Isely v. Capuchin Province, 880 F. Supp. 1138 (E.D. Mich. 1995)
Summary
A court recently addressed several potential theories of liability in a case brought against a church school and various church agencies by an adult who claimed that as a student he was molested by a priest. The court's ruling contains a helpful analysis of key issues, and addresses a novel issue – is a church legally responsible for a minister's failure to report child abuse? The ruling will be instructive to ministers and other church leaders.
A federal district court in Michigan ruled that a church school and various church agencies were not liable on the basis of negligent hiring, supervision, or retention, for the sexual molestation of a minor student by a priest. The court's ruling addresses a number of key issues that will be directly relevant to all churches. This article will briefly review the facts of the case, summarize the court's decision, and address the significance of the case to other churches.
Facts
An adult male claimed that he had been sexually molested by two priests when he was a student at a church school some twenty years before. The victim claimed that he had repressed his memories of most of the incidents for several years until he engaged in counseling, and that as a result his lawsuit was not barred by the statute of limitations. The victim alleged that the school and various church agencies that supervised the school were responsible for his injuries on the basis of the following theories of liability:
negligent failure to report suspected abuse by the priests to civil authorities
negligent hiring of the offending priests
negligent supervision of the offending priests
failure to adopt a sexual abuse policy
failure to warn the victim or his parents that the offending priests were sex abusers, or prevent the acts of sexual molestation, and
agency
The court's ruling
The court rejected most of these theories of liability, as noted below.
(1) negligent failure to report suspected abuse
The court rejected the victim's claim that school and church officials were responsible for his injuries on the ground that they negligently failed to report their reasonable suspicions of the priests' misconduct to civil authorities. The court based this conclusion on the following grounds:
Rejection by other courts. It noted that "several courts have been called upon to decide this issue in the context of child abuse reporting statutes" and "[a]ll of these courts have concluded that no private right of action can lie for failure to report."
Going after the wrong person. It quoted from another decision finding that "there is no apparent intent to authorize a civil action for failure of an individual to make the oral report …. Furthermore, such an action is not authorized at common law and its maintenance would raise substantial questions of causation since the failure would not in the direct sense, be a proximate cause of the injury to the child. It would, we believe, misdirect judicial time and attention from the very real problems of children in need of services in favor of pursuing collateral individuals, who are presumably capable of responding in money damages, on the ground that they knowingly failed to make an oral report. We conclude that was not within the legislative purpose of the act."
No reasonable cause to believe abuse occurred. It quoted from another decision noting that a child abuse reporting statute "does not require [mandatory reporters] to report every suspicion of abuse. Rather, the statute specifically requires reporting only when there is a reasonable cause to suspect abuse. This requirement calls for the exercise of a [mandatory reporter's] professional judgment." The court then noted that the only evidence of personal reports of molestation to school or church officials were (1) the victim's alleged report to the school's athletic director that one of the priests had massaged his shoulders and ran his hand down his chest to his belt line; and (2) another student's report to an administrator that one of the offending priests had "hurt him, yelled at him, called him stupid, made him feel bad, and made him feel ashamed." The court noted that a school official who allegedly knew of the molestation claimed that he had only "heard rumors."
No "vicarious liability." Finally, the court noted that "[e]ven if the [child abuse reporting] statute were deemed to support a private cause of action, and even if the statute were found to have been violated, dismissal of the statutory negligence claims against [the school and church agencies] would still be required because there can be no vicarious liability for an individual's violation of a statute which mandates actions only on the part of the individual."
(2) negligent hiring
The court, in summarily rejecting the victim's claim that the school and church agencies had been guilty of "negligent hiring," observed:
Questions of hiring and retention of clergy necessarily will require interpretation of church canons, and internal church policies and practices. It is well—settled that when a court is required to interpret canon law or internal church policies and practices, the first amendment is violated because such judicial inquiry would constitute excessive government entanglement with religion …. [An] inquiry into the decision of who should be permitted to become or remain a priest necessarily would involve prohibited excessive entanglement with religion. Therefore [the victim's] claims of negligence predicated upon a negligent hiring theory will be dismissed.
The court further observed that even if there was not a constitutional bar to recognizing a negligent hiring claim in this case, this claim would still have to be dismissed since "there was absolutely not a shred of evidence in the record that either the [school or any church agency] had any notice of the abuse proclivities of [the offending priests] prior to their `hiring' of them as priests or teachers …."
(3) negligent supervision
The court found that there was no constitutional prohibition to the recognition of a negligent supervision claim against a church school or agency, since such claims "can be decided without determining questions of church law and policies." However, the court refused to find the school or church agencies liable on this basis for the following reasons:
The court noted that "only a few jurisdictions" recognize "negligent supervision" as a basis of liability.
No court in Wisconsin (where the molestation occurred) has ever recognized negligent supervision as a basis of liability.
Significantly, the court made the following additional observation:
The precise issue, as this court sees it in this "delayed discovery" tort action, is not whether now-20 years after the occurrences upon which plaintiff's claims are predicated-the Wisconsin Supreme Court would adopt the tort of negligent supervision, but rather whether, had the claim been presented to the Wisconsin Court in 1974—78 [when the acts of molestation occurred] would the court have recognized it then? This is consistent with the generally accepted principle that a tort action is to be determined by application of the law which existed at the time of the occurrence of the events upon which the action is predicated …. This reflects this court's concern … that it would be unfair to juxtapose contemporary mores and contemporary causes of action upon parties for events which occurred in a different era with a different level of social awareness of problems. It is certainly not that this court believes that Wisconsin courts would have tolerated or accepted without providing redress the type of conduct alleged by the plaintiff to have been perpetrated upon him by the alleged abuser priests in question. (Indeed, both criminal and civil actions were clearly available to victims directly against those individuals.) Rather, the concern here is that the law did not then recognize a duty upon the employer to be responsible automatically for such ultra vires conduct of its employees.
(4) failure to have a sexual abuse policy
In rejecting this theory of liability the court observed:
As for the "failure to have a sex abuse policy in place", plaintiff has presented no evidence, nor cited any law, that there existed at the time in question, any duty (either statutory or under common law) to have such a policy in place, and the court has found no cases which might support an allegation of such a duty.
This, perhaps, reflects one of the problems, or challenges, presented to plaintiffs in repressed memory cases. At the time of the sexual abuse incidents in question, the problem of child sexual abuse was not as much in the public conscience as it is today and, consequently, the decisional precedent from courts from that time which might create a duty to have a sex abuse policy simply does not exist, nor had the policy branches of government addressed this problem. Thus, courts sitting today in cases of repressed memory are without statutory or decisional guidance as to the source or nature of any duty that might be alleged relating to past incidents of sexual abuse. However, it is clear to this court that it would be unfair to apply contemporary standards of duty and care to create a cause of action that did not exist at the time of the incidents. Such bootstrapping of past incidents into contemporary mores would place an undue burden on defendants attempting to defend such cases. Unfortunately, in cases of repressed memory, it may be, as here, that the law at the time simply did not provide a cause of action with an attendant remedy.
(5) failure to warn
The court agreed with the victim that a school may have a legal duty to warn students or their parents of the potentially dangerous propensities of a teacher if it has actual knowledge of prior incidents of misconduct by that teacher. The court concluded that school officials had prior knowledge of only two incidents: (1) a student informed a school official that one of the offending priests had "hurt him, yelled at him, called him stupid, made him feel bad, and made him feel ashamed"; and (2) the victim informed the school's athletic director that one of the offending priests massaged his neck and then ran his hand down his chest to his belt line while the two were together in a movie projection booth. The court found that the first incident did not provide the school with adequate prior notice of misconduct to impose a duty to warn students or their parents of the potential propensity of the priest to molest students. It found that these remarks indicated inappropriate disciplinary techniques rather than inappropriate sexual contact. However, the court found that the second incident may have imposed sufficient notice on the school to create a duty to warn. It acknowledged that the athletic director had no recollection of the victim's alleged conversation with him (some 20 years earlier), but decided that a jury would have to determine whether or not the conversation occurred. However, the court did note that neither the school nor any church agency could be liable as a result of the alleged incident that occurred in the movie projection booth, since "[t]his claim is time—barred as plaintiff has admitted all along that he always remembered this incident."
(6) agency
The victim alleged that the school and church agencies were directly responsible for the actions of the offending priests on the basis of agency law. That is, they were responsible for the acts of their "agents." The victim based this theory of liability on section 219(d) of the Restatement (Second) of Agency, a respected but not universally followed legal treatise. Section 219(d) permits the imposition of liability upon an employer for the misconduct of an employee acting outside the scope of employment when it is established that the employee "was aided in accomplishing the tort by the existence of the agency relationship." The court, in summarily rejecting this basis of liability, observed: "[A]s plaintiff admits … the doctrine of section 219(d) has never been applied to priestparishioner relationships, and this court declines to do so in this case."
(7) punitive damages
The court held that neither the school nor any of the church agencies was liable for punitive damages. It noted that under Wisconsin law punitive damages can be awarded in only two situations: (1) "a defendant desires to cause the harm sustained by the plaintiff, or believes that the harm is substantially certain to follow his conduct"; or (2) the defendant knows, or should have reason to know, not only that his conduct creates an unreasonable risk or harm, but also that there is a strong probability, although not a substantial certainty, that the harm will result, but, nevertheless, he proceeds with his conduct in reckless or conscious disregard of the consequences." The court continued:
Wisconsin courts often use the short—hand term "outrageous" for the type of conduct which justifies the imposition of punitive damages. This "outrageous" conduct must be proven by clear and convincing evidence. However, the fact that the conduct on which the suit is based is unlawful and would subject the defendant to criminal prosecution is not itself sufficient to impose punitive damages. Given the "clear and convincing" evidentiary standard which governs the punitive damages, the court finds that the evidence presented is not sufficient to warrant submitting the punitive damages claims to the jury. As indicated above, although there is some evidence of "notice" having been provided to [the school] prior to plaintiff's alleged abuse by [one of the priests] that evidence is far from clear and convincing. The best that can be said is that the evidence presented is contradictory. Without clear and convincing evidence of prior notice there can be no inference that [the school] acted in reckless disregard of plaintiff's rights in failing to prevent his abuse …. Accordingly, plaintiff's claims for punitive damages against the [school and church agencies] will not be submitted to the jury.
(8) statute of limitations
The victim argued that his lawsuit was not barred by the statute of limitations since he filed it shortly after recovering his "repressed memories" of the abuse. The court ruled that "the issue of whether such incidents were truly repressed and, if so, when plaintiff had sufficient recollection of the incidents for purposes of commencing the running of the statutes of limitations were issues for the jury."
Relevance of the case to other churches
What is the relevance of this ruling to other churches? Obviously, a decision of a federal district court in Michigan is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:
1. Failure to report child abuse. The court rejected the argument that individuals who fail to report child abuse can be liable for injuries resulting from a continuation of that abuse. This is an important conclusion. Few persons in our society are more likely to know of child abuse than ministers. Ministers may receive information during counseling sessions or from staff members and volunteer workers indicating that a minor is being abused. Ministers who are not "mandatory reporters" of child abuse under state law sometimes choose not to report this information to civil authorities. This case suggests that such a decision may not lead to civil liability if the minor later claims that his or her injuries were aggravated by the minister's failure to report.
The court stressed that no other court had found a person legally responsible for a minor's abuse as a result of a failure to report that abuse to civil authorities. However, a few courts have at least suggested this possibility.
Persons who are mandatory reporters of child abuse under state law may be prosecuted criminally for failing to report known or reasonably suspected cases of abuse.
2. No "vicarious liability" for failure to report child abuse. The court concluded that a church cannot be responsible for a minister's failure to report child abuse, since "[e]ven if the [child abuse reporting] statute were deemed to support a private cause of action, and even if the statute were found to have been violated, dismissal of the statutory negligence claims against [the school and church agencies] would still be required because there can be no vicarious liability for an individual's violation of a statute which mandates actions only on the part of the individual."
This is another very important aspect of the court's decision. Lawsuits against ministers for failing to report child abuse will almost always name the minister's church as an additional defendant in order to have a "deep pocket" out of which to satisfy a verdict or settlement. This case will be a very useful precedent to churches who are named as defendants in such lawsuits.
3. State laws imposing civil liability for failure to report child abuse.The court did not mention that at least seven states have enacted laws that create civil liability for failure to report child abuse. In these seven states, victims of child abuse can sue adults who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for money damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law. The eight states are Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio, and Rhode Island.
Key point. While the federal court that decided this case was in Michigan, it was applying Wisconsin law since the abuse occurred in Wisconsin. As a result, the court did not address the application of the Michigan statute (discussed below) to the facts of this case.
Key point. Person who are "mandatory" child abuse reporters in Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio, and Rhode Island can be sued by victims of child abuse for failure to comply with state child abuse reporting requirements. These lawsuits may be brought in some states many years after the failure to report. It is possible that other state legislatures will enact laws giving victims of child abuse the legal right to sue mandatory reporters who failed to comply with their reporting obligations. It is also possible that the courts in some states will allow victims to sue mandatory reporters (and perhaps those who are not mandatory reporters) for failing to report child abuse even if no state law grants them the specific right to do so. These potential risks must be considered when evaluating whether or not to report known or suspected incidents of child abuse.
Caution. Any reference to a specific state law should not be relied upon without the advice of a local attorney. These laws were current as of date this newsletter went to the printer, but they are subject to change. Also, it is critical to understand the definition of child abuse under state law. A mandatory reporter has a duty to report only those activities (or suspected activities) that meet the definition of abuse under state law. The definition of child abuse varies widely from state to state. For example, in some states child abuse is limited to abuse inflicted by a parent or caretaker. Other states define abuse without regard to the status of the perpetrator.
4. Religious organizations cannot be sued for negligent hiring. This case represents another in a small but growing number of decisions concluding that religious organizations cannot be legally responsible for "negligence" in the hiring or selection of clergy. The court observed:
Questions of hiring and retention of clergy necessarily will require interpretation of church canons, and internal church policies and practices. It is well—settled that when a court is required to interpret canon law or internal church policies and practices, the first amendment is violated because such judicial inquiry would constitute excessive government entanglement with religion …. [An] inquiry into the decision of who should be permitted to become or remain a priest necessarily would involve prohibited excessive entanglement with religion. Therefore [the victim's] claims of negligence predicated upon a negligent hiring theory will be dismissed.
A number of other cases reaching the same conclusion have been reported in this newsletter.
The court also pointed out that even without this limitation the church agencies could not be sued, because "there was absolutely not a shred of evidence in the record that either the [school or any church agency] had any notice of the abuse proclivities of [the offending priests] prior to their `hiring' of them as priests or teachers …."
This illustrates an important point-religious organizations ordinarily cannot be responsible on the basis of negligent hiring for the sexual misconduct of a minister without prior knowledge of information indicating that the minister posed a risk of such misconduct.
5. Negligent supervision of ministers. Another significant aspect of the court's decision was its conclusion that a claim of "negligent supervision" must be evaluated on the basis of what was acceptable supervision when the misconduct occurred rather than when the lawsuit was filed. The court stressed that "[t]his reflects this court's concern … that it would be unfair to juxtapose contemporary mores and contemporary causes of action upon parties for events which occurred in a different era with a different level of social awareness of problems." The point is this-the longer ago an incident of sexual misconduct occurred, the less likely that a church can be legally responsible for that misconduct on the basis of negligent supervision.
