substituted for that of the parent.” McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 319, 255 P.2d 360 (1953). A school accordingly has a duty to protect pupils in its custody from reasonably anticipated dangers. Id. at 319-20. The duty of a school to protect children in its custody falls within the broader definition of duty set forth by Restatement (Second) of Torts § 320 (1965):
One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a *737duty of exercising reasonable care so as to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor
(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and
(b) knows or should know of the necessity and opportunity for exercising such control.
McLeod, 42 Wn.2d at 320 (quoting Restatement (Second) of Torts § 320)). In the school situation, the child “is deprived of the protection of his parents or guardian. Therefore, the actor ... is properly required to give him the protection which the custody or the manner in which it is taken has deprived him.” Restatement (Second) of Torts § 320 cmt. b.
A church which has custody of children during religious classes and services, for example, may have a special protective relationship with the child giving rise to a duty of protection during those times, as the majority indicates. However, as the majority acknowledges, this case does not involve children left in the protective custody of the church during the times when the acts of molestation occurred. Nor were any church-related activities involved. Instead, through a private arrangement between their parents and Wilson, plaintiffs were at Wilson’s home when the acts occurred. Plaintiffs were not deprived of the protection of their parents; defendants were not substituted for plaintiffs’ parents. To conclude under these circumstances, as the majority does, that a special custodial relationship existed between defendants and plaintiffs requiring them to protect plaintiffs from Wilson is to expand this theory of liability beyond recognition.
Nor is the Court of Appeals’ view on this issue sound. That court reasoned, as noted earlier, “that churches and the adult church workers who assume responsibility for the spiritual well-being of children of the congregation . . . have a special relationship with those children” giving rise to a duty to protect the children under facts like those in *738this case. Funkhouser v. Wilson, 89 Wn. App. 644, 660, 950 P.2d 501, review granted, E.R.B. v. Church of God, 135 Wn.2d 1001 (1998). The problem with this reasoning is obvious. The Court of Appeals’ determination is based upon interpretation of church doctrine and religious principles; duty is found because church members assumed spiritual responsibility for children of the congregation. Such a determination plainly runs afoul of the First Amendment. The majority correctly declines to rest its decision on this ground. Majority at 723.
Plaintiffs also argue that duty should be found based upon Restatement (Second) of Torts § 302B (1965). Section 302B provides that “[a]n act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.” Plaintiffs urge that defendants had knowledge that Wilson was an accused child molester and knowingly installed him in a position where he could gain the trust of parents.
Initially, plaintiffs argue that knowledge of the likelihood of a criminal act, alone, gives rise to a duty to safeguard others from the risk of harm. Appellants Br. on Appeal at 16-17. The legal duty to act for the protection of others requires more than knowledge of a risk of harm:
The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.
Restatement (Second) of Torts § 314 (1965) (emphasis added). Section 302B does not state a rule to the contrary. That section defines what constitutes a negligent act or omission where third party conduct is concerned. As the comments to the section explain, generally the actor may proceed on the basis that third persons will not act to cause harm to others, particularly where intentional criminal conduct is involved. Id. § 302B, cmt. d. However, certain situations may give rise to a duty to guard against such *739conduct: where a special responsibility toward the one suffering the harm gives rise to such a duty, or “where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable [person] would take into account.” Id. cmt. e. Plaintiffs urge that the situation in this case is described in comment e, paragraph D which states that a duty may exist “[w]here the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under such circumstances which afford a peculiar opportunity or temptation for such misconduct.” Id. cmt. e, para. D.
A duty as described in cmt. e, para. D might be found in this case if, for example, defendants knew Wilson was likely to molest children, yet allowed him association with children during church activities under circumstances where a peculiar temptation or opportunity for molestation existed. However, the duty claimed here is not for such periods. Plaintiffs were not molested during any church activities or on church premises. Defendants did not bring Wilson and plaintiffs into contact or association under the circumstances when the misconduct occurred—they did not bring Wilson and plaintiffs together at Wilson’s home. There is no allegation or evidence in the record that defendants recommended Wilson or his wife as child care providers, or that they had anything to do with the child care arrangements.21
The majority holds, nevertheless, that a duty existed. The majority finds a New Hampshire case persuasive authority for the proposition that tort liability of a principal may be found for criminal conduct of an off-duty employee *740where the employer knew of the dangerous propensities of the employee, and the association between the victim and the employee was occasioned by the employee’s job. Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995).22
However, this court has held that “exceptional circumstances” are required before imposition of the duty described in cmt. e, para. D to protect others from third party criminal conduct. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 230, 802 P.2d 1360 (1991). Restatement (Second) of Torts, § 302B cmt. e, para. D refers to bringing about an association between the third party causing the harm and the victim under circumstances affording a “peculiar opportunity or temptation for . . . misconduct.” (Emphasis added.) I simply cannot agree that the voluntary association of individuals in a religious organization gives rise to a duty on the part of the church concerning private nonchurch-related child care arrangements between members of the congregation. These are not the “exceptional circumstances” envisioned by our case law nor has the church or its leaders brought about an association under the circumstances where the misconduct occurs, as envisioned by the Restatement.
Rather than limiting application of section 302B comment e, paragraph D to “exceptional circumstances,” the majority’s analysis is far reaching, encompassing a variety of organizations where families associate, such as day care centers, youth groups, civic organizations, sports clubs and activities, music groups, parent-teacher associations and volunteer activities in public and private schools. Virtually any organization providing services or activities for children falls under the majority’s analysis because in any such organization a parent might come to trust those involved in the activity, even those in voluntary capacities. I do not believe that an organization extending member*741ship to families with children should become the guarantor of the other members’ private conduct.23
Sexual abuse of children is a tragedy. Hard questions are presented because the court is faced with strong public policy favoring the protection of children from sexual abuse. At the same time, payment for that harm is sought not from the tortfeasor, but from others. Ultimately, the court is determining potential liability of a third party for another person’s intentional criminal conduct. As difficult as it may be to conclude that a cause of action should not exist, there is no principled basis for finding liability on the part of defendants in this case.
I agree with the trial court and would hold that as a matter of law defendants had no duty to control Wilson or to protect plaintiffs from his criminal conduct at his home under the facts asserted by plaintiffs.
Finally, although I otherwise generally agree with the majority, I think it places too much reliance on DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 960 P.2d 919 (1998) in analyzing RCW 4.16.340. The meaning of the statute was not at issue in that case, as the majority itself acknowledges. Majority at 709.
The issue is not one of immunity. It is a matter of the constitutional right to religious freedom.
This case is unlike some cases where claims of negligent hiring, retention and supervision of ministers, priests and the like have been allowed. First, the record does not indicate that an employment-like situation existed in this case at all. Second, while some courts hold that such claims may be allowed if questions of church law and policy need not be determined, e.g., Isely v. Capuchin Province, 880 P. Supp. 1138, 1151 (E.D. Mich. 1995) (negligent supervision claim), here the church document must be interpreted in order to glean directives for personal conduct based upon religious principles and doctrine.
This case is thus unlike Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996), where the court held that under cmt. e, para. D, the Golden Spread Council of the Boy Scouts of America had a duty not to recommend an individual as a scoutmaster if the council knew or should have known that the individual was peculiarly likely to molest boys. Because defendants in this case made no comparable recommendation, reliance upon that case by plaintiffs and the Court of Appeals is misplaced.
The majority’s reliance on Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995) is misplaced since liability there concerned an employer-employee relationship, while here the majority never adequately addresses the relationship between defendants and Wilson.
This is of particular concern in the case of religious organizations, many of which welcome all, even the flawed.