Opinion
11-P-610
04-03-2012
JOHN DOE v. CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals the allowance of summary judgment in favor of the defendants, the Corporation of the President (COP) of the Church of Jesus Christ of Latter-Day Saints (church), former clergyman Stephan Day, and his former assistant, Daniel Rice, and T. Stephen Fotheringham, Robert Norman, and Charles Hobbs. The plaintiff initiated a suit against the defendants for negligence, gross negligence, intentional infliction of emotional distress and civil conspiracy, relating to their alleged liability for the sexual abuse of the minor plaintiff by Kevin Curlew, a member of the Methuen ward of the church. As a result of his actions in the fall or winter of 2004, while acting as a volunteer babysitter during a monthly church group meeting, Curlew was convicted of two counts of assault and battery and indecent assault and battery on a child under fourteen, G. L. c. 265, §§ 13A(a), 13B.
As against defendants COP, Day, and Rice, the plaintiff specifically avers that there exist genuine issues of material fact, effectively precluding summary judgment, as to the following contentions raised: (1) these defendants maintained a special duty to the children of the church, or in the alternative, through their actions voluntarily assumed such a duty, and thereafter breached that duty, (2) they intended to inflict emotional distress on the plaintiff, and (3) they conspired to avoid their legal obligation to report the incidents to law enforcement. As against defendants Fotheringham, Norman, and Hobbs, volunteer clergyman and volunteer mission presidents, respectively, the plaintiff contends these individuals were grossly negligent in failing to warn the other church members of known dangerous propensities of Curlew. We affirm the grant of summary judgment on all claims.
As we affirm the decision below on the asserted grounds, we decline to address whether the named church defendants are entitled to protection under the Volunteer Protection Act of 1997, 42 U.S.C. § 14501 et seq. (2006).
Discussion. A. Standard of review. We must 'view[] the evidence in the light most favorable to the nonmoving party, [to determine whether] all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). '[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party's claim.' Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
B. Summary Judgment. 1. Negligence. The plaintiff contends defendants COP, Day, and Rice breached their duty to protect him from the criminal acts of Curlew because such acts were 'reasonably foreseeable.' As to this, on this record, while we do not condone the actions of Curlew, we fail to discern a genuine issue of material fact upon which a rational jury could find liability on the part of these defendants.
While the possibility that criminal conduct will occur is always present in our modern society, liability for the criminal acts of third parties exists where there is a 'reasonable expectation[],' that the 'defendant [should] anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm.' Luoni v. Berube, 431 Mass. 729, 732 (2000). The defendants have produced deposition testimony suggesting that the ward and stake officials responsible for church affairs in the Methuen ward were unaware of any past sexual transgressions with children by Curlew. In particular, it is undisputed that neither Bishop Adams or the defendant Day had any knowledge that Curlew had prior criminal convictions for, or a history of, sexual abuse of children. Nor was Curlew registered as a sex offender in Massachusetts at this time.
Curlew had been convicted of a sexual offense in Maine, but that conviction had been vacated.
At best, the plaintiff claims that two nondefendant former missionaries were given warnings expressed by Miklos Jako, an aspiring writer and nonmember of the church, and that these missionaries indicated at the time that they would report this information. However, there is no documentation of such a report, neither former missionary could remember making a report, and no official of the Methuen ward or the stake could remember receiving such a report.
Bishop Adams (who is not a defendant) did know that Curlew had been on probation in 1995 for an altercation with his sister, and that his baptism had been delayed for this reason, but Adams did not pass this information on to anyone else. It is undisputed that Day, who was the bishop responsible for the Methuen ward at the time the sexual assault took place, was unaware of the fact that Curlew had been on probation ten years earlier.
At its core, plaintiff's argument is that the church officials in Methuen 'should have known' more, either because the internal communication of Jako's allegations should have been better relayed, or because the local ward or the stake should have done more to find out about Curlew, based on his status as a probationer ten years earlier. This duty can not arise as a matter of church membership. The Supreme Judicial Court has specifically held that church membership 'do[es] not establish . . . the type of relationship to the plaintiff from which a fiduciary duty could possibly arise under civil law.' Petrell v. Shaw, 453 Mass. 377, 382 (2009). Instead, the plaintiff argues that this duty arises either because of a 'special relationship' between the church and its members, or a duty voluntarily assumed by the church. Neither claim has merit.
A special duty may find its 'source in existing social values and customs'. Mullins v. Pine Manor College, 389 Mass. 47, 51 (1983), quoting from Schofield v. Merrill, 386 Mass. 244, 247 (1982). On this record, the plaintiff has failed to provide evidence as to the standard customs or procedures for either (1) reporting allegations of misconduct (learned of during the course of religious conversion) within religious organizations, or (2) screening volunteer babysitters at informal church (or other) functions. In the absence of such evidence, no rational jury could find for the plaintiff on a theory of special duty. See Kourouvacilis v. General Motors Corp., 410 Mass. at 716. For similar reasons, the claim of assumed duty is legally insufficient. The babysitting was an informal arrangement whereby the Relief Society, with the knowledge of the church elders, solicited volunteers from the ward membership. The fact that the ward had, arguably, 'undertaken to render a service is not sufficient to impose a duty.' Mullins, supra at 53- 54 & n.10. Furthermore, where the undertaking is gratuitous, the duty is only to refrain from gross negligence. Id. at 53 n.10.
We express no opinion as to whether the free exercise of religion would permit such an inquiry. See Petrell, supra at 387-388.
In Mullins, supra, unlike here, there was expert testimony and evidence that the college community had adopted standards that reflected a community consensus regarding safeguarding student welfare. There is no evidence in this record that, in 1995 when Jako spoke to the two missionaries, there was a consensus as to how that information would be reported or used within a church community. Nor is there evidence tending to show that in 2004, when these events occurred, there was a community consensus that volunteer babysitters in churches or other religious organizations would have to be screened.
In addition, the ward had also adopted a 'two adult' policy, which the plaintiff claims that the defendants violated. However, the record reflects only that Curlew, not the defendants, violated the rule by following the plaintiff into the bathroom.
In the absence of some evidence that the members of the ward relied on the ward to screen babysitters at that time, or as noted above, that screening of volunteers was so widespread that reliance could otherwise be inferred, we must conclude that this claim fails as a matter of law.
While the plaintiff's mother offered deposition testimony that she assumed that the ward performed criminal offender record information (CORI) checks on volunteers, such a check would not have revealed any sexually based offense.
We thereby hold that defendants Hobbs, Norman, and Fotheringham did not act with 'gross negligence,' as alleged by the plaintiff. See part four, infra.
2. Intentional infliction of emotional distress. No further abuse occurred after the initial complaint made by the plaintiff to the church. Therefore the sole ground for the claim of intentional infliction of emotional distress against COP, Day, and Rice is the fact that Doe saw Curlew at church on one occasion after he reported the abuse. The plaintiff posits that a 'rational person' should have known that allowing Curlew to access the church premises, albeit under arranged supervision, following the accusations against him was 'clearly outrageous.' See Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). Essential to the plaintiff's claim is the underlying logic that the decision to allow Curlew onto the church grounds involves a type of secular action that the court may determine to be tortious. The First Amendment to the United States Constitution, however, prohibits courts from doing just that, and 'places beyond [the court's] jurisdiction disputes involving church doctrine, canon law, polity, discipline, and ministerial relationships.' Petrell, supra at 381-382, quoting from Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 579 (2002). See Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 243 (2007) (describing religious controversies that are 'off limits to our courts'). The decision to allow Curlew access to the church grounds and the reasons therefore inherently involves an assessment of Curlew's relationship with the church, and involve the secular review of ecclesiastical discipline and church doctrine. As such, we are prohibited from assigning liability to such actions.
Even if we were not so prohibited, the undisputed facts do not sufficiently make out a claim for intentional infliction of emotional distress. See Jones v. Maloney, 74 Mass. App. Ct. 745, 750-751 (2009). While it is undisputed that Curlew returned to the church after the plaintiff made the defendants aware of the inappropriate touching, the plaintiff offers no evidence that defendants COP, Day, or Rice intended this single visual encounter between the plaintiff and Curlew to occur, or that they should have known it likely to occur, or that it could be viewed as extreme and outrageous. While this court neither questions nor seeks to minimize the traumatizing effect of the incident on the plaintiff, our analysis must be confined to the undisputed facts in the record in the context of the elements of this cause of action. We must conclude that the defendants' actions do not constitute intentional infliction of emotional distress as matter of law. Sena v. Commonwealth, 417 Mass. 250, 264 (1994), quoting from Agis, supra at 145 (only conduct that transcends all 'bounds of decency and . . . [and is] utterly intolerable in a civilized community' will rise to the level of extreme and outrageous conduct).
3. Civil conspiracy. The crux of the plaintiff's claim of civil conspiracy against COP is that the defendants waited sixteen days before reporting the incident to civil authorities and in the interim proceeded to seek legal and medical consultations. While this conduct may or may not have conformed to legal requirements for mandated reporters, G. L. c. 119, § 51A, any inference that this course of action was part of an unlawful collusion to avoid law enforcement is speculation and contrary to the right, recognized by the judge below, of an individual to consult a lawyer prior to speaking with police, without such action used as evidence of a conspiracy. See Kurker v. Hill, 44 Mass. App. Ct. 184, 189 (1998).
4. Actions against Norman, Hobbs, and Fortheringham for gross negligence. A claim of gross negligence requires 'an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.' Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 20 n.4 (1997), quoting from Altman v. Aronson, 231 Mass. 588, 591-592 (1919) (it 'is substantially and appreciably higher in magnitude than ordinary negligence').
Upon this record, it is undisputed that at no time during their terms as volunteer clergymen or mission presidents did any of these three defendants learn that Curlew had a history of sexual assault. First and foremost, Norman served as president of the Manchester, New Hampshire mission from July, 1992, to July, 1995, ending his tenure four months prior to Curlew formally joining the church. Norman further testified without contradiction that he did not interview nor become familiar with Curlew in any capacity. With regard to the circumstances surrounding Curlew's baptism into the church, the record contains no evidence that either Fotheringham or Hobbs had actual knowledge of Curlew's past sexual misconduct as a result of the baptism process.
While there is a baptismal certificate which suggests, as contended by the plaintiff, that Fotheringham must have interviewed Curlew prior to baptism, if such an interview occurred, and if so what was discussed, remains a matter of conjecture on this record.
While the plaintiff asserts that this fact is indeed disputed since a missionary recorded in a personal journal that 'President Hobbs will be interviewing [Curlew],' Hobbs testified that he did 'not recall ever meeting [Curlew] or even being aware of his baptism. I did not interview him prior to his baptism.' To the extent this fact is thereby 'disputed,' we find that it nevertheless does not rise to the level of a genuine dispute of material fact sufficient to state a claim for gross negligence.
Conclusion. For the reasons expressed above, we must affirm the allowance of summary judgment in favor of the defendants.
Judgment affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),