A federal court issues an important ruling—Nutt v. Norwich Roman Catholic Diocese, 921 F. Supp. 66 (D. Conn. 1995)
Article summary. A federal court in Connecticut dismissed a lawsuit brought against a church and diocese by two adults who had been sexually molested by a priest when they were minors. The court ruled that the church and diocese were not responsible for the victims' injuries on the basis of respondeat superior or negligence. The court cautioned that churches and denominational agencies are potentially liable on the basis of negligence for injuries sustained by victims of sexual molestation if they have knowledge of prior sexual misconduct by the molester. However, since the victims could not prove that church officials either knew or should have known of any previous sexual misconduct by the offending priest, the negligence claims had to be dismissed. The court ruled that the first amendment guaranty of religious freedom does not necessarily protect a church or denominational agency from liability in a lawsuit based on negligent hiring, retention, or supervision if the victim's claims do not implicate issues of ecclesiastical concern.
In a decision that will be relevant to both churches and denominational agencies, a federal court in Connecticut dismissed a lawsuit brought by two adults against their church and diocese for injuries they allegedly sustained when they were sexually molested while minors by a priest. The court's decision addresses a number of important legal issues, including respondeat superior, the statute of limitations, freedom of religion, and the effect of prior notice of inappropriate conduct. This article will summarize the facts of the case, review the court's ruling, and assess the significance of the case to other churches and denominational agencies.
Note: All of the facts summarized below are based on the allegations of the victims, and were assumed to be true by the court for purposes of its decision.
In 1977, two brothers began serving as altar boys in a Catholic church. The victims, now both adults, allege that from 1979 through 1985 their priest showed them pornographic movies, and engaged in various forms of sexual contact with them while on out—of—town trips. In 1992, one of the victims and his parents met with church officials and complained about the priest's sexual misconduct. Shortly after these complaints, the priest was relieved of his duties, pending an investigation. The brothers later filed a lawsuit against the priest, based on reckless assault and battery, negligent assault and battery, negligence, intentional or reckless infliction of emotional distress, and unintentional infliction of emotional distress. The brothers also sued their church and diocese. The brothers asserted that these institutional defendants were responsible for their injuries on the basis of respondeat superior and negligence (in hiring, retaining, and supervising the priest).
The court's ruling
The defendants asked the court to dismiss the case. They claimed that the brothers' lawsuit was barred by the statute of limitations. The church defendants claimed that the court was barred from resolving the lawsuit by the first amendment guaranty of religious freedom. The court agreed that the respondeat superior claims had to be dismissed, but it refused to dismiss the negligence claims. The court's decision is summarized below.
Respondeat superior is a legal doctrine that makes an employer legally responsible for the negligence of an employee committed within the scope of employment. As the court noted, central to the issue of liability under the doctrine is whether the employee was acting within the scope of his or her employment. If the employee was acting within the scope of his or her employment, the employer may be liable for the plaintiff's acts. The court noted that the test in Connecticut as to whether an employee is acting within the scope of his or her employment rests on whether the employee was furthering the employer's business.
The brothers claimed that the priest, as an employee of the three Roman Catholic institutional defendants, acted within the scope of his employment as a parish priest when he allegedly sexually assaulted and abused them. The court disagreed: Even if [the priest] committed the acts alleged by the plaintiffs, however, there is no evidence to support a finding that these acts were in furtherance of his employer's business and therefore within the scope of his employment. It continued:
There is nothing in the record to indicate that the alleged sexual abuse by [the priest] was motivated by any purpose or object that would serve his employer. Indeed, as the affidavits submitted by the defendants indicate, the laws and standards of the Roman Catholic Church expressly prohibit priests from engaging in any sexual activity of any kind. Thus, even if [the priest] engaged in sexually abusive conduct, he did so only after abandoning the church's tenets and his personal commitment to celibacy. Sexually abusive conduct amounts to the abandonment of the Church's business. As a matter of law, therefore, the alleged sexual abuse, even if true, can not be said to further the defendant's business and therefore is outside of the scope of employment.
As a result, the court dismissed the brothers' respondeat superior claims against the church and diocese.
statute of limitations
The three Catholic institutions insisted that the brothers' negligence claims against them were barred by the statute of limitations. They pointed out that negligence claims under Connecticut law must be brought within two years from the date when the injury is first sustained or discovered, but in no event more than three years from the date of the negligent conduct. The court pointed out that another Connecticut statute specifies that no action to recover damages for personal injury to a minor, including emotional distress caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than seventeen years from the date such person attains the age of majority. The court concluded that this seventeen year statute applied, and that the brothers' lawsuit was filed before seventeen years had elapsed since their eighteenth birthdays.
free exercise of religion
The church and diocese claimed that even if they were subject to the seventeen—year statute of limitations, the brothers' claims must be dismissed because the free exercise of religion clause of the first amendment to the United States Constitution prohibits intrusion by the court into the employment practices of [the church or diocese]. Specifically, the church and diocese insisted that the court's resolution of the brothers' claims of negligent hiring, retention, or supervision of the offending priest would promote exactly that type of state involvement in religion which the first amendment intends to prevent, that is, the intrusion of secular interests into matters of purely ecclesiastical concern. The church and diocese quoted from the ruling of another court in a similar case:
Any inquiry into the policies and practices of church defendants in hiring or supervising their clergy is barred by the first amendment because it might foster excessive state entanglement with religion. It might involve the court in making sensitive judgments about the proprieties of the church defendants' supervision in light of their religious beliefs. The defendants thus contend that personnel issues involving their clergy must be determined by the laws and policies of the Roman Catholic Church, which are based upon the religious tenets of Roman Catholicism, rather than upon nonecclesiastical law. Dausch v. Ryske, 1993 WL 34873, N.D. Ill. 1993 (unpublished opinion), affirmed, 52 F.3d 1425 (7th Cir. 1994).
The court in the Dausch case (quoted above) relied in part on another federal court decision in Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991), in which the court observed:
Furthermore, any inquiry into the policies and practices of the church defendants in hiring or supervising their clergy raises the same kind of first amendment problems of entanglement discussed above, which might involve the court in making sensitive judgments about the propriety of the church defendants' supervision in light of their religious beliefs. Insofar as concerns retention or supervision, the pastor of a Presbyterian church is not analogous to a common law employee. He may not demit his charge nor be removed by the session, without the consent of the presbytery, functioning essentially as an ecclesiastical court. The traditional denominations each have [sic] their own intricate principles of governance, as to which the state has no rights of visitation. Church governance is founded in scripture, modified by reformers over almost two millennia. As the Supreme Court stated [long ago]: It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to the one which is less so. Watson v. Jones,80 U.S. 679 (1872). It would therefore also be inappropriate and unconstitutional for this court to determine after the fact that the ecclesiastical authorities negligently supervised or retained the [pastor]. Any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the text and history of the [first amendment].
The brothers strenuously disagreed with this argument. They insisted that to have the protection of the first amendment the church's claims must be "rooted in religious belief," and this simply was not the case. Their claim that the church and diocese were negligent in hiring or retaining the priest did not implicate any religious belief or practice, and therefore the first amendment could not be used as a defense.
The court agreed with the brothers. It observed:
Although no Supreme Court decision has determined the applicability of the free exercise clause of the first amendment as a defense for a religious organization's negligent conduct, the Court has held that the first amendment does not create blanket tort immunity for religious institutions or their clergy, thus allowing clergy and clerical institutions to be sued for the torts they commit. Moreover, the court has "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition." Department of Human Resources v. Smith, 494 U.S. 872, 878—79 (1990).
The court quoted from a 1940 decision of the Supreme Court:
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs …. We first had occasion to assert that principle in [1879 when] we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices …. Can a man excuse his practices to the contrary because of his religious belief? To permit this would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586 (1940).
The court noted that other decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law [prohibits] conduct that his religion prescribes." The court concluded:
Based upon these decisions, it is difficult to see how the [brothers'] claims against the [church and diocese] would foster excessive state entanglement with religion. The common law doctrine of negligence does not intrude upon the free exercise of religion, as it does not "discriminate against [a] religious belief or regulate or prohibit conduct because it is undertaken for religious reasons." The court's determination of an action against the [church and diocese] based upon their alleged negligent supervision of [the priest] would not prejudice or impose upon any of the religious tenets or practices of Catholicism. Rather, such a determination would involve an examination of the defendants' possible role in allowing one of its employees to engage in conduct which they, as employers, as well as society in general expressly prohibit. Since the Supreme Court has consistently failed to allow the free exercise clause to "relieve [an] individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs," the [church and diocese] cannot appropriately implicate the first amendment as a defense to their alleged negligent conduct.
notice of previous misconduct
The church and diocese claimed that even if the free exercise clause does not bar the brothers' claims, the claims should be dismissed because the church and diocese d"id not owe the [brothers] any duty to prevent the alleged sexual misconduct of [the priest]." Specifically, the church and diocese argued that because of the absence of any notice or knowledge of any alleged sexual misconduct problem by the priest, neither the church nor the diocese owed the brothers any duty to guard against sexual misconduct. Once again, the court rejected the position of the church and diocese. The court acknowledged that negligence is a breach of the duty to exercise "due care," and that "the ultimate test of the duty is to be found in the reasonable foreseeability of harm resulting from a failure to exercise reasonable care." That is, for the church and diocese to have been negligent they must have owed a "duty" to the brothers to exercise reasonable care with regard to their safety. And, such a duty existed with respect to injuries that were reasonably foreseeable. The court added that "this does not mean foreseeability of any harm whatsoever or foreseeability of the particular injury which happened." Rather, "[t]he test is: Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?"
The court noted that the brothers alleged in their lawsuit that the church and diocese had notice of the priest's sexual misconduct by virtue of the fact that he had received treatment sessions for sexual abuse of minors during the period of 1979—1993 at a Catholic treatment centers in New Mexico and Maryland. These allegations were not denied or disproven by the church and diocese in their responses to the brothers' lawsuit. Accordingly, the court denied the request by the church and diocese to dismiss the brothers' negligence claims.
However, the court invited the church and diocese to refile their motion to dismiss if they could produce evidence (by affidavit or otherwise) disproving the brothers' claim that during 1979—1993 the priest received treatment for sexual abuse of minors at Catholic facilities in New Mexico and Maryland. The church and diocese promptly refiled their motion to dismiss, accompanied by affidavits from church officials claiming that they had no knowledge (or reason to suspect) that the priest had ever participated in any retreat or treatment for sexual abuse of any kind. The brothers failed to reply to this new evidence, other than to reaffirm what they had said in their original lawsuit. This was not enough, the court concluded, to rebut the new evidence. Accordingly, since the brothers had failed to refute the claims of the church and diocese that they had no prior knowledge of any sexual misconduct on the part of the offending priest, the negligence claims had to be dismissed.
The church and diocese claimed that, even if they owed a duty to the brothers, the alleged breach of that duty was not the cause of the brothers' alleged injuries and therefore the church and diocese could not be responsible for those injuries. Specifically, they asserted that it was the alleged sexual misconduct by the priest that caused their injuries "rather than any possible negligence on the part of either [the church or diocese]." The court observed: "Because there is a disputed issue of fact as to whether the [church and diocese] had knowledge of [the priest's] alleged sexual misconduct, the court cannot determine, as a matter of law, that [their] alleged negligence in supervising [him] was not the … cause of the [brothers'] injuries. Accordingly, the defendants' argument fails."
The court noted that the church and diocese could refile their motion to dismiss the case if they could produce evidence (by affidavit or otherwise) disproving the brothers' claim that during 1979—1993 the priest received treatment for sexual abuse of minors at Catholic facilities in New Mexico and Maryland. As noted above, the church and diocese did refile their motion to dismiss, accompanied by affidavits from church officials claiming that they had no knowledge (or reason to suspect) that the priest had ever participated in any retreat or treatment for sexual abuse of any kind. Since the brothers failed to refute this new evidence, the court dismissed the negligence claims against the church and diocese. These agencies not only owed no duty to the brothers under these circumstances and therefore could not have been negligent, but their alleged failure to adequately supervise the priest was not a cause of the brothers' injuries.
Significance of the case to other churches
What is the significance of this case to other churches and denominational agencies? Obviously, the decision of a federal court in Connecticut has limited effect. It will not be binding on any court outside of the State of Connecticut, and may be rejected by state courts within Connecticut. Nevertheless, the decision represents an extended discussion of the liability of churches for the sexual misconduct of clergy, and accordingly it may be given special consideration by other courts. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:
1. Respondeat superior. This case represents another in a long line of cases that have reached the same conclusion—churches cannot be liable on the basis of respondeat superior for the sexual misconduct of ministers since such misconduct is not within the scope of employment. This basis of liability is so weak that many sexual misconduct victims who sue their church do not even mention it.
2. Free exercise of religion. Many courts have concluded that the first amendment guaranty of religious freedom prevents the civil courts from evaluating whether or not a church was negligent in hiring, retaining, or supervising a minister who sexually abuses a minor or adult. Many of these decisions have been addressed in previous issues of this newsletter (including both the Dausch and Schmidt cases, quoted above). This court concluded that the first amendment is not an absolute bar to civil court resolution of such lawsuits—assuming that no inquiry into doctrinal matters is required. Such a ruling will make it easier for other courts to reach the same conclusion. This case should be an incentive for churches to implement and consistently apply adequate screening and supervisory measures with regard to clergy and lay workers.
3. The relevance of prior knowledge of misconduct. The most important aspect of the court's ruling was its conclusion that a church can be liable on the basis of negligence for the sexual misconduct of a minister if it knew (or, with a reasonable effort, should have known) of facts suggesting that the minister posed a risk of such misconduct. Stated differently, if a church does have such knowledge (or, with a reasonable effort, should have known) then it can be responsible for a victim's injuries on the basis of negligence—either in the selection, retention, or supervision of the minister. The importance of such a conclusion cannot be overstated. Churches and denominational agencies are assuming significant legal risks in most states when they (1) fail to respond to information suggesting that a minister has engaged in sexual misconduct, or (2) fail to investigate a minister's background at the time the minister is employed, or granted ministerial credentials by a church or denominational agency. The lesson is this—churches and denominational agencies must not ignore information suggesting that a minister has engaged in sexual misconduct.
The court in this case dismissed the church and diocese from the lawsuit, and found them not to have been guilty of negligence, because the victims could not refute the affidavits of church leaders that they had no knowledge that the priest had received treatment for the sexual abuse of minors. Had church officials been aware of this treatment, the case would not have been dismissed and the church and diocese would have been forced to defend themselves in court.
4. Miscellaneous. There are two other aspects of this case that deserve comment. First, many of the acts of sexual molestation occurred during out—of—town trips when only one of the brothers accompanied the priest. It is startling how willing some parents are to allow their children to accompany an adult under these circumstances. Churches that adopt procedures to reduce the risk of such incidents occurring (for example, by following the two—adult rule) not only reduce the risk of misconduct, but they also reduce if not eliminate the risk of false accusations. Second, the diocese acted immediately to suspend the priest when the brothers' parents disclosed the acts of molestation. Allowing a church employee or volunteer who is accused of sexual misconduct to remain in his or her position in effect makes the church a guarantor of the safety of others. This is an extraordinary risk. Such a person should never be allowed to remain in his or her position without the advice of an attorney. Of course, the accusation may be unfounded, and a prompt and thorough investigation is essential. If there is clear and convincing evidence that the person is innocent, he or she may be returned to the original position. Again, legal counsel is essential, particularly if the evidence of guilt is inconclusive.
While a number of states require child care center workers to be screened, very few states have responded directly to the National Child Protection Act. As a result, in most states churches are not required to obtain criminal records checks on paid employees and volunteers who work with minors outside of the context of a day care facility. This is an evolving area of law, and we will be returning to it in future issues of this newsletter as necessary to keep you informed.