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rejecting the argument that plaintiff can "combine [the abuser's] employment history prior to 1967 with a broader allegation that the Church has been known to utilize transfers to cover-up clergy sexual abuse and conclude this sufficiently states a claim for relief"
Summary of this case from In re The Roman Catholic Diocese of Rockville Ctr.Opinion
20-cv-1471 (RJD) (RML)
2021-08-25
William J. MURRAY III, Plaintiff, v. NAZARETH REGIONAL HIGH SCHOOL f/k/a Nazareth High School, Roman Catholic Diocese of Brooklyn, Xaverian Brothers USA Inc. a/k/a Congregation of St. Francis Xavier, and John Does Nos. 1-10, Defendants.
Liza Roys, Pro Hac Vice, Houston, TX, Timothy Bearb, Pro Hac Vice, Matthews & Associates, Houston, TX, Pedro De La Cerda, Pro Hac Vice, Tim K. Goss, Pro Hac Vice, Freese & Goss, PLLC, Dallas, TX, Peter W. Smith, Peter W. Smith Law LLC of Counsel to D'Arcy Johnson Day PC, New York, NY, for Plaintiff. Francis Jarlath Scahill, Scahill Law Group P.C., Bethpage, NY, for Defendant Nazareth Regional High School. Karen L. Campbell, Lewis Brisbois Bisgaard & Smith LLP, New York, NY, Christopher Louis Donati, Kaitlyn E. Fallon, Lyle S. Zuckerman, Davis Wright Tremaine LLP, New York, NY, for Defendant Xaverian Brothers USA Inc.
Liza Roys, Pro Hac Vice, Houston, TX, Timothy Bearb, Pro Hac Vice, Matthews & Associates, Houston, TX, Pedro De La Cerda, Pro Hac Vice, Tim K. Goss, Pro Hac Vice, Freese & Goss, PLLC, Dallas, TX, Peter W. Smith, Peter W. Smith Law LLC of Counsel to D'Arcy Johnson Day PC, New York, NY, for Plaintiff.
Francis Jarlath Scahill, Scahill Law Group P.C., Bethpage, NY, for Defendant Nazareth Regional High School.
Karen L. Campbell, Lewis Brisbois Bisgaard & Smith LLP, New York, NY, Christopher Louis Donati, Kaitlyn E. Fallon, Lyle S. Zuckerman, Davis Wright Tremaine LLP, New York, NY, for Defendant Xaverian Brothers USA Inc.
MEMORANDUM & ORDER
DEARIE, District Judge
Plaintiff William J. Murray III brings a negligence action against Nazareth Regional High School ("Nazareth"), the Xaverian Brothers USA Inc. (the "Xaverians") and the Roman Catholic Diocese of Brooklyn (the "Diocese"), alleging repeated sexual abuse by George Gardiner, a now-deceased Catholic clergyman also known as Brother Barton.
Nazareth and the Xaverians answered the amended complaint, ECF No. 41, on October 9, 2020. ECF Nos. 45-46. The Diocese moves to dismiss for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). ECF No. 51. The motion is granted. BACKGROUND
Plaintiff alleges the Diocese is a "Roman Catholic organization and a non-profit religious corporation" in New York with its principal place of business in Brooklyn. (Am. Compl. ¶ 3.) During the relevant period, Nazareth was a private Catholic school located within the Diocese and run by the Xaverian Brothers, another Roman Catholic organization "dedicated to education and having affiliated schools throughout the United States." (Id. at ¶¶ 4-5.)
Plaintiff does not allege he was a parishioner or student of the Diocese; he alleges that Brother Barton, a Xaverian Brother employed by the Diocese, traveled with him to the Diocese for "three to four weeks" in 1967 and abused him on properties "owned and operated" by the Diocese. (Id. at ¶¶ 30-33, 39.) Plaintiff alleges Br. Barton took "hundreds of nude and/or pornographic photos" of him on the Nazareth campus and abused him in "church-provided living quarters," located somewhere in New York City. (Id. at ¶¶ 33, 35-36.) According to the amended complaint, plaintiff originally met Br. Barton two years prior, when plaintiff was twelve years-old attending summer camp in Maryland. (Id. at ¶¶ 30-33.)
According to the amended complaint, as the owner-operator of Nazareth, the Diocese was the "competent ecclesiastical authority" responsible for directing the activities of the School and for intervening and taking corrective action in the event of the sexual abuse of minors. (Id. at ¶¶ 38-39, 46.) Plaintiff alleges the Diocese failed to take such action in his case despite "warning signs" that Br. Barton was abusing him; for instance, singling out plaintiff for private trips and Br. Barton's history of school assignments. (Id. at ¶¶ 84.)
Specifically, plaintiff alleges Br. Barton was transferred five times from one school or diocese to another between 1953 and 1970. (Id. at ¶ 28.) Exhibit C to the Diocese's declaration in support of its motion to dismiss includes a publicly available record of Br. Barton's assignment history, which shows the following:
1953-1957: Mount St. Joseph, Baltimore, MD
1958: St. John's Preparatory School, Danvers, MA
1959-1963: St. Xavier, Louisville, KY
1964-1965: Nazareth HS, Brooklyn, NY
1966-1967: OLGC, Wheaton, MD
1968: Nazareth HS, Brooklyn, NY
1969-1970: Leave of Absence
(ECF No. 53-3 at 12; Am. Compl. ¶¶ 28-29; ECF No. 50 at 3.)
The amended complaint also includes extensive allegations about the alarming history of sexual abuse by clergy and the Catholic Church's failure to act. (Am. Compl. at ¶¶ 17-27.) For instance, citing to a report about the Diocese of Pennsylvania, plaintiff alleges that "the Church" has policies and procedures aimed at keeping child sexual abuse by clergy a secret. (Id. at ¶¶ 23-24.) This allegedly includes transferring a known priest-predator to "a new location where no one will know he is a child abuser," rather than remove him from the priest- or brotherhood. (Id. at ¶ 24(f).) Thus, plaintiff alleges that "Br. Barton's numerous assignments and transfers correspond with ... Defendant Diocese's concurrent knowledge of Br. Barton's sexual abuse of minors." (Id. at ¶ 106.)
DISCUSSION
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim will have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in the plaintiff's favor. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are not enough to survive a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
1. Negligence
Plaintiff asserts a negligence claim against the Diocese, alleging it should be held vicariously liable as Br. Barton's employer and directly liable as a negligent school operator and/or property owner-operator. (Am. Compl. ¶¶ 76-95.) The Diocese argues plaintiff has failed to adequately allege facts to support a negligence claim premised on any of these theories. (ECF No. 52 at 5-14.)
A. Imputed negligence—respondeat superior
Plaintiff alleges the Diocese is vicariously liable for Br. Barton's misconduct during the summer of 1967 at Nazareth and at "church-provided" housing under the doctrine of respondeat superior. (Am. Compl. ¶¶ 60, 77, 95.) The Diocese counters that it cannot be held liable on this theory because (1) Br. Barton was not employed by the Diocese during the relevant period, and (2) even if he were an employee at the time, the alleged abuse was not within the scope of his employment. (ECF No. 52 at 9-12.)
To state a claim for respondeat superior under New York law, a plaintiff must plead facts showing, among other things, that the tortious conduct was undertaken within the scope of employment and was thus in furtherance of the employer's interests. Rosenfeld v. Lenich, 370 F. Supp. 3d 335, 350-51 (E.D.N.Y. 2019) (citing N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 739 N.Y.S.2d 348, 765 N.E.2d 844, 846-47 (2002) ) (citations omitted). When it comes to sexual abuse, New York courts repeatedly have held that it "arise[s] from personal motives" and does not "further an employer's business, even when committed within the employment context." Ross v. Mitsui Fudosan, Inc., 2 F. Supp. 2d 522, 531 (S.D.N.Y. 1998) ; cf. Bouchard v. New York Archdiocese, No. 04-cv-9978 (CSH), 2006 WL 1375232, at *4 (S.D.N.Y. May 18, 2006) (collecting New York cases and noting that clergy sexual abuse is unrelated to the Church's business especially where the conduct "was not a part of any religious or faith-based action").
For purposes of this motion, I construe the amended complaint to allege that defendant was an employee of Nazareth, and thus of the Diocese, during the relevant period. The Diocese argues that plaintiff's allegation that Br. Barton was an employee of the Diocese in the summer of 1967 is in tension with publicly available information showing Br. Barton's assignment history, which plaintiff incorporates by reference in the amended complaint and relies on in opposition to defendant's motion. That information indicates Br. Barton was an employee of Nazareth from 1964-1965 and again in 1968, but an employee of a Maryland diocese in 1967. (ECF No. 53-3 at 12; Am. Compl. ¶¶ 28-29; ECF No. 50 at 3.) Because this is a Rule 12 motion, I accept as true the amended complaint's allegation that Br. Barton was the Nazareth school photographer during the summer of 1967. (Am. Compl. ¶¶ 29, 33.)
However, employee or not, plaintiff still fails to state a claim for negligence under a theory of respondeat superior because the amended complaint does not contain allegations that Br. Barton's sexual misconduct furthered the Diocese's business interests, as required under New York law. This is so whether the abuse occurred at Nazareth, at "church-provided" housing that was funded by the Diocese (which is not clear from the complaint), or both.
B. Direct negligence
Plaintiff also fails to state a negligence claim against the Diocese on the theory that the Diocese owed him a duty of care as school custodian or property owner.
i. Special relationship
Plaintiff fails to state a claim for negligence against the Diocese based on a school-pupil theory because plaintiff acknowledges he was never a student at Nazareth or any school within the Diocese.
In New York, a "special duty is owed to students requir[ing] a school to act when a child, while in its charge, is threatened by the negligence of a third party, and it must make reasonable efforts to anticipate such threats." Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 (N.Y. 1976). As such, schools "will be held liable for foreseeable injuries proximately related to the absence of adequate supervision." Mirand v. City of New York, 84 N.Y.2d 44, 614 N.Y.S.2d 372, 637 N.E.2d 263, 266 (1994). This duty is premised on the special relationship between a school and a student, whereby a school takes physical custody of a child-student and replaces a parent-guardian. See id.
Plaintiff acknowledges that he was never a student of Nazareth, or of the Diocese, and does not even allege that the Diocese was ever aware of his presence at Nazareth or his association with Br. Barton. Instead, plaintiff asks that I extend a school's duty to take care of its students to "non-student, minors who are brought onto the campus by an employee." (Am. Compl. ¶ 78; ECF No. 50 at 16-17.) Defendant counters that the duty should not be extended because it stems from a school's physical custody over a child-student over the course of the school day. I agree. See Reno v. Churchville-Chili Cent. Sch. Dist., 148 N.Y.S.3d 683, 683, 72 Misc.3d 1207A (N.Y. Sup. Ct. 2021) (concluding school had no duty to protect plaintiff because he was not a student at the school where the abuse allegedly occurred). Plaintiff does not and cannot argue that he was a student within the Diocese, and I decline to extend the well-settled rule to non-student minors.
ii. Premises liability
Plaintiff also claims that the Diocese had a duty to protect plaintiff from Br. Barton because of the Diocese's status as owner-operator of Nazareth. (Am. Compl. ¶ 80; ECF No. 50 at 15-17.) Defendant urges the Court to reject this claim because plaintiff has failed to adequately allege a duty or breach to support premises liability. (ECF No. 52 at 12-14.)
Under New York law, landowners have "a duty to maintain their property in a reasonably safe condition." Peralta v. Henriquez, 100 N.Y.2d 139, 760 N.Y.S.2d 741, 790 N.E.2d 1170, 1173 (2003). "This duty may extend to controlling the conduct of third persons who frequent or use the property," such as by "tak[ing] reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others." Costa v. Tribeca Automotive, Inc., 20-cv-234S (WMS), 2021 WL 2815171, at *4 (W.D.N.Y. July 6, 2021) (collecting cases). "But this duty arises only regarding foreseeable risks." Id.
Here, plaintiff does not contend that the premises itself was unsafe, but that Br. Barton's alleged pedophilic propensities created a known or foreseeable risk, triggering a duty. The amended complaint does not contain sufficient allegations to support such a duty.
First, plaintiff does not allege that the Diocese was aware plaintiff was ever in the Diocese or in the company of Br. Barton. To the contrary, the allegations indicate that plaintiff was an unknown outsider to the Diocese. Plaintiff did not reside in the Diocese and was not a student, summer camper or parishioner in the Diocese. The amended complaint does not include any allegations that, for example, plaintiff met or identified himself to any employee of the Diocese other than Br. Barton.
Second, plaintiff does not sufficiently allege that the Diocese knew or should have known of Br. Barton's alleged history of abuse. The amended complaint contains broad allegations about the Catholic Church's record of tolerating and concealing sexual abuse of minors by clergy. (Am. Compl. ¶¶ 17-27.) Such generalizations, as distressing as they are, are not specific to the Diocese. The Catholic Church is a global institution with a vast number of dioceses and clergymen and plaintiff's reliance on Church practices writ large or a specific report about a different diocese in Pennsylvania are not enough to state a claim against a diocese in New York.
Specific to the Diocese, the critical allegation is that "upon information and belief, Br. Barton's numerous assignments and transfers correspond with the ... Defendant Diocese's concurrent knowledge of Br. Barton's sexual abuse of minors." (Am. Compl. ¶ 106.) "Upon information and belief" does not render impermissibly conclusory allegations non-conclusory. Instead, such an allegation must be supported by "factual information that makes the inference of culpability plausible." Zeitlin v. Palumbo, 532 F.Supp.3d 64, 69 (E.D.N.Y. 2021) (citing Arista Recs., LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) ). The amended complaint contains the following allegations related to the Diocese's knowledge inferred from Br. Barton's assignment record: (i) as a matter of practice, "the Church transfers" a priest whose misconduct comes to light "to a new location where no one will know he is a child abuser" (am. compl. ¶ 24(f)), (ii) in light of this practice, the Diocese "knew what it may mean when ... a priest or brother arrived from a difference diocese ... without some other clear, non-nefarious explanation for the move" (am. compl. ¶ 21) and (iii) Br. Barton was transferred five times during the relevant period (am. compl. ¶ 28). The amended complaint does not allege, however, how many transfers is unusual. There is no allegation that Br. Barton's five transfers in 17 years was suspicious. And a review of publicly available information, cited to by both parties, shows that Br. Barton had been transferred only twice when he arrived at Nazareth in 1965. (ECF No. 53-3 at 12; Am. Compl. ¶¶ 28-29; ECF No. 50 at 3.) Nor does plaintiff allege that Br. Barton was transferred to the Diocese without some clear, non-nefarious explanation for the move. To the contrary, Br. Barton's assignment history appears to belie plaintiff's allegation that the assignment history, alone, should have served as sufficient notice to the Diocese because rather than be transferred to "a new location where no one will know he is a child abuser," Br. Barton was transferred back to Nazareth after one year in Maryland. These allegations are not enough to plausibly plead negligence on a theory of premises liability.
Finally, plaintiff also alleges that Br. Barton's actions were "so similar to many other priests and brothers, that by 1967" the Diocese should have known "what warning signs to look for in order to invite additional scrutiny over Br. Barton, including inter alia, the signaling out of Plaintiff for private trips and getaways." (Am. Compl. ¶ 84.) This allegation is insufficient to support a negligence claim for reasons already discussed—it is premised on generalized allegations about the Church's scandalous history of covering up sexual abuse, lacks specificity as to what the Diocese itself did or did not know about Br. Barton, and assumes the Diocese should have scrutinized Br. Barton's singling out of a boy that the Diocese is not alleged to have known existed.
In sum, plaintiff cannot hide pleading deficiencies behind collective references to "the Church" nor disguise critical conclusions as fact using the preface "upon information and belief."
2. Negligent retention and supervision
Plaintiff's negligent retention and supervision claim fails for the same reasons as his direct negligence claim against the Diocese.
In New York, an employer can be held liable for an employee's torts under theories of negligent retention and/or supervision even where the employer cannot be held vicariously liable for such conduct. Bouchard, 2006 WL 1375232 at *4. But plaintiff must allege, among other things, that the employer knew or should have known of the employee's propensity for the conduct which caused the injury. Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791, 793-95 (1997).
New York courts, however, have held in employee sexual misconduct cases that an employer is only liable for negligent supervision if the employer is aware of specific prior acts or allegations against the employee. Doe v. Alsaud, 12 F. Supp. 3d 674, 680-81 (S.D.N.Y. 2014). Plaintiff alleges he was previously abused by Br. Barton in 1965 in Maryland, but does not allege that the Diocese was aware of this misconduct. Here, again, plaintiff asks me to combine Br. Barton's employment history prior to 1967 with a broader allegation that the Church has been known to utilize transfers to cover-up clergy sexual abuse and conclude this sufficiently states a claim for relief. For the reasons stated herein, I cannot draw that conclusion. The claim is insufficiently pled and must be dismissed.
3. Negligent infliction of emotional distress and gross negligence
Plaintiff also asserts claims for negligent infliction of emotional distress, (am. compl. ¶¶ 103-11), and gross negligence (id. at ¶¶ 112-20). As discussed, plaintiff has failed to plausibly plead facts showing that the Diocese had a known duty to protect him from Br. Barton during the relevant period, and in the absence of a duty these claims fail and must be dismissed.
CONCLUSION
Generalized broad-stroke collective allegations and historical filler do not suffice and invite particular scrutiny when assessing the viability of claims in the Rule 12 context. The sad and sordid history of the Church's response to similar allegations, as disturbing as it is, does not speak to the issue of whether in this case this plaintiff has alleged sufficient pertinent facts to make it plausible that this diocese failed plaintiff and is subject to suit. Has he alleged facts to make his claim against the Diocese plausible? Given the history it is tempting to throw the door open to plaintiff and to let counsel explore all relevant facts, but despite the hefty complaint, specific factual allegations against the Diocese are rather general and few in number. Because the pending motion requires that I carefully scrutinize plaintiff's pleading on its own merits. Faithful to that discipline, I must conclude these claims against the Diocese should now be abandoned. The amended complaint is dismissed against this defendant.
However, given the gravity of the allegations, the Court reluctantly grants leave to amend one final time within 45 days. Discovery as to the remaining defendants is to begin immediately.
SO ORDERED.