Opinion
No. X04 CV02 4000582 S
July 9, 2007
RULING ON MOTION FOR SUMMARY JUDGMENT
I. BACKGROUND AND INTRODUCTION
(Note this memorandum is almost identical to the memorandum promulgated in Sutherland v Hartford Roman Catholic Diocesan Corporation, No. X04 CV 02 4000581, under even date The complaints and the materials submitted in relation to the motion for summary judgment in the two cases track each other closely, the cases were argued together, and the arguments are almost identical.)
The plaintiff in this matter alleges that he was sexually abused by a Roman Catholic priest, Father Stephen Foley, in approximately 1978, at a time when the plaintiff was about fifteen years old. Defendants include Foley, the Hartford Roman Catholic Diocesan Corporation ("Archdiocese"), and Saint Robert Bellarmine Roman Catholic Church Corporation ("church").
The first count of the currently operative complaint, the Revised Complaint dated April 8, 2003, alleges that the archdiocese and the church, to which Foley was assigned at the time in question, were negligent in twenty-thee ways, including failing adequately to supervise, evaluate, and train Foley as well as failing to investigate and to report wayward behavior. The second count alleges reckless and wanton behavior on the part of the corporate defendants for behavior similar to that alleged in the first count. The third count, directed only against Foley, alleges sexual assault and battery. The fourth count realleges the paragraphs of the third count and claims that the corporate defendants are liable by virtue of the doctrine of respondeat superior. The fifth count claims that the corporate defendants engaged in a civil conspiracy with the non-party United States Conference of Catholic Bishops, former Archbishop John Whealon and other 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 the conspiracy, it is alleged, the "defendants" concealed allegations of child abuse made against Foley, moved him from parish to parish without informing parishioners of the allegations, maintained secret files regarding Foley, and "fraudulently and consciously misled" parishioners and the public into believing that Foley was fit to be a priest when he was not.
The archdiocese has moved for summary judgment as to several counts, and the church has moved for summary judgment as to all the counts directed against it. The church's position is that it had no duty to supervise or otherwise to deal with priests assigned to it by the archdiocese; without duty, there can be no recovery in negligence. The archdiocese, joined by the church, more narrowly moves for summary judgment as to the fourth count, claiming that Foley's alleged activities were outside the scope of employment as defined by Connecticut law; and the fifth count, claiming that there was never an agreement to abuse the plaintiff, or presumably anyone else, and that any abuse of the plaintiff occurred before any of the defendants participated in any conspiracy. Both sides have submitted factual materials.
Neither of the movants suggests that it indeed did participate in a conspiracy at all.
II. SUMMARY JUDGMENT STANDARDS
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006); Practice Book § 17-49. The party moving for summary judgment bears the burden of proving the absence of a genuine dispute as to any material fact; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Zielinski v. Kotsoris, supra, 279 Conn. 318. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Brown v. Soh, supra, 280 Conn. 501.
III. DUTY OF ST. ROBERT BELLARMINE CHURCH
The church has moved for summary judgment on the ground that it has no duty to the plaintiff because it has neither the mandate nor the ability to supervise, discipline or otherwise exercise control over priests assigned to the church by the archdiocese. In support of its position, it has presented an affidavit by Christie Macaluso, an auxiliary bishop with the Hartford Archdiocese, as well as vicar general and moderator of the Curia. He functionally is the "chief assistant to the Archbishop in matters of administration and personnel." He states in his affidavit that the local parish churches operate as separate corporations, but it is the Archbishop "who has always had the fundamental authority to supervise, train, control and provide education for priests incardinated in the Archdiocese. For example, he alone can ordain and incardinate a priest into the Archdiocese; he alone can assign, remove or transfer a priest from a parish church; he alone can grant or remove the faculties to function as a priest, etc. A parish corporation does not have the authority to perform any of those functions. Further, parish corporations have no authority to promulgate policies, programs or rules governing the personal conduct of priests that are applicable generally to priests within the Archdiocese."
The church also refers to General Statutes § 33-279 et seq. The brief statutory scheme contemplates the formation of church corporations, under the auspices of the archdiocese. Section 33-279. Section 33-280 provides that "[s]uch corporation may receive and hold all property conveyed to it for (religious and charitable purposes)." Section 33-281 states that such corporation "shall at all times be subject to the general laws and discipline of the Roman Catholic Church and shall receive and enjoy its franchises as a body politic, solely for the purposes mentioned in section 33-280 . . ." (Emphasis added). The statutes appear to provide for the acquisition, retention and succession interests in property only. The church claims that because its sole function concerns the possession of property, and church doctrine holds that it has no power or authority in the governance of clergy, then it has no duty to the plaintiff to constrain, train, supervise or otherwise influence the behavior of clergy assigned to it.
The state, speaking generally, has a legitimate interest in the regulation of property disputes. It of course has no interest in doctrinal affairs.
On the surface, this is a somewhat counterintuitive position. The facts set forth in the affidavit, supported by statutory authority, though, are strong enough to require some factual information to the contrary if summary judgment is to be avoided. Despite a lengthy memorandum in opposition and myriad exhibits, however, there are no facts suggested by the plaintiff to raise a genuine issue as to the duty of the individual Roman Catholic church.
The plaintiff did submit a great deal of material suggesting that people associated with the church may have had notice of Foley's inappropriate behaviors and yet did nothing effective to restrain, discourage or warn of the behavior. Though the plaintiff's materials mention "the defendants'" responsibilities, there is no specific mention of a duty of the individual church. The excerpts from experts' materials, while interesting, sheds little light on whether St. Robert Bellarmine church as a corporate body had anything to do with the conduct or priests. There is, then, no genuine issue presented by the materials as to the individual church, and summary judgment shall enter in its favor.
As an example, the plaintiff in his memorandum states, at p. 24, that "[The defendant church] went so far as to place Foley in charge of the religious education classes at the church . . . [and did so] without any direction from the Defendant Diocese. This decision was within Defendant Church's control and it made it simply because 'it was always the duty of the youngest priest to take care of the religious education program'" ([Foley deposition] at 29). (Emphasis added).
There are no factual materials supporting the statements in the brief. The excerpts of Foley's deposition which have been presented say nothing about the individual church's duties or responsibilities. Page twenty-nine, the reported reference, supports the proposition that Foley was involved with youth and religious education while at Christ the King church. It does not say who made the decision or who had anything to do with the decision. It had nothing to do in any event with St. Robert Bellarmine Church.
The position of the local church is, if anything, stronger in this case than in Sutherland. The factual materials suggest that Noll, while a Roman Catholic, was not a parishioner of the defendant church, nor were his parents. Noll met Foley at a convenience store, and the attraction reportedly included the emergency vehicle Foley drove. The abuse reportedly occurred first at Cape Cod and later at Foley's quarters. The report of Bouchard's trying to complain to Roman Catholic personnel would seem not to pertain to St. Robert Bellarmine.
The authority presented by the plaintiff does not avoid this result. Rosado v. Bridgeport Roman Catholic Diocesan Corporation, 45 Conn.Sup. 397 (1998), does not mention a local church and no such entity is a party to that action. The case discusses employee-like duty. Similarly, See v. Bridgeport Roman Catholic Diocesan Corporation, 1997 Ct.Sup. 3106, 20 Conn. L. Rptr. 271 (Thim, J.) (1997), does not address the issue, nor is the local church a party. In Doe v. Buongirno, 2002 Ct.Sup. 9810 (McLachlan, J.) (2002), the local church was not a party and the issue was not addressed. And in Nelligan v. Norwich Roman Catholic Diocese, 2006 Ct.Sup. 11108 (Sferrazza, J.) (2006), although the local church was a party, the issue of the local church's duty, as presented in the instant case, did not arise.
Duty, of course, is an element of the tort of negligence. See, e.g., Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474 (2003). Where the actual harm is inflicted by a third person, there must be some "special relationship" between the parties such that the putative defendant had the legal obligation to control, direct or otherwise be responsible for the activities of the active wrongdoer. Murdock v. Croughwell, 268 Conn. 559 (2004); see also Ryan Transportation v. M G Associates, 266 Conn. 520 (2003). The special relationship may of course be established by statute. Analogous considerations apply to recklessness.
Here, there has been no factual showing of any such special relationship.
On the facts presented, summary judgment shall enter in favor of the defendant St. Robert Bellarmine church.
IV. RESPONDEAT SUPERIOR
The corporate defendants claim that judgment should enter in their favor as to the fourth court, which asserts that both are liable on the theory of respondeat superior for the actions of Foley. For the purpose of this motion the defendant archdiocese assumes that it is the employer of Foley, but that the priest's alleged actions were not committed within the scope of employment.
The facts are fairly simple. According to the materials submitted in connection with this motion, Foley befriended the plaintiff on meeting at a convenience store; an attraction based at least partially on Foley's use of an emergency vehicle developed. Foley sexually abused the plaintiff in 1978 while on an overnight trip to Cape Cod and, reportedly, at Foley's quarters. There are no facts suggesting that the molestation was in some perverse sense a mistaken method of counseling or good faith therapy run amok. The factual materials suggest that the activity was nothing other than abuse.
Cases presenting in this posture in this jurisdiction overwhelmingly fail to survive motions for summary judgment on the issue of respondeat superior. As stated by one court:
"Under the doctrine of respondeat superior, '[a] master is liable for the wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business.' Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967)." Glucksman v. Walters, 38 Conn.App. 140, 144, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995). "It refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 70, p. 502." (Internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 505, 656 A.2d 1009 (1995). Ordinarily, it is a question of fact for a jury to decide whether an employee is acting within the scope of his employment. Brown v. Housing Authority, 23 Conn.App. 624, 628, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 858 A.2d 1233 (1991). "In some situations, however, the acts of the servant are so clearly without the scope of his authority that the question is one of law." (Internal quotation marks omitted.) Id.
A servant acts within the scope of employment while engaged in the service of the master . . . While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business . . . Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable. (Citations omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farms, Inc., 216 Conn. 200, 209-10, 579 A.2d 69 (1990).
"The doctrine of respondeat superior . . . is based on public policy considerations that the employer shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with CT orders which he has given him on the subject." (Internal quotation marks omitted.) Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 520, 603 A.2d 1173 (1992). "[I]t must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farms, Inc., supra, 216 Conn. 208.
See v. Bridgeport Roman Catholic Diocese Corporation, supra.
The defendants have presented the affidavit of Auxiliary Bishop Macaluso, mentioned above. The affidavit also states that Roman Catholic doctrine teaches that celibacy and chastity are required of priests; sexual abuse of a minor is considered "sinful and a serious offense against the Sixth Commandment." It states that sexual abuse of a minor "would violate the teachings and law of the Roman Catholic Church and would not in any way promote the affairs or business or further the interests of the Roman Catholic Church or of any diocese or archdiocese or parish church with which the priest might be affiliated . . ."
No facts have been presented to suggest that the alleged abuse in any way was undertaken to benefit the church or was perpetrated in the conduct of the church's affairs. The plaintiff has introduced a great deal of factual material suggesting that abuse of minors by priests was generally known by some in the church hierarchy and was not, regrettably, an infinitesimally rare event. This may be so. Knowledge that such activity occasionally occurred does not mean that the activity either advanced or was intended to advance in any way the interests of the church, under any reasonable stretch of the imagination. The great majority of courts considering the issue in similar factual contexts have found that there can be no liability on the basis of respondeat superior. See, e.g., Dumais, supra; See, supra; Sparano v. Daughters of Wisdom, Inc., 2004 Ct.Sup. 10653, 37 Conn. L. Rptr. 422 (Adams, J.) (2004) (granting motion to strike count based on respondeat superior); Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66, 71 (D.Conn. 1995); Nelligan, supra. Summary judgment may enter in favor of the defendants as to the fourth count.
Noll presented the affidavit of his mother in a somewhat belated filing. The affidavit suggests that Ms. Francis, his mother, her suspicions aroused, tried to inform church authorities at about the time of the abuse but was rebuffed. Again, notice that an activity may be happening, if true, does not necessarily mean that the activity is undertaken to benefit the church. The defendants have objected to the presentation of the affidavit on the ground that it is untimely. In the circumstances, the affidavit makes no practical difference.
V. CIVIL CONSPIRACY
The defendants have moved for summary judgment as to the fifth count, which alleges civil conspiracy. There are two bases asserted in support of the motion: the defendants claim that there are no facts supporting the requirement that the conduct harmful to the plaintiff be an object of the conspiracy, and they claim that the facts do no support the requirement that the conspiracy exist at the time of the harmful conduct. The doctrine of civil conspiracy creates vicarious liability on the part of conspirators for the commission of the underlying tort.
The role of civil conspiracy has been succinctly described in several cases arising from circumstances similar to those in this case.
The Connecticut Supreme Court has stated the elements of a civil action for conspiracy as: (1) a combination between two or more persons, (2) to do a criminal or wrongful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damages to the plaintiff. Williams v. Maislen, 116 Conn. 433, 437 (1933); see also Marshak v. Marshak, 226 Conn. 652, 665 (1993), overruled on other grounds, State v. Vakilzaden, 251 Conn. 656, 660 (1999). Thus, the action is for damages caused by an act in furtherance of a conspiracy not by the conspiracy itself. Cole v. Associated Construction Co., 141 Conn. 49, 54 (1954). A claim of civil conspiracy is insufficient unless it is based on some underlying cause of action. Litchfield Asset Management v. Howell, 70 Conn.App. 133, 140, cert. denied, 261 Conn. 911 (2002).
The plaintiff has amassed evidence regarding purported agreements among the corporate defendants and others, including the United States Conference of Catholic Bishops. Although the plaintiff cites in particular a document circulated in 1985, which document appears to encourage the suppression of information regarding priest misconduct, there is also material from which earlier "agreements" might be inferred. There is no evidence, however, from which it can be inferred 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 is no evidence that Foley, the alleged perpetrator of the acts, was a member of the alleged conspiracy. Finally, there technically is no cause of action for "civil conspiracy"; rather, the cause of action is the underlying tort for which additional entities may be liable because of the conspiracy.
The defendants in their briefs urge that much of the evidence ought not be considered, because much of it is derived from sources such as media websites and as such do not meet the requirements of admissibility. There is merit to the argument.
In these factual circumstances, courts in this jurisdiction have virtually uniformly rejected the notion of recovery for civil conspiracy. For example, in Dumais, supra, Judge Sferrazza stated:
The sixth count attempts to establish a cause of action for civil conspiracy against all defendants. Under Connecticut law there is no such cause of action. Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140 (2002). A cause of action may lie for the damage resulting from the conspiratorial behavior, such as fraud, but not for the conspiracy itself. Id. No damages are awarded based on conspiracy apart from the damages assessable for the resulting cause of action. Id., 146. Therefore, civil conspiracy ought not be alleged in a separate count independent from the underlying cause of action, such as for assault, fraud, etc. because it is merely a method of committing the underlying cause of action.
Additionally, this count is deficient because it lacks any allegation that the agents or employees of the archdiocese or church conspired with Shiner to commit sexual abuse of the plaintiff. A civil conspiracy requires that two or more persons combine for the purpose of committing a criminal or other unlawful act or use unlawful means which injure another. Williams v. Maislen, 116 Conn. 433, 437 (1999). It is inadequate to aver that a group of persons agreed to perform certain other acts but not the injurious conduct which harmed the plaintiff, in this case the sexual abuse of a minor.
See also Nelligan, supra; Sparano, supra ("The complaint does not allege that any of the acts in furtherance of the conspiracy caused Sparano's injuries. Instead it alleges, at best, that (1) the acts created an environment in which Sister Clynes committed the alleged abuse, and (2) the acts "led to" Sparano's damages. Many things can lead to may other things, and these allegations fall short of stating causation. Failing to allege that an act in furtherance of the conspiracy caused the actual injury, the sixth and eighth counts are stricken."); see also Biro v. Hirsch, 62 Conn.App. 11, 17 (2001).
The facts submitted in connection with the motion for summary judgment suggest that the object of the alleged conspiracy was to suppress information about potential abuse in order to continue to raise funds and to avoid embarrassment and censure. The underlying cause of action, though not stated in the fifth count, is sexual abuse. There is no evidence suggesting that the object of the conspiracy was to abuse the plaintiff or anyone else, nor is there any evidence suggesting that Foley was part of the conspiracy. The motion for summary judgment is granted as to the fifth count.
The defendants have suggested that Macomber v. Travelers, 277 Conn. 617 (2006), prevents recovery because the alleged conspiracy postdated the tortious conduct. I do not reach this ground, and there may be a genuine issue of fact as to the date of the alleged conspiracy.