Sexual Abuse and Misconduct
Actions For
Attorney; Admission to the Bar
Bankruptcy; Chapter 11 Reorganization by Catholic Diocese as a Result of Tort Claims by Victims of Clergy Sex Abuse
Charitable Immunity
Child Abuse and Neglect Reporting Acts
Criminal Cases
Cults: Evidence On
Defamation and Libel
Disclosure; Public Discloure of Confidential Records of Abusive Clergymen
Discovery; Public Disclosure of Information Learned on Discovery
Domestic Violence; Prevention of Domestic Violence Acts
Employment, Loss of
Insurance Coverage
Intervention by Parishioner Giving Money to Roman Catholic Church in Suit against Local church and Archdiocese Arising From Sexual Abuse by a Priest
Jurisdiction of Federal District Court When a First Amendment Defense is Raised in State Court
Jurisdiction Over Church and Church Officials; Long Arm Jurisdiction
Jurisdiction Over Church and Church Officials; Other Cases
Liability of Association in Business of Developing and Selling Educational Courses on Christian Counseling and Which Had Granted a Certificate/License to Counselor/Pastor Accused of Monetary Fraud and of Pressuring Congregant/Client Into Having a Sexual Relationship. Counselor/Pastor Also Made Use of a Temperament Profile or “TAP” test and Accompanying Software Developed by the Association
Liability of Conference of Seventh-Day Adventists for Sexual Molestation Committed by Son of its Pastor-Employee; Conference Knew of Son's Sexual Proclivities Before it Placed the Pastor
Loss of Consortium
Marital Counseling
Mediation; New York State Dispute Resolution Association (NYSDRA) Established a Program to Mediate Claims by Individuals Who, as Minors, Were Sexually Abused by Priests or Deacons of the Albany Roman Catholic Diocese; Plaintiffs Sue the NYSDRA for, inter alia, Fraud, Breach of Contract, and Deceptive Acts and Practices
Megan's Law
Names of Victims; Protective Order
Parole; Probation
Pastoral Counseling
Piercing the Corporate Veil
Registering as a Sex Offender
Reporting Acts
RICO Claim
Statutes of Limitation
Texas’s Sexual Exploitation by Mental Health Services Provider Act
Trafficking Victims Protection Act
Violence Against Women Act/Gender Motivated Violence Act

Actions For

For cases arising out of a pastoral counseling and/or marriage counseling relationship, or simply a consensual relationship between a clergyperson and a parishioner, married or unmarried, see Clergy Malpractice and Breach of Fiduciary Duty; Pastoral and Marital Counseling

Church’s liability for acts of minister under doctrine of respondeat superior    See, e.g., Case # 111 (D. Conn.), but see Case # 676 (2d Cir.). See also Case # 139 (Ohio Ct. App.); Case # 317  (Conn. Super. Ct.); Case # 776 (Okla.)

Plaintiff, while a minor, was sexually abused by a Catholic priest; the last incident of abuse occurred in 1964 when plaintiff was 15; plaintiff claimed his suppressed knowledge of the abuse was recovered through the assistance of psychotherapy in 1991; he commenced suit in 1993, some 30 years after the last incident of abuse; plaintiff sued the Catholic diocese alleging, inter alia, that although the diocese did not have actual knowledge of the abuse he suffered, it received reports in December, 1964 and January 1966 that the same priest had abused other individuals; plaintiff asserted that, upon learning of such incidences, the diocese could have ascertained the identity of other potential minor victims and had a fiduciary duty to either warn them or inform them that they may have been subject to abuse, the memory of which they suppressed, so they could prevent future harm or seek counseling and treatment to alleviate the harm already suffered; plaintiff sued the diocese for, inter alia, breach of fiduciary duty and negligent infliction of emotional distress; court discusses application Conn. Gen. Stat.§ 52-595, providing for the tolling of the limitations period in, inter alia, cases arising out of sexual abuse, where the defendant fraudulently conceals from plaintiff the existence of the cause of such action; here plaintiff claimed that if the diocese had not breached its fiduciary duty toward him, he would have discovered that he suffered abuse back in 1966 and could have received treatment at an early period, avoiding years of psychological problems; Connecticut law requires a defendant owing a fiduciary duty to a plaintiff to prove under the tolling statute that it did not fraudulently conceal the plaintiff's cause of action; however, in order to invoke the tolling statute, it is the plaintiff, not the defendant who must demonstrate that he or she was ignorant of the existence of his or her cause of action; court discusses whether the diocese had, in fact a fiduciary duty to plaintiff and whether so finding would interfere with the diocese’s First Amendment right of free exercise; it was not error under the circumstances for the trial court to charge the jury that it could draw a negative inference from the diocese's failure to produce as a witness the priest who abused plaintiff    Case # 676 (2d Cir.)

Plaintiff, while a minor, was sexually abused by a Lutheran Pastor. The abuse occurred in Massachusetts in the respective residences of the plaintiff and Pastor while the Pastor was serving as Pastor Emeritus of a congregation within the New England District of the Lutheran Church-Missouri Synod. Prior to retiring and assuming the post of Pastor Emeritus in Massachusetts, the Pastor served as a pastor in New York, in the Atlantic District of the Missouri Synod. Plaintiff sued the Missouri Synod and the Atlantic District, claiming that they negligently employed, supervised, and retained the Pastor in a position of trust with the knowledge that he had a history of sexually assaulting minors. It was also alleged that defendants failed to inform the New England District of the Pastor’s prior misconduct, allowing him to remain rostered as a Pastor knowing that during his ministry in the New England District he would have unsupervised access to children. The district court granted summary judgment dismissing the claims against the Synod and the Atlantic District on the grounds that (1) suits for negligent hiring, supervision and retention against the church defendants would violate the First Amendment; (2) the Synod and Atlantic Division lacked the power to remove a Pastor from a local Congregation; and (3) the evidence did not show that defendants had the requisite prior knowledge of the Pastor’s potential threat to minors. Although not adopting all of the district court’s reasoning, the Second Circuit affirmed the grant of summary judgment on the ground that the evidence did not show that defendants had the requisite prior knowledge of the Pastor’s potential threat to minors and on the additional ground that, as pertained to the alleged tort of negligent supervision, the tort was not committed on the employer’s premises or with the employer’s chattels. The Second Circuit declined to address the district court’s holding that suits for negligent hiring, supervision and retention against the church defendants would violate the First Amendment, but seemed to question the validity of such conclusion   Case # 1749 (2d Cir.), affirming, Case # 1431 (S.D.N.Y.)

Catholic priest from Sri Lanka who was allegedly granted “faculties” and dual employment with the New York Archdiocese allegedly sexually abused plaintiff, an adult female, while ostensibly treating plaintiff for problems arising from past sexual abuse. Plaintiff sued, inter alia, the Archdiocese and its Cardinal, for negligence; harassment, battery and sexual assault, negligent and intentional infliction of emotional distress; breach of fiduciary duty, and negligent hiring and supervision. Plaintiff’s allegations made out a claim for more than mere “seduction”; it made out a claim for battery and sexual assault against the priest based on allegations of nonconsensual sexual contact. However, the Archdiocese and Cardinal could not be held vicariously liable on respondeat superior grounds for the sexual misconduct of the priest, because the priest’s conduct was outside the scope of employment as a priest, and was unrelated to the furtherance of the Church Defendants’ business, especially in light of the fact that plaintiff conceded that the priest’s conduct “was not a part of any religious or faith-based action that he was giving, or that [plaintiff] sought.” To the extent plaintiff was attempting to assert a claim for common-law harassment, no such claim could be maintained. Plaintiff failed to state a claim for negligent infliction of emotional distress. Plaintiff failed to state a claim for intentional infliction of emotional distress against the Church Defendants based on vicarious liability for the priest’s actions. However, plaintiff stated an intentional infliction claim directly against the Church Defendants based on their alleged scheme of concealment or failure to warn. Plaintiff failed to state a breach of fiduciary duty claim against the Church Defendants. Plaintiff stated a claim for negligent hiring and supervision, and the court denied the motion by the Archdiocese and Cardinal – who denied the existence of an employment relationship with the priest – for summary judgment on the claims for negligent hiring and supervision, without prejudice to renewal of the motion following completion of discovery. The Church Defendants’ request to strike alleged scandalous material from the complaint was denied   Case # 2319 (S.D.N.Y.).   Faced with a new set of motions, the district court now to dismiss the negligent hiring/ supervision/ retention claims against the Archdiocese and Cardinal on statute of limitations grounds, without prejudice to renew if further discovery revealed that all the misconduct plaintiff alleged occurred prior to August 31, 2001. However, the court held that the intentional infliction of emotional distress claim against the Church defendants was time-barred. Although the negligent hiring, supervision, and retention claims against the Cardinal were not time-barred, on the Cardinal’s motion for reconsideration or reargument, the district court, on consideration of new evidentiary submissions, held that the Cardinal was entitled to summary judgment dismissing said claims against him. The new evidence demonstrated that the Cardinal neither knew, nor should have known at any time prior to the relevant incident, of the Sri Lankan priest’s propensity to engage in inappropriate sexual conduct. In 2002 – after the sexual abuse allegedly suffered by plaintiff – in response to the growing sexual abuse scandal within the Church, the practice of viewing all ordained priests as having “universal faculties,” so that a visiting priest did not have to go “through the Chancery” and generate all the paperwork inherent in a vetting by the Archdiocese, was changed to require all visiting assisting priests to receive Archdiocesan faculties. Consequently, it could be argued that the more stringent procedures with regard to hiring visiting priests that the Archdiocese, presumably at the Cardinal’s direction, had adopted in 2002, supported a finding that the less careful procedures in effect beforehand, when the Sri Lankan priest was hired to assist at the parish church where plaintiff was a parishioner, constituted negligent hiring ascribable to the Cardinal. However, the district court said that “such a theory of negligent hiring was not legally viable in the case at bar.” While there was no evidence that the priest presented a letter of reference from his bishop when he was hired at the parish church, that was not sufficient to impose liability for negligent hiring. The priest was an ordained Roman Catholic priest upon which the parish church was entitled to rely. As for the Cardinal, his Archdiocese was not responsible for the priest’s ordained status, and in the absence of any evidence that the Cardinal knew or could have known of the priest’s propensities, he could not be held liable in law for a failure to screen or determine the priest’s fitness for the priesthood, or for his hiring as a parish assistant. The court also noted that the fact that plaintiff did not yet have an opportunity to depose the Cardinal did not preclude the grant of summary judgment dismissing the negligence claims against the Cardinal   Case # 2606 (S.D.N.Y.).  As a result of the district court’s prior orders, the only claims remaining in this case were for negligence and negligent hiring, supervision, and retention against the Archdiocese and the local parish church. But because plaintiff offered no evidence that defendants knew or should have known of the priest’s alleged propensity to commit sexual abuse, plaintiff’s negligence claims failed as a matter of law, and the district court now granted defendants’ motion for summary judgment. Although the Church defendants may not have investigated the priest prior to hiring him and may not have instructed him not to touch females, the Church defendants had no duty to investigate the Sri Lankan priest, or to warn him not to sexually abuse parishioners, when they had no reason to believe that he would engage in such misconduct. Under New York law, there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee   Case # 3959 (S.D.N.Y.)

Action against priest for assault and battery, false imprisonment, and intentional infliction of emotional distress allowed to stand; claim for breach of fiduciary duty and violation of the Gender Motivated Violence Act, 42 U.S.C. § 13981, dismissed; claims against church and diocese for negligent hiring, supervision, and retention, for premises liability, for infliction of emotional distress all dismissed    Case # 112 (S.D.N.Y.)

Plaintiffs claimed childhood sexual abuse by certain Diocesan priests from 1956 to 1985. They alleged that the Archdiocese engaged in a pattern of concealing child abuse by clergy in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). In asserting their RICO claim, plaintiffs alleged that the Archdiocese concealed the truth about sexual predators in its midst for so long that by the time plaintiffs learned of the Archdiocese’s culpability, it was too late to pursue state law tort remedies. In upholding dismissal of the RICO claim, the Third Circuit held: (1) The lost opportunity to bring state law personal injury claims for childhood sexual abuse is not an injury to “business or property” within the meaning of 18 U.S.C. § 1964(c), and cannot support a civil RICO claim under 18 U.S.C. § 1962(c). (2) Plaintiffs’ inability to plead a violation of § 1962(c) also required dismissal of their RICO conspiracy claim under 18 U.S.C. § 1962(d). (3) Plaintiffs’ claims against the Archdiocese under 42 U.S.C. § 1985(2) and (3) and 42 U.S.C. §1986 were also properly dismissed   Case # 3037 (3d Cir.)

In a diversity case, plaintiff, sexually abused as a minor by a priest, sued the Archdiocese of St. Louis, Missouri for, inter alia, (1) negligent hiring, retention and supervision and (2) negligent entrustment and breach of fiduciary duty. Suit was pending in the U.S. District Court for the Eastern District of Missouri. On the Archdiocese’s motion to dismiss, the district court held (a) under choice of law principles Missouri law governed the actions against the Archdiocese; (b) under Missouri case law, plaintiff’s claims for negligent hiring, retention and supervision were barred; (c) nevertheless, because the Missouri Supreme Court’s decision barring negligent hiring, retention, and supervision claims against a religious institution was based on the state court’s interpretation of the First Amendment and a federal court is not bound by a state court’s interpretation of the U.S. Constitution, the U.S. district court was not bound by the holding of the Missouri Supreme Court and plaintiff could prosecute its claims for negligent hiring, retention, and supervision without offending the First Amendment rights of the Archdiocese. (d) However, plaintiff’s claims for negligent entrustment and breach of fiduciary were dismissed because Missouri case law barring such claims was not based on a federal constitutional issue and was binding on the U.S. district court   Case # 3783 (E.D. Mo.)

In a diversity case, plaintiff, sexually abused as a minor by a priest, sued the Archdiocese of St. Louis, Missouri for (1) negligent hiring, retention and supervision and (2) respndeat superior, negligent entrustment and breach of fiduciary duty. Suit was pending in the U.S. District Court for the Eastern District of Missouri. On the Archdiocese’s motion to dismiss, the district court held (a) under choice of law principles Missouri law governed the actions against the Archdiocese; (b) under Missouri case law, plaintiff’s claims for negligent hiring, retention and supervision were barred; (c) nevertheless, because the Missouri Supreme Court’s decision barring negligent hiring, retention, and supervision claims against a religious institution was based on the state court’s interpretation of the First Amendment and a federal court is not bound by a state court’s interpretation of the U.S. Constitution, the U.S. district court was not bound by the holding of the Missouri Supreme Court and plaintiff could prosecute its claims for negligent hiring, retention, and supervision without offending the First Amendment rights of the Archdiocese. (d) However, plaintiff’s claims for breach of fiduciary duty and respondeat superior were dismissed because Missouri case law barring such claims was not based on a federal constitutional issue and was binding on the U.S. district court. As to plaintiff’s state law claim for negligent entrustment, plaintiff had either abandoned the claim or failed to state a cause of action   Case # 3833 (E.D. Mo.)

Plaintiff, studying to be ordained as a Jesuit priest, alleged that the sexual harassment of his superiors was so severe that he was constructively forced to leave the Jesuit order before taking vows to become a priest; plaintiff filed against the Jesuit order a federal cause of action for sexual harassment in violation of Title VII, as well as state law claims for failure to investigate, for constructive wrongful discharge, and for breach of contract; the "ministerial exception" to Title VII did not bar plaintiff's claim of sexual harassment against the Jesuit order; on remand the trial court would have to determine if the ministerial exception barred any of the state law claims    Case # 661 (9th Cir.), reversing, Case # 180 (N.D. Cal.). Cf. Plaintiff, a former Roman Catholic seminarian, claimed he was regularly and persistently subjected to unwanted homosexual advances during his lengthy seminary training despite complaints to supervisors. He was allegedly forced to drop out before ordination due to the homosexual harassment, and was now without a meaningful career. He sued the Diocese and a number of its priests for breach of an implied contract by the creation of a hostile education and work environment, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, intentional infliction of emotional distress, and fraud and deceit. The complaint was dismissed on a pre-answer motion to dismiss on the ground that entertaining it would violate the Religion Clauses of the First Amendment. The New Jersey Supreme Court now reversed and remanded to the trial court to determine, on an issue-by- issue basis, whether any of plaintiff’s claims could be adjudicated consistent with First Amendment principles. While court could not entertain a suit by plaintiff for reinstatement as a seminarian, if his claims could be adjudicated consistent with First Amendment principles he could establish a right to monetary relief. New Jersey’s highest court sets out operative principles of law    Case # 1309 (N.J.), reversing, Case # 1057 (N.J. Super. Ct. App. Div.).

Sexual abuse of a minor parishioner by Catholic priest; plaintiff’s claims against the priest for the assaults and for breach of fiduciary duty, as well as his claims against the Archdiocese for negligent hiring and supervision, outrageous conduct, breach of fiduciary duty, concert of action and conspiracy, and vicarious liability; discussion of applicable limitations periods under Colorado law by Circuit Court of Appeals; Court of Appeals does not discuss district court’s holding that the First Amendment barred plaintiff’s claims against the Archdiocese for negligent hiring and supervision; nor was the Archdiocese, according to the district court, vicariously liable for the priest’s actions or, under the facts, guilty of outrageous conduct    Case # 577 (10th Cir.)

Plaintiffs, sexually abused by Catholic priest when they were both minors and adults, sued, inter alia, the religious society which admitted and ordained the abusing priest to the priesthood and which was responsible for his assignments; a 17 year statute of limitations running from the date plaintiff attains his or her majority applies to claims of sexual abuse suffered by minors; acts of alleged sexual abuse after a plaintiffs attains the age 18 are governed by a 3 year limitations period; extensive screening practices by the society entitled it to summary judgment on plaintiffs’ negligent screening and hiring claims; under the facts, the society was not entitled to summary judgment dismissing claim for negligent supervision; Connecticut law    Case # 620 (D. Conn.)

Plaintiff alleged that from 1968 through 1969, while a parishioner at a local Catholic Church, she was sexually assaulted and abused by a Roman Catholic priest assigned to perform various tasks on behalf of the diocese and local church and that the abuse occurred at various locations including the rectory of the local church. The complaint did not allege any other facts concerning the circumstances surrounding the alleged assaults. On defendants’ motion to dismiss, plaintiff’s claims against the diocese and parish church for respondeat superior and breach of fiduciary duty were dismissed, but without prejudice to plaintiff’s filing an amended complaint. The motion to dismiss claims against the diocese and parish church for negligent hiring, training, retention and supervision and negligent infliction of emotional distress was denied. Plaintiff filed an amended complaint, alleging additional facts to support her respondeat superior and breach of fiduciary duty claims and the court denied the renewed motions to dismiss said claims. Plaintiff alleged that she was assaulted by the priest during counseling sessions designed to attempt to bring plaintiff closer to the Church and her religious faith, thereby increasing financial donations to the Church and volunteer time spent by plaintiff and her family in furtherance of the Church’s business. These alleged acts were not so clearly outside the priest’s scope of employment that the question was one of law and the court refused to dismiss the respondeat superior claim. Plaintiff also alleged sufficient facts to indicate a unique situation that supported a fiduciary duty claim. Plaintiff alleged she was a member of church or diocesan sponsored activities such as the Catholic Youth Organization (CYO) and the church choir, and consulted with the abusive priest for spiritual and religious counseling, as encouraged by defendant local church and diocese. Additionally, the priest was alleged to have attended dinners at plaintiff’s family home and vacationed with them in Rhode Island. Plaintiff alleged that defendant parish church and diocese encouraged the priest to involve himself in the choir and CYO classes, as well as to have interaction with church members and that defendants knew or should have known that the priest had engaged in a sexual relationship with another woman prior to his assignment to defendant parish church. Connecticut law. See Case # 1443 (D. Conn.) and Case # 1599 (D. Conn.)

A group of 73 Black and Hispanic plaintiffs, sexually abused as minors by Catholic priests, alleged, inter alia, that the Archdiocese: (1) knew that its priests were sexually abusing minors, took no preventive steps, but placed or kept said priests in minority communities where “demographic factors” created a “high risk” of vulnerability to sexual abuse; (2) knew the extent of the abuse problem but concealed that knowledge from plaintiffs, whose settlement approaches and demands would have been different had they possessed the withheld facts; (3) based settlement offers on racial criteria, with whites victims being offered more than nonwhite victims; (4) subjected the nonwhite plaintiffs to various indignities not aimed at white victims, for which see the Case Digest; and (5) joined with the mediator it selected to settle claims to stall, prevent, or unfairly influence the mediation process. Plaintiffs sued the Archdiocese, members of the hierarchy, and agents employed by the Archdiocese in U.S. District Court, invoking the court’s federal question jurisdiction by claiming that defendants’ actions violated the U.S. Constitution and federal prohibitions against racial discrimination; that defendants’ actions were done under color of law because they were “enabled, aided, or assisted” by the use of federal funds; and that defendants’ actions violated the Racketeer Influenced and Corrupt Organizations (RICO) Act. Held: The counts of the complaint asserting federal constitutional and statutory violations were dismissed with prejudice. Plaintiffs’ state law claims were dismissed without prejudice to their being brought in state court. The constitutional guarantees of equal protection and due process do not govern the conduct of private entities and the complaint made no allegation that any of defendants’ conduct occurred in the course of activities – such as employment or the provision of public accommodations – that triggered federal prohibitions of racial discrimination by private entities. Nor did the complaint state a sufficient claim of state action in alleging that the defendants were aided by the receipt of government funds. State action is not established by a private entity’s receipt of such funds or by its performance of services for the government. The actions alleged by the complaint were not governed by federal prohibitions against racial discrimination. Nor was defendants’ conduct governed by the Racketeer Influenced and Corrupt Organizations Act (RICO). Injuries of a personal nature, such as harm to a person’s mental health, emotional or physical well-being, or ability to earn income, are not “business or property” injuries covered by the RICO statute   Case # 4191 (N.D. Ill.)

Plaintiff alleged that, prior to mass, Catholic priest came up behind her, grabbed and held her tightly, and kissed her neck; after mass, the priest allegedly rubbed plaintiff's back; held, inter alia, plaintiff was not entitled to bring suit using a pseudonym; under facts, priest could not be ordered by the court to seek professional counseling as he was not accused of “sexual abuse” as defined by the applicable statute; plaintiff did not state claim against priest for sexual exploitation by a counselor or therapist; plaintiff stated claim for both assault and battery; even proffered handshake by the priest during the mass could under the circumstances be considered as stating a claim for an “assault”; plaintiff failed to state claim for fraud against the priest, local church, diocese, or bishop; plaintiff failed to state claim for breach of fiduciary duty against the local church, the diocese, or bishop; nor was a breach of fiduciary claim stated against the priest; while such a claim is not the same as one for “clergy malpractice” it cannot be based, as it was here, simply on the clerical status of defendant; plaintiff did not state claims against priest for tortuous infliction of severe emotional distress or for negligence in failing to control his sexual impulses or to obtain counseling to treat them; plaintiff alleged sufficient facts to avoid dismissal of claim against local church for negligent supervision and respondeat superior liability; court holds it was premature to address the First Amendment challenges to plaintiff’s surviving claims on the motion to dismiss; court addresses questions pertaining to federal diversity jurisdiction and survival of state claims after dismissal for lack of federal jurisdiction of prior action brought in federal court    Case # 598 (N.D. Iowa) (Iowa law)

Plaintiff, a female Presbyterian minister, accused an individual who was the director of music and a church elder of sexual harassment. After she was fired, plaintiff sued, along with church elder and the local church, the regional Presbytery which operated the local church of which she had been the minister. On the Presbytery’s motion under Fed. R. Civ. P. 12(b)(6) to dismiss, the district court held: (1) Plaintiff timely filed an EEOC charge on her sex discrimination and sex harassment claims; (2) Plaintiff stated a claim against the Presbytery for intentional failure to supervise, and (3) the claim was timely under the applicable Kansas statute of limitations; (4) Plaintiff’s claim against the Presbytery for negligent infliction of emotional distress dismissed on First Amendment grounds, but (5) her claim for intentional infliction of emotional distress was not subject to dismissal    Case # 1567 (D. Kan.) (Kansas law)

Plaintiff, a female Presbyterian minister, accused an individual who was the church choir director and a church elder of sexual harassment. Plaintiff sued the church at which she had been employed for sexual harassment and retaliation. Invoking the “ministerial exception,” the church moved to dismiss plaintiff’s Title VII claims for lack of subject matter jurisdiction and failure to state a claim. Considering defendant’s motion more appropriately treated as a challenge to the sufficiency of plaintiff’s claims, and not a jurisdictional challenge, the district court held that the First Amendment did not preclude plaintiff from stating claims for sexual harassment and retaliation   Case # 1765 (D. Kan.)

Former disciples of self-proclaimed yoga guru sued their former leader when he was revealed to be a charlatan; plaintiffs’ claims for intentional infliction of emotional distress stemming from guru’s sexual liaisons with devotees, and claims for breach of fiduciary duty, and breach of contract on a third party beneficiary theory of recovery dismissed; claims for fraud and misrepresentation and for unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A allowed to go forward   Case # 340 (D. Mass.)

Plaintiffs, secular, lay employees who performed non-religious, administrative tasks for a local United Methodist Church (UMC) and who were sexually harassed by the pastor, filed sexual harassment hostile environment claims against the hierarchical defendants, the North Carolina Conference of the UMC and the Raleigh District of the North Carolina Annual Conference of the UMC; held (1) although 42 U.S.C. § 2000e-1 permits religious institutions to discriminate based on religion or religious preferences, Title VII does not permit religious organizations to discriminate on the basis of race, sex, and national origin and Title VII applied to the defendants' conduct; (2) the court rejected defendants argument that their decisions with respect to the supervision and management of the pastor were insulated from judicial review because judicial resolution of plaintiffs' claims would interfere unconstitutionally with the employment relationship between the church and its minister  and because those decisions represented matters of internal church governance; under the facts, entertainment of plaintiffs’ hostile environment claims would violate neither the free exercise or establishment clause of the First Amendment; however, there was a failure to state a claim for retaliation    Case # 652 (E.D. N.C.)

Roman Catholic priest filed Title VII claims against the Archdiocese and the parish church alleging sexual harassment (better described as a complaint of a lack of privacy in the rectory), race and national origin discrimination, and retaliation. Defendants moved for summary judgment on the ground that plaintiff’s charge of discrimination filed with the EEOC was untimely, because plaintiff named the Archdiocese, not his actual employer, the parish, a separate, non-profit corporation, in the EEOC charge. The court refused to dismiss on said ground. Given that the Archbishop had the authority to assign and to remove priests from the parish and the Archbishop expected such priests to obey his directives and the policies of the Archdiocese, there were genuine issues of material fact as to whether the Archdiocese “totally dominated” the parish to such an extent that the parish had no separate corporate existence and functioned solely to achieve the purposes of the dominant entity. However, the court did not have subject matter jurisdiction over plaintiff’s Title VII claims because personnel decisions affecting clergy cannot be reviewed by civil courts without violating the First Amendment   Case # 3347 (D. Neb.)

^Plaintiff was sexually abused in the early 1980s while a student at a Jesuit/Catholic high school in Texas by B, a lay faculty member. In 2009, plaintiff sued the school and the regional Jesuit Province and the Provincial Superior, asserting that said defendants were both directly and vicariously liable for plaintiff’s harm. Held: (1) Defendants were not vicariously liable for B’s alleged sexual assault because B was not acting in the scope of his employment when he abused plaintiff. (2) In addition, the Provincial defendants were not vicariously liable because they were not B’s employer. They had no legal control over the school’s operation and no involvement in, or even knowledge of, B’s employment. Further, (3) because the Provincial defendants did not employ B or own or operate the school, they had no duty to protect plaintiff from B and could not be liable for negligence. (4) As to the direct liability of the school for its own acts of negligence, the school, as B’s employer, had a duty to exercise reasonable care to investigate B’s background for fitness for the position and to remain knowledgeable of that fitness. And the school also had a duty to protect plaintiff from foreseeable harm. But, here, the school was in no way negligent, because it had no knowledge or reason to know of any improper acts by B or any risk that he would molest students. See Case Digest for details. (5) B’s self-knowledge of his sexual propensities was not imputable to defendants. (6) Nor could defendants’ general knowledge that the Church had a problem with sexually abusive Jesuit teachers give rise to an inference that defendants had constructive knowledge that B in particular had a propensity to sexually abuse students. Here, defendants had neither actual nor constructive knowledge that B presented a risk of harm to students. (7) The alleged failure by defendants to report under the Texas child abuse reporting statute did not, as a matter of law, give rise to negligence per se and gross negligence claims. Nor is there a common-law duty to report child abuse under Texas law. And even if there were such a duty – whether under the common law or statute – defendants had no duty to report B because they had no actual or constructive knowledge of his abuse of plaintiff or anyone else. (8) Defendants were not guilty of fraud, (9) fraudulent concealment, (10) breach of fiduciary duty, (11) intentional infliction of emotional distress, (12) civil conspiracy to conceal B’s sexual abuse of minors in order to avoid prosecution and civil liability, or (13) gross negligence. Finally, (14) the applicable statutes of limitation barred all claims against the school. Because the claims of sexual abuse were not objectively verifiable, plaintiff could not rely on the discovery rule to extend the limitations period. Nor was plaintiff entitled to equitable tolling of the statutes of limitation. Finally, the court rejected plaintiff’s argument was that his “mental conditions of unsound mind and repressed/suppressed memory” qualified as a legal disability, triggering the Texas statute tolling the limitation periods. See Case Digest for complete details   Case 3912 (S.D. Tex.)

Plaintiff brought a claim against the United States under the Federal Tort Claims Act (FTCA) alleging that, while a minor, he was sexually assaulted and abused by two ordained Roman Catholic priests serving as chaplains in the U.S. Army Chaplain Corps.  Although, pursuant to 28 U.S.C. § 2680(h), claims against the United States arising out of assault are barred, unless the perpetrator is an investigative or law enforcement officer, the assault exception does not bar an FTCA claim arising out of an assault if the victim can prove the government was negligent in supervising its employees. Plaintiff’s claims against the United States were for negligent hiring and supervision by the Army. Plaintiff pled sufficient facts alleging that the Army failed to investigate the backgrounds of the Chaplains and failed to take action after receiving complaints about the Chaplains. Therefore, to the extent the United States moved to dismiss plaintiff’s claims pursuant to the intentional tort section of the FTCA, the motion was denied   See the case also for a discussion of the limitations period under the provisions of the FTCA and doctrine of equitable tollin. Case # 2791 (W.D. Wash.)


Plaintiff, allegedly defrauded of at least $286,000 and seduced by her pastor, sued the General Board of the Church of the Nazarene and the Arizona/Southern Nevada District Church of the Nazarene for negligent hiring, negligent supervision, negligent retention, negligence under a theory of respondeat superior, intentional infliction of emotional distress, securities fraud, constructive fraud, and racketeering. The claims in question against these hierarchical institutions could be resolved by application of neutral principles of civil law and, therefore, that the trial court had subject-matter jurisdiction   Case # 2428 (Ariz. Ct. App.)

In a tort action against a religious order commenced in 2003 arising from childhood sexual molestation of the plaintiffs by one of the Order’s priests in 1962 and 1972, the applicable statute of limitations barred plaintiffs’ claims. The action was brought pursuant to the one-year revival period for previously time-barred claims set forth in Cal. Code Civ. Proc., § 340.1(c). Pursuant to § 340.1, plaintiffs had to produce evidence that the religious order knew or had reason to know, or was otherwise on notice of any unlawful sexual conduct by its priest prior to the abuse of plaintiffs. The summary judgment evidence submitted by the religious order showed that there was nothing in its files concerning allegations of abuse against the priest. Plaintiffs’ opposing evidence indicated that the priest had molested several other boys (although the evidence did not establish whether that abuse occurred before or after the abuse of plaintiffs) and that the religious order had failed to document complaints of abuse by another clergy member. However, evidence that the priest who had abused plaintiffs had lied to his superiors about what he had done was not relevant to the analysis because it did not suggest that the religious order had any prior knowledge of unlawful sexual conduct by the priest. Absent evidence that any other victims had reported sexual abuse by the priest who abused plaintiffs prior to the alleged incidents, the court could not infer that other reports of molestation by the priest were received by the religious order but not documented. Court discusses when a reasonable inference of notice can or cannot be made   Case # 3095 (Cal. Ct. App.)

Plaintiff alleged that, while a minor, he was sexually abused by a Roman Catholic priest. Plaintiff alleged the archdiocese and local parish church to which the priest had been assigned were guilty (1) of negligently failing to adequately supervise, evaluate, and train the priest and of failing to investigate and report wayward behavior by the priest; (2) of reckless and wanton behavior; (3) of liability for the sexual assault and battery by the priest by virtue of the doctrine of respondeat superior; and of (4) civil conspiracy. Summary judgment was granted dismissing the claims against the corporate defendants. The local church had no duty to plaintiff because it had neither the mandate nor the ability to supervise, discipline or otherwise exercise control over priests assigned to it by the archdiocese. There was no respondeat superior liability because there were no facts suggesting that the alleged abuse in any way was undertaken to benefit the corporate defendants or was perpetrated in the conduct of the Church’s affairs. As to the civil conspiracy claim, it was alleged that the corporate defendants conspired with the non-party U.S. Conference of Catholic Bishops and various bishops to conceal complaints of child abuse and criminal conduct by clergy for the purposes of receiving charitable contributions and avoiding scandal. In furtherance of said conspiracy, it was alleged that the corporate defendants concealed allegations of child abuse made against the priest, moved him from parish to parish without informing parishioners of the allegations, maintained secret files regarding the priest, and “fraudulently and consciously misled” parishioners and the public into believing that the priest was fit to be a priest. A claim of civil conspiracy is insufficient unless it is based on some underlying cause of action. The underlying cause of action was sexual abuse. However, there was no evidence that abuse of minors in general or abuse of the plaintiff in particular, or any physical abuse for that matter, was the object of any conspiracy. Further, there was no evidence that the alleged abusive priest was a member of the alleged conspiracy. Finally, there technically is no cause of action for “civil conspiracy.” See Case Digest for details   Case # 2954 (Conn. Super. Ct.)

Because plaintiff made no claim that a Roman Catholic priest’s sexual abuse of him was done in any way to advance or further the business of the church or archdiocese, even in some misguided manner, the vicarious liability/respondeat superior claim against the parish church and archdiocese was struck from the complaint. Plaintiff’s claim for civil conspiracy against the defendants was also struck. However, the court refused to strike that portion of the prayer for relief which sought punitive damages. Plaintiff alleged in two counts of the complaint that the archdiocese and local church knew of the priest’s proclivity to abuse children sexually and consistently allowed him to have private access to such children, including the plaintiff. Reckless indifference can justify punitive damages   Case # 2430 (Conn. Super. Ct.)

Plaintiff alleged that he was sexually abused at a Catholic shelter for homeless families by an employee of the shelter and that the shelter was guilty of, inter alia, negligent hiring and supervision. Although the shelter was separately incorporated, plaintiff also sued the Norwich Roman Catholic Diocese on the theory that a principal-agent or employer-employee relationship existed between the Diocese and the other named defendants and that the Diocese therefore should be held responsible for the injuries sustained by plaintiff. As proof, plaintiff pointed to the certificate of incorporation filed by the shelter stating that it was to “operate under the auspices, guidance, and direction of the Roman Catholic Church and of the Diocese of Norwich.” Second, plaintiff cited the fact that the shelter was covered by an insurance policy that identified the Diocese as the holder of the policy. The Diocese argued that the statement contained in the certificate of incorporation was a purely “aspirational statement” and that the Diocese had never directed or controlled the operation of the shelter. With respect to the insurance policy, the Diocese responded that the shelter leased its premises from Saint Joseph’s Home for the Aged, Inc., a corporation affiliated with the Diocese and as a result of the landlord-tenant relationship between its affiliate, Saint Joseph’s, and the shelter, the shelter had been able to be included as an additional insured in the comprehensive liability insurance coverage which the Diocese had maintained with the Catholic Mutual Relief Society of America. On this basis, the Diocese maintained that there were no genuine issue of material fact and that, under applicable law, it was entitled to summary judgment. However, the court denied summary judgment, holding that, together, the express language of the Shelter’s certificate of incorporation, which referred directly to the Diocese, and the fact that the insurance policy that covered the Shelter was held in the name of the Diocese, raised questions as to whether and to what extent the Diocese was involved in or exercised control over the operation and management of the shelter, and, accordingly, whether an agency or employer-employee relationship existed between the Diocese and the remaining defendants   Case # 1806N (Conn. Super. Ct.)

Plaintiff alleged that while attending a Catholic high school in Connecticut she was sexually abused and assaulted by a nun, while the nun was teaching, supervising and chaperoning the students. Under the doctrine of respondeat superior, plaintiff sued two religious communities of women that allegedly controlled, supervised and were responsible for the teachers at the school. The court granted a motion to strike the vicarious liability claim. The allegations in the complaint did not spell out the actions of a wayward employee who started out on her employer’s business, but somehow went astray or became misguided. There was nothing in the complaint upon which to base even an inference that the alleged sexual abuse was a misguided attempt of, or deviation from, teaching and chaperoning students or that the defendant employer/supervisor received, or could receive, any benefit from it whatsoever. The court took note of a recent case denying a motion to strike a count seeking to hold a diocese, church and bishop liable for an alleged sexual assault on a minor by a priest. Said case had taken note of a recent study which reported that 4% of all priests had allegations of abuse against them. Based on said study, the court held that further factual inquiry was called for and that it was not prepared to conclude that an activity which might be undertaken by as many as 4% of an employer’s employees is a clear cut digression from duty as a matter of law. However, said case was not particularly relevant to the disposition of a motion to strike involving the alleged activities of a Catholic nun. There were no comparable statistics or studies involving sexual abuse, or allegations of such abuse, by nuns and plaintiff’s allegations seeking to hold the employer/supervisor vicariously liable were insufficient, as a matter of law. The court also granted the motion to strike the claim that defendants engaged in a civil conspiracy. Failing to allege that any of the acts in furtherance of the conspiracy caused the actual injury, the sexual abuse, the conspiracy counts were stricken   Case # 1706 (Conn. Super. Ct.)

Plaintiff, alleging that, as a minor, he was sexually assaulted by a Roman Catholic priest, sued the diocese, bishop, and parish church based on the doctrine of respondeat superior. Although a string of Connecticut cases had held that, as a matter of law, whenever any Catholic priest sexually assaults a minor, that priest has abandoned his religious institutional employer’s business so as to preclude the doctrine of respondeat superior from being invoked for the purpose of imposing vicarious liability on his employer or supervisors, the court held that the matter was not ripe for determination and denied the motion to strike the respondeat superior claim. The number of reported allegations of sexual assaults by priests had risen so dramatically that one had to wonder whether those judges who had previously granted motions to strike as a matter of law would be so quick to conclude that there could not possibly be a factual dispute over whether such molestation could take place within the scope of a priest’s employment. Recent reports suggested that approximately 4% of all priests in ministry between 1950-2002 had allegedly engaged in abuse. The court was not prepared to conclude that an activity which might be undertaken by as many as 4% of an employer’s employees is a clear cut “digression from duty” as a matter of law. Further examination of the facts may well establish that such activity was definitively beyond the scope of a priest’s employment, but the court refused to accept such conclusion as a matter of law   Case # 1705 (Conn. Super. Ct.)

Plaintiff was sexually and physically abused by the minister of a local Church of Christ. Plaintiff failed to state a cause of action against the Association of the United Church of Christ despite his claim that the Association had placed a student minister at the local church who had knowledge that the abusive minister had a history of mixing sex and beatings with counseling. No court had ever held that an employee (the student-minister being an employee of the Association) had a duty to report historical deviant sexual behavior of a non-employee (the abusive minister not being an employee of the Association) to his employer (the Association). Neither was there case law which would require an employer (the Association) to seek out such information from an employee (the student minister) about a co-worker (the abusive minister) who is not their employee. Absent a special relationship of custody and control, there is no duty to protect a third person from the conduct of another. The plaintiff failed to allege that the Association had any power to control the actions of the local church or the actions of the local church’s minister    Case # 1112N (Conn. Super. Ct.)

Roman Catholic priest accused of sexual abuse of minor; under the facts, diocese and local church held not liable under doctrines of respondeat superior or apparent authority, nor for negligent hiring and supervision; diocese did not violate Conn. Unfair Trade Practices Act    Case # 723 (Conn. Super. Ct.)

Where priest was accused of sexually abusing minor during counseling sessions, the local church and diocese could not be held liable under the doctrine of respondent superior as a matter of law because such actions were outside the scope of employment and did not benefit the employer; however, the court had jurisdiction to entertain actions against the church and diocese for negligent hiring, training, retaining, and supervising, and for negligent infliction of emotional distress    Case # 317 (Conn. Super. Ct.)

Neither the establishment nor the free exercise clauses preempt or prohibit a court from determining a negligent supervision claim against diocese and diocesan personnel where plaintiffs claimed they were sexually abused by priest while they were minors    Case # 200 (Conn. Super. Ct.)

First Amendment does not provide a shield behind which a church may avoid liability for harm caused to an either an adult or a child parishioner arising from the alleged sexual assault or battery by one of its clergy. Claims against church and diocese for negligent hiring and supervision were not barred. In dicta, Court approves of holdings barring claims for respondeat superior    Case # 1183 (Fla.), affirming, Case # 834 (Fla. Dist. Ct. App.)

Plaintiff, a church secretary and bookkeeper hired and supervised by a church committee staffed by volunteers, alleged that she was sexually harassed by the committee’s chairman, also a volunteer; claims against the local Methodist Church and local Church Conferences dismissed; determination of plaintiff’s claims would require court to review and interpret church law, policies, and practices in order to determine whether an agency relationship existed between the committee and the church defendants, and whether the church defendants could be held liable for the committee chairman’s actions    Case # 967 (Fla. Dist. Ct. App.). But the decision was quashed and remanded for further proceedings consistent with the opinion in Case # 1183 (Fla.) and Case # 1184 (Fla.)

Plaintiffs were sexually abused by a former priest, long after he left the Church and while he was counseling plaintiffs; plaintiffs unsuccessfully sued the diocese and individual priests on the theory that when the former priest, a known pedophile, was removed from the priesthood, defendants, consistent with the diocese’s responsibility to assist a former priest prepare to reenter secular life, provided financial assistance enabling the former priest to complete a degree in psychology/counseling; defendants could not foresee that the former priest would be hired to counsel young people without the employer first checking the former priest’s background with the diocese; diocese did not make an effort to conceal the former priest’s background or to hide the reason for his removal as an active priest   Case # 445 (Fla. Dist. Ct. App.)

Church, which assumed the responsibility for caring for a class of 3 to 6 year-olds, had the duty to use reasonable care to protect the children from a reasonably foreseeable risk of harm, such as sexual molestation, and could be held liable for allowing the children to be dismissed without supervision even if it did not have prior knowledge of past sexual misbehavior by the ten year old child responsible for the attack; besides there was evidence the church did have prior knowledge    Case # 201 (Ga. Ct. App.)

Plaintiff, sexually abused by Catholic priest from 1970 to 1973, between the ages of 15 and 18, commenced suit against the priest, the diocese, and local parish in 1995 when she was almost 40; the actions were for childhood sexual abuse, breach of fiduciary duty, intentional infliction of emotional distress, negligence, willful and wanton conduct, respondeat superior, failure to warn, and negligent supervision and retention; the only claim that related to any events after 1973 was the alleged negligent infliction of emotional distress by the diocese based upon the diocese's 1995 contact with plaintiff through Catholic Social Services inquiring if plaintiff had ever been sexually abused by the defendant priest; plaintiff alleged that the diocese had a duty to refrain from making such an inquiry before assessing its potential effect on plaintiff; the 1995 inquiry allegedly caused plaintiff to suffer severe emotional distress and physical injuries; all of plaintiff’s claims were subject to dismissal; ordinarily a two year limitations period running from the date of plaintiff’s majority applied; in addition, Illinois’ former statute of repose providing that an action for personal injury based on childhood sexual abuse must be commenced no more than 12 years after the victim attains age 18 applied to the case; defendants were not equitably estopped from pleading the statute of repose and statute of limitations and plaintiff’s psychological trauma did not give rise to a legal disability tolling the limitations period; plaintiff’s did not allege that she had suppressed all memory of the clergyman’s actions until 1995, indeed, plaintiff was aware of the clergyman’s actions and, to at least some extent, of their harm from the time of their occurrence, thus the running of the limitations period was not subject to the discovery rule; plaintiff claim for negligent infliction of emotional distress based on the Diocese contact with her in 1995 was also dismissed as there was no duty on the diocese’s part to assess the emotional and psychological impact of an investigatory contact before making such contact    Case # 861 (Ill.), reversing, Case # 494 (Ill. App. Ct.)

While a minor, plaintiff was sexually abused from 1966 – 1968 by a lay person who had been employed by the Roman Catholic Diocese to, inter alia, teach CCD [Confraternity of Christian Doctrine] classes to children. Plaintiff did not report the abuse for fear the abuser would prevent her parents from receiving instruction in the Roman Catholic Church, or have her brother, who was training to be a priest, removed from the seminary, and because her mother suffered from depression that required frequent hospitalization. In 1999, some thirty years after the abuse ended, plaintiff began counseling with a Roman Catholic priest. In 2000, a monsignor orally promised plaintiff that her abuser would not have any future contact whatsoever with children at the parish and that the parish would strip him of his duties. Plaintiff alleged that this promise was in consideration for plaintiff’s agreement not to seek legal recourse and that the agreement constituted a binding contract between the parties. In July, 2000 the monsignor told plaintiff that “everything was taken care of.” In August 2002, plaintiff learned that the Diocese had taken no action to enforce its promise. Held: (1) Although plaintiff allegedly suffered severe emotional distress upon learning of the breach of the oral contract, the contract violated the Statute of Frauds. While the Diocese could have fired the abuser within one year, the promise that the abuser would not have any contact whatsoever with children at the Parish had no stated time frame, but asserted an ongoing duty to keep the abuser away from Parish children. Moreover, the only damages alleged by plaintiff were her emotional distress and such damages are not recoverable under a pure breach of contract theory. (2) Promissory estoppel did not provide a means of circumventing the Statute of Frauds. In order to establish an estoppel to remove a case from the operation of the Statute of Frauds, the party must show that the other party’s refusal to carry out the terms of the agreement has resulted in the infliction of an unjust and unconscionable injury and loss. Plaintiff’s allegations were insufficient. Plaintiff alleged that her “loss” was caused by forbearance in filing legal actions against the Diocese in 2000, and that this forbearance allowed the statute of limitations to run. But plaintiff’s “loss” was no loss at all because in 2000, without a specific claim of repressed memory to toll the running of the statute of limitations, plaintiff had no valid claims against the Diocese that she could relinquish. (3) Plaintiff claimed the Diocese was negligent in failing to take disciplinary action against the abuser, warn parents and children, and report the abuser to authorities as required by law. To the extent these claims were based on the abuse of plaintiff from 1966 through 1968, they were barred by the two-year statute of limitations. To the extent plaintiff’s claims alleged that the abuser caused injury to one other than plaintiff, plaintiff lacked standing to claim damages, as plaintiff could not show that injury to others caused her damage.(4) Plaintiff failed to state claims against the Diocese for negligent infliction of emotional distress and (5) for intentional infliction of emotional distress   Case # 2124 (Ind. Ct. App.)

Plaintiff claimed that when he was a minor he was sexually abused by a Roman Catholic priest who served as an assistant pastor in an Iowa parish church and a teacher in the parish school. Plaintiff sued the Archdiocese of Dubuque alleging (1) assault and battery, (2) intentional infliction of emotional distress, (3) negligence based on a special relationship of the Archdiocese and the priest, (4) negligent supervision and (5) vicarious liability under the doctrine of respondeat superior. All claims against the Archdiocese were dismissed. A central claim of plaintiff was that the Archdiocese’s liability stemmed, inter alia, from the fact that the priest was an “employee” of the Archdiocese and that the Archdiocese possessed jurisdictional authority over the selection, ordination, assignment, supervision, training, instruction, and retention in good standing of the diocesan priests assigned to parishes within its jurisdiction. However, the Iowa Supreme Court held that the evidence established that the priest was not an employee of the Archdiocese, but an independent contractor who had contracted with the parish church, receiving a salary from the parish church, which was a separate legal entity with its own articles of incorporation and bylaws   Case # 2816 (Iowa)

A minor was allegedly abused by a Mormon missionary. Plaintiff sought (1) to hold the Church vicariously liable and (2) to hold the Church directly liable for any injuries on a theory of negligent hiring, supervision, or retention. The Church could not be held vicariously liable under the doctrine of respondeat superior. While plaintiff theorized that the missionary may have been motivated to molest the minor in a misguided effort to recruit the minor as a new member of the Church and was, thus, carrying out the “business” of the Church, there was no evidence to support such theory. Nor could the Church be held liable under the doctrine of negligent hiring, supervision, and retention. The Church required candidates for its missionary program to complete an involved application process and undergo multiple levels of screening for, inter alia, emotional and sexual behavior. Once selected, missionaries continued to meet regularly for interviews with church officers during their tenure in the missionary program, they were instructed as to proper conduct with children, and directed never to be separated from their assigned companion/co-missionary when meeting with children. The Church never received information that would lead them to believe that the accused missionary had ever or would ever commit a sexual act with a child. Court details the selection process for missionaries of the Mormon church   Case # 3026 (E.D. Ky.)

There was sufficient evidence in the record from which a reasonable juror could have concluded that there did exist an employer-employee relationship between the archdiocese and the school principal accused of sexual abuse of a student; the issue should have gone to the jury and the directed verdict in favor of the archdiocese was improper    Case # 238 (La.)

Priest attending motor race on his day off and while not in clerical clothing, accused of abusing boy who was not a parishioner; defendant roman catholic church and diocese were not entitled to summary judgment; it was not clear from the record that the  priest was not acting in the course and scope of his employment and that the archdiocese did not owe a duty to the plaintiff    Case # 138 (La. Ct. App.)

Plaintiffs alleged that when they were minors they had been sexually abused between the years 1974 – 1984 by a Redemptorist Roman Catholic priest. The priest had served as a priest in numerous Roman Catholic communities of the Redemptorist Fathers from 1954 through 1972, but in 1973, upon the petition of the Redemptorists, the priest was incardinated in the Roman Catholic Diocese of Baton Rouge, Louisiana where he allegedly sexually abused the plaintiffs. Plaintiffs sued the priest and various Redemptorist Provinces and officials, alleging causes of action in negligence, intentional infliction of emotional distress, gross negligence, negligent misrepresentation, breach of fiduciary duty, fraud, and fraudulent concealment, and vicarious liability. Plaintiffs pled entitlement to punitive and exemplary damages. On defendants’ motion to dismiss the court held, inter alia, plaintiffs properly pled punitive damages against the priest, but not the Redemptorist defendants; plaintiffs sufficiently pled fraud and fraudulent concealment; the Redemptorist defendants could not be held vicariously liable for the priest’s actions under the theory of respondeat superior because at the time the priest allegedly committed the sexual assaults he was no longer an agent of the Redemptorists; a claim for breach of a fiduciary duty premised upon the pastor-parishioner relationship is not recognized under Louisiana law   Case # 3990 (M.D. La.)

Plaintiff alleged that between the ages of 13 and 19 or 20 (minority ending at age 18) he was sexually abused by a Roman Catholic priest. Plaintiff sued, inter alia, the diocese alleging, in effect, negligent supervision in breach of a fiduciary duty. Plaintiff’s claim of a fiduciary relationship centered on his assertion that throughout the seven-year period that he was abused, he was both a parochial school student and an altar boy at St. Mary’s School and Parish, that the diocese knew that plaintiff’s parents suffered from illness that limited to some degree their involvement in raising their son, and that the diocese was trusted with a special relationship in terms of the religious training and education of plaintiff. Maine’s Supreme Judicial Court held, inter alia, that plaintiff’s allegations in the complaint established a special relationship between him and the Diocese as his fiduciary. Such a relationship gave rise to a duty to protect on the part of the Diocese. The duty did not exist simply because of plaintiff’s status as a student and alter boy, but because of the added assertion that the Diocese knew or should have known of the risk of harm posed by the priest who abused plaintiff. Recognition that the Diocese, as plaintiff’s fiduciary, may have owed plaintiff a duty to protect him from harm, did not infringe on the free exercise of religion in violation of the First Amendment of the U.S. Constitution or Article I, section 3 of the Maine Constitution. Accordingly, if a plaintiff asserts the existence of facts that, if proven, establish a special relationship with a defendant in accordance with section 315(b) of the Restatement (Second) of Torts, an action may be maintained against the defendant for negligent supervision liability in accordance with section 317 of the Restatement (Second) of Torts. On remand to the trial court, the Diocese could move for entry of a summary judgment based on the statute of limitations, but only after further development of the record. But compare dissent, which would not have adopted the concept of negligent supervision in breach of a fiduciary duty to allow recovery. Instead, the dissent would have allowed recovery against the Diocese only if plaintiff could present a case for respondeat superior liability pursuant to Restatement (Second) of Agency § 228   Case # 1909 (Me.)

Minor member of the Jehovah's Witnesses abused by an adult member of the congregation did not state a cause of action against the church or its elders for breach of fiduciary duty, intentional infliction of emotional distress, or negligent infliction of emotional distress even though the church and its elders knew of a prior incident of the abuser abusing a different child; the previous incident resulted in minor disciplinary action, but the abuser was not excommunicated, was not publicly rebuked, or required to undergo professional evaluation or treatment and he was eventually allowed to resume activities as an ordinary member of the church    Case # 674 (Me.)

Church member who was an insurance agent, met with a minister of the church in the ministers’ residence, which was owned by the church, to discuss life insurance. The minister sexually assaulted the church member and the church allegedly knew or should have known that the minister had engaged in inappropriate sexual behavior with at least two other women who attended the church. Under the facts, Maine’s highest court refuses to recognize a cause of action for negligent supervision by the church    Case # 1310 (Me.)

Plaintiff, an Episcopal priest, filed an employment discrimination action alleging that the defendant diocese and bishop discriminated against her based on her gender resulting in her constructive discharge. Bishop’s patronizing and condescending actions of putting his arm around plaintiff, a female Episcopal priest, did not constitute sexual harassment for purposes of Massachusetts statutory law    Case # 1407 (Mass.)

While there was no such thing as “clerical malpractice” in Massachusetts, it did not necessarily follow that, for example, a cleric would be wholly immune from liability if he or she stood idly by while a parishioner unknowingly walked into a place or position that the cleric knew would expose that parishioner to great danger; while there was no justifiable claim in Massachusetts for negligent clerical training, that did not necessarily mean that clerics are wholly immune from liability for directing, or permitting, a subordinate, pursuant to whatever power and authority, to do something or engage in some activity that they knew or should have known would expose third parties to grave and unseen danger; court holds it was too early to grant summary judgment dismissing claims of plaintiffs, sexually abused as children, against various supervisory church officials for negligent hiring, retention and supervision    Case # 621 (Mass. Super. Ct.)

Plaintiffs who, while minors, had been sexually abused by a Catholic priest, sued various church officials claiming negligent supervision; the supervisory defendants’ motion to dismiss was denied on the ground of being premature; while it was clear that there was no justiciable claim for clergy malpractice or negligent clerical training, the court could not say at the present stage of the case, given the absence of a sufficiently developed record as to the precise nature of plaintiffs' claims and the extent to which Canon Law provided defendants with immunity, that the supervisory defendants could not be held liable to plaintiffs    Case # 1044 (Mass. Super. Ct.)

Plaintiff, sexually abused as a minor by a Catholic Priest, sued the diocese for negligent hiring and supervision and for its alleged ratification of the priest’s intentional acts in failing to investigate the priest and remove him from the parish when it knew or should have known that the priest posed a danger to plaintiff. The trial court held that under the doctrine of charitable immunity the diocese was immune from liability for all torts alleged to have been committed prior to September 16, 1971, and any liability it may have based on a tort committed on or after that date was limited by Mass. Gen. Laws ch. 231, § 85K to $20,000. The court rejected the argument that charitable immunity and the statutory cap on damages were inapplicable because the alleged acts were ultra vires to the charitable purpose of the diocese. In the court’s opinion, the ultra vires exception only applied where the tort was committed during the course of primarily commercial activities. Therefore, even if the diocese negligently hired and maintained the priest for the purposes of, as plaintiff alleged, acting in concert with a national scheme and conspiracy to cover up the abuse of its clergymen, said activity was carried on to accomplish directly the charitable purposes of the diocese. The court also granted the diocese’s motion to strike certain portions of an affidavit submitted by plaintiff’s attorney and several attached exhibits as hearsay and irrelevant. The stricken exhibits included newspaper and internet articles regarding child abuse within the Catholic Church, as well as internal Church documents relating to sexual abuse committed by priests   Case # 1742 (Mass. Super. Ct.)

A church employee was subject to sexual abuse by a priest offering plaintiff and his wife marriage counseling; action against church and archdiocese for sexual abuse by priest barred by statute of limitations; plaintiff’s marital problems and chemical dependency were not a “mental disability” sufficient to toll the running of the limitations period; nor were defendants equitably estopped from asserting the statute of limitations; plaintiff’s actions against the church for breach contract (plaintiff having been suspended from his job after he revealed to his supervisor the facts of the abuse) and for negligent hiring, retention, and supervision of both the priest and plaintiff’s supervisor dismissed    Case # 374 (Minn. Ct. App.)

Plaintiffs, members of the Jehovah’s Witnesses, were sexually abused while minors by a fellow congregant concerning whom church elders had prior information that he had a history of sexual abuse. Despite such information, church elders did not forewarn their members or report the abuse to civil authorities. Plaintiffs’ alleged negligence by the church defendants in not taking action to report the congregant’s conduct to authorities and by holding the congregant out as an appropriate person with whom to associate. Jehovah’s Witnesses doctrine required members to associate only with other members of the Jehovah’s Witnesses and to avoid association with people who were not Jehovah’s Witnesses and members were expected to bring all allegations of wrongdoing to congregation elders. If a member made an allegation of wrongdoing to anyone other than an elder, including law enforcement, that person was subject to church discipline. Held, there was no duty of care owed to plaintiffs by the church defendants, because there was no special relationship between the parties. The church defendants did not have custody or control over plaintiffs at the time of the alleged misconduct, which did not take place during church functions or on church property. Providing faith-based advice or instruction, without more, does not create a special relationship. Here, mere knowledge, coupled with the power to possibly prevent the abuse, was insufficient to impose a duty of care. Religious doctrine requiring members to bring complaints exclusively to the attention of elders did not constitute a voluntary undertaking on the part of the Church defendants of an affirmative duty to investigate allegations of wrongdoing and protect congregants from future wrongful acts. Finally, statute requiring that incidences of abuse be reported to civil authorities did not provide for a civil cause of action in the event there was a failure to report and the failure to report in violation of the statute could not serve as evidence of negligence per se   Case # 1620(Minn. Ct. App.)

A minor was sexually abused by a retired minister of the Evangelical Lutheran Church in America (ELCA) during a period when the retired minister frequently served as a fill-in minister at local churches when the regular pastor was on vacation or unavailable for other reasons. The abuse occurred at the farm of the retired minister. The child’s family had had a long, intimate, almost familial relationship with the minister and his wife. The child sued the ELCA, the local Synod, and a local ELCA congregation (whose pastor, upon having the abuse reported to him, reportedly advised the family to “stay silent”). Plaintiff alleged liability on the grounds of (1) respondeat superior; (2) negligent-supervision; (3) ratification of the retired minister’s acts following notification of the minister’s acts of abuse. The Court of Appeals held that the courts had subject matter jurisdiction over plaintiffs’ claims and the church defendants did not have “doctrinal immunity” under the First Amendment. Nevertheless, the Court affirmed the grant of summary judgment dismissing the claims because the evidence demonstrated there was no employment relationship between the retired minister and any of the church defendants for purposes of respondeat superior. With no employment relationship, plaintiff’s claims for vicarious liability, negligent supervision, and ratification all failed. And even if an employment relationship existed, plaintiff’s claims failed because the abuse did not occur within the scope of employment. Nor did the facts support a finding that the church defendants should have been on notice that plaintiff was being abused   Case # 2710 (Minn. Ct. App.)

Plaintiffs alleged that as minors they had been subject to sexual abuse by a Roman Catholic priest after 1970, but that defendant diocese and parish had learned of the of the priest’s inappropriate sexual contact with children earlier, in 1970, but failed to warn parishioners. After the priest died in 2003, the diocese publicly acknowledged that the deceased priest had sexually abused children. In 2004, plaintiffs sued the diocese and parish for fiduciary fraud and for the nonfraud claims of vicarious liability, breach of fiduciary duty, negligent supervision, negligent retention, and negligence. When defendants argued that the fiduciary fraud claim was untimely under the fraud statute of limitations, plaintiffs were granted leave to amend their complaint by dismissing the fiduciary-fraud claim and replacing it with a claim for intentional-misrepresentation. Thereafter, the district court, applying Minn. Stat. § 541.073, granted summary judgment dismissing all of plaintiffs’ claims, including the claim for intentional-misrepresentation, as untimely on the ground that more than six years prior to commencing their suit plaintiffs knew or had reason to know that their injuries were caused by sexual abuse. The Court of Appeals affirmed dismissal of the claims as untimely, except the intentional-misrepresentation claim, concluding that the district court had applied the wrong statute of limitations to said claim. Despite the change in name, the intentional-misrepresentation claim was in essence a fraud claim governed by the fraud statute of limitations. Minn. Stat. § 514.05 subd. 1(6) provides that the 6-year statute of limitations on a fraud claim begins to run beginning with “the discovery by the aggrieved party of the facts constituting the fraud.” On remand, the district court again held that the intentional-misrepresentation claim was untimely, reasoning that if plaintiffs had timely initiated their dismissed non-fraud claims they could have obtained information about their intentional-misrepresentation claim more than 6 years before 2004, the year they commenced their suit. On appeal, the Court of Appeals held that the district erred in granting summary judgment in dismissing the intentional-misrepresentation claim as untimely. The district court essentially concluded that, in this case, reasonable diligence required the filing of a related lawsuit. But a party is not under a duty to investigate a fraud if it has no reason to suspect fraud. If plaintiffs had no reason to suspect fraud and therefore no duty to investigate, it did not matter that facts supporting their fraud claim could have been discovered through formal discovery in a lawsuit based on their non-fraud claims. Because there were unresolved questions of fact (for which see the court’s opinion) whether plaintiffs had notice of a potential cause of action for fraud against the parish or diocese more than six years prior to commencement of their intentional-misrepresentation claim, the district court should not have granted summary judgment on statute of limitations grounds. However, the district court properly granted summary judgment on the merits of plaintiffs’ intentional misrepresentation claim. Plaintiffs asserted that defendants’ 1970 failure to disclose the priest’s past acts of abuse and their act of allowing him to continue serving as a parish pastor and to have unsupervised access to minor children, amounted to an affirmative representation that it was safe for him to be around children even though defendants knew such contact was not safe. But nondisclosure is not the same as an affirmative representation and the rule is that “[n]ondisclosure does not constitute fraud absent a legal or equitable obligation to communicate facts to a particular person [who is] is entitled to the information.” In this case, plaintiffs failed to establish an essential element of their intentional-misrepresentation claim because there was no evidence that defendants made affirmative misrepresentations separate and distinct from their nondisclosure or took active steps to conceal the abuse and plaintiffs failed to allege or establish that defendants had a duty to disclose   Case # 4133 (Minn. Ct. App.)

This case involved a suit by a mother and her three children against the Roman Catholic Diocese of Jackson, Mississippi arising out of alleged sexual abuse of the children by a priest of the Diocese. Plaintiffs alleged that the diocese had specific knowledge that children within its care were in danger of sexual molestation and had the authority, power and ability to protect plaintiffs. The questions presented were whether the First Amendment deprived the civil courts of subject matter jurisdiction and whether the trial court erred in ordering the Diocese to answer the plaintiffs’ interrogatories and produce documents requested by the plaintiffs. The Mississippi Supreme Court held that the civil courts were not barred by the establishment or free exercise clauses of the First Amendment, or by the doctrine of church autonomy, from entertaining plaintiffs’ actions against the diocese for (1) breach of fiduciary duty; (2) fraud, fraudulent concealment and conspiracy to conceal; (3) vicarious liability; (4) negligent hiring, assignment and retention; negligent misrepresentation; and negligent supervision, (5) intentional infliction of emotional distress, and (6) loss of consortium. Cf. dissent arguing that the civil courts did not have subject matter jurisdiction over any of plaintiffs’ claims. Court provides appendices listing cases for and against finding a First Amendment bar to civil litigation. As to the discovery issues, the Court held: (7) In certain cases of alleged sexual molestation of children, the Diocese had referred the accused priest and the victim to doctors and therapists for treatment and counseling. The Diocese paid for the treatment and counseling, and received reports from the treating doctors and therapists. The priests and victims waived the physician and psychotherapist-patient privilege to the extent that the treating physicians and therapists could send updates and treatment summaries to the Diocese. The Court held that documents in the possession of the Diocese which qualified under Miss. R. Evid. 503 for the physician and psychotherapist-patient privilege remained privileged. See Court opinion for details. (8) The Court refused to recognize a “privilege of self-critical analysis.” The Diocese had argued that documents it created for the purpose of self-analysis and criticism – that is, documents it created in an attempt to identify and address its problems – should be protected from disclosure as a matter of public policy. This the Court refused to do. The Court also declined to recognize (9) a privilege under the First Amendment to refuse to produce religious-oriented documents and (10) refused to recognize either Canon law or the doctrine of church autonomy as bars to discovery. However, the Court found that the (11) priest-penitent (12) attorney-client, and (11) work-product privileges both applied and did not apply to certain documents. In regard to the last two privileges, the Court discussed the work of the Diocese’s Investigative Review Committee which met periodically to discuss parishioners and former parishioners who claimed to have been molested and who had made requests for assistance   Case # 1911 (Miss.) (en banc)

The First Amendment to the U.S. Constitution barred the assertion of tort claims against a religious institution based on its alleged negligence in supervising/retaining/hiring sexually abusive clerics.   Gibson v. Brewer (1997), Case # 2226 (Mo.), but see the immediately following annotation.

In a diversity case pending in the U.S. District Court for the Eastern District of Missouri, plaintiff, sexually abused as a minor by a priest, sued the Archdiocese of St. Louis, Missouri for, inter alia, negligent hiring, retention and supervision. The district court refused to dismiss said claims, reasoning as follows: (1) Under choice of law principles Missouri law governed. (2) The Missouri Supreme Court, in Gibson v. Brewer (1997), held that the First Amendment to the U.S. Constitution barred the tort claims against a religious institution based on the institution’s alleged negligence in supervising/retaining/hiring sexually abusive clerics. (3) Because the Missouri Supreme Court’s decision was based on the state court’s interpretation of the First Amendment, and not on state law such as the Missouri state constitution, the federal district court was not bound by the state court’s interpretation of the U.S. Constitution and had a duty to make its own independent inquiry and determination as to whether the First Amendment barred plaintiff’s negligence claims. (4) The district court then proceeded to hold that Gibson wrongly interpreted the First Amendment and that plaintiff could prosecute its negligence claims against the Archdiocese without offending the First Amendment. The Eighth Circuit Court of Appeals reversed and ordered the dismissal of plaintiff’s claims for negligent hiring, retention, and supervision. Defendant argued that ultimately the Gibson decision did not rest on a federal question as to whether or not the First Amendment barred negligent hiring, retention, and supervision claims against a religious institution, but on the state court’s determination that such claims are not recognized in Missouri as a matter of state law. If that were true, then even if the district court was correct in deciding that the First Amendment does not bar such claims, under the U.S. Supreme Court’s decision in Erie R. Co. v. Tompkins, holding a federal court sitting in diversity is bound by the decisions of the state’s highest court, plaintiff’s negligence claims were barred as a matter of state law. But even assuming that Gibson was decided solely on a question of federal law, and further assuming, without deciding, that the U.S. District Court was correct in holding that the First Amendment did not bar plaintiff’s negligence claims against the Archdiocese, the district court failed in its duty under Erie to predict what the Supreme Court of Missouri would have held were its First Amendment analysis wrong. Performing that duty, the Eighth Circuit panel concluded that the state Supreme Court would have held that even if the First Amendment did not bar plaintiff’s negligent hiring, retention, supervision claims, said claims were barred by the Missouri Constitution whose religious freedom provisions are broader and more protective than those of the First Amendment   Case # 4291 (8th Cir.), reversing   Case # 3938 (E.D. Mo.)

Plaintiff minor was sexually abused by his parish priest at a clubhouse run by the priest. The clubhouse was not owned, controlled, or sponsored by the parish and when at the clubhouse plaintiff did not seek or receive religious training, mentoring, or counseling. Although the Archdiocese allegedly knew that the priest had a history of sexual abuse, the First Amendment barred plaintiff’s claim against the Archdiocese for negligent failure to supervise its priest. In addition, plaintiff failed to establish a claim against the Archdiocese for intentional failure to supervise. In an action for intentional failure to supervise, the Missouri court’s do not impose a general duty to avoid creating an unreasonable and foreseeable risk of harm. Here, the claim for intentional failure to supervise was subject to dismissal because the abuse did not occur on premises owned or controlled by the Archdiocese and the priest did not use instrumentalities or chattel of the Archdiocese when the abuse occurred. The alleged acts of sexual grooming that took place on church property preceding the acts of sexual abuse did not satisfy the requirement that the abuse occur on premises owned or controlled by the Archdiocese   Case # 4305 (Mo. Ct. App.)

Plaintiff, sexually abused as a minor by a Roman Catholic priest, sued the Roman Catholic Archdiocese of St. Louis in state court for, inter alia, negligence; negligent supervision, retention, and failure to warn; and negligent supervision of children. All these negligence-based claims were dismissed because the Missouri Supreme Court, had held that the First Amendment to the U.S. Constitution bars the assertion of tort claims against a religious institution based on its alleged negligence in supervising/retaining/hiring sexually abusive clerics. The state trial court and intermediate appellate court (the Missouri Court of Appeals) were bound by such decision until such time as the Missouri Supreme Court reversed itself or the U.S. Supreme Court held that the First Amendment did not bar such negligent-based suits against a religious organization. That some federal district and intermediate appellate courts or the highest courts of other states may have ruled that the First Amendment does not bar claims for negligent supervising/retaining/hiring against a religious organization was of no consequence. The Missouri state courts were bound by the decision of the state’s highest court   Case # 3939 (Mo. Ct. App.)

Church attendees found A.B., a minor, and the youth minister hiding together under the church chancel. The next day the youth minister submitted a letter of resignation in which he denied doing anything wrong, but admitted that he needed counseling so that his sexual conflicts could be resolved before he hurt someone. At a meeting with the senior pastor and the head of the church’s staff, the youth minister admitted that this was the second time that he had been found hiding under the chancel with A.B., but assured them that nothing sexually inappropriate had happened. Neither the pastor nor the staff head believed that the youth minister posed a threat and they did not accept the proffered resignation; instead they allowed the youth minister to continue in his position, subject to certain conditions, one of which was to undergo professional counseling with a licensed psychologist chosen by the senior pastor. The youth minister consented to the psychologist divulging to church officials information regarding the sessions and treatment. But after attending an evaluation session with the psychologist, the youth minister did not return for his next scheduled appointment. Expressing the fear that the psychologist was more concerned about whether the youth minister’s experience with A.B. was an incident that the psychologist was obligated to report to authorities than with the youth minister’s treatment, the youth minister requested that he be allowed to undergo treatment with a psychologist and psychiatrist of his own choosing. Church officials consented. However, neither the senior pastor or staff head ever obtained the names of whom the youth minister was consulting or obtained reports concerning his treatment, although the church officials met regularly with the youth minister and obtained his assurances that he was continuing to be seen by his doctors. In the meantime, on multiple occasions, the youth minister sexually assaulted A.B. at the church and at a youth retreat center. A jury verdict in favor of plaintiffs was returned on their claim against the church for intentional failure to supervise; however, judgment was entered for the church notwithstanding the verdict because of plaintiffs’ failure to present a submissible case. One of the elements of a cause of action for intentional failure to supervise is that the wrongdoer’s supervisor(s) disregarded a known risk. Here, however, the church supervisors did not disregard the risk posed by the youth minister. While their efforts may have been inadequate, and may even have been unreasonable under the circumstances, they indisputably did something. They imposed conditions on the youth minister and arranged for counseling. Adjudicating the reasonableness of a church’s supervision of a cleric requires inquiry into religious doctrine and would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision    Case # 1466 (Mo. Ct. App.)

Plaintiff, a female minister claimed a church elder grabbed her breast. Plaintiff failed to make a submissible case against the church under her theory of intentional failure to supervise clergy. The court evaluates the sufficiency of plaintiff’s evidence to support a claim for intentional failure to supervise clergy under the rules established by Gibson v. Brewer, decided by the en banc Missouri Supreme Court. However, the jury’s verdict against the Church Elder for battery was allowed to stand. The claims against the Elder did not involve the ability of the church to define its mission and select its own representatives; it was simply a case of sexual battery. It was not plaintiff’s burden to show that her action was timely filed. Therefore, her claim did not fall for failure to show timeliness because her evidence was equivocal and contradictory in proving the date of the battery. Rather it was the obligation of defendant Elder to show that there was no issue of fact as to the date of the battery so that the issue of whether the limitation period had run could be decided as a matter of law. The issue of whether the battery occurred more than two years before the date of filing, and hence barred by the statute of limitations, was one of fact for resolution by the jury under a proper affirmative defense instruction. Inexplicably, defendant Elder failed to offer or request such an instruction. He therefore waived the factual issue of when the statute of limitations period began to run. Award of $1 million punitive damages against the Elder affirmed. There was evidence that not only did he commit a battery by grabbing plaintiff’s breasts but that act was merely the culmination of a long history of far worse verbal and physical sexual harassment    Case # 1465N (Mo. Ct. App.)

Associate pastor had four sexual encounters with a married parishioner, the first one occurring while the parishioner was a patient at a psychiatric center being treated for depression and substance abuse; the parishioner’s action against the church was dismissed, because while the church knew that plaintiff was likely to attempt to engage in illicit sexual behavior if left alone with a pastor, it had no knowledge that the assistant pastor presented a substantial risk of harm to the plaintiff and disregarded it    Case # 576 (Mo. Ct. App.)

Based upon accusations of sexual abuse he allegedly suffered at the hands of a Catholic priest, plaintiff filed federal and Florida RICO claims and a claim governed by Mo. Rev. Stat. § 516.120(4) –“action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated.” In each case, the claims were barred by the applicable limitations period. Court rejects plaintiff’s contention that he alleged sufficient facts to toll the statutes of limitations on the basis of either fraudulent concealment, equitable estoppel or duress. Court also inclined to agree that plaintiff’s petition failed to allege the type of injury or damages to his business or property required to support a civil federal RICO claim   Case # 1805N (Mo. Ct. App.)

Plaintiff alleged that as a minor, while working as a volunteer counselor at a Salvation Army summer camp, she was, inter alia, sexually abused by her supervisor, who was the lead minister and spiritual guide at the camp. The court held that plaintiff’s complaint successfully stated claims against the Salvation Army for (1) child sexual abuse based on the alternative theories of respondeat superior or ratification; (2) negligent supervision; (3) intentional infliction of emotional distress; (4) intentional failure to supervise clergy; and (5) breach of fiduciary duty, and refused to dismiss the complaint for failure to state a claim. The court analyzed the elements of each of the causes of action under Missouri law and why plaintiff’s factual allegations met the necessary pleading requirements. The court also explained why the claims were not barred by the free exercise and establishment clauses of the First Amendment. See Case Digest for facts   Case # 2996 (E.D. Mo.)

In case involving claims of negligent hiring, retention and supervision of a pastor arising from the pastor’s alleged sexual abuse of plaintiffs, the Montana Supreme Court held that this was not an appropriate case for it to review the lower court’s denial of defendant’s motion to dismiss for lack of subject matter jurisdiction via a petition for a writ of supervisory control   Case # 2292 (Mont.)


Plaintiff children were allegedly sexually abused by their father. They brought an action for damages against the Watchtower Bible & Tract Society of New York and their parents’ local Jehovah’s Witnesses congregation alleging that their mother, during spiritual counseling by the elders of the local congregation, informed the elders on 10 to 12 separate occasions about the purported sexual abuse, and that the elders failed to report it to law enforcement authorities and improperly counseled the mother, in the presence of the father, to keep the matter within the organization of Jehovah’s Witnesses. Held, inter alia, (1) N.H. Rev. Stat. Ann. (RSA) § 169-C:29, requiring a priest, minister, rabbi or any other person having reason to suspect that a child has been abused to report the same, does not give rise to a civil remedy for its violation. (2) Watchtower and the local congregation did not have a common law duty to take remedial action to protect the plaintiff children due to a fiduciary relationship and/or special circumstances in the case. The majority rejected the dissent’s argument that, under the special circumstances of this case, the elders had a common law duty to counsel the mother to report the abuse to secular authorities   Case # 1981 (N.H.)

Plaintiff, a former Roman Catholic seminarian, claimed he was regularly and persistently subjected to unwanted homosexual advances during his lengthy seminary training despite complaints to supervisors. He was allegedly forced to drop out before ordination due to the homosexual harassment, and was now without a meaningful career. He sued the Diocese and a number of its priests for breach of an implied contract by the creation of a hostile education and work environment, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, intentional infliction of emotional distress, and fraud and deceit. The complaint was dismissed on a pre-answer motion to dismiss on the ground that entertaining it would violate the Religion Clauses of the First Amendment. The New Jersey Supreme Court now reversed and remanded to the trial court to determine, on an issue-by- issue basis, whether any of plaintiff’s claims could be adjudicated consistent with First Amendment principles. While court could not entertain a suit by plaintiff for reinstatement as a seminarian, if his claims could be adjudicated consistent with First Amendment principles he could establish a right to monetary relief. New Jersey’s highest court sets out operative principles of law    Case # 1309 (N.J.), reversing, Case # 1057 (N.J. Super. Ct. App. Div.). Cf. Plaintiff, studying to be ordained as a Jesuit priest, alleged that the sexual harassment of his superiors was so severe that he was constructively forced to leave the Jesuit order before taking vows to become a priest; plaintiff filed against the Jesuit order a federal cause of action for sexual harassment in violation of Title VII, as well as state law claims for failure to investigate, for constructive wrongful discharge, and for breach of contract; the "ministerial exception" to Title VII did not bar plaintiff's claim of sexual harassment against the Jesuit order; on remand the trial court would have to determine if the ministerial exception barred any of the state law claims    Case # 661 (9th Cir.), reversing, Case # 180 (N.D. Cal.).

Plaintiff was persistently sexually abused between the ages of 3 and 12 by her own father, a pastor. During the years plaintiff was between the ages of 6 and 12, plaintiff’s father was the pastor of defendant churches. In 1985, when plaintiff was 12 years old she reported the sexual abuse to the police, graphically reciting the nature of her abuse. For several months thereafter, plaintiff was treated at a behavioral health center. Some time after the 1985 police report and subsequent counseling, plaintiff allegedly completely blocked the memory of the abuse, the memory of the police investigation, and the memory of the counseling sessions and she first remembered the abuse in a January 2003 counseling session, when she was nearly 30 years of age, almost 9 years after achieving her majority. In addition to suing her father, plaintiff sued the two churches for the negligent hiring and supervising of her father/pastor, alleging that the churches knew or should have known that her father/pastor “was sexually promiscuous and predatory” and failed in their duty to warn “the congregation.” The court denied a motion to dismiss plaintiff’s claims against her father and the churches on statute of limitations grounds. Under Nebraska law, the cause of action for sexual abuse of a minor accrues when the minor reports the abuse. But although plaintiff was aware of the abuse at the time of accrual, the limitations period was tolled during her minority, until age 21, by which time she had allegedly repressed the memory of the abuse. However, Nebraska law tolls the statute of limitation if “at the time the cause of action accrues” the plaintiff is a “person with a mental disorder.” Neb. Rev. Stat. Ann. § 25-213. The “repressed memory” or “dissociative amnesia” alleged by plaintiff was a mental disorder of the type contemplated by the Nebraska statute. But while there was plausible scientific evidence from which a reasonable jury could conclude that plaintiff had proven that she suffered a mental disorder that actually prevented her from remembering the alleged sexual abuse until she was nearly 30, there was other plausible evidence from which a reasonable jury could come to the opposite conclusion. Hence, the court found that a trial was required on the statute of limitations question. However, the court granted the two churches summary judgment on the merits of the negligence claims against them. The court assumed that the churches had a duty to exercise due care in the hiring and supervising of the father/pastor in order that they not put a pedophile in the pulpit and that they had a duty to warn the congregation of reasonably foreseeable harms from their employee had they known he was a pedophile. And although it was doubtful, the court also assumed that both churches “knew” or “should have known” of some or all of the so-called “red flags” concerning the father/pastor’s previous history of sexual improprieties with teenage females or adult women. But that was not enough, because facts which might raise a “red flag” about a risk of inappropriate sexual conduct with teenage females or adult women would not cause reasonably prudent churches to worry that someone would engage in the very different and aberrant behavior of pedophilia, i.e., of molesting small, prepubescent children. Thus, the father/pastor’s sexual abuse of his young child was not foreseeable by the churches. To the extent plaintiff sought to impose liability for negligent supervision, she had to of necessity assert that the churches had a duty to supervise their employee-minister in his own home, where the abuse occurred. However, a church’s obligation to supervise its employee-minister does not extend to close supervision of the minister’s conduct in his own home, even if that home is provided by the church. In addition, the father/pastor began abusing plaintiff three years before he became pastor at the defendant churches and he continued such abuse for nearly two years after he left one of the churches. During the times he sexually abused his daughter the father/pastor was acting as plaintiff’s father and not as her pastor. Still further, the abuse took place in the secrecy of the family home or on a family outing, a place or activity over which the churches had no authority. On these facts, the pastor’s secret and ongoing abuse of plaintiff in the privacy of the family home or during a family outing was causally unrelated to any negligent act or omission of the churches. No matter what the churches might have done, they could not have protected plaintiff from the claimed predations of her father   Case # 2320 (D. Neb.)

Parishioner, who was not a minor, could not maintain a cause of action against priest for damages sustained when pastoral relationship developed into a sexual relationship; plaintiff’s claims for negligent handling of counseling relationship, for breach of fiduciary duty, and negligent and intentional infliction of emotional distress were actually claims for clergy malpractice and hence not recognizable; in addition, because the causes of action sought to recover damages for unwelcome, intentional sexual conduct by a priest, they were governed by the one-year statute of limitations applicable to intentional torts; but compare dissent contesting both issues    Case # 755 (N.Y. App. Div.), affirming, Case # 287 (N.Y. Sup. Ct.)

Action against Roman Catholic diocese and individual churches arising from alleged sexual abuse of plaintiffs by priests assigned to the defendant churches. The abuse allegedly occurred between 35 and more than 50 years ago, when plaintiffs were all children. Plaintiffs asserted causes of action sounding in breach of fiduciary duty, fraud, negligent retention and supervision and negligent failure to warn or instruct. All the actions were barred by the applicable statutes of limitations. Plaintiffs’ argued that the statutes of limitations should be tolled pursuant to the doctrine of equitable estoppel on the ground that, after the abuse occurred, defendants actively attempted to conceal the priests’ sexual misconduct and avoid civil liability by transferring the priests from one parish to another. Alternatively, plaintiffs sought to toll the statutes of limitations on the basis of “religious duress,” the argument being that plaintiffs refrained from bringing a civil action because of a fear of excommunication or eternal damnation. Plaintiffs failed to establish a fiduciary relationship between themselves and defendants. But compare dissent   Case # 1892 (N.Y. App. Div.)

Plaintiff, sexually abused by a Roman Catholic priest while a minor, commenced an action against the parish church, the diocese and Holy See, alleging breach of fiduciary duty, fraud, negligent retention and supervision, and negligent failure to warn or instruct. Plaintiff asserted that prior to the alleged abuse, defendants were aware that the priest had engaged in criminal sexual behavior with children but they nevertheless transferred the priest to plaintiff’s church as part of a conspiracy to conceal the priest’s misconduct and avoid liability. Claims were barred by the applicable statute of limitations. The running of the limitations period was not tolled due to the existence of a fiduciary relationship between plaintiff and defendants, giving rise to an obligation on defendants’ part to disclose any knowledge they had of the priest’s prior sexual misconduct. Defendants’ sponsorship of religious and educational programs for its minor parishioners was not, in itself, sufficient to create a fiduciary relationship with plaintiff. Moreover, even assuming that a fiduciary relationship did exist at some point, plaintiff failed to demonstrate that the relationship continued after he reached the age of majority or that he exercised due diligence in commencing this action after that relationship ceased. Plaintiff’s argument that the statute of limitations should be tolled based on a doctrine of “religious duress” was also rejected   Case # 1893 (N.Y. App. Div.)

Claims of plaintiff, who was sexually assaulted by employee of a church, dismissed. Fact that the employee may have used drugs in the past, was HIV positive and a homosexual, was irrelevant to any propensity to commit an act of sexual aggression. That the employee may have made “inappropriate expenditures” or hired “ex-convicts” to perform community service at the church shelter similarly could not be equated with a claim that the church negligently supervised or retained the employee with respect to an alleged sexual assault   Case # 2795 (N.Y. App. Div.)

Infant plaintiff was sexually molested on church property by a volunteer basketball coach and coordinator of the Catholic Youth Organization basketball program at defendant Church. Defendant parish church and the Roman Catholic Diocese were granted summary judgment dismissing the claims against them for respondeat superior liability and for negligent hiring, retention and supervision. Court reviews the applicable legal principles and applies them to the facts. Court observes that the general proposition that sexual abuse of children is a pervasive problem in society today did not constitute a factual basis upon which to charge the Church defendants with notice that the volunteer basketball coach and coordinator may have posed a danger as a sexual predator to the children involved in the basketball program   Case # 2602 (N.Y. Sup. Ct.)

Plaintiffs received counseling services from their minister, who had received a counseling certificate/license from defendant National Christian Counselors Association, a nonprofit corporation in the business of developing, printing, and selling educational courses on Christian counseling. During the course of plaintiffs’ counseling use was made of a temperament profile or “TAP” test and software developed by defendant. Plaintiffs alleged that the minister used his position as their counselor and pastor to manipulate them into parting with sizeable portions of their money and pressured two of them into having sexual relationships with him. Plaintiffs contended that defendant was responsible for the minister’s actions because it failed to properly train, supervise, and control him. Plaintiffs asserted against defendant Association claims under North Carolina law for (1) negligent infliction of severe emotional distress, (2) negligent misrepresentation, (3) negligent supervision and retention, and (4) unfair and deceptive trade practices. Defendant was granted summary judgment dismissing all claims. All three negligence claims were subject to dismissal for failure to produce evidence that defendant owed them any duty of protection. In addition, there were alternative bases for dismissal of the negligent retention and negligent misrepresentation claims. As to the unfair and deceptive trade practices, plaintiffs failed to show that defendant engaged in any activity that was immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. Any injuries caused to plaintiffs were caused by the misdeeds of the minister acting alone and in intentional, but secretive, violation of the guidelines that defendant had set for him   Case # 1694 (M.D. N.C.)

Plaintiff alleged that he was abused as a minor from approximately 1980 through 1983, during which time he knew that the alleged perpetrator was a Catholic priest, and that the priest was employed by the Archdiocese of Cincinnati. The statutes of limitations in plaintiff’s actions against the Archdiocese and its Archbishop for, inter alia, breach of fiduciary duty; negligence; and corrupt activities under Ohio Rev. Code (R.C.) § 2923.31 et seq., did not commence to run in April 2002 when plaintiff learned of the existence of other alleged victims of the priest; rather the actions accrued at the time of the sexual abuse and the limitations periods began to run when plaintiff achieved his majority. The Ohio Supreme Court held that where a complaint alleges that a church concealed its involvement in the sexual abuse of the plaintiff by one of its priests and that only until recently, after expiration of the statute of limitations, did plaintiff have sufficient knowledge to be apprised of the independent claims he may have against the church, the plaintiff’s allegations against the church are subject to dismissal on statute of limitations grounds, because, plaintiff’s notice of the sexual abuse by the abusive priest constitutes apprisal of the possibility of any other independent claims against the church as a matter of law, so that all relevant statutes of limitations against both the priest and the church are triggered by the acts of sexual abuse. More succinctly stated, if a minor who is the victim of sexual abuse by clergy knows, at the time of the abuse, the identity of the perpetrator, the employer of the perpetrator, and that a battery has occurred, any claims against the church employer accrue at the time of the sexual battery and the relevant statutes of limitation commence to run when the minor achieves his majority. Neither the discovery rule, nor equitable estoppel, acted to save plaintiff’s claims under the facts of this case. The dissent was of the opinion that plaintiff should be allowed to bring causes of action against the Diocese for breach of fiduciary duty and conspiracy, because, at the time of the sexual abuse, even though plaintiff may have known that the abuser was in the employ of the Diocese, plaintiff alleged he had no knowledge, and had no reason to have knowledge, of the very separate wrong of being victimized by a priest whom the diocese knew to be a serial sexual predator, and yet had reassigned again and again to work in parishes, making the plaintiff the victim of a well-thought-out conspiracy. The dissent was also of the opinion that, based on the allegations in the complaint, plaintiff’s claim against the Archdiocese under the Ohio Corrupt Activities Act was not subject to dismissal on limitations grounds. The majority was of the opinion that plaintiff’s knowledge, at the time of the sexual abuse, that the priest was an employee and agent of the diocese, placed upon plaintiff an obligation to investigate, starting from the time of the abuse, or no later than the age of majority, whether the diocese may have breached some duty to plaintiff owing to its relationship with the priest and that consequently the statute of limitations on the claims against the diocese started to run as soon as plaintiff reached his majority. In addition, the majority held that not only was plaintiff’s action under the Ohio Corrupt Activities Act not saved by a discovery rule, the Act was not even applicable, because the Act did not come into effect until after the end of the sexual abuse; but compare the dissent which stressed that the allegations of the complaint were that there was a conspiracy to hide the diocese’s actions that continued even after the Act was enacted   Case # 2510 (Ohio), reversingCase # 1852 (Ohio Ct. App.)

Sexual and physical abuse of minor children by baby sitters hired by church; trial court properly granted summary judgment dismissing claim for negligent hiring, but should not have granted summary judgment dismissing claims for negligent retention, supervision, and punitive damages; discussion of pleading requirements and right to discovery in action for negligent hiring    Case # 318 (Ohio Ct. App.)

Plaintiff alleged that her parish priest induced her into carrying on a sexual relationship with him and that she became pregnant, that under spiritual pressure from the Archdiocese and its agents she was induced into giving her baby up for adoption in 1965, and that consequently she underwent psychotherapy and hospitalization for mental anguish and suffered from the loss of a relationship with her daughter. In 2004, plaintiff filed suit against the Archdiocese, claiming negligent and intentional infliction of emotional distress, tortious interference with familial relations, loss of filial consortium, breach of fiduciary duty, and negligent supervision and retention. Although the statutes of limitations had expired on each of plaintiff’s claims, the complaint sufficiently alleged the necessary elements of equitable estoppel. The complaint was replete with allegations that the Archdiocese intimidated plaintiff into believing that the pregnancy was solely her fault, pressured her into giving up her child, and coerced her into remaining silent about the identity of her child’s father. She was led to believe that her child would not be baptized absent an adoption. These allegations, taken together, were sufficient assertions of fraud and factual misrepresentation and the court found that the complaint sufficiently alleged that the Archdiocese’s conduct was motivated by a desire to prevent plaintiff from bringing suit. Because plaintiff was raised in a devout Catholic home, attended Catholic schools, participated in her parish’s youth group, and regularly attended Mass, her upbringing, coupled with the intimidation she experienced while pregnant, led her to believe the Archdiocese’s statements. Given the religious indoctrination that plaintiff experienced, her reliance was both reasonable and in good faith. Although the Archdiocese argued that the case could not be decided without a court assessing the legitimacy of many of the Catholic Church’s beliefs, including those on baptism and sin, in violation of the First Amendment, a court is not prohibited from determining whether a religious institution’s proffered reason for its action is a mere pretext for a secular purpose. And the court found that the complaint sufficiently alleged that the Archdiocese’s actions were motivated by the secular purpose of inducing plaintiff not to sue. The court went on to hold that the complaint failed to sufficiently state causes of action for negligent infliction of emotional distress, loss of filial consortium, and negligent supervision and retention. However, the Court of Appeals reversed the trial court’s dismissal of plaintiff’s claims for intentional infliction of emotional distress, tortious interference with familial relationships, and breach of fiduciary duty   Case # 2305 (Ohio Ct. App.)

Plaintiffs alleged that defendant, a Roman Catholic parish priest, had sexually assaulted them on several occasions between 1965 and 1968. Asserting, inter alia, a fraud claim, plaintiffs asserted that the parish priest, had a fiduciary relationship with plaintiffs and, as a consequence, had a duty to disclose his sexual propensities, his history as a sexual abuser, and his true intentions concerning plaintiffs. Plaintiffs’ efforts to transform their sexual assault claims into a fraud claim were properly dismissed by the trial court as they failed to assert at least two essential elements of their fraud claim, a duty to disclose and a transaction. The relationship described in the complaint fell short of the complete dependence required in Ohio to demonstrate a de facto fiduciary relationship. There was no precedent in Ohio for the conclusion that an adult who undertakes a friendship with a minor is a de facto fiduciary and no Ohio court, or other state or federal court, has recognized that a priest owes a per se fiduciary duty to his congregants. Nor did plaintiffs allege that the priest had sexually assaulted anyone prior to 1965, nor did they identify the “sexual propensities” the priest allegedly had a duty to disclose. And even assuming that the priest was a de facto fiduciary, plaintiffs did not identify the transaction that served as the basis of their fraud claim. Plaintiffs had to allege that defendant concealed a fact “material to the transaction at hand.” Plaintiffs appeared to premise their fraud claim on the fact that they trusted defendant and, as a consequence they suffered injuries as a proximate cause of that trust. However, the engenderment of trust is simply not the kind of transaction contemplated by the common law   Case # 3422 (Ohio Ct. App.)

Plaintiff alleged that when he was a youth he was enticed, induced, directed, and/or coerced by his priest and youth pastor to engage in inappropriate conduct and sexual acts. He also alleged that the Archdiocese of Oklahoma City, which had assigned the priest, knew, or should have been aware, of the priest’s history of inappropriate and criminal misconduct, and that the Archdiocese failed to protect parishioners, including plaintiff. Plaintiff sued his former priest, the Archbishop, and Diocese. His suit against the Archbishop and Diocese were based upon theories of: (1) Respondeat superior. (2) Vice principal liability. (A vice principal is the representative and alter ego of the principal, his master. Traditionally, the doctrine is used to establish liability on the part of the master or employer for the injury caused by one employee against another employee.) (3) Negligent supervision. (4) Negligent retention. (5) Negligent infliction of emotional distress. (6) Breach of fiduciary duty. (7) Civil conspiracy. (8) Intentional infliction of emotional distress. The trial court granted summary judgment dismissing all claims against the Archdiocese and Archbishop. The Oklahoma Supreme Court affirmed in part and reversed in part, holding that the trial court properly granted summary judgment in favor of the Archbishop and Diocese on the theories of respondeat superior, vice principal liability, and breach fiduciary duty, but erred in granting summary judgment to said defendants on the negligent retention, negligent supervision, negligent infliction of emotional distress, civil conspiracy and intentional infliction of emotional distress claims. In an important and comprehensive opinion, the Court discusses in detail the elements of each cause of action, the necessary proof and why plaintiff’s claims should or should not have been dismissed on the motion for summary judgment   Case # 3241 (Okla.)

Presbyterian minister sexually abused minors; the victims did not sue the minister, his estate, the local congregation, the session, the presbytery, the synod, or the general assembly; only the national organization, an unincorporated association made up of all members of the Presbyterian Church governed by the general assembly, was sued; under the facts, the national organization was not liable under the doctrine of respondeat superior, the minister’s acts being outside the scope of employment as a matter of law; nor was defendant liable for failing to report a case of suspected child abuse as required by statute, or for negligent hiring, retention or supervision    Case # 776 (Okla.)

The doctrine of respondeat superior can operate to hold an Archdiocese liable for the acts of a priest who sexually abuses a child; although the acts of abuse are outside the scope of employment, the plaintiff may go forward in his case against the Archdiocese if he pleads facts alleging that acts that were within the scope of the priest’s employment as youth pastor, spiritual guide, and confessor ultimately led to the abuse; the discovery rule applicable in actions based on conduct that constitutes child abuse extended the limitations period in plaintiff’s vicarious liability suit against the Archdiocese even though the acts of the priest that were within the scope of his employment were not the actual acts of abuse, but only led to the abuse    Case # 556 (Ore.). See also Case # 1365 (D. Ore.)

In this negligence action, plaintiff – the mother of a female minor, age of five, who was touched in a sexual manner on several occasions by A, the 11-year-old son of plaintiff’s pastor – sued the pastor’s employer, the Oregon Conference of Seventh-Day Adventists, alleging that it knew or had reason to know of A’s sexual proclivities even before the pastor was assigned to plaintiff’s congregation, and, for that reason, it was negligent in not requiring the pastor to supervise his son when his son accompanied him on pastoral activities, in transferring the pastor to Salem, Oregon without notifying the elders in Salem of the acts and threatened acts of his son; and in failing to require that the pastor supervise his son while in the company of young females attending the Conference’s churches. The jury returned a verdict in favor of plaintiff for $ 2 million. The Conference appealed, assigning error to the trial court’s refusal to direct a verdict in its favor, to its refusal to give two proffered instructions, and to its decision to give one of plaintiff’s jury instructions. The Court of Appeals affirmed the verdict against the Conference   Case # 1902 (Or. Ct. App.)

Plaintiff alleged that one day in the early 1950’s, when plaintiff was 7 or 8 years old, he was roller skating on the sidewalk around the local parish church, which was on the same street on which plaintiff lived, when he fell down and scraped his knees, Father F, who was walking nearby, walked over to where plaintiff had fallen, helped plaintiff up, took him into the basement of the church, sat him on a table, asked him to take his pants down in order to look at plaintiff’s scraped knees and proceeded to sodomize plaintiff. In this case, all the judges agreed that the archdiocese could not be held vicariously liable for F’s act of sexual abuse. There was no evidence of acts that were within the scope of F’s employment that, in turn, resulted in the alleged sexual assault. That is, there was an absence of evidence of conduct by F that was motivated, at least in part, by a purpose to serve the archdiocese, that was of a kind that F was hired to perform, and that resulted in the acts causing plaintiff’s injury. The record was devoid of any evidence that, prior to the incident, F, as part of his pastoral duties, had cultivated a trust relationship with plaintiff or his family and plaintiff had no prior dealings with F. The record was devoid of any evidence that, before the alleged assault, F performed pastoral duties in relation to plaintiff or his family that then led to the conduct that caused plaintiff’s alleged injuries. Nor was there any evidence that in helping plaintiff after he fell that F was in any way motivated by a purpose to serve the archdiocese. Indeed, given that F’s alleged sexual assault of plaintiff followed immediately on his initial contact with plaintiff, there was no basis for a jury reasonably to infer that F was motivated, initially or in part, to serve the archdiocese. And, in any event, the Court did not have to resolve the issue of F’s motive because evidence was lacking from which a jury could find that F’s actions were of a kind he was hired to perform   Case # 3135 (Or. Ct. App.) (Claim 2)

Beginning in 1976, plaintiff was sexually abused, while a minor, by a Catholic priest; all actions arising from such abuse were barred by the statute of limitations, except for the last two incidents which occurred in 1982 and 1984; apparently the local church where the priest was assigned between 1976 and 1980, as well as the local bishop and diocese were aware, or had reason to know, of the priest’s pedophilia years before the 1982 and 1984 incidents but failed to take measures that would prevent the priest from having contact  with boys; held, the local church could not be subject to liability because, in 1982 and 1984, the priest was no longer under its supervision and control; however, both under Pennsylvania common law and Restatement (Second) of Torts § 317, the diocese and bishop could be found liable for negligent hiring and supervision as the priest was still subject to their supervision and control in 1982 and 1984 and their failure to warn or take protective measures subjected them to both compensatory and punitive liability    Case # 696 (Pa.)

Minor, who was not a member of the defendant church, but was a friend of the daughter of the church’s minister and attended certain church programs, was sexually abused by the minister in the minister’s home; held, there was no liability on the part of the church; negligence per se did not arise from failure of the minister or other church employees to report the sexual abuse as allegedly required by the Pennsylvania Child Protective Services Act; church was not liable for negligence in its hiring, supervision and retention of the minister; church was not vicariously liable; court refuses to recognize claim for ministerial malpractice    Case # 741 (Pa. Super. Ct.)

Plaintiffs allegedly were abused by Catholic priests and a nun between 1957 and 1983. Plaintiffs, who ranged in age between 10 and 18 at the time of abuse, commenced suit in 2004, at which time they ranged in age between 34 and 61. Plaintiffs sued the Catholic Archdiocese and its Cardinal for negligence per se and failure to warn. These claims were properly dismissed as all the abuse alleged occurred between 1957 and 1983 and the Pennsylvania Child Protective Services Law did not require members of the clergy to report child abuse until the July 1, 1995. The trial court also properly dismissed failure to supervise claims against the Archdiocese and Cardinal as Pennsylvania did not recognize such causes of action. As to plaintiffs’ claims against the Archdiocese and Cardinal for negligence, intentional and negligent infliction of emotional distress, respondeat superior, fraudulent concealment, and failure to provide a secure environment, all claims were barred by the two year statute of limitations that began to run as to each plaintiff at the time of the last act of sexual abuse. Although plaintiffs alleged that they did not become aware of the responsibility of the Archdiocese and Cardinal for the harm they suffered until 2002 owing to revelations of the responsibility of the Church hierarchy for sexual abuse by its clergy, the Court, after extensively discussing the discovery rule and its application to the facts of the case, held that the discovery rule did not toll the running of the limitations period. Nor did the fraudulent concealment doctrine apply to toll the statute of limitations. The Court also rejected the argument that the coverage of the Catholic Church abuse scandal, beginning in 2002 and continuing through 2004, when suit was brought by plaintiffs, constituted a new harm and the aggravation of old harms and that consequently the claims against the Archdiocese and Cardinal were timely. Finally, Pennsylvania did not recognize the concept of repressed memory   Case # 1853 (Pa. Super. Ct.)

^Between 1999 and May 2002, a Roman Catholic priest “groomed” a minor parishioner for homosexual activity and then, over a course of years, sexually abused the minor. In addition to suing the priest, plaintiff sued the “Diocesan Defendants,” including the Diocese, its former Bishop, and the parish church. It was alleged that the Diocesan officials, knowing of the priest’s homosexual attraction to men, or, at the very least, having grounds to strongly suspect the priest of having previously engaged in homosexual behavior and sexual abuse, had appointed the priest as pastor of the church in which plaintiff was a parishioner. In addition, there was evidence that the Diocesan Defendants persistently ignored reports that the priest was engaging in inappropriate behavior with plaintiff that was strongly suggestive of sexual abuse. Yet another defendant was a Benedictine monk who had been hired by the abusive priest to serve as a cantor, custodian and cook at the church of which he was pastor. Plaintiff told the monk that he slept in the priest’s bed in the Rectory and that the priest would grope plaintiff in a sexual manner while they wrestled. Rather than encourage plaintiff to contact the police, or, at the least, tell his mother, the monk instructed plaintiff “to forgive, to keep the issue private, and to not let other people know because it would ruin [plaintiff’s] life and [the lives of] others.” On motions for summary judgment, the district court held: (1) The claim pursuant to 18 U.S.C. § 2255 of the Child Abuse Victims’ Rights Act of 1986, asserted against the priest and the Diocesan Defendants, was dismissed against the Diocesan Defendants, because, while they were subject to liability under § 2225 if it could be shown by a preponderance of the evidence that they committed acts that criminally aided or abetted the priest in the commission of his sexual offenses, there was no evidence to support such a showing. This was apparently the second reported case to address § 2225 and the court examined in detail the showing necessary to establish civil liability. (2) After dismissing the federal claim against the Diocesan Defendants, the federal district court decided to exercises supplemental jurisdiction over plaintiff’s state law claims against the Diocesan Defendants and the monk. (3) Plaintiff alleged that the Diocesan Defendants were vicariously liable for the priest’s sexual molestation of plaintiff, and that these acts were performed during the course of and within the scope of the priest’s employment. The court granted the Diocesan Defendants summary judgment dismissing the vicarious liability claim because the priest’s acts were committed outside the scope of his employment. (4) Based upon the Restatement (Second) of Torts § 876, plaintiff set forth a claim against the monk for tortiously aiding and abetting the priest in his sexual abuse of plaintiff. Summary judgment was granted dismissing this claim. There was no evidence, that the monk acted with the priest in a common scheme or plan or that he provided “substantial assistance” or encouragement or incitement to the priest or that the monk was present during the commission of the abuse. Despite the monk’s effort to dissuade plaintiff and his mother from contacting the authorities, they were entirely free to ignore him and contact the authorities on their own accord. As such, the monk’s efforts could not be viewed as “substantial assistance” in furtherance of the abuse. (5) The court refused to dismiss plaintiff’s claim that the Diocesan Defendants were liable for the negligent supervision and retention of the abusive priest. However, the court granted summary judgment dismissing the claim that the priest was negligently hired, because there was no evidence suggesting that the priest was or would become a child sex predator when he was hired in 1995. (6) Plaintiff set forth a claim of negligence per se arising from defendants’ alleged violation of the Child Protective Services Act, 23 Pa. Cons. Stat. Ann. § 6311, in that the Diocesan Defendants and the monk failed to comply with the reporting requirements of § 6311. Viewing the evidence in the light most favorable to plaintiff, a reasonable jury could conclude that said defendants violated § 6311, despite the Diocesan Defendants’ argument that they never “came into contact” with plaintiff and thus were not subject to § 6311, and the monk’s assertion that, because he was not employed by the Diocese as a priest, he too was not subject to the reporting requirement imposed by § 6311. (7) Plaintiff’s claim of intentional infliction of emotional distress against all the defendants was dismissed because plaintiff failed to present competent medical evidence to support his claim of severe emotional distress. (8) Plaintiff alleged that all the defendants had breached their respective fiduciary duties to plaintiff. After an extensive review of the cases for and against holding a priest or church/diocese liable for the tort of breach of fiduciary duty, the district court concluded that, under the facts, the Supreme Court of Pennsylvania would recognize plaintiff’s breach of fiduciary duty claims against the abusive priest and the Diocesan Defendants, and that such claims did not offend the First Amendment. However, the court held that the monk was entitled to summary judgment dismissing the breach of fiduciary claim against him. (9) The court refused to dismiss the claims for punitive damages against either the priest, the Diocesan Defendants, or the monk   Case # 2775 (M.D. Pa.)


Plaintiff, claiming that he was sexually molested during his minority by a Roman Catholic priest, alleged that diocesan officials engaged in both negligent and intentional misconduct. The “Hierarchy Defendants” moved to dismiss plaintiff’s negligence claims arguing that by adjudicating the negligence claims, the court would become unconstitutionally entangled in religious doctrine, practice, or church polity in violation of the religion clauses of both the State and Federal Constitutions; that resolution of such claims would necessarily require the court to regulate the manner in which a Catholic bishop selects, assigns, supervises, and disciplines priests. The court denied the motion to dismiss holding that plaintiff’s negligence claims, at this procedural juncture, did not involve excessive entanglement of church and state. Plaintiff’s claim that the church hierarchy negligently hired, supervised and retained a pedophile priest was not deeply rooted in religious belief or practices. The Hierarchy Defendants could not avoid the instant litigation on the argument that the alleged acts or omissions constituted obeying and applying scripture, and ministering to the priest. Contrary to the Hierarchy Defendant’s contentions, this case could be determined based upon neutral principles of law and would not involve inquiry into church law   Case # 2987 (R.I. Super. Ct.)

Plaintiff (P), who attained the age of majority in 1978, filed a complaint in 2008 against defendant diocese asserting claims for breach of fiduciary duty and for negligent hiring, retention and supervision of a deceased priest who had sexually abused P in the early to mid-1970's when plaintiff was a minor. According to the complaint: (i) the diocese was aware or should have been aware that the priest had a history of sexually abusing minors and presented a danger to children, (ii) the diocese nevertheless placed the priest in a position where it was foreseeable that the priest would sexually abuse a child such as P, (iii) the diocese affirmatively misled P and his family regarding its knowledge of the priest’s history and propensity for sexually abusing minors, and (iv) took steps to protect the priest and conceal the diocese’s own wrongdoing in supervising the priest so as to prevent P and other victims from filing civil lawsuits. Without addressing P’s claim for breach of fiduciary duty, the Tenn. Court of Appeals had held that the ecclesiastical abstention doctrine barred the claims against the diocese for negligent hiring and retention, but did not bar the claim for negligent supervision. However, the Court of Appeals held that the negligent supervision claim was time-barred and the limitations period was not tolled by the discovery rule or the doctrines of fraudulent concealment and equitable estoppel. The Tenn. Supreme Court reversed holding that the court had subject matter jurisdiction to adjudicate all of P’s claims, including his claims for negligent hiring and retention and breach of fiduciary duty and that while the doctrine of equitable estoppel did not toll the running of the limitations period, based on the allegations in the complaint it appeared that P could make a case that the running of the statute of limitations should be tolled under both the “discovery rule” and the tolling doctrine of fraudulent concealment and that it was premature to dismiss P’s complaint for failure to exercise reasonable diligence in pursuing his claims. Based on the allegations in the complaint and the record before the court it appeared to the Tenn. Supreme Court that P would be able to pursue all of his claims without requiring the court to resolve disputes over religious questions. Subjecting a religious institution to liability based on its knowledge of the sexual predilections of its clergy does not require interference with the institution’s beliefs. The Supreme Court declined to embrace the distinction drawn by the Court of Appeals between P’s negligent hiring and retention claims and his negligent supervision claim. “The torts of negligent hiring, supervision, and retention all involve essentially the same questions: did the defendant have notice of the wrongdoer’s propensity to commit sexual misconduct, authority to prevent the harm, and some duty of care to those who were harmed?” When “[s]een in that light, hiring and retention are simply points along a continuum of opportunities for a principal to exercise control over its agents[, and] . . . [i]t is not clear . . . why that distinction should matter.” Based on the allegations in the complaint, the court also had jurisdiction over P’s breach of fiduciary claim. Rarely has a court found a fiduciary relationship between a diocese and a parishioner. Such a fiduciary relationship will likely exist only where there is a unique relationship between the diocese and the individual, or where the diocese assumes some duties toward the parishioner. However, the status of a defendant as a religious institution does not, by itself, preclude the existence of a fiduciary relationship and the possibility of a breach of fiduciary duty claim. Accordingly, courts may exercise jurisdiction over a breach of fiduciary duty claim against a religious institution, as long as the fiduciary relationship is not based on a religious duty or is not inextricably tied to a religious duty.” The Tenn. Supreme Court held that the running of the limitations period was not tolled by the doctrine of equitable estoppel. The doctrine of equitable estoppel presupposes that the plaintiff was aware of his claim but put off pursuing it because of defendant’s promises, suggestions, or inducements that filing suit would be unnecessary. But here P repeatedly asserted that because of the actions of the diocese he did not know that he had a claim against the diocese until after the statute of limitations ran. This assertion undermined P’s equitable estoppel claim because knowledge of a claim against the defendant prior to the running of the statute of limitations is a necessary ingredient of an equitable estoppel claim. Nevertheless, based on the allegations in the complaint, it could not be said that P was not entitled to a tolling of the limitations period under the doctrine of fraudulent concealment and the discovery rule. In holding that the limitations period was not tolled, the Court of Appeals pointed out that while P claimed that he had no basis upon which to allege negligent supervision on the part of the diocese until he “had information concerning the diocese's prior knowledge of the priest's propensities,” it was undisputed that when P reached the age of majority in 1978 he knew that he had been sexually abused by a priest employed by the diocese and knew that he had a right of action against the priest. This, said the Court of Appeals, placed P on notice to make inquiry as to whether the diocese had knowledge of instances of sexual abuse of other children by the priest prior to the abuse of P. And, said the Court of Appeals, had P filed suit against the priest in 1978 upon reaching the age of majority, discovery would have provided a mechanism for P to learn whether the diocese had been guilty of negligent supervision. The Supreme Court rejected this holding of the Court of Appeals. Considered in the light most favorable to P, the allegation in the complaint that the diocese misled P and his family about the diocese’s knowledge of the priest’s history of sexual abuse of minors could be construed to mean that at some point P or his family had asked the diocese about its knowledge of the priest’s conduct, that the diocese actively concealed such knowledge, that P and his family had no reason to suspect that the diocese was misleading them. P’s duty of due diligence in inquiring about the diocese’s responsibility, said the Supreme Court, did not require P to file suit against the priest in 1978 and then engage in formal discovery. The issue of whether P in fact exercised reasonable diligence to discover his claims against the diocese was ultimately a question of fact requiring further development through discovery. The current record contained no information regarding when and how P or his parents asked the diocese about its knowledge of the priest’s conduct, the manner in which the diocese misled P or his parents, the steps P took to pursue claims against the priest prior to the priest’s death, when and under what circumstances P learned or should have learned about public accounts of charges that the Roman Catholic Church was engaged in a systematic cover-up of its knowledge of and responsibility for the acts of child abuse committed by its priests, and when and under what circumstances P learned or should have learned that the diocese was engaging in the same conduct allegedly engaged in by the Roman Catholic Church   Case # 4452 (Tenn.), reversing, Case # 4021 (Tenn. Ct. App.)

Plaintiff minors sued a Roman Catholic Diocese for the tort of “intentional or reckless infliction of emotional distress,” also known as the tort of “outrageous conduct,” based on the diocese’s conduct in its dealings with a former priest, who sexually molested plaintiff minors a number of years after his affiliation with the diocese ended. It was alleged that if the diocese had properly responded to earlier acts of sexual abuse, about which the diocese was knowledgeable, then the priest would not have been in a position to subsequently abuse plaintiffs. The Court of Appeals affirmed the trial court’s grant of summary judgment dismissing the suit against the diocese. The Court of Appeals was of the opinion that regardless of how outrageous, unacceptable, or even despicable the diocese’s conduct may have been, a defendant is not liable in an action for intentional infliction of emotional distress through outrageous conduct unless the conduct complained of is intentional or reckless and directed to a particular person, which was not the case here. In other words, an identified individual or group of individuals had to have been the object of the intent or reckless disregard. The Tennessee Supreme Court reversed, holding that to be actionable, reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff. The requirements for reckless infliction of emotional distress are, first, the conduct complained of must have been reckless; second, the conduct must have been so outrageous that it is not tolerated by civilized society; third, the conduct complained of must have caused serious mental injury. And, in order to mount a prima facie case, the plaintiff need not allege that the defendant's reckless misconduct had been directed at a specific person or that it had occurred in plaintiff's presence. In light of the Supreme Court’s rejection of the directed-at requirement, a broader range of facts was material to determining whether plaintiffs established a prima facie case of reckless infliction of emotional distress. Considering the record in a light most favorable to the plaintiffs, as required on defendant’s motion for summary judgment, there were several disputed or possibly disputed material facts concerning the Diocese's conduct and its awareness that the priest presented a substantial and unjustifiable risk of harm to young males. Consequently, a grant of summary judgment was inappropriate. Court distinguishes its approach from that in other jurisdictions and the Restatement   Case # 1838N (Tenn.), reversing, Case # 1587 (Tenn. Ct. App.)

Plaintiff a licensed local preacher of the Christian Methodist Episcopal Church was asked to come to the home/office of defendant Bishop to interview for a position as the Bishop’s driver. During the “interview” the Bishop asked plaintiff to change a light bulb in a storage closet and while plaintiff was doing so the Bishop sexually assaulted plaintiff. The evidence was legally and factually sufficient to support the jury’s finding that the Bishop sexually assaulted plaintiff and to support plaintiff’s mental anguish damages. While the jury had found that the Bishop had been acting within the scope and course of his employment with the Church when he asked plaintiff to meet with him and then assaulted plaintiff and had apportioned damages between the Bishop and Church, the Court of Appeals affirmed the trial court’s judgment not withstanding the verdict (JNOV) in favor of the Church. (1) Because the sexual assault was beyond the scope of the Bishop’s position in the Church as a bishop and was in no way engaged in for the benefit of the Church, the Church was not liable to plaintiff under the theory of respondeat superior. (2) Neither was the Church liable to plaintiff for negligent hiring, retention and supervision. Although Church authorities had heard rumors of the Bishop’s prior sexual misconduct, there was no evidence that it was foreseeable to the Church that the Bishop would assault plaintiff and absent a showing of foreseeability an employer is not liable for negligent hiring, supervision, or retention. The only evidence of the Bishop actually touching another individual came from an individual who was not associated with the Church and who did not report the incident to the police or the Church   Case # 4418 (Tex. Ct. App.)

 Church youth leader in local United Pentecostal Church abused teenage girls. Besides the local church, and the local church pastor who hired the youth leader, plaintiffs sued the hierarchical church organizations, the  Texas District of the United Pentecostal Church, and the United Pentecostal Church International (UPCI). The Texas District owed no duty to plaintiffs even though the risk of sexual abuse to children within the church was, as a general matter, a foreseeable risk and even though the burden on the District of guarding against such general risk of abuse would have been slight. Evidence that the District implemented safety procedures protecting against sexual abuse at the youth camps it operated but not at the local church did not expose it to liability. There was no evidence that the District had any knowledge of allegations of sexual molestation by the accused abuser prior to his service at the local church. Thus, the abuser’s actions were not foreseeable to by the Texas District. The District never recommended the abuser to the local church and there was no duty upon the District to screen all volunteers and staff. And even though UPCI and the Texas District exercised extensive control over local churches, pastors., and youth leaders through a hierarchical church organization, because the hiring of personnel was in the hands of the local congregation, the Texas District was not vicariously liable for negligent hiring and supervision under the theory of respondeat superior    Case # 1482 (Texas Ct. App.)

Sexually abused minor who was a member of the Mormon Church went to bishop and ward president for ecclesiastical counseling; plaintiff requested a referral to a licensed mental health professional; however, the person the church defendants referred plaintiff to was not a licensed mental health professional, instead he worked at a mental health center under a licensed clinical social worker; plaintiff’s claim for clergy malpractice against the Church defendants was dismissed as allowance of such a claim would violate the First Amendment; claims for gross negligence, negligent infliction of emotional distress, and breach of fiduciary duty were essentially no different than claims for clergy malpractice; in addition, the First Amendment aside, plaintiff did not state a claim for intentional infliction of emotional distress or for fraud    Case # 969 (Utah)

Plaintiffs, members of the Mormon Church, had been abused by X, a fellow member of the Church who held the positions of “High Priest” and scout leader within the Church. (A “High Priest” was held out by the Church as someone who was “morally worthy” and deserving of the trust of its members, but was not actually a member of the clergy.) Beginning in 1966 and continuing through 2002, the Church received several complaints from members that X was sexually abusing children within the ward. The Church not only failed to do anything in response to the complaints, it actively concealed X’s sexual abuse from its members and secular authorities. Moreover, the Church allowed X to continue to hold the positions of High Priest and scout leader. Both plaintiffs were abused when X enticed or lured them into his home. The complaints against the Church for negligence, breach of fiduciary duty, and intentional infliction of emotional distress were dismissed. The Church had no common law duty to warn plaintiffs about X’s prior acts of child sexual abuse because no special relationship existed between the Church and either plaintiffs or X and the abuse occurred in X’s home and was unrelated to the Church or any of its activities. Although Utah law provided for criminal sanctions for failing to report suspected child sexual abuse, the Church’s failure to report the acts of abuse did not create a private cause of action for plaintiffs   Case # 1726 (Utah Ct. App.)

Plaintiff, while a minor, had been sexually abused by a church pastor, who was a family friend of plaintiff’s family. The abuse happened in the pastor’s church office; in the pastor’s car; and in the parsonage, the house owned by the church where the pastor and his family lived. Plaintiff sued, inter alia, the church and the church’s school where he was a student. The claims based on the church’s and school’s own alleged fault – breach of fiduciary duty, negligent supervision, negligent hiring and retention – were all dismissed. However, there remained the question whether, under Vermont law, the church and school could be held vicariously liable for the acts of the pastor under the Restatement (Second) of Agency § 219(2)(d) on the theory that the pastor was aided in accomplishing the tort of sexual abuse “by the existence of the agency relation” with the church. The question was certified to the Vermont Supreme Court which answered the question in the negative. While public policy justified allowing police departments to be held vicariously liable for the acts of its police officers, it did not support holding a small church and school vicariously liable for the acts of its pastor without any regard to fault   Case # 2941 (Vt.)

Plaintiff – sexually abused as a minor by a Roman Catholic priest – filed suit against the diocese for, inter alia, negligent supervision. The Vermont Supreme Court rejected the diocese’s argument that requiring it to hire and supervise priests in a non-negligent manner would constitute undue interference in church governance in violation of the free exercise and establishment clauses of the First Amendment. Allowing suit in which common law, not ecclesiastical principles, governed the scope of the diocese’s duty to protect minors from sexual abuse would not violate the church’s religious autonomy or the ecclesiastical abstention doctrine as the diocese did not invoke any religious doctrine in defense of its actions, nor did it claim that the reason it failed to act in a non-negligent manner was because of a religious belief or practice. Although finding the diocese guilty of negligent supervision, the jury found that plaintiff sued more than 6 years after he knew of the molestation, the resulting harm, and the diocese’s responsibility for such conduct and thus his action was barred by the 6-year statute of limitations. On plaintiff’s post-trial motion, the trial judge set aside, as a matter of law, the jury’s findings as to when plaintiff knew or should have known of defendant diocese’s responsibility and ruled that the jury verdict on liability and damages should stand. On appeal, the Vermont Supreme Court held, inter alia, that the trial court was in error in holding as a matter of law that plaintiff’s action was timely. Rather, the issue of the timeliness of plaintiffas action should have been decided by the jury, because in this case there were sufficient facts for the jury to find that the time for filing an action against defendant had commenced more than 6 years before plaintiff actually commenced his action. However, the Supreme Court did not simply reinstate the jury’s finding. Instead, it remanded for a new trial because of the possible impact on the statute of limitations verdict by the jury in favor of the diocese by a juror who should have been dismissed for cause. One of the juror’s was a member of the defendant diocese, regularly attended mass, and was familiar with the newspaper and television reporting about the lawsuits against the diocese. In addition, the Vermont Catholic Tribune – which had stated the church’s position on the litigation and related matters – was a source of news that the juror saw fairly often. And an open letter from the Bishop of defendant diocese that was read and distributed at every Sunday mass in Vermont described a decision by the diocese to put each parish under a trust so the diocese’s assets could not be reached by court judgments. Here, the juror was very likely aware of the bishop’s assessment of the risk that Catholic churches, including the juror’s, could be lost as a result of lawsuits. Under the circumstances plaintiff had shown the presence of implied bias that should have resulted in disqualification of the juror for cause. This was not a case of striking a juror solely on the basis of religious affiliation, but because she was a member of the defendant organization and could be presumed to be biased. Defendant had no constitutionally protected right to have its own parishioners sit on its jury. Plaintiff was not asking for the systematic exclusion of all Catholics, but rather that persons with a relationship with this particular defendant be excluded from the jury. As a result of this juror serving on the jury, the possibility existed that plaintiff was denied a fair trial owing to the possible impact of the improper juror on the jury’s statute of limitations verdict in favor of the diocese, as well as the small amount of the damages award ($15,000). Thus, the only available remedy was to reverse and remand both the liability and damages determinations for a new trial   Case # 3825 (Vt.)

Claims brought against church entities and individual church officials who did not themselves directly perpetrate intentional acts of childhood sexual abuse, but who allegedly failed to protect the child victims or otherwise prevent the abuse, fall within the broad limitations period allowed under Revised Code of Washington § 4.16.340, the statute of limitations applicable to civil claims "based on" intentional childhood “sexual abuse”; statute does not apply only in actions against the person who committed the acts of sexual abuse; types of “sexual abuse” to which the statute applies explained; action by parents against church for sexual abuse suffered by child at hands of pastor also governed by the statute and the claims of parents begin to run at the same time as the underlying claims of their child, not from the much earlier time the parents knew of the abuse; communications sent from the priests' mental health providers to the diocese were subject to discovery because they were not confidential communications between patient and counselor; scope of client-counselor and client-psychologist privileges; public policy did not favor the imposition of respondeat superior or strict liability for an employee's intentional sexual misconduct, even in cases involving a recognized protective special relationship; a church and its officials have may have a special relationship with its workers and the children of its congregation which gives rise to a duty to take reasonable measures to prevent harm intentionally inflicted on the children by a church worker    Case # 675 (Wash.) (en banc)

After being accused of sexual contact with teenage boys, X, a member of defendant Mormon bishop’s ward, pled guilty to misdemeanor assault and was sentenced to community service; the bishop, who arranged for X to help M build a home, undertook to monitor X’s community service; having met M’s daughter D while performing his community service, X married D for “time and eternity” in a Mormon temple after the bishop and another church official certified that the couple were worthy for a temple marriage; thereafter, X and D moved to Montana, followed by M and her son S; two years later, X was arrested in Montana for sexual contact with a teenage boy, following which S revealed that he too had been sexually abused by X in Montana; action by S against bishop for breach of duty to protect him from actions of fellow church member dismissed; the bishop did not have a special relationship with X, nor did he take charge of X, so as to impose on him a duty to control X from inflicting harm on others; and even if there were a breach of duty on the part of the bishop, such breach was not the proximate cause of S’s injuries which were inflicted at least one year after the termination of the bishop’s supervision of X’s community service; action by D against bishop for breach of duty to protect her  from marrying X for “time and eternity” also dismissed    Case # 417 (Wash. Ct. App.)

Discovery rule did not toll statute of limitations in actions against pastor for negligent pastoral counseling and breach of fiduciary duty because plaintiffs, all adults at the time of the complained of conduct, knew in some sense that the sexual contact between themselves and the pastor was wrong and with reasonable diligence could have discovered the causal connection between the misconduct and their psychological injuries; appellate court does not address question whether there is cause of action for negligent pastoral counseling; under the facts, court could not decide claim against the church for negligent supervision of the pastor without violating First Amendment; admissibility of affidavit of psychologist    Case # 597 (Wash. Ct. App.)

Special relationship between abused children and church officials who had duty to protect them under provisions of the Restatement of Torts   Case # 60 (Wash. Ct. App.), affirmed, partially on different grounds, and remanded for proceedings consistent with the opinion, (Wash.) (en banc), Case # 675

Plaintiff, a female Presbyterian minister serving as an Associate Pastor, alleged that the Pastor engaged in sexually harassing and intimidating conduct, creating a hostile working environment. Invoking Church procedures, plaintiff made a formal complaint of sexual harassment, but claimed that neither the local church or the Presbytery took any action. Thereafter, the Pastor allegedly retaliated against plaintiff by relieving her of certain duties, verbally abusing her and otherwise engaging in intimidating behavior. Again, the Church defendants failed to act. Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). Thereafter, the Church defendants placed plaintiff on unpaid leave and subsequently the Presbytery voted to terminate its employment relationship with her. The Presbytery also notified plaintiff that its Committee on Ministry had decided against permitting plaintiff to circulate her church resume, or “personal information form,” effectively preventing her from acquiring other pastoral employment in any Presbyterian church in the U.S. Plaintiff asserted causes of action for sexual harassment, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as well as various state law claims. Plaintiff sought back pay, front pay, and damages for emotional distress and harm to reputation. She also sought injunctive relief, requiring defendants to permit her to circulate her personal information form. Held: (1) Under the “ministerial exception,” a church’s decisions about whom to employ as a minister are protected by the First Amendment. Thus, to the extent plaintiff’s sexual harassment and retaliation claims implicated the Church’s ministerial employment decisions, those claims were foreclosed. Nonetheless, plaintiff stated narrower and thus viable sexual harassment and retaliation claims that did not implicate protected employment decisions and the ministerial exception. (2) There are two, alternative theories under which a plaintiff may establish an employer’s vicarious liability for sexual harassment. First, an employer is vicariously liable for a hostile environment that culminates in a “tangible employment action.” When no “tangible employment action” has been taken, an employer may raise an affirmative defense that that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm. In the present case, each tangible employment action plaintiff alleged – the removal from certain duties, her suspension, her termination and the refusal to permit the circulation of her personal information form – implicated the Church’s constitutionally protected prerogative to choose its representatives free from government interference. Consequently, defendants’ tangible employment actions had, as a matter of law, to be treated as if they were unrelated to any sexual harassment or complaint thereof. However, although plaintiff could not rely on showing that she suffered sexual harassment culminating in a “tangible employment action,” she could nonetheless hold the Church vicariously liable for the sexual harassment itself, unless the Church could satisfy the affirmative defense outlined above. Plaintiff’s sexual harassment claim was limited to three questions: Was plaintiff subjected to a hostile environment? If so, did the Church exercise reasonable care to correct that environment? Did plaintiff unreasonably fail to avail herself of those measures? These were secular questions, the answers to which did not require interpretations of religious doctrine or scrutiny of defendants’ ministerial choices. But see the dissent. (3) Plaintiff alleged five retaliatory adverse employment actions: the four mentioned above, and retaliatory harassment in the form of verbal abuse and intimidation. Again, the first four were protected ministerial decisions and plaintiff was foreclosed as a matter of law from relying on these protected decisions as acts of retaliation. However, the retaliatory harassment plaintiff alleged – verbal abuse and intimidation – was not a protected employment decision, and thus could be a valid basis for a retaliation claim. (4) A Church may invoke First Amendment protection from Title VII liability if it claims that any alleged sexual and retaliatory harassment was “doctrinal,” although here the Church defendants had not done so. (5) Just as the ministerial exception precluded plaintiff from alleging Title VII claims implicating defendants’ protected ministerial decisions, it similarly precluded her from seeking remedies implicating those decisions. For example, the Court could not order defendants to permit the circulation of plaintiff’s personal information form. Further, because the termination of plaintiff’s ministry and her inability to find other pastoral employment were consequences of protected employment decisions, a damage award based on lost or reduced pay plaintiff may have suffered from those employment decisions would necessarily trench on the Church’s protected ministerial decisions. The same would be true of emotional distress or reputational damages attributable to those decisions. On the other hand, plaintiff could recover for emotional distress and reputational harm caused by the sexual harassment itself – or by retaliatory harassment – because such harassment implicated only the Pastor’s alleged decision to harass plaintiff and the Church’s decision not to remedy that harassment, decisions the ministerial exception did not protect. (6) Court also discusses how the trial court’s power over discovery can avoid any potential entanglement problems in violation of the establishment clause. (7) Both the Court and dissent raised the question whether the plaintiff’s vow to be subject to church discipline constituted an agreement to have the Church arbitrate any disagreements   Case # 1701 (9th Cir.). Plaintiff also commenced an action in state court for, inter alia, sexual harassment, retaliation, and negligent supervision. In the state action, the Washington Court of Appeals affirmed a grant of summary judgment dismissing plaintiff’s claims, because adjudicating plaintiff’s case would have required a civil court to impermissibly examine decisions made by a church tribunal. The state court distinguished the Ninth Circuit’s decision by noting, inter alia, that the federal court was presented with an appeal from a motion for judgment on the pleadings, while the Washington Court of Appeals was reviewing a motion for summary judgment. Thus, unlike the Ninth Circuit, the Washington court was able to consider the substantive evidence presented and conclude that a civil court would be unable to adjudicate plaintiff’s sexual harassment, retaliation, and negligent supervision claims without inappropriately examining decisions made by ecclesiastical judicial bodies and interpreting rules pronounced in the Presbyterian Church’s Book of Order   Case # 1766 (Wash. Ct. App.)

Two Mormon sisters had been sexually abused by their stepfather. Although the older child had informed her ward bishop of the abuse, the abuse was never reported. Held, inter alia: (1) The trial court properly granted the Church’s motion to dismiss the negligence claim based on breach of a special relationship. The LDS (Mormon) Church did not owe a common law duty to protect the plaintiffs. First, there was a lack of a causal connection between the Church and the stepfather’s presence in the family home. Second, the Church, had not been warned that the stepfather had previously abused children or made inappropriate advances towards them. The stepfather moved into the family home in 1988. It wasn’t until 1994 or 1995 that one of the plaintiffs sought her bishop’s counsel regarding the abuse. There were no allegations that the LDS Church possessed knowledge of the risk of harm prior to 1994 or 1995. (2) The trial court’s judgment against the ward bishop and the Church for failure to report the abuse under Wash. Rev. Code § 26.44.030, which failure to report resulted in further abuse of the plaintiffs, was error. Although the statute created a private right of action, the bishop was not a social service counselor as defined by the mandated reporting statute and therefore did not have a duty to report the abuse, even though he had received training and education by the LDS Church on the topic of child sexual abuse, and attended training sessions two to three times a year. The legislature did not intend the mandated reporting statute to apply to volunteer counselors who are not professional social service counselors and not acting in their regular course of employment. The bishop was not a trained professional social service counselor, he was not paid for his counseling services, and the counseling he provided was not in the regular course of his employment. (His regular full-time job was as an engineer.) (3) The judgment against the LDS Church for outage/intentional infliction of emotional distress, due to intimidating statements made by the bishop to the victim was affirmed. The jury could conclude that the bishop should have been aware of the probability of harm from the advice that he gave and the statements he made to plaintiff and that he consciously disregarded that risk. (See Case Digest for details.) (4) However, the jury had also found the stepfather liable for intentional infliction of emotional distress and the trial court had entered a judgment against the stepfather and the church, holding them jointly and severally liable for the intentional infliction of emotional distress. This was error. Joint and several liability only applies among negligent defendants, not among intentional tortfeasors Nor are negligent defendants jointly and severally liable for damages caused by the intentional acts of others, even where the intentional conduct would not have happened but for the negligent conduct. (5) Testimony by the biological daughter of defendant stepfather that her father had sexually abused her in a manner similar to his abuse of his stepdaughters was admissible under the common scheme or plan exception to Fed. R. Evid. 404(b)   Case # 2986 (Wash. Ct. App.)

In 1972, a member of the LDS (Mormon) Church, hereinafter referred to as the father-penitent, had communicated to the ward bishop that his son had been sexually abused by a member of the ward who served in a Scouting capacity. The bishop did not report the abuse pursuant to the mandatory reporting statute in effect at that time. By failing to so report, plaintiff asserted that defendant Church acted negligently, and was now liable for the damages plaintiff suffered when he too was abused by the same individual during the year following the report to the bishop. In the State of Washington, the clergy-penitent privilege is held by the penitent, not the clergy. In 2005, during the course of plaintiff’s suit against the Church, the father-penitent in effect waived the privilege during a deposition conducted by plaintiff’s attorney. However, the Church sought to exclude evidence of the confidential 1972 disclosure by the father-penitent to the bishop on the ground that back in 1972 and the year after when plaintiff was abused, the father-penitent had not waived the privilege and the bishop was therefore precluded, at said dates, from making known that the father-penitent’s son had been abused by a member of the ward. After discussing the scope of the clergy-penitent privilege in the State of Washington, the district court held, that while, under the facts, the privilege protected the bishop from being examined as to anything specific the father-penitent had confided concerning his son’s abuse, the privilege did not excuse the bishop’s failure to comply with his mandatory duty to report the abuse. Back in 1972, the bishop could have reported to law enforcement authorities that he had knowledge that a named individual was abusing children in the church without violating the father-penitent’s privilege. The bishop could have simply reported that he had knowledge of the abuse without revealing the name of the child or the person who reported the abuse, or even that he had actually received a report of abuse. Accordingly, the district court denied the defendant Church’s motion to exclude evidence of the confidential 1972 disclosure by the father-penitent to the bishop regarding the abuse of his son   Case # 2563 (W.D. Wash.). In a separate opinion, the district court declined to preclude evidence of the mandatory reporting statute in effect at the time the bishop received the father-penitent’s report. The Church unsuccessfully argued that (1) by allowing such evidence the court was effectively instructing jurors that a short-lived statute repealed three decades ago was a better measure of reasonable conduct than the statute in effect for the past 31 years which did not mandate reporting and (2) evidence of the statute was overly prejudicial because no jury would ever reach a defense verdict when it could consider the violation of a statute as evidence of negligence   Case # 2587 (W.D. Wash.)

Plaintiff’s mother was a member of the church to which Father B had been assigned by defendant Archdiocese. At the time of the assignment, the Archdiocese allegedly knew that B had a history of sexual misconduct. As a priest, B was able to establish a position of trust with plaintiff’s mother. B allegedly arranged a picnic to which, in addition to plaintiff (age 5) and her mother, he invited X, an unidentified man whom B knew planned to sexually abuse plaintiff. B allegedly brought X to plaintiff’s home, introduced X to plaintiff and her mother and, when X asked if he could drive plaintiff to the picnic, B vouched for X, who proceeded to sexually abuse plaintiff en route to the picnic. It was alleged that the Archdiocese failed in its duty to protect plaintiff because, although the Archdiocese knew or should have known that B had an extensive history of sexual misconduct with children, it placed B in a position that allowed him to facilitate the sexual molestation of plaintiff. The trial court dismissed the complaint for failure to state a cause of action because there was no provable connection between X and the Archdiocese. The Washington Court of Appeals reversed. As a general rule, there is no duty to prevent a third party (here X) from committing an intentional or criminal act causing injury to another unless a special relationship exists between the defendant and the third party or between the defendant and the foreseeable victim of the third party’s conduct. Here, having alleged that the Archdiocese assigned B to the church where plaintiff’s mother was a member knowing that B had a history of sexual misconduct and having alleged that B, as a priest, was able to establish a position of trust with plaintiff’s mother and exercise authority and control over plaintiff, the complaint stated sufficient facts to state a claim that the Archdiocese had a duty to plaintiff to prevent plaintiff’s sexual molestation. Although, for liability to arise, the harm must be reasonably perceived as within the general field of danger which should have been anticipated by defendant, based on the facts alleged in the complaint, the sexual molestation of plaintiff was not wholly beyond the range of expectability, given the Archdiocese’s knowledge of Father B’s history of sexual misconduct. The question of whether the risk of harm was reasonably foreseeable was a question of fact to be determined by the jury   Case # 4293 (Wash. Ct. App.)

Plaintiffs, while students at a Catholic school in Kentucky, were sexually abused by a Roman Catholic priest who taught at the school. The priest had  previously taught at Catholic schools in Wisconsin run by, inter alia, the Diocese of Madison. Plaintiffs claimed the Diocese knew or should have known of the priest’s propensity for sexually abusing children and, despite this knowledge, did not refer the priest to the police or warn unforeseeable third parties – including “other dioceses within the United States, the parochial school systems . . . or the parents of unforeseeable victims” – of the priest’s propensity for sexual abuse so as to prevent him from continuing his pattern of sexually abusing children. In effect, plaintiffs’ negligence claim was premised on an alleged failure to warn unforeseeable third parties, including any potential future employers of the abusive priest at dioceses and parochial school systems everywhere in the country, as well as parents of unforeseeable victims. The Wisconsin Supreme Court concluded that plaintiffs failed to articulate an actionable claim for negligence. In reaching this decision, the Court observed that in this case there was no affirmative misrepresentation by the Diocese to third parties concerning the priest, let alone any type of communication about the priest from the Diocese of Madison in Michigan to the Archdiocese of Louisville in Kentucky. The Diocese’s mere knowledge of the priest’s past sexual abuse, or a presumed knowledge of a continued sexual propensity for abuse, was not enough to establish negligence. Reasonable and ordinary care did not require the Diocese to notify all potential subsequent employers within dioceses and parochial school systems across the country, along with all parents of future unforeseeable victims. Additionally, in this case, the specific victims were unforeseeable and foreseeability of specific victims becomes relevant when an affirmative obligation is argued, such as the obligation to warn. Moreover, the Diocese did not assume a special role in regard to the injured parties. Plaintiffs in this case had no relationship with the Diocese and there were significant gaps temporally and geographically, with the plaintiffs separated from the Diocese of Madison by several state lines and their abuse separated from the priest’s employment with the Diocese by a number of years. Although plaintiffs alleged that the Diocese knew that the priest had a propensity for sexual, they did not allege that the Diocese knew that the priest was in Kentucky, still teaching children, or working for the Archdiocese in Louisville. They did not allege any knowledge that the children at the Kentucky school were in any danger. They did not allege that the Archdiocese of Louisville asked the Diocese for a reference, that the Diocese made a reference recommending the priest, or that the Diocese had any communication whatsoever with the Archdiocese of Louisville regarding the priest. The Court refused to rule that under the general duty of ordinary care recognized in Wisconsin, an employer may be found negligent for failing to warn unforeseen third parties of a dangerous former employee. And even assuming the complaint stated a claim for negligence, the plaintiffs’ claims would nonetheless be precluded on the on the public policy ground that allowing recovery would be the beginning of a descent down a slippery slope with no sensible or just stopping point. A decision to the contrary would create precedent suggesting that employers have an obligation to search out and disclose all matters concerning an ex-employee’s history to all potential subsequent employers, which could include in an employment context every school in the country or beyond   Case # 3250 (Wisc.)

Church was not liable under the theory of negligent supervision for the sexual abuse of a minor by its pastor; even assuming that, under the facts, the church had notice that the pastor posed a risk of harm to third parties, there was no evidence that any incidents of abuse occurred after the church allegedly had notice of the risk; thus, there was no causal connection between the negligent supervision and the harm to plaintiff; court discusses whether there may be a claim for negligent supervision where there is no supervisor; negligent supervision distinguished from claim for vicarious liability or respondeat superior    Case # 792 (Wis. Ct. App.)

Plaintiff alleged that he was sexually abused by a Roman Catholic priest of the Archdiocese of Milwaukee during the years 1960-62; that because of the traumatic nature of the abuse, he immediately repressed all memory of it; that his memories surfaced in 2002, amid revelations by the Archdiocese that it knew about the priest’s abusive tendencies as early as the 1980s. Plaintiff sued the Archdiocese, alleging: (1) negligent supervision; (2) “fiduciary fraud” in that that the Archdiocese both affirmatively misrepresented information about the priest and concealed information in its possession about the priest being a child abuser and (3) breach of fiduciary duty, in that the Archdiocese, despite having an alleged fiduciary relationship with plaintiff, did not disclose information in its possession to the effect that the priest was a serial child abuser. The court of appeals affirmed dismissal of the complaint on statute of limitations grounds. Additionally, the court of appeals held that negligent-supervision claims against a religious body are barred by the Establishment Clause of the First Amendment. See Case # 1804N (Wis. Ct. App.) . The Wisconsin Supreme Court affirmed dismissal of the claims, but not on statute of limitations or constitutional grounds, but for failure to state a cause of action. The complaint asserted nothing from which a person could infer that the Archdiocese had knowledge of the priest’s misconduct before 1980. Because all three causes of action required that at the time of the priest’s alleged wrongful acts (1960-62), the Archdiocese had contemporaneous knowledge of the priest’s abusive tendencies, and because the complaint failed to allege that the Archdiocese knew or had a basis for knowing that the priest was a child molester as of 1960-62, all claims were dismissed. A concurring opinion argued that the majority wasted a golden opportunity to provide much needed guidance regarding the Establishment Clause and the statute of limitations discovery rule and expressed the opinion that (1) in the context of cases involving child sexual assault, the Establishment Clause does not bar plaintiffs from pursuing secular actions and (2) the discovery rule should have been applied to save the plaintiff’s claims against the defendants from the bar of the statute of limitations. Nevertheless, the concurring opinion concurred in dismissal of the complaint apparently because the complaint failed to allege that the Archdiocese knew or had a basis for knowing that the priest was a child molester as of 1960-62, at the time of the priest’s alleged wrongful acts   Case # 1982 (Wis.)

Plaintiff was a member of a Baptist church employed by the church as the Youth and Young Adult Minister reporting directly to the church pastor. When plaintiff went to the pastor’s private study for private and personal counseling, she was allegedly physically grabbed by the pastor and pulled toward him in a very personal and sexually provocative manner. Plaintiff alleged that she was “extremely disturbed” by this incident and took a leave of absence and applied for and received Workers’ Compensation. Plaintiff also claimed that as a result of her complaints about the pastor’s sexual advances toward her and other female parishioners, both the pastor and the Church slandered her reputation, filed and served a request for a Temporary Restraining Order prohibiting her from entering the Church, and subjected her to undue criticism and ridicule from other Church members. Plaintiff sued, inter alia, the pastor for (a) negligent infliction of emotional distress; (b) sex discrimination and harassment in violation of California’s Fair Employment and Housing Act (FEHA) and (c) retaliation in violation of California’s FEHA. Held: The Workers’ Compensation scheme did not provide plaintiff an exclusive remedy in her claim against the pastor for if it could be shown that the pastor was not acting “within the scope of his . . . employment” when he committed the acts giving rise to the claim for negligent infliction of emotional distress. And acts of sexual misconduct fall outside the scope of a pastor’s employment. Hence, the claim for negligent infliction of emotional distress against the pastor was not barred by the Workers Compensation Code. However as the claims for discrimination, harassment and retaliation in violation of the FEHA, the pastor was not subject to suit. Under California’s FEHA, Cal. Gov. Code § 12940, supervisors may not be held individually liable for discriminatory acts. The pastor could not be sued individually for any acts of discrimination alleged by plaintiff. The pastor was not “an employer” for the purposes of § 12940(a). Nor could he be held individually liable under § 12940(i) for “aiding and abetting” the Church in any alleged discriminatory acts. The pastor was also exempt from a claim of harassment under the FEHA, because his employer, the Church, was exempt as a religious entity under the FEHA. This appeared to be the first case addressing in any meaningful way the question of whether the religious entity exemption for employers extended to employees of such an entity. Finally, the FEHA did not allow for the imposition of personal liability for retaliation on a supervisor, where the supervisor is employed by an employer that falls under the religious entity exemption    Case # 1549 (N.D. Cal.)

See also Case # 291 (Colo.)

See also “Jurisdiction Over Church and Church Officials


Attorney; Admission to the Bar

Petitioner law student disclosed on his 2006 application to take the Iowa state bar exam that in 2002 he had been accused of sexually abusing a minor approximately 20 years earlier while employed as a Roman Catholic priest in Juneau, Alaska. The Iowa Board of Law Examiners sought to bar petitioner from taking the bar exam on the ground that he lacked the moral character to practice law. Petitioner admitted that during the early years of his priesthood, when he served as a youth leader, he had used questionable disciplinary techniques, which were deemed by clerical authorities as an abuse of his parishioners’ trust leading to his removal from the priesthood. Petitioner had used spanking, tickling, push-ups, and sit-ups as disciplinary techniques during trips and he sometimes required the boys to remove their trousers prior to spanking, tickling, or calisthenics. Petitioner denied he was sexually motivated in his choices of these disciplinary techniques, but stated he intended the experience to humiliate the children and encourage them to modify the behaviors for which they were disciplined. Petitioner also admitted that from 1981 to 2002 he often requested or “cajoled” boys under his watch to massage his feet and neck. He typically requested the massages when he was tired from flying, driving, or walking for a long period of time. Petitioner admitted the massages occasionally may have occurred behind closed doors with only one boy present, but denied any sexual motivation for such conduct. Petitioner remained clothed at all times during the massages. The board of law examiners contended these abuses of trust were so serious that petitioner remained unfit to practice law notwithstanding his completion of a treatment program, his many subsequent years of appropriate priest-parishioner trust relationships, and his apology to those harmed by his earlier actions. The Iowa Supreme Court majority disagreed with the law board. The Court did not believe that, under the facts, such non-criminal acts from seventeen (or more) years ago reflected poorly on petitioner’s present moral character and fitness to practice law. But compare the more unforgiving attitude of the dissenting Justice   Case # 2997 (Iowa)

Bankruptcy; Chapter 11 Reorganization by Catholic Diocese as a Result of Tort Claims by Victims of Clergy Sex Abuse

See Bankruptcy

Charitable Immunity

See Charitable Immunity

Child Abuse and Neglect Reporting Acts

See Child Abuse and Neglect Reporting Acts

Criminal Cases

See Criminal Law, ""Sex Crimes"

See also Discovery, “Sexual Abuse by Clergy; Cases Involving

Cults: Evidence On

Defendant told his wife that he was the fourth Son of God, that he had God-like powers, calling himself a death angel, as God assigned him the task of destroying those who needed it. The wife and her minor daughter from a previous marriage lived a life of abuse and isolation controlled by defendant. Defendant conducted “mind sessions” with the daughter telling her she would be an adult at age eight, which meant that she could then hug and kiss him. Defendant then began having sexual intercourse with the daughter abusing her for years on a daily basis. He also sexually abused his wife’s niece claiming that she was his wife and that he had God-like powers. Defendant never spoke “religiously” outside of the home. Defendant was charged and convicted with sexual intercourse without consent, incest, and tampering with a witness. As a defense, defendant maintained that he was suffering from a mental disease or defect, and could not have formed the requisite mental state to commit the crimes. During defendant’s trial, the jury heard expert testimony from, inter alia, a clinical social worker and qualified expert in sexual abuse, who testified about her own personal experiences in a Christian sect and the sexual and religious manipulation that were part of her experience. The social worker also described, in general, the principles and characteristics of such religious groups and how they manifested, or were reflected, in letters that defendant had written to his wife. The Montana Supreme Court rejected the defendant’s argument that the social worker’s expert testimony regarding cult behaviors, such as sexual abuse and religious manipulation and control, was irrelevant, and its admission worked to “supplant” the State’s need to prove defendant’s mental state. The social worker did not testify that defendant himself was a cult leader, nor did she state that defendant had formed a cult. By reference to her experiences in a “Christian sect,” the social worker merely provided the jury a context for them to understand the intricacies of “religious groups” in general. In that respect, the testimony was relevant. In addition, the testimony was not unfairly prejudicial, as defendant himself admitted to the control to which he subjected his victims and the social worker did not state that defendant himself exhibited or performed the beliefs that are typical of the religious groups about which she testified in general. The dissent argued that the facts of defendant’s crimes were presented through witness testimony and documentary exhibits and that defendant in no way contested the fact that the victims were sexually abused. Thus, the social worker’s testimony was totally irrelevant. In the dissent’s opinion, all the testimony about cults and cult leaders served to do was to poison the jury against defendant’s mental defect defense and the expert testimony which supported it long before the defense had an opportunity to put on its case   Case # 1745N (Mont.)

Defamation and Libel

Clergyman’s action for defamation and loss of employment against archbishop and archdiocese arising from charge priest engaged in improper sexual activity with child  Case # 8 (La. Ct. App.)

Court did not have subject matter jurisdiction over a Roman Catholic priest’s causes of action for defamation and intentional infliction of emotional distress arising from defendants’ allegedly false charges that they had been sexually abused by the priest when they were minors. The statements were made before an ecclesiastical body, as part of the Church’s evaluation of plaintiff’s fitness for continuation in the ministry. The alleged false and defamatory statements were published solely in a canonical context and supplied the basis for the defendants’ initiation of disciplinary proceedings against plaintiff under the Policies of the Archdiocese of Chicago for investigating and responding to reports of sexual abuse of minors. The defendants’ allegations of sexual abuse by plaintiff were used to invoke and became part of the Catholic Church’s internal disciplinary procedures and the First Amendment obligated the civil courts to refrain from interfering with the Church’s ability to consider the veracity of the defendants’ charges through its disciplinary procedures. In addition, plaintiff, as an ordained priest, and the defendants, as parishioners, acceded to the Policies of the Archdiocese of Chicago and were bound by them. Plaintiff’s defamation claim concerned the core of the church-minister relationship. While the Catholic Church’s interest in the matter was not exclusive, the Church had a strong interest in protecting minors from sexual abuse at the hands of clergy and for purposes of the First Amendment, parishioner victims who invoke the Catholic Church’s internal disciplinary process may also invoke their belief in the Church’s right to be free from State court interference in that process. The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in civil court. A person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. Since the only defamatory publication allegedly made by the defendants was made to the Church itself within internal disciplinary proceedings, and not to other, third persons, the absolute First Amendment protection for statements made by Church members in an internal church disciplinary proceeding precluded the court from exercising jurisdiction. While it was possible that resolution of plaintiff’s claims would not require any interpretation of Church doctrine, resolving this dispute would involve the court in interfering with the Church’s internal disciplinary proceedings. Although a court or jury could apply “neutral principles of law” to the defendants’ alleged statements to determine whether or not they were defamatory, those statements were published exclusively within the context of the Church’s disciplinary proceedings   Case # 3735 (Ill. App. Ct. Dist.)

Plaintiff, a former priest of an Episcopal Church in New Mexico, brought a defamation action against vestry members and members of the parish claiming that defendants had published a false and anonymous letter accusing plaintiff of pedophilia. Plaintiff claimed that falsely accusing a religious leader of pedophilia is always defamatory and that he suffered personal humiliation and mental anguish. However, in New Mexico a plaintiff suing for defamation or libel, irrespective of the plaintiff’s and the communication’s classification as public or private, must not only prove that the communication was defamatory, he must also establish as part of his prima facie case that he suffered an actual injury to reputation. Evidence of humiliation and mental anguish, without evidence of actual injury to reputation, is insufficient to establish a cause of action for defamation. Thus the trial court properly granted summary judgment to defendants upon finding that plaintiff was unable to demonstrate actual injury to his reputation, having never been suspended from his position or having suffered any “adverse employment consequences” or other related losses from distribution of the anonymous letter. See, however, ¶ 32 of the Court’s opinion observing that depending on the type and severity of facts presented in a given case, alternative tort actions may provide redress for a plaintiff truly seeking recovery for injuries other than injury to reputation, such as an action for false light invasion of privacy, which is designed to compensate for falsehoods that injure feelings rather than reputation. Although acknowledging that proof of actual damage will be impossible in a great many defamation cases, the Court went on to say, that:

A showing of actual injury to reputation is not so high a barrier to surmount that it limits recovery only to monetary loss and employment termination . . . . Injury to reputation may manifest itself in any number of ways. . . . Events indicating an injury to reputation in the present case might include a decline in membership at . . . [the parish], an unwillingness for parishioners to allow children to participate in parish-related activities, or a decline in general social invitations from fellow parishioners – assuming such evidence could be proved and linked to the defamatory communication.

However, because there was no indication that plaintiff came forward with evidence of any kind to support an argument that his reputation was actually injured by publication of the anonymous letter, defendants were entitled to summary judgment. But because the requirement to show actual injury to reputation may not have been sufficiently clear prior to the Court’s present opinion, the state Supreme Court remanded in order to allow plaintiff the opportunity to amend his complaint to raise other theories for recovery which may more appropriately provide redress for the injuries he allegedly suffered   Case # 4487 (N.M.)

Hindu priest, institute he headed, and members of the institute, commenced a New York action against a North Carolina nonprofit corporation and various individual defendants for false allegations of sexual exploitation; defendants’ motions to dismiss for failure to state a cause of action or lack of long arm jurisdiction denied  Case # 10 (N.Y. App. Div.)

Petitioner, a bishop in the “Church of God” was found guilty by an ecclesiastical trial board of “unbecoming ministerial conduct” owing to inappropriate sexual advances to male members of the church staff and clergy. Petitioner’s license was suspended for one year and he was ordered to undergo counseling with a psychologist. Upon completion of the counseling sessions, the psychologist recommended that petitioner be returned to full-time ministry and the Michigan Church of God State Council approved petitioner’s reinstatement. However, the Church’s International Executive Council failed to act on petitioner’s request for reinstatement. Petitioner and his wife filed a complaint against the Church of God and various individuals, asserting claims of breach of implied contract, tortious interference with business relationships, invasion of privacy, conspiracy, intentional infliction of emotional distress, defamation, and loss of consortium. Held, the court lacked subject matter jurisdiction over this case as a matter of First Amendment law. On appeal, petitioner focused on the defamation claim in particular. The Court of Appeals also discussed the suggestion by the U.S. Supreme Court in Serbian E. Orthodox Diocese v. Milivojevich that there may be room for some marginal civil court review under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes. Unlike the opinion of the Court of Appeals, the district court opinion addressed each of petitioner’s claims individually and in detail.   Case # 2185 (6th Cir.), affirming, in relevant part, (E.D. Tenn.)

See also Libel and Defamation

Disclosure; Public Discloure of Confidential Records of Abusive Clergymen

25 plaintiffs brought separate lawsuits against the Franciscan Friars of California, alleging they had been sexually abused by Individual Franciscan brothers. The Franciscans and plaintiffs entered into a settlement agreement. The Franciscans had produced many confidential records of the Individual Friars in discovery and were in possession of more such records not produced but listed on privilege logs. As part of the settlement, plaintiffs, in addition to monetary damages, bargained for unrestricted disclosure of these records. The agreement asked the trial court to retain jurisdiction to determine if it was appropriate to publicly release the confidential files of the alleged perpetrators in the possession of the Franciscans, including psychiatric reports. The individual perpetrators were not named as defendants in all 25 lawsuits, and most of them did not sign the settlement agreement, however the settlement agreement provided a mechanism for the accused Individual Friars to receive notice of the potential release of their records, allowing them to file objections. A hearing officer was to then hold a hearing to determine which, if any, documents, or parts thereof, could be released to the public. The religious order’s Operating Policies and Procedures for Friar Conduct provided that if an accusation of sexual misconduct was raised against an individual Friar, a “team” consisting of the provincial minister of the religious Order and two friars was to be appointed to investigate if there was a basis for the accusation and, if it seemed that there was, a psychological evaluation of the accused Friar was to be arranged for. The “team” was to use the report from the psychotherapist to decide what restrictions to put on the friar's ministry and what treatment he needed. Following any recommended treatment, the “team” was to recommend to the provincial council whether reassignment of the Friar was appropriate, and if so what kind of assignment should be made, and to recommend any possible restrictions on the Friar that might apply. The “team” was to supervise long term care and follow up programs resulting from evaluations and treatment and to see to it that appropriate superiors and supervisors were informed on the basis of a “need to know.” The Franciscans paid for the psychotherapy and psychiatric sessions and the Individual Friar was required to agree to release of his records to the Franciscan order. The trial court ordered the public release of psychiatric and other confidential records in the possession of the Franciscans obtained by the Franciscans under the above-described treatment protocol. After holding that the Individual Friars whose records were ordered released to the public had standing to appeal, even though they were not a party the actions or to the settlement agreement, the California Court of Appeal affirmed. The privacy interests of the Individual Friars did not preclude disclosure of the documents. Privacy concerns are not absolute, but must be balanced against other important interests. Here, the compelling social interests in disclosure of information relating to sexual predators of children outweighed the Individual Friars' privacy interests. All the Individual Friars had either admitted to sexual molestation of a minor or conceded such conduct, or records indicated they had a propensity to commit sexual acts. The members of the Santa Barbara Franciscan province, as well as members of the Catholic Church throughout California, had a compelling interest in knowing what treatment the Individual Friars received, if any, for their predatory proclivities, and whether it was adequate to protect young parishioners whom they may have encountered in their ministries. Plaintiffs, former members of the Santa Barbara Franciscan province who suffered the lifelong effects of childhood abuse, had the same interests as other members of the Province and Society in having the documents of their abusers released. Indeed, all citizens had a compelling interest in knowing if a prominent and powerful institution had cloaked in secrecy decades of sexual abuse revealed in the psychiatric records of counselors who continued to have intimate contact with vulnerable children while receiving treatment for their tendencies toward child molestation. The psychotherapist-patient privilege did not preclude disclosure of the psychiatric reports, as the Individual Friars voluntarily permitted the therapists to disclose to the Franciscans the psychiatric reports in dispute for purposes unrelated to the friars' diagnosis and treatment. The Franciscan order was not involved in rendering psychotherapy treatment to the Individual Friars, nor were the Franciscans involved in the diagnostic process or in facilitating the therapist in diagnosing or treating the Individual Friars. Rather, the Franciscans obtained the records to make personnel decisions and to arrange for treatment so the Individual Friars could continue their ministry on behalf of the Franciscans. The Franciscans paid for the therapy to make sure the Individual Friars received treatment, but the psychological records were not disclosed to the Franciscans for diagnostic and treatment purposes. It made no difference that the Individual Friars were told and believed their psychological records would be kept confidential. Their voluntary disclosure of these records to the Franciscans for purposes that were not reasonably necessary for diagnosis and treatment operated as a waiver of the privilege irrespective of what the Franciscans may have told the friars. Although the Individual Friars' vows of poverty and obedience rendered them impoverished and bound to cooperate with their church, preservation of the privilege depended on whether the Individual Friars' psychological records were disclosed to the Franciscans to achieve diagnostic and treatment purposes rather than to help the Franciscans decide where to assign each friar and under what restrictions. It made no difference that the Individual Friars sought treatment because they were ordered to do so   Case # 4118 (Cal. Ct. App.)

See also cases under Discovery, “Sexual Abuse by Clergy; Cases Involving

Discovery; Public Disclosure of Information Learned on Discovery

See Discovery, “Sexual Abuse by Clergy; Cases Involving

On application of discovery rule for statute of limitation purposes, see cases listed under Statutes of Limitations

Domestic Violence; Prevention of Domestic Violence Acts

See Domestic Violence

Employment, Loss of

Petitioner, a bishop in the “Church of God” was found guilty by an ecclesiastical trial board of “unbecoming ministerial conduct” owing to inappropriate sexual advances to male members of the church staff and clergy. Petitioner’s license was suspended for one year and he was ordered to undergo counseling with a psychologist. Upon completion of the counseling sessions, the psychologist recommended that petitioner be returned to full-time ministry and the Michigan Church of God State Council approved petitioner’s reinstatement. However, the Church’s International Executive Council failed to act on petitioner’s request for reinstatement. Petitioner and his wife filed a complaint against the Church of God and various individuals, asserting claims of breach of implied contract, tortious interference with business relationships, invasion of privacy, conspiracy, intentional infliction of emotional distress, defamation, and loss of consortium. Held, the court lacked subject matter jurisdiction over this case as a matter of First Amendment law. On appeal, petitioner focused on the defamation claim in particular. The Court of Appeals also discussed the suggestion by the U.S. Supreme Court in Serbian E. Orthodox Diocese v. Milivojevich that there may be room for some marginal civil court review under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes. Unlike the opinion of the Court of Appeals, the district court opinion addressed each of petitioner’s claims individually and in detail.   Case # 2185 (6th Cir.), affirming, in relevant part, (E.D. Tenn.)

Plaintiff, studying to be ordained as a Jesuit priest, alleged that the sexual harassment of his superiors was so severe that he was constructively forced to leave the Jesuit order before taking vows to become a priest; plaintiff filed against the Jesuit order a federal cause of action for sexual harassment in violation of Title VII, as well as state law claims for failure to investigate, for constructive wrongful discharge, and for breach of contract; the "ministerial exception" to Title VII did not bar plaintiff's claim of sexual harassment against the Jesuit order; on remand the trial court would have to determine if the ministerial exception barred any of the state law claims    Case # 661 (9th Cir.), reversing, Case # 180 (N.D. Cal.). Cf. Plaintiff, a former Roman Catholic seminarian, claimed he was regularly and persistently subjected to unwanted homosexual advances during his lengthy seminary training despite complaints to supervisors. He was allegedly forced to drop out before ordination due to the homosexual harassment, and was now without a meaningful career. He sued the Diocese and a number of its priests for breach of an implied contract by the creation of a hostile education and work environment, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, intentional infliction of emotional distress, and fraud and deceit. The complaint was dismissed on a pre-answer motion to dismiss on the ground that entertaining it would violate the Religion Clauses of the First Amendment. The New Jersey Supreme Court now reversed and remanded to the trial court to determine, on an issue-by- issue basis, whether any of plaintiff’s claims could be adjudicated consistent with First Amendment principles. While court could not entertain a suit by plaintiff for reinstatement as a seminarian, if his claims could be adjudicated consistent with First Amendment principles he could establish a right to monetary relief. New Jersey’s highest court sets out operative principles of law    Case # 1309 (N.J.), reversing, Case # 1057 (N.J. Super. Ct. App. Div.).

Plaintiff, a female Presbyterian minister, accused an individual who was the director of music and a church elder of sexual harassment. After she was fired, plaintiff sued, along with church elder and the local church, the regional Presbytery which operated the local church of which she had been the minister. On the Presbytery’s motion under Fed. R. Civ. P. 12(b)(6) to dismiss, the district court held: (1) Plaintiff timely filed an EEOC charge on her sex discrimination and sex harassment claims; (2) Plaintiff stated a claim against the Presbytery for intentional failure to supervise, and (3) the claim was timely under the applicable Kansas statute of limitations; (4) Plaintiff’s claim against the Presbytery for negligent infliction of emotional distress dismissed on First Amendment grounds, but (5) her claim for intentional infliction of emotional distress was not subject to dismissal    Case # 1567 (D. Kan.)

Plaintiff, a female Presbyterian minister, accused an individual who was the church choir director and a church elder of sexual harassment. Plaintiff sued the church at which she had been employed for sexual harassment and retaliation. Invoking the “ministerial exception,” the church moved to dismiss plaintiff’s Title VII claims for lack of subject matter jurisdiction and failure to state a claim. Considering defendant’s motion more appropriately treated as a challenge to the sufficiency of plaintiff’s claims, and not a jurisdictional challenge, the district court held that the First Amendment did not preclude plaintiff from stating claims for sexual harassment and retaliation   Case # 1765 (D. Kan.)

Plaintiff instituted an action against (1) the New York Archdiocese and its Cardinal; (2) the Newark Archdiocese and its Archbishop; (3) the Congregation of Christian Brothers, and a number of its members; and (4) the Roman Catholic Diocese of Albany and its Bishop, alleging that for years he witnessed and experienced sexual abuse at the hands of the clergy, and that after he publicly exposed the abuse and cover up and the Catholic Church’s handling of sexual abuse scandals, defendants fired him from his position as Director of a Catholic school. Plaintiff filed suit under (1) the Racketeer Influenced and Corrupt Organizations Act (RICO) and (2) Title VII of the Civil Rights Act of 1964. The thrust of plaintiff’s RICO allegations was that he was injured by the termination from his position as Director of a Catholic school in retaliation for voicing his opposition to the Church’s handling of sexual abuse allegations. As to the Title VII action, plaintiff alleged that he was retaliated and discriminated against on the basis of his sexual orientation. Plaintiff seemed to be claiming reverse-discrimination in that he was heterosexual, and was discriminated against for not participating in the homosexual activities that had allegedly been requested of plaintiff and that was allegedly customary and commonplace in the priesthood or religious life. The Title VII claim was dismissed on three independent grounds: plaintiff failed to exhaust his administrative remedies; it was time-barred; and Title VII does not apply to claims of discrimination based on sexual orientation. And, after a very detailed examination of the pertinent provisions of the RICO statute, the court dismissed the RICO claim with prejudice, the amended complaint having failed every single one of the pleading requirements. And even if plaintiff had properly alleged violations of the RICO statute under 18 U.S.C. § 1962(c) or (d), which he did not, the RICO claim would nonetheless have failed because plaintiff did not have proper standing under the statute. Finally, the court imposed significant sanctions under Rule 11 Federal Rules of Civil Procedure upon plaintiff’s counsel for bringing the Title VII and RICO claims   Case # 2739 (S.D.N.Y.)

Plaintiff pastor, a member of the Presbyterian Church (U.S.A.), allegedly had sex with a female church member and viewed pornography on the laptop computer in his office at the local church. The Clerk of the Presbytery disclosed the allegations to plaintiff's wife. The local church announced to the congregation, and soon thereafter published news of, the allegations, without disclosing their contents. Plaintiff resigned from his position. A letter was sent by the Clerk of Sessions to the congregation informing it of plaintiff’s resignation for reasons of ”illness” and that allegations had been brought against plaintiff, although the letter refrained from specifying the allegations. Plaintiff alleged that the procedural requirements set forth in the Church’s “Book of Order” were violated  and asserted claims for violation of the right to privacy, slander and defamation, violation of the Federal Electronic Privacy Act, intentional or negligent infliction of emotional distress, and breach of implied contract All claims were dismissed for lack of subject matter jurisdiction under the free exercise and establishment clauses of the First Amendment    Case # 1324 (W.D. N.C.)

Plaintiffs, Roman Catholic seminary students in Mexico, were invited to a parish in the State of Washington where they served under the parish priest. Plaintiff 1 served as a Hispanic minister, assisting the priest during Mass, answering the phone for the parish, working with the parish youth group, and setting appointments for couples seeking marriage counseling. Plaintiff 2 assisted the priest during Mass, and performed maintenance work. Plaintiff 1 claimed that he was subject to sexual harassment by the parish priest and that when he complained to the Archdiocese, both he and plaintiff 2 were transferred to another church, where, shortly thereafter, their positions were terminated. Plaintiffs sued the Archdiocese. The Archdiocese moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Held, inter alia: (1) Plaintiffs alleged that they were subject to sexual harassment/hostile work environment and retaliation owing to their gender and national origin in violation of Title VII. (2) Although defendant claimed that plaintiffs were not employees of the Archdiocese and argued that a determination by the court to the contrary was forbidden by the “ministerial exception,” the district court held that on a motion for judgment on the pleadings, plaintiffs’ allegation that they were “employees” of the Archdiocese for purposes of Title VII had to be taken as true. (3) Because plaintiffs alleged that they engaged in the spiritual functions of the Church, and because these assertions had to be accepted as true for the purposes of the instant motion, both plaintiffs were covered by the ministerial exception. (4) There was no factual support for a claim that plaintiff 2 was subject to sexual harassment/hostile environment. (5) Plaintiff 1 alleged facts supporting a Title VII claim that he was subject to sexual harassment/hostile work environment. Upon a showing of a hostile environment, one of the circumstances in which liability may be imposed upon the employer is if the hostile work environment culminates in a tangible employment action (such as termination) against the plaintiff. But because plaintiff 1 was a church employee covered by the ministerial exception, he could not assert that the employment actions taken by defendant Archdiocese formed the basis of an alleged tangible employment action resulting from a hostile work environment. The Archdiocese had the right to choose its representatives free from government interference and in accordance with the dictates of its faith and conscience. However, plaintiff 1’s sexual harassment claim could proceed, and liability could be imposed on the Archdiocese, if it were established that defendant allowed a hostile work environment to exist without taking proper corrective action. (6) To make a prima facie case of retaliation under Title VII, plaintiffs had to show that (i) they engaged in a protected activity, (ii) they suffered an adverse employment action and that (iii) there was a causal link between the activity and the employment decision. Plaintiffs were prohibited by the ministerial exception from asking the court to evaluate the second and third element of their prima facie case. Again, decisions concerning promotions, transfers, rates of pay, selection of assignments, and duties performed are all protected-choice matters of church administration. (7) Plaintiffs conceded that plaintiff 2’s claim for negligent hiring, retention and supervision against the Archdiocese should be dismissed. And the ministerial exception precluded plaintiff 1’s state law negligence claim. The very nature of plaintiff 1’s negligence claim would require the court to evaluate the reasonableness of defendant’s protected employment choices vis a vis the abusive priest in order to ascertain if it breached any duty owed plaintiff. (8) Plaintiffs’ claims against the Archdiocese for intentional infliction of emotional distress were also dismissed, because under Washington law, an employer is shielded from liability when their employees commit intentional acts of sexual misconduct. (9) Plaintiffs’ claims under the Washington Minimum Wage Act concerned decisions regarding the rate of pay for non-secular church employees and had to be dismissed under the ministerial exception. (10) Plaintiffs’ claim that defendant reported plaintiffs to the immigration authorities after their employment was terminated did not support a claim for outrage. Reporting persons who may be in this country illegally to the authorities is not conduct so extreme as to be unacceptable in civilized society   Case # 2687 (W.D. Wash.)

Action by priest against archbishop and archdiocese for defamation and loss of employment arising from charge of improper sexual activity with child; court has subject matter jurisdiction; matter not purely an internal church matter Case # 8 (La. Ct. App.)

Plaintiff, an Episcopal priest, filed an employment discrimination action alleging that the defendant diocese and bishop discriminated against her based on her gender resulting in her constructive discharge. Bishop’s patronizing and condescending actions of putting his arm around plaintiff, a female Episcopal priest, did not constitute sexual harassment for purposes of Massachusetts statutory law    Case # 1407 (Mass.)

Revocation of teacher’s certificate by the state board of education for lack of good moral character affirmed; teacher, who was a minister, pled guilty to simple assault on a minor female congregant for act of giving victim "holy kisses" on the mouth and "holy hugs"; revocation of teaching license did not infringe on teacher’s sincerely held religious views and was not based on teacher’s purely religious conduct    Case # 1031N (N.H.)

Plaintiff, a female Presbyterian minister serving as an Associate Pastor, alleged that the Pastor engaged in sexually harassing and intimidating conduct, creating a hostile working environment. Invoking Church procedures, plaintiff made a formal complaint of sexual harassment, but claimed that neither the local church or the Presbytery took any action. Thereafter, the Pastor allegedly retaliated against plaintiff by relieving her of certain duties, verbally abusing her and otherwise engaging in intimidating behavior. Again, the Church defendants failed to act. Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). Thereafter, the Church defendants placed plaintiff on unpaid leave and subsequently the Presbytery voted to terminate its employment relationship with her. The Presbytery also notified plaintiff that its Committee on Ministry had decided against permitting plaintiff to circulate her church resume, or “personal information form,” effectively preventing her from acquiring other pastoral employment in any Presbyterian church in the U.S. Plaintiff asserted causes of action for sexual harassment, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as well as various state law claims. Plaintiff sought back pay, front pay, and damages for emotional distress and harm to reputation. She also sought injunctive relief, requiring defendants to permit her to circulate her personal information form. Held: (1) Under the “ministerial exception,” a church’s decisions about whom to employ as a minister are protected by the First Amendment. Thus, to the extent plaintiff’s sexual harassment and retaliation claims implicated the Church’s ministerial employment decisions, those claims were foreclosed. Nonetheless, plaintiff stated narrower and thus viable sexual harassment and retaliation claims that did not implicate protected employment decisions and the ministerial exception. (2) There are two, alternative theories under which a plaintiff may establish an employer’s vicarious liability for sexual harassment. First, an employer is vicariously liable for a hostile environment that culminates in a “tangible employment action.” When no “tangible employment action” has been taken, an employer may raise an affirmative defense that that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm. In the present case, each tangible employment action plaintiff alleged – the removal from certain duties, her suspension, her termination and the refusal to permit the circulation of her personal information form – implicated the Church’s constitutionally protected prerogative to choose its representatives free from government interference. Consequently, defendants’ tangible employment actions had, as a matter of law, to be treated as if they were unrelated to any sexual harassment or complaint thereof. However, although plaintiff could not rely on showing that she suffered sexual harassment culminating in a “tangible employment action,” she could nonetheless hold the Church vicariously liable for the sexual harassment itself, unless the Church could satisfy the affirmative defense outlined above. Plaintiff’s sexual harassment claim was limited to three questions: Was plaintiff subjected to a hostile environment? If so, did the Church exercise reasonable care to correct that environment? Did plaintiff unreasonably fail to avail herself of those measures? These were secular questions, the answers to which did not require interpretations of religious doctrine or scrutiny of defendants’ ministerial choices. But see the dissent. (3) Plaintiff alleged five retaliatory adverse employment actions: the four mentioned above, and retaliatory harassment in the form of verbal abuse and intimidation. Again, the first four were protected ministerial decisions and plaintiff was foreclosed as a matter of law from relying on these protected decisions as acts of retaliation. However, the retaliatory harassment plaintiff alleged – verbal abuse and intimidation – was not a protected employment decision, and thus could be a valid basis for a retaliation claim. (4) A Church may invoke First Amendment protection from Title VII liability if it claims that any alleged sexual and retaliatory harassment was “doctrinal,” although here the Church defendants had not done so. (5) Just as the ministerial exception precluded plaintiff from alleging Title VII claims implicating defendants’ protected ministerial decisions, it similarly precluded her from seeking remedies implicating those decisions. For example, the Court could not order defendants to permit the circulation of plaintiff’s personal information form. Further, because the termination of plaintiff’s ministry and her inability to find other pastoral employment were consequences of protected employment decisions, a damage award based on lost or reduced pay plaintiff may have suffered from those employment decisions would necessarily trench on the Church’s protected ministerial decisions. The same would be true of emotional distress or reputational damages attributable to those decisions. On the other hand, plaintiff could recover for emotional distress and reputational harm caused by the sexual harassment itself – or by retaliatory harassment – because such harassment implicated only the Pastor’s alleged decision to harass plaintiff and the Church’s decision not to remedy that harassment, decisions the ministerial exception did not protect. (6) Court also discusses how the trial court’s power over discovery can avoid any potential entanglement problems in violation of the establishment clause. (7) Both the Court and dissent raised the question whether the plaintiff’s vow to be subject to church discipline constituted an agreement to have the Church arbitrate any disagreements   Case # 1701 (9th Cir.). Plaintiff also commenced an action in state court for, inter alia, sexual harassment, retaliation, and negligent supervision. In the state action, the Washington Court of Appeals affirmed a grant of summary judgment dismissing plaintiff’s claims, because adjudicating plaintiff’s case would have required a civil court to impermissibly examine decisions made by a church tribunal. The state court distinguished the Ninth Circuit’s decision by noting, inter alia, that the federal court was presented with an appeal from a motion for judgment on the pleadings, while the Washington Court of Appeals was reviewing a motion for summary judgment. Thus, unlike the Ninth Circuit, the Washington court was able to consider the substantive evidence presented and conclude that a civil court would be unable to adjudicate plaintiff’s sexual harassment, retaliation, and negligent supervision claims without inappropriately examining decisions made by ecclesiastical judicial bodies and interpreting rules pronounced in the Presbyterian Church’s Book of Order   Case # 1766 (Wash. Ct. App.)

Insurance Coverage

See Insurance


Intervention by Parishioner Giving Money to Roman Catholic Church in Suit against Local church and Archdiocese Arising From Sexual Abuse by a Priest

In a suit against a local Roman Catholic Church and the Archdiocese arising from the alleged sexual abuse of the plaintiff by a priest, a Roman Catholic parishioner moved to be made a party defendant claiming that he had both a legal and financial interest in the case because he was a contributor to both the local Church and the Archdiocese. He claimed that pursuant to both Canon Law and Connecticut Statutes, monies contributed to the Roman Catholic Church were held for the purposes of maintaining religious worship and for the support of the Church’s educational and charitable institutions and that neither a local church nor an archdiocese may be divested of its property because of the wrongs of abusive priests, that the payment of damages to the plaintiff out of church assets would be an illegal use of his money and would impede his free exercise of religion. The court denied the motion to intervene as of right or by permission   Case # 1974 (Conn. Super. Ct.)

Jurisdiction of Federal District Court When a First Amendment Defense is Raised in State Court

Plaintiffs, sexually abused by Roman Catholic priests, sued the Archdiocese for negligent hiring and retention of the abusive priests. The actions, which had been removed to federal district court, were remanded to the state court for lack of a federal question. The complaint asserted claims for employer negligence rooted in neutral, generally applicable state law principles and did not, on their face, raise a federal issue   Case # 2204 (D. Colo.)

Plaintiff, alleging that three Catholic priests sexually abused her, filed an action in state court for sexual battery against the Archdiocese and the Archbishop under the theory of respondeat superior. Defendants removed the action from state court to federal district court, asserting that plaintiff's allegations raised First Amendment issues arising from her allegations of a religious-based “breach of trust.” The federal district court granted plaintiff's motion for remand to the state court, finding that there was an absence of any constitutional issues and that the federal court lacked jurisdiction over the action. While, generally, courts may not interpret church laws, policies or practices in a manner that will limit the church’s ability to fully practice its religion or be guided by its religious principles, this does not prevent courts from addressing church-related disputes, provided the court refrains from considering doctrinal matters and resolves the dispute solely on neutral principles. The mere consideration of religious authorities by the court does not necessarily amount to an infringement of the church’s religious freedom. A court may look to church laws, policies or practices to establish the basic purposes or policies of the religion as a guide to determining whether a plaintiff has a viable action against the church, one under the theory of respondeat superior. In the absence of any constitutional issues, the federal court lacked jurisdiction over this action and it should be remanded to state court    Case # 1365 (D. Ore.)

Jurisdiction Over Church and Church Officials; Long Arm Jurisdiction

 See Jurisdiction, "Long Arm Jurisdiction; Sexual Abuse Cases"

Jurisdiction Over Church and Church Officials; Other Cases

In plaintiffs’ claims arising out of sexual abuse by Roman Catholic clergy, the court addressed the question whether the Holy See (the Vatican) was subject to the jurisdiction of an American court under the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602 et seq. The thrust of plaintiffs’ claims were that the abuse they suffered was rooted in “the deliberate failure of the Holy See to take effective action to prevent childhood sexual abuse by its priests, clerics, bishops, archbishops, cardinals, agents, and employees.” Plaintiffs claimed that in 1962 the Holy See promulgated and imposed a policy of secrecy surrounding incidents of childhood sexual abuse and failed to take steps to prevent abuse, punish offenders, or avoid recidivism by prior offenders. Plaintiffs alleged, inter alia, that (i) the Holy See breached its fiduciary duty to plaintiffs; (ii) violated its international law obligations under the Universal Declaration of Human Rights and the Convention on the Rights of the Child; (ii) breached, “by and through its agents, servants and employees,” its duty to provide safe care, custody, and control to the minor children entrusted to the Church; (iii) breached the duty to warn parents of those children that the priests and other clerics to whom they entrusted their children were known perpetrators of childhood sexual abuse; (iv) breached the duty to report known or suspected perpetrators of childhood sexual abuse to the appropriate authorities; (v) committed outrage and infliction of emotional distress; and (vi) was guilty of the torts of deceit and misrepresentation. Affirming the district court’s holdings, the Sixth Circuit Court of Appeals held: (1) The Holy See qualified as a foreign state entitled to the protection of the Foreign Sovereign Immunity Act (FSIA). The Court rejected plaintiffs’ contention that they were not suing the Holy See in its capacity as a foreign state recognized by the U.S. government, but in its capacity as a parallel non-sovereign entity that headed an international religious organization, the Roman Catholic Church, that was not entitled to the protection of the FSIA. (2) The district court correctly applied the FSIA’s burden shifting process to the Holy See’s facial challenge to the complaint on its Federal Rule of Civil Procedure 12(b)(1) motion to dismiss. See Court’s opinion for details. (3) Under the FSIA, foreign sovereigns are presumptively immune from the jurisdiction of U.S. The district court held that the Holy See did not waive its FSIA immunity either “implicitly or explicitly,” see 28 U.S.C. § 1605(a)(1), by failing to raise the immunity defense over decades of settling and acquiescing in settlements of childhood sexual abuse claims. While plaintiffs raised the waiver exception in their complaint, they abandoned the argument in their briefs before the Court of Appeals and the Court of Appeals did not address the issue. (4) The Holy See was not subject to the court’s jurisdiction under the commercial activity exception of 28 U.S.C. § 1605(a)(2). The “true essence” of plaintiffs’ claims was not commercial. Plaintiffs’ claims sounded in tort. (5) Some, but not all, of plaintiffs’ claims were subject to jurisdiction under the tortious activity exception of 28 U.S.C. § 1605(a)(5). (6) In order to apply the tortious act exception allowing the court to assert jurisdiction over the foreign government, the “entire tort” must occur in the United States. Thus any portion of plaintiffs’ claims that relied upon acts committed by the Holy See abroad could not survive. For example, the tortious act exception to the FSIA’s grant of immunity would not include any theory of liability premised on the Holy See’s own negligent supervision because such acts presumably occurred abroad. (7) However, plaintiffs alleged that tortuous acts and omissions by agents of the Holy See inside the United States caused personal injuries. Plaintiffs’ allegations were sufficient to state a prima facie case that the Holy See exercised substantial control over the archbishops, bishops, and other Catholic clergy in the United States accused of having committed the tortious acts in question so as to qualify them as officials or employees of the Holy See as defined in FSIA. However, the district court was open to reconsidering this conclusion if contrary evidence emerged during the litigation. (8) The tortious act exception to the FSIA’s grant of immunity did not apply so as to permit suit against the Holy See for the sexual abuse committed in the United States by its clergy. Under applicable Kentucky tort law, the Holy See could be held vicariously liable for its employees’ tortious actions only if said actions were committed in the scope of employment. Because the alleged acts of sexual abuse were not done while the alleged tortfeasors were acting within the scope of their employment the Holy See was not responsible for their actions and could not be sued under the doctrine of respondeat superior. (9) As to plaintiffs’ claim against the Holy See for violations of the customary law of human rights under international law, plaintiffs alleged that: “[t]he instructions, mandates and dictates of the . . . Holy See in the United States prohibiting the disclosure of the identity and existence of pedophiles and sexual predators under its control, thereby placing children in a position of peril, is a gross violation of well-established, universally recognized norms of international law of human rights.” This claim did not survive against the Holy See as it pertained to the actual promulgation of the 1962 Policy which occurred abroad. However, the claim survived against the Holy See as it pertained to the conduct of its employees (bishops, cardinals, etc.) who, pursuant to the 1962 Policy, violated the terms of the relevant international laws through their tortious supervisory conduct in the U.S. over the allegedly abusive clergy. (10) Plaintiffs alleged claims for breach of fiduciary duty by the Holy See, stating that “a special legal relationship existed between . . . plaintiffs and the . . . Holy See, in the nature of a fiduciary relationship, which was carried out by and through priests, clerics, and administrators under the absolute control of the . . . [Holy See]. . . .” Plaintiffs contended that the Holy See breached its fiduciary duties owed to plaintiffs by failing in its “duty to warn parents” and the “duty to report known or suspected perpetrators.” The breach of fiduciary duty claims survived against the Holy See for the actions of its supervising employees occurring in the U.S., but did not survive against the Holy See for the Holy See’s own failures to warn or report because such tortious conduct would have occurred abroad. (11) Because a court cannot exercise jurisdiction under the FSIA over tort claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused,” 28 U.S.C. § 1605(a)(5)(A), plaintiffs’ negligence claim against the Holy See based upon the alleged failure of its agents and employees “to provide safe care, custody, and control” of minor children in Catholic schools and churches could not proceed. An alleged failure to provide safe care amounts to a claim for negligent hiring, and claims of negligent hiring fall within the discretionary function exception. (12) The alleged failure of the Holy See’s officials and employees in the U.S. to warn parishioners that their children would be under the care of known or suspected pedophiles and to report known or suspected perpetrators of child sexual abuse to the relevant state and local authorities survived. The failure to “warn” and failure to report claims against the Holy See were premised on the conduct of Holy See employees in the U.S. who were allegedly negligent in their supervision of abusive clergy. Looking at the allegations in the complaint, these claims were not facially barred by the discretionary function exception because an established policy of the Holy See required the action. According to the complaint, the Holy See’s 1962 Policy “impose[d] the highest level of secrecy on the handling of clergy sexual abuse matters.” Plaintiffs contended that this required secrecy prohibited Holy See personnel from, among other things, reporting childhood sexual abuse to government authorities. The allegations in plaintiffs’ complaint premised upon the negligent supervision of the allegedly abusive clergy did not implicate the discretionary function exception to the tortious act exception because plaintiffs alleged that the terms of the supervision were, under the 1962 Policy, not discretionary. Again, however, the claims of negligence against the Holy See for its own conduct could not survive because such negligence would not have occurred in the United States. (13) Plaintiffs pled a claim for outrage/infliction of emotional distress against the Holy See itself, stating: “The acts and omissions of the . . . Holy See . . . , including the concealment of its policy of harboring and protecting its abusive priests, agents and employees from public disclosure and prosecution and directives prohibiting the reporting of child sexual abuse to authorities . . . is conduct which is so outrageous and extreme in degree, as to go beyond all possible bounds of decency, so as to be regarded as utterly atrocious in a civilized society.” This claim could not survive to the extent it pertained to the actual promulgation of the 1962 Policy by the Holy See, because such promulgation occurred outside the U.S. In addition, it could not survive against the Holy See for the conduct of its allegedly abusive priests because the acts of alleged abuse did not occur within the scope of employment. However, this claim did survive against the Holy See as it pertained to the conduct of its employees in the U.S. who, pursuant to the 1962 Policy, violated the terms of the relevant international laws through their tortious supervisory conduct over the allegedly abusive clergy. (But it appeared that plaintiffs abandoned this claim.) (14) Insofar as any claim against The Holy See was based on misrepresentation or deceit, they were barred by 28 U.S.C. § 1605(a)(5)(B). (15) The district court held that the First Amendment did not bar plaintiffs’ claims. This litigation applied only to the Holy See as a foreign state, not as the head of an international religious organization, and foreign sovereigns do not enjoy rights derived from the U.S. Constitution. The Holy See could not simultaneously seek the protections of the FSIA and the U.S. Constitution. (16) The district court held that plaintiffs’ claims were not barred by the doctrine of international comity   Case # 3364 (6th Cir.), affirming, Case # 2719 (W.D. Ky.)

Plaintiff filed an action against the Holy See of the Roman Catholic Church; the Archdiocese of Portland, Oregon, the Catholic Bishop of Chicago, and the Order of Friar Servants for the alleged tortious conduct of a Catholic priest at a local parish church in Portland. The complaint alleged that the priest, a member of the Order of Friar Servants, had sexually molested a minor while employed with the Archdiocese of Armagh in Ireland in 1955-1956; that the priest had admitted to abusing the youth and was removed from his position in Ireland and placed in defendant Order’s Chicago province, at an all-boys school where he worked in the private counseling office; that while in Chicago, three male students made independent reports of sexual abuse committed by the priest, who admitted to all three reports; that the Chicago Bishop, “acting in accordance with the policies, practices, and procedures” of the Holy See, did not discipline or remove the priest from his post; and that in 1965 the Holy See and the Order of the Friar Servants “placed” the said priest in a parish priest position in Portland where he subjected plaintiff, who was, at the time, a minor, to sexual abuse. The question under consideration was whether, based on the allegations in the complaint, the Holy See, which had the status of a foreign state, was subject to the jurisdiction of an American court under the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602 et seq. Plaintiff sued the Holy See (1) for vicarious liability based on the actions of the Holy See’s instrumentalities, the Archdiocese, the Chicago Bishop, and the Order; (2) for respondeat superior liability based on the actions of the abusive priest, and (3) for direct liability for the Holy See’s own negligence in retaining and supervising the priest and for the Holy See’s alleged negligent failure to warn plaintiff of the priest’s dangerous proclivities. The district court rejected the argument that that the Archdiocese, the Chicago Bishop, and the Order were separate juridical entities for whose actions the Holy See could not be held vicariously liable, holding that plaintiff sufficiently pled the existence of an agency relationship to overcome the presumption of independence accorded to separate juridical entities. On this point, the Ninth Circuit Court of Appeals reversed, holding that plaintiff had not alleged facts sufficient to overcome the presumption of separate juridical status for governmental instrumentalities, so the negligent acts of those entities could not be attributed to the Holy See for jurisdictional purposes. Plaintiff’s complaint did not allege day-to-day, routine involvement of the Holy See in the affairs of the Archdiocese, the Order, and the Bishop. Instead, it alleged that the Holy See “creates, divides, and re-aligns dioceses, archdioceses and ecclesiastical provinces” and “gives final approval to the creation, division or suppression of provinces of religious orders.” Plaintiff also alleged that the Holy See “promulgates and enforces the laws and regulations regarding the education, training, and standards of conduct and discipline for its members and those who serve in the governmental, administrative, judicial, educational, and pastoral workings of the Catholic Church world-wide.” These factual allegations – that the Holy See participated in creating the corporations and continued to promulgate laws and regulations that applied to them – were insufficient to overcome the presumption of separate juridical status. Plaintiff did not allege that the Holy See inappropriately used the separate status of the corporations to its own benefit, or that the Holy See created the corporations for the purpose of evading liability for its own wrongs. See Court’s opinion for further details. Plaintiff’s claims against the Holy See for respondeat superior liability could proceed because plaintiff sufficiently alleged that the priest who abused him was an employee of the Holy See and that, under Oregon law, the priest had acted within the “scope of his employment.” Under Oregon law, an intentional tort (such as sexual abuse) is within the scope of employment, and can support respondeat superior liability for the employer, if conduct that was within the scope of employment was “a necessary precursor to the” intentional tort and the intentional tort was “a direct outgrowth of . . . conduct that was within the scope of . . . employment.” Plaintiff’s allegations met this standard. Plaintiff asserted that he came to know the priest as his “priest, counselor and spiritual adviser,” and that the priest used his “position of authority” to “engage in harmful sexual contact upon” plaintiff in “several places including the monastery and surrounding areas in Portland, Oregon.” Although as a foreign sovereign, the Holy See was presumptively immune from suit under the FSIA unless an exception applied, the priest’s acts came within the FSIA’s tortious act exception of 28 U.S.C. § 1605(a)(5), so the Holy See was not immune from suit for the respondeat superior cause of action. In his complaint, plaintiff alleged that the Holy See employed priests, including the priest who had abused plaintiff, and that said priest was under the “direct supervision and control” of the Holy See and that the Holy See was further “responsible for the work and discipline [of] . . . priests.” According to the complaint, the Holy See on at least one occasion was responsible for controlling where the abusive priest performed his functions, having placed the priest in the Portland, Oregon parish. Under Oregon law, then, plaintiff clearly alleged sufficient facts to show that his claim was based on an injury caused by an “employee” of the foreign state while acting “within the scope of his . . . employment.” See § 1605(a)(5). The district court had also held that plaintiff’s negligence claims, but not his fraud claim, against the Holy See could proceed under the FSIA’s tortious act exception. On appeal, the Ninth Circuit disagreed. Plaintiff’s complaint asserted a claim of negligence against the Holy See on the grounds that it knew or reasonably should have known of the priest’s dangerous propensities as a child abuser, but despite such knowledge, negligently retained and placed the priest and negligently failed to warn those coming into contact with him. The Holy See’s alleged placement of the priest in the Oregon parish occurred entirely within the United States because the priest was transferred from Chicago to Portland. Certainly, plaintiff’s injuries, including his emotional pain, dysfunction, embarrassment, and other psychological injuries, occurred entirely within the United States. Therefore, the district court held that plaintiff alleged a claim for negligence based on acts and injuries occurring entirely in the United States. This result was not changed by the fact that plaintiff’s complaint alleged many other bases of tortious conduct by the Holy See possibly occurring outside of the United States. The district court held that as long as plaintiff alleged facts sufficient to show both injury and the conduct (action or inaction) giving rise to a tort that occurred in the United States, the tortious activity exception applied. The district court further held that plaintiff’s negligence claims against the Holy See were not barred by the discretionary function exception, which bars jurisdiction over a foreign sovereign for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). The district court held that the challenged actions in this case were not the type of judgments the discretionary function exception was designed to shield because the record was devoid of any evidence that the Holy See’s failure to warn was the result of a policy judgment or was even susceptible to balancing competing policy interests. The Ninth Circuit disagreed, holding that the discretionary function exception barred plaintiff’s negligence claims against the Hoy See. Whether or not the alleged negligence otherwise came within the language of the FSIA’s tortious act exception was not decided by the Ninth Circuit panel. The complaint referred vaguely to the Holy See’s “policies, practices, and procedures” of not firing priests for, and not warning others about, their abusive acts. Plaintiff also referred to a “policy promulgated by the Holy See to cover up incidents of child abuse,” which he argued removed any element of judgment or choice from the Holy See’s actions. Yet nowhere did plaintiff allege the existence of a policy that was “specific and mandatory” on the Holy See. Plaintiff did not state the terms of this alleged policy, or describe any documents, promulgations, or orders embodying it. Nor did the complaint in any other way allege that the Holy See’s decisions to retain the abusive priest and not warn about his proclivities involved no element of judgment, choice, or discretion. While the burden of proof ultimately falls on the sovereign entity asserting the discretionary function exception, a plaintiff must advance a claim that is facially outside the discretionary function exception in order to survive a motion to dismiss. Plaintiff failed to do so. Hiring, supervision, and training of employees are discretionary acts. The Holy See’s failure on its motion to dismiss to present any evidence that its actions were actually based on policy considerations was not relevant to whether the discretionary function exception applied. A foreign state’s decision “need not actually be grounded in policy considerations so long as it is, by its nature, susceptible to a policy analysis.” Here, the Holy See might have decided to retain the priest and not to warn his parishioners because it felt that to do otherwise would have harmed the Church’s reputation locally, or because it felt that pastoral stability was sufficiently important for the parishioners’ well-being, or because low ordination rates or staffing shortages made it necessary to keep the priest on. That such social, economic, or political policy considerations could have influenced the decision rendered it the kind of judgment that the discretionary function exception was designed to shield. The district court had also held that the Holy See was not subject to the court’s jurisdiction under the commercial activity exception of 28 U.S.C. § 1605(a)(2). Under the “private person test,” a foreign state engages in “commercial activities” for purposes of the FSIA if its activities are not an exercise in powers peculiar to sovereigns, but an exercise only of those powers that can also be exercised by private citizens. Plaintiff argued that the Holy See provided and promoted guidance, education and counseling services world-wide to Catholics in return for revenue and that such acts were in essence a commercial activity subjecting it to the court’s jurisdiction. However, the district court held that the true essence of plaintiff’s complaint was an allegation of sexual abuse committed by a parish priest and the gravamen of the complaint was not commercial in nature, but sounded in tort. Thus, the district court held it did not have subject matter jurisdiction under the FSIA’s commercial activity exception. The Ninth Circuit held that it did not have jurisdiction to consider plaintiff’s interlocutory cross-appeal as to the commercial activity exception. See Court’s opinion in Part III.B.2 for details. Judge Berzon, in her dissenting opinion, agreed with the majority that plaintiff’s negligence claims against the Holy See, as currently pleaded, could not proceed under the tortious act exception. However, J. Berzon was of the opinion that plaintiff’s negligence claims came within the FSIA’s commercial activity exception, based on the principle that an employment relationship between a foreign sovereign and its employee constitutes commercial activity, so long as the employee is not a civil service, diplomatic, or military employee. The concurring opinion, while agreeing with the majority opinion that the Court could not presently consider the commercial exception on plaintiff’s interlocutory appeal, went on to address the substance of the question in light of the dissenting opinion. The concurring Judge agreed with the district court that the commercial activity exception did not allow plaintiff’s negligence claims   Case # 3457 (9th Cir.), affirming in part and reversing in part, Case # 2718 (D. Or.)

Plaintiff, a California citizen, claiming that he was sexually assaulted by a priest in 1975 when he was a minor, sued, in U.S. District Court, inter alia, the Holy See (a foreign state) and the Roman Catholic Bishop of Oakland (a California citizen) in “negligence” and “vicarious liability (respondent superior), alleging that the abusive priest was an agent of the named defendants. On defendant Bishop of Oakland’s motion to dismiss, to which plaintiff did not respond, the court, apparently sua sponte, ordered plaintiff to show cause, in writing by a certain date, why the instant action should not be dismissed without prejudice for lack of subject matter jurisdiction. Based on defendant Bishop’s motion papers and plaintiff’s complaint, the court, preliminarily found that (1) it did not have diversity jurisdiction over the instant action (either over defendant Bishop or the Holy See) given that the Bishop of Oakland was a citizen of the same state as plaintiff and (2) did not have jurisdiction over the Holy See pursuant to the Foreign Sovereign Immunities Act   Case # 4276 (N.D. Cal.)

Plaintiffs sued the Archdiocese of Galveston-Houston and other Archdiocese defendants; and then Cardinal Joseph Ratzinger, now Pope Benedict XVI, for numerous claims arising out of their alleged sexual abuse. While still “Cardinal Ratzinger,” the Pope was alleged to have been involved in a cover-up of sexual abuse by the Catholic Church in general and by U.S. Dioceses, including the defendant diocese. The district court dismissed the claims against Pope Benedict with prejudice, holding that the Pope was entitled to head-of-state immunity, even for the alleged acts committed while he was a Cardinal and not yet the head of the Holy See.   Case # 2171 (S.D. Tex.)

Court has jurisdiction over claims against officials of hierarchical church where liability is predicated upon the officials' failure to take appropriate action to prevent sexual assaults by clergy subject to their authority  Case # 9 (D. R.I.). For subsequent developments, see Case # 178, affirmed, Case # 623 (1st Cir.) (in action against hierarchy  defendants based on sexual abuse of minors by priests, constitutional challenge on First Amendment grounds does not have to be addressed prior to deciding merits of the case)

Plaintiff, a resident of Nebraska, was sent by his parents to “Sky Ranch for Boys” located in South Dakota, where he was allegedly sexually assaulted by its director, a Catholic priest, named Father M. When the abuse became known to the Bishop of the Diocese of Rapid City, South Dakota, who was a director and officer in the Sky Ranch corporation, Sky Ranch was closed down and plaintiff returned to Nebraska. Several months later, plaintiff was arrested in Nebraska and sent to the Nebraska State Training School (NSTS). Father M contacted NSTS seeking custody of plaintiff, allegedly informing NSTS officials that Sky Ranch had been closed for financial reasons, but had reopened and that he would take plaintiff back to Sky Ranch. NSTS released plaintiff into the custody of Father M, who, after picking up plaintiff eventually took plaintiff to a different ranch in Wyoming for the summer, and later moved plaintiff to a private residence in South Dakota. Plaintiff eventually fled. Plaintiff filed a diversity action in the federal court in the District of Nebraska, naming (1) Sky Ranch, (2) a Foundation devoted to assisting Sky Ranch in public relations and fund raising, and (3) the Diocese of Rapid City, South Dakota, alleging that all three were vicariously liable for Father M’s conduct. Both Sky Ranch and the Foundation were subject to personal jurisdiction in Kansas. Father M, acting on behalf of Sky Ranch, entered into Kansas and allegedly committed the tortious act of kidnapping plaintiff and the Foundation had conducted business in Kansas via fundraising activities held during the period in which plaintiff’s cause of action arose. In addition, Kansas was a proper venue for the action, because, although South Dakota’s connection to the defendants may have been much stronger, Nebraska also had a substantial connection to plaintiff’s claim. However, plaintiff’s Kansas suit against the Diocese was dismissed for lack of jurisdiction. Whether the Diocese could be held vicariously liable for Father M’s conduct was irrelevant to the issue of personal jurisdiction. The question was whether the Diocese, based solely on its activity as the Diocese, and not on the activity of administrators of related entities acting in other capacities, should reasonably expect too be haled into court in Nebraska. Based on the record, the answer was “no.”   Case # 1801N (8th Cir.)

Plaintiff, a student and parishioner at a Roman Catholic Church in Missouri, was sexually abused in Illinois by a Roman Catholic priest for the Archdiocese of St. Louis, Missouri. Federal district court in Illinois did not have personal jurisdiction over the Archdiocese of St. Louis or its Archbishop   Case # 1903 (S.D. Ill.)

Action under Title IX the Higher Education Act, 20 U.S.C. §§ 1681 et seq., for sexual harassment of student, brought against parochial school, Franciscan Brothers, and diocese dismissed for lack of subject matter jurisdiction; court declines to exercise supplemental jurisdiction    Case # 136 (E.D.N.Y.)

Plaintiff, while a minor, was sexually abused by a Lutheran Pastor. The abuse occurred in Massachusetts in the respective residences of the plaintiff and Pastor while the Pastor was serving as Pastor Emeritus of a congregation within the New England District of the Lutheran Church-Missouri Synod. Prior to retiring and assuming the post of Pastor Emeritus in Massachusetts, the Pastor served as a pastor in New York, in the Atlantic District of the Missouri Synod. Plaintiff sued the Missouri Synod and the Atlantic District, claiming that they negligently employed, supervised, and retained the Pastor in a position of trust with the knowledge that he had a history of sexually assaulting minors. It was also alleged that defendants failed to inform the New England District of the Pastor’s prior misconduct, allowing him to remain rostered as a Pastor knowing that during his ministry in the New England District he would have unsupervised access to children. The district court granted summary judgment dismissing the claims against the Synod and the Atlantic District on the grounds that (1) suits for negligent hiring, supervision and retention against the church defendants would violate the First Amendment; (2) the Synod and Atlantic Division lacked the power to remove a Pastor from a local Congregation; and (3) the evidence did not show that defendants had the requisite prior knowledge of the Pastor’s potential threat to minors. Although not adopting all of the district court’s reasoning, the Second Circuit affirmed the grant of summary judgment on the ground that the evidence did not show that defendants had the requisite prior knowledge of the Pastor’s potential threat to minors and on the additional ground that, as pertained to the alleged tort of negligent supervision, the tort was not committed on the employer’s premises or with the employer’s chattels. The Second Circuit declined to address the district court’s holding that suits for negligent hiring, supervision and retention against the church defendants would violate the First Amendment, but seemed to question the validity of such conclusion   Case # 1749 (2d Cir.), affirming, Case # 1431 (S.D.N.Y.)

Plaintiff, allegedly defrauded of at least $286,000 and seduced by her pastor, sued the General Board of the Church of the Nazarene and the Arizona/Southern Nevada District Church of the Nazarene for negligent hiring, negligent supervision, negligent retention, negligence under a theory of respondeat superior, intentional infliction of emotional distress, securities fraud, constructive fraud, and racketeering. The claims in question against these hierarchical institutions could be resolved by application of neutral principles of civil law and, therefore, that the trial court had subject-matter jurisdiction   Case # 2428 (Ariz. Ct. App.)

As a minor, plaintiff was sexually abused in California by a Roman Catholic priest. The priest was born and raised in Ireland and was living in Ireland when, in 1964, he entered an Irish seminary allegedly owned and operated by defendant Irish archdiocese. In 1965, the priest was accepted as a candidate for the priesthood by a California diocese which paid the Irish seminary for the priest’s tuition and living expenses. In 1971, after the priest completed his seminary studies in Ireland and was ordained as a priest by the then current archbishop of the defendant Irish archdiocese, the priest moved to California where he began serving as a priest for the California diocese. The plaintiff sued the Irish archdiocese in California, alleging that said archdiocese trained and ordained the priest and sent him to the California diocese knowing he was a child molester. The trial court quashed service of the summons and process on defendant Irish archdiocese, based on lack of personal jurisdiction. The California Court of Appeal affirmed. (1) The Court of Appeal held that plaintiff waived the issue of the propriety of the trial court’s ruling on jurisdiction by failing, on appeal, to fully and fairly discuss the evidence submitted by the archdiocese to the trial court arguing against a finding of jurisdiction. A party who challenges on appeal the sufficiency of the evidence to support the lower court’s finding must set forth, discuss, and analyze all the evidence before the lower court on that point, both favorable and unfavorable. Contrary to fundamental principles of appellate review, plaintiff failed to do so. See Court’s opinion for details. (2) Alternatively, the Court of Appeal held that substantial evidence supported the trial court’s ruling that defendant had insufficient contacts with California to support an exercise of jurisdiction. The Irish archdiocese had no ongoing residence or relationships in California and did nothing more than educate and ordain priests who then left for service in California and in other states. The Irish archdiocese, through the seminary, did nothing more than receive money from the California diocese to pay the costs and expenses of the priest’s education. The Irish archdiocese educated other priests who went on to serve throughout the United States, including California. By no stretch could such activities be considered so systematic, continuous, and wide-ranging that the Archdiocese was subject to the general jurisdiction of the California courts. The same was true in regard to specific jurisdiction. There was no evidence that defendant Irish archdiocese knew about the priest’s propensity to molest children and there was evidence to support the trial court’s finding that defendant did not assign the priest to the California diocese and therefore did not target or aim him at California. The Irish archdiocese did no more than accept tuition money and related expenses from the California diocese for the priest’s seminary training, much the same as any other school that is a passive recipient of a student’s tuition from a nonprofit scholarship fund. There was also substantial evidence to support the finding that the priest was not an agent or employee of the Irish archdiocese and that said archdiocese did not know the priest had a propensity to molest children, and it did not assign or send him to California. The priest’s alleged acts of molestation were very much attenuated from defendant’s extremely limited contacts with California and there was no evidence that the priest’s misdeeds were anything other than unilateral   Case # 3789 (Cal. Ct. App.)

Plaintiff alleged that when he was a minor, a Roman Catholic priest, working at a parish in Orange County, California. molested him. Plaintiff sued, among others, the Archdiocese of Milwaukee, Wisconsin, alleging the Archdiocese engaged in a cover-up of the priest’s prior misconduct in Wisconsin, which included a conviction for sexual perversion against a minor boy, and arranged for the priest to move to California. The evidence showed the Milwaukee Archdiocese sought to rid itself of the priest by sending him into California, knowing he was a pedophile. Plaintiff met his burden of proving, for purposes of establishing “specific” personal jurisdiction, that the Milwaukee Archdiocese engaged in intentional conduct expressly aimed at California and knew its conduct would cause harm in the state. It was not relevant to the “effects” test whether or not the Milwaukee Archdiocese disclosed the priest’s prior misconduct to the California diocese. The Milwaukee Archdiocese rid itself of the priest by sending him into California, knowing he was a pedophile and had been convicted of perversion with a boy. Such conduct was intentional and was expressly aimed at California. The Milwaukee Archdiocese knew its intentional conduct would cause harm in California. Thus, the Milwaukee Archdiocese’s conduct satisfied the “effects” test, regardless whether it gave the Orange Diocese “fair warning” of the priest’s prior misconduct    Case # 1495 (Cal. Ct. App.)

Roman Catholic clergyman who reported incident of suspected child abuse by fellow clergyman, as required by California’s Child Abuse and Neglect Reporting Act, stated causes of action for intentional infliction of emotional distress and for defamation against the Archbishop when he alleged that defendant retaliated against him for reporting the incident by (1) discrediting his report to law enforcement officials; (2) relieving him of his duties and putting him on administrative leave; (3) falsely reporting to other clergy and members of the archdiocese that plaintiff committed inappropriate conduct during church functions; (4) demanding that plaintiff submit to a psychological evaluation; and (5) causing a letter to be published in a local paper in which the diocese’s director of communications falsely accused plaintiff of engaging in a witch hunt against the reported clergyman; First Amendment did not grant defendant immunity from suit    Case # 1109 (Cal. Ct. App.)

Plaintiff, a church secretary and bookkeeper hired and supervised by a church committee staffed by volunteers, alleged that she was sexually harassed by the committee’s chairman, also a volunteer; claims against the local Methodist Church and local Church Conferences dismissed; determination of plaintiff’s claims would require court to review and interpret church law, policies, and practices in order to determine whether an agency relationship existed between the committee and the church defendants, and whether the church defendants could be held liable for the committee chairman’s actions    Case # 967 (Fla. Dist. Ct. App.). But the decision was quashed and remanded for further proceedings consistent with the opinion in Case # 1183 (Fla.) and Case # 1184 (Fla.)

Plaintiff alleged that he was sexually abused by a Catholic priest in Michigan from 1971 through 1976, at which time the priest moved to Florida without the consent of the Detroit Archdiocese. The acts of sexual abuse allegedly continued in Florida through 2001. In June 1976, the priest refused a request by the Detroit Archdiocese that he return for reassignment. He received no compensation from Detroit after April 1976 and remained Florida, where he obtained a graduate degree and was employed by a governmental agency. In 1979, pursuant to a request by the priest, the Archbishop of the Detroit Archdiocese wrote to the Archbishop of Miami excardinating the priest from the Archdiocese of Detroit permanently and unconditionally according to Canon 112 so that he could be incardinated into the Archdiocese of Miami, Florida. The excardination was to be effective from the moment of the priest’s incardination into the Archdiocese of Miami, which took place in 1982. The Archdiocese of Detroit was unaware of any complaints or allegations of sexual misconduct against the priest until 2002, when plaintiff made public allegations against the priest. The Archdiocese of Detroit made no recommendation to the Archdiocese of Miami regarding the priest’s fitness for duty, nor was one requested and the Archdiocese of Detroit was provided no information regarding the priest’s possible assignments within the Archdiocese of Miami. Plaintiff brought suit in Florida against the priest, the Archdiocese of Detroit and its Archbishop, and the Archdiocese of Miami and its Archbishop. Plaintiff alleged that the Archdiocese of Detroit knew or should have known of the pedophile propensities of the priest and negligently failed to take appropriate corrective or preventative action. The action against the Archdiocese of Detroit and its Archbishop was dismissed without prejudice on the ground that Florida lacked personal jurisdiction over said defendants. The court rejected the argument that the mere presence of the priest in Florida meant that the priest was acting as the agent of the Detroit Archdiocese in Florida, thereby subjecting the Detroit Archdiocese and its Archbishop to Florida jurisdiction. Although, under Canon Law, the Archbishop of the Archdiocese of Detroit may have retained the primary responsibility to supervise the priest, even in Florida, until his incardination in the Archdiocese of Miami in 1982, Canon Law did not supply the test for personal jurisdiction under Florida law. For purposes of Florida law, plaintiff failed to establish the existence of any principal-agent relationship. Nor did plaintiff establish that the Detroit Archdiocese had a presence in or committed torts in Florida   Case # 1807N (Fla. Dist. Ct.)

Plaintiff, sexually abused by a priest, alleged that he was fraudulently induced more than 10 years before to settle his claims against the Archdiocese by false promises that the Archdiocese would undertake certain reforms and procedures for investigating allegations of sexual abuse. Plaintiff further alleged that the agent who served as the Archdiocese’s representative in settling plaintiff’s prior claim may have lacked authority to enter into all the terms of the settlement agreement and to bind the Archbishop or Archdiocese. Held: Just because the complaint raised issues concerning the scope of authority of an agent of the Archdiocese, who served as the Archdiocese’s representative in settling the prior claim, did not mean that the trial court lacked subject matter jurisdiction over plaintiff’s complaint   Case # 3372 (Fla. Dist. Ct. App.)

Court has subject matter jurisdiction over action by priest against archbishop and archdiocese for defamation and loss of employment arising from charge of improper sexual activity with child; matter not purely an internal church matter Case # 8 (La. Ct. App.)

Plaintiff, a former Roman Catholic seminarian, claimed he was regularly and persistently subjected to unwanted homosexual advances during his lengthy seminary training despite complaints to supervisors. He was allegedly forced to drop out before ordination due to the homosexual harassment, and was now without a meaningful career. He sued the Diocese and a number of its priests for breach of an implied contract by the creation of a hostile education and work environment, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, intentional infliction of emotional distress, and fraud and deceit. The complaint was dismissed on a pre-answer motion to dismiss on the ground that entertaining it would violate the Religion Clauses of the First Amendment. The New Jersey Supreme Court now reversed and remanded to the trial court to determine, on an issue-by- issue basis, whether any of plaintiff’s claims could be adjudicated consistent with First Amendment principles. While court could not entertain a suit by plaintiff for reinstatement as a seminarian, if his claims could be adjudicated consistent with First Amendment principles he could establish a right to monetary relief. New Jersey’s highest court sets out operative principles of law    Case # 1309 (N.J.), reversing, Case # 1057 (N.J. Super. Ct. App. Div.)

Court has subject matter jurisdiction over claims against local United Methodist Church, the state conference of the church, and a district of the conference, for negligent retention and supervision arising out of allegations of sexual harassment by the local church pastor   Case # 79 (N.C. Ct. App.). For collateral case, see Case # 652 (E.D.N.C.)

Plaintiff parishioner alleged that until February 1995 her pastor engaged in a sexual relationship with plaintiff without plaintiff’s “valid or knowledgeable consent.” In February 1995, the American Baptist Churches of Rhode Island (ABCORI) informed plaintiff that the pastor had admitted to the sexual relationship and that the church defendants (the local church and ABCORI) would address the situation through an internal church mediation process. On May 30, 1995, plaintiff was notified that the pastor had been placed on a paid leave of absence for six months. The church defendants, however, offered no specific redress to plaintiff in response to her asserted “victimization.” In January 1996, the church defendants had allowed the pastor to resume his pastoral duties. On January 16, 1999, plaintiff filed a complaint against the church defendants alleging inter alia, (1) negligent hiring, supervision, and retention; (2) responsibility for the pastor’s wrongful acts because he was acting as defendants’ agent, servant, or employee; (3) intentional and negligent infliction of emotional distress; (4) breach of fiduciary duties before, during, and after the mediation process; (5) fraudulent misrepresentation that plaintiff’s claims would be redressed through a fair, impartial, and confidential internal church mediation; (6) breach of a “binding and enforceable agreement” that the church defendants would mediate plaintiff’s claims. All of plaintiff’s claims, including, the ones allegedly arising from a breach of contract to mediate, were barred by the three year limitations period applicable to personal injury actions. Plaintiff’s complaint showed that she should have known by the end of May 1995, at the latest, about the nature of her alleged injuries and defendants’ role in causing them. Plaintiff not entitled to equitable estoppel. Even if plaintiff had filed her complaint before the three-year statute of limitations had elapsed, the court would not have had jurisdiction to adjudge the claims arising from the alleged failure to conduct an internal church mediation in a fair, impartial, and confidential manner, because such issues were an internal church affair entitled to First Amendment protection. Rhode Island law    Case # 1160 (R.I.)

Plaintiff, claiming that he was sexually molested during his minority by a Roman Catholic priest, alleged that diocesan officials engaged in both negligent and intentional misconduct. The “Hierarchy Defendants” moved to dismiss plaintiff’s negligence claims arguing that by adjudicating the negligence claims, the court would become unconstitutionally entangled in religious doctrine, practice, or church polity in violation of the religion clauses of both the State and Federal Constitutions; that resolution of such claims would necessarily require the court to regulate the manner in which a Catholic bishop selects, assigns, supervises, and disciplines priests. The court denied the motion to dismiss holding that plaintiff’s negligence claims, at this procedural juncture, did not involve excessive entanglement of church and state. Plaintiff’s claim that the church hierarchy negligently hired, supervised and retained a pedophile priest was not deeply rooted in religious belief or practices. The Hierarchy Defendants could not avoid the instant litigation on the argument that the alleged acts or omissions constituted obeying and applying scripture, and ministering to the priest. Contrary to the Hierarchy Defendant’s contentions, this case could be determined based upon neutral principles of law and would not involve inquiry into church law   Case # 2987 (R.I. Super. Ct.)

Court had no jurisdiction to review church’s compliance with its internal procedure for expelling members; court had jurisdiction to entertain negligence claims against church stemming from alleged sexual abuse of plaintiff by church elder    Case # 132 (Tex. Ct. App.)

Plaintiff, a female Presbyterian minister serving as an Associate Pastor, alleged that the Pastor engaged in sexually harassing and intimidating conduct, creating a hostile working environment. Invoking Church procedures, plaintiff made a formal complaint of sexual harassment, but claimed that neither the local church or the Presbytery took any action. Thereafter, the Pastor allegedly retaliated against plaintiff by relieving her of certain duties, verbally abusing her and otherwise engaging in intimidating behavior. Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). Thereafter, the Church defendants placed plaintiff on unpaid leave and subsequently the Presbytery voted to terminate its employment relationship with her. The Presbytery also notified plaintiff that its Committee on Ministry had decided against permitting plaintiff to circulate her church resume, or “personal information form,” effectively preventing her from acquiring other pastoral employment in any Presbyterian church in the U.S. Plaintiff asserted causes of action for sexual harassment, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as well as various state law claims. The Ninth Circuit Court of Appeals held that those portions of plaintiff’s claims that involved a church’s freedom to make employment decisions about its ministers were precluded, but that her remaining claims could proceed. However, the Ninth Circuit Court of Appeals, by a vote of 2 to 1 held, inter alia, that plaintiff could assert claims for sexual harassment, retaliatory harassment, and for negligent supervision. See Case # 1701 (9th Cir.). Plaintiff also commenced an action in state court for, inter alia, sexual harassment, retaliation, and negligent supervision. In the state action, the Washington Court of Appeals affirmed a grant of summary judgment dismissing plaintiff’s claims, because adjudicating plaintiff’s case would have required a civil court to impermissibly examine decisions made by a church tribunal. The state court distinguished the Ninth Circuit’s decision by noting, inter alia, that the federal court was presented with an appeal from a motion for judgment on the pleadings, while the Washington Court of Appeals was reviewing a motion for summary judgment. Thus, unlike the Ninth Circuit, the Washington court was able to consider the substantive evidence presented and conclude that a civil court would be unable to adjudicate plaintiff’s sexual harassment, retaliation, and negligent supervision claims without inappropriately examining decisions made by ecclesiastical judicial bodies and interpreting rules pronounced in the Presbyterian Church’s Book of Order   Case # 1766 (Wash. Ct. App.)

Petitioner, a bishop in the “Church of God” was found guilty by an ecclesiastical trial board of “unbecoming ministerial conduct” owing to inappropriate sexual advances to male members of the church staff and clergy. Petitioner’s license was suspended for one year and he was ordered to undergo counseling with a psychologist. Upon completion of the counseling sessions, the psychologist recommended that petitioner be returned to full-time ministry and the Michigan Church of God State Council approved petitioner’s reinstatement. However, the Church’s International Executive Council failed to act on petitioner’s request for reinstatement. Petitioner and his wife filed a complaint against the Church of God and various individuals, asserting claims of breach of implied contract, tortious interference with business relationships, invasion of privacy, conspiracy, intentional infliction of emotional distress, defamation, and loss of consortium. Held, the court lacked subject matter jurisdiction over this case as a matter of First Amendment law. On appeal, petitioner focused on the defamation claim in particular. The Court of Appeals also discussed the suggestion by the U.S. Supreme Court in Serbian E. Orthodox Diocese v. Milivojevich that there may be room for some marginal civil court review under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes. Unlike the opinion of the Court of Appeals, the district court opinion addressed each of petitioner’s claims individually and in detail.   Case # 2185 (6th Cir.), affirming, in relevant part, (E.D. Tenn.)


Liability of Association in Business of Developing and Selling Educational Courses on Christian Counseling and Which Had Granted a Certificate/License to Counselor/Pastor Accused of Monetary Fraud and of Pressuring Congregant/Client Into Having a Sexual Relationship. Counselor/Pastor Also Made Use of a Temperament Profile or “TAP” test and Accompanying Software Developed by the Association

Plaintiffs received counseling services from their minister, who had received a counseling certificate/license from defendant National Christian Counselors Association, a nonprofit corporation in the business of developing, printing, and selling educational courses on Christian counseling. During the course of plaintiffs’ counseling use was made of a temperament profile or “TAP” test and software developed by defendant. Plaintiffs alleged that the minister used his position as their counselor and pastor to manipulate them into parting with sizeable portions of their money and pressured two of them into having sexual relationships with him. Plaintiffs contended that defendant was responsible for the minister’s actions because it failed to properly train, supervise, and control him. Plaintiffs asserted against defendant Association claims under North Carolina law for (1) negligent infliction of severe emotional distress, (2) negligent misrepresentation, (3) negligent supervision and retention, and (4) unfair and deceptive trade practices. Defendant was granted summary judgment dismissing all claims. All three negligence claims were subject to dismissal for failure to produce evidence that defendant owed them any duty of protection. In addition, there were alternative bases for dismissal of the negligent retention and negligent misrepresentation claims. As to the unfair and deceptive trade practices, plaintiffs failed to show that defendant engaged in any activity that was immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. Any injuries caused to plaintiffs were caused by the misdeeds of the minister acting alone and in intentional, but secretive, violation of the guidelines that defendant had set for him   Case # 1694 (M.D. N.C.)

Liability of Conference of Seventh-Day Adventists for Sexual Molestation Committed by Son of its Pastor-Employee; Conference Knew of Son's Sexual Proclivities Before it Placed the Pastor

In this negligence action, plaintiff – the mother of a female minor, age of five, who was touched in a sexual manner on several occasions by A, the 11-year-old son of plaintiff’s pastor – sued the pastor’s employer, the Oregon Conference of Seventh-Day Adventists, alleging that it knew or had reason to know of A’s sexual proclivities even before the pastor was assigned to plaintiff’s congregation, and, for that reason, it was negligent in not requiring the pastor to supervise his son when his son accompanied him on pastoral activities, in transferring the pastor to Salem, Oregon without notifying the elders in Salem of the acts and threatened acts of his son; and in failing to require that the pastor supervise his son while in the company of young females attending the Conference’s churches. The jury returned a verdict in favor of plaintiff for $ 2 million. The Conference appealed, assigning error to the trial court’s refusal to direct a verdict in its favor, to its refusal to give two proffered instructions, and to its decision to give one of plaintiff’s jury instructions. The Court of Appeals affirmed the verdict against the Conference   Case # 1902 (Or. Ct. App.)

Loss of Consortium

A person is not entitled to bring a claim for loss of consortium based upon events that occurred before marriage. Court discusses, inter alia, Ohio statutes of limitations applicable to sexual-abuse claims and why the “discovery rule” was not applicable. Case # 1723 (Ohio Ct. App.)

Marital Counseling

See Clergy Malpractice and Breach Of Fiduciary Duty; Pastoral and Marital Counseling

Mediation; New York State Dispute Resolution Association (NYSDRA) Established a Program to Mediate Claims by Individuals Who, as Minors, Were Sexually Abused by Priests or Deacons of the Albany Roman Catholic Diocese; Plaintiffs Sue the NYSDRA for, inter alia, Fraud, Breach of Contract, and Deceptive Acts and Practices

The New York State Dispute Resolution Association, Inc. (NYSDRA) is a nonprofit professional membership organization committed to the promotion of conflict management and peaceful dispute resolution. In 2004, The Independent Mediation Assistance Program (IMAP) was established by the NYSDRA to, inter alia, mediate claims by individuals who as minors were sexually abused by current or former priests or deacons of the Albany Roman Catholic Diocese. Plaintiffs alleged, inter alia, that the law firm and its employees assigned to administer the IMAP were not independent and unbiased but had a conflict of interest owing to its past representation of the diocese in sexual abuse claims and that the IMAP was administered in a fraudulent manner. Plaintiffs sought (1) injunctive relief directing NYSDRA to cease mediating claims involving childhood sexual abuse by Albany Diocese priests or injunctive relief compelling NYSDRA to conform to public and web site representations. Plaintiffs also alleged (2) fraud; (3) violations of New York State General Business Law § 349 and of Executive Law § 62(12); (4) breach of oral contract; (5) negligence; and (6) breach of fiduciary duty. Defendant NYSDRA moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss claims (1), (2) and (4). After an extensive discussion of the elements of the cause of action, the district court dismissed plaintiffs’ cause of action for fraud on the ground that they failed to allege any facts from which to infer scienter. However, one of the plaintiffs was held to have successfully pleaded a cause of action for breach of oral contract. The court also refused to dismiss the claim for injunctive relief   Case # 2966 (N.D.N.Y.)

Megan's Law

See Cases under "Parole; Probation" infra.

Names of Victims; Protective Order

See Pseudonyms

Parole; Probation

Plaintiff, a convicted Level III sex offender, was released on supervision from his 70 month sentence. Conditions of his release provided that plaintiff could not initiate or prolong physical contact with any children, enter without permission any places where minors congregated, or have any contact with his victims or any other minor-age children When plaintiff was found to have violated the terms of his release by attending a church where children were present without first informing his supervising community corrections officer, the officer had plaintiff sign a stipulated Agreement in which plaintiff stipulated he could not go within three city blocks of a church without the permission of the supervising officer. Thereafter, plaintiff was found to have violated the Agreement. Plaintiff alleged that his First Amendment right to the free exercise religion was violated when the supervising officer, on the basis of the stipulated Agreement, withheld permission for him to attend church with a friend and allegedly allowed him to only attend an Assembly of God church. The basis of plaintiff’s Complaint was a challenge to the validity of the stipulated Agreement itself. It was not a claim based on a specific incident or denial of permission. Held: the limitation placed on plaintiff by the stipulated Agreement did not represent a substantial burden on the observation of a central religious belief or practice, and could not be considered anything more than an inconvenience. Thus plaintiff’s First Amendment right was not violated. Plaintiff could still attend church if he so desired; he merely had to seek and obtain permission before doing so. In addition, even if the Agreement could be said to impose a substantial burden, the government had a compelling interest in making sure the community was protected from pedophile sex offenders   Case # 3367 (E.D. Wash.)

Regulation governing parole of sex offender restricted his contact with children; regulation was not unconstitutionally overbroad and did not result in selective enforcement in violation of equal protection; the regulation did not improperly regulate or burden virtually every aspect of the probationer's conduct, including attendance at church retreat, in violation of his freedom of religion and association; although court addresses substance of probationer’s argument, court also held that the probationer lacked standing to assert a claim of statutory overbreadth on either his own behalf or on behalf of third persons    Case # 953 (Ariz. Ct. App.)

The First Amendment free exercise rights of defendant, an Orthodox Jew and convicted pedophile, were not violated when, pursuant to a local law, his probation was made dependent upon his not residing within 1,000 feet of a elementary, middle or high school, child care facility, park playground, youth center or public swimming pool. Defendant claimed that as an observant Orthodox Jew he had to live within walking distance of a synagogue, but was unable to find suitable housing within the Town of