Sparano v. Daughters of Wisdom, Inc.

Full title: CYNTHIA SPARANO v. DAUGHTERS OF WISDOM, INC. ET AL

Court: Connecticut Superior Court, Judicial District of Stamford-Norwalk Complex Litigation Docket at Stamford

Date published: Jul 1, 2004

2004 Ct. Sup. 10653 (Conn. Super. Ct. 2004)

37 CLR 422

Opinion

No. X08 CV 03 0199399

July 1, 2004

MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (127.00, 134.00)

ADAMS, JUDGE.

1. Background

In her amended complaint the plaintiff Cynthia Sparano alleges that in 1973 and 1974, while she was a minor child attending Waterbury Catholic High School in Waterbury, Connecticut, the defendant Sister Lucille Clynes, a nun and teacher at the high school, sexually abused, assaulted and exploited the plaintiff causing her injury and damage.

Sparano alleges that the defendant Congregation of Notre Dame of Ridgefield, Inc. (Congregation) was a religious community of women that controlled, supervised and was responsible for all teachers at Waterbury Catholic High School. Sparano also alleges that the defendant Daughters of Wisdom, Inc. (Daughters) was a religious community of women that controlled, supervised and was responsible for all teachers at the high school. It is alleged that Sister Clynes was an "agent and/or employee of the defendant Congregation and/or the defendant Daughters" during the time Sparano attended the high school.

The amended complaint's first count sets forth a tort claim against Sister Clynes. The second and third counts seek to hold Daughters and Congregation, respectively, vicariously liable on a theory of respondeat superior for Sister Clynes' alleged torts. The fourth and fifth counts allege that Daughters and Congregation, respectively, were negligent. The sixth, seventh and eighth counts allege civil conspiracy against Daughters, Congregation and Clynes, respectively.

Daughters has now moved to strike the second (vicarious liability) and sixth (civil conspiracy) counts against it, and Sister Clynes has moved to strike the eighth count (civil conspiracy).

II. Standard of Review CT Page 10654

The court's analysis of a motion to strike is guided by well accepted standards:

The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted. (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see Practice Book § 10-39. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.) Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).

III. Vicarious Liability

In the second count of the amended complaint, Sparano alleges that Sister Clynes' acts of sexual abuse, assault and exploitation occurred while she was acting as a nun and teacher and while she was teaching, supervising and chaperoning minor students all of which were in the scope of her employment, and for which the defendant Daughters, as her employer, is vicariously liable.

Daughters' motion to strike contends that the second count fails to state a claim for which relief may be granted because in order to hold an employer liable for the intentional torts of an employee, the latter must be acting within the scope of his or her employment and in furtherance of the employer's business. Daughters argue that the alleged sexual abuse, assault and exploitation of a minor child is, by its very nature, far outside the scope of Sister Clynes's employment, and it is inconceivable that the alleged activities were in any fashion in furtherance of Daughters' business.

In opposition to the motion to strike, Sparano argues that there are too many unresolved issues of fact as to whether Sister Clynes' allegedly intentional conduct was within the scope of her employment by Daughters to allow the striking of the vicarious liability claim.

Both Sparano and Daughters agree that to hold an employer liable for an employee's torts the employee must have been acting within the scope of employment. A-G Foods v. Pepperidge Farm, Inc., 216 Conn. 200 (1990). In A-G Foods, the Connecticut Supreme Court held that while ordinarily, whether a servant's intentional tort was within the servant's scope of employment was a question of fact, there were certain cases where the servant's "digression from duty is so clear-cut" that the issue becomes one of law. Id. 207. Daughters argues that this is such a case.

There are a number of cases holding that when an employee of a religious organization is alleged to have committed sexually abusive or assaultive behavior against another, such conduct, as a matter of law, is not within the scope of employment. In Doe v. Hartford Diocese, 45 Conn. Sup. 388, 23 Conn. L. Rptr. 34 (1998), the Superior Court granted a motion to strike a vicarious liability count against the Church of the Holy Spirit and the Hartford Roman Catholic Diocese in a case in which the plaintiff, a minor at the time, alleged that a priest had sexually abused her during counseling sessions. The court held that the priest's alleged actions were "clearly a digression from duty" and neither the church's nor the diocese's interest were furthered by it. Id., 394. Doe v. Hartford Diocese, supra, found support from Nutt v. Norwich Catholic Diocese, 921 F. Sup. 66 (D.Conn. 1995), and distinguished Mullen v. Horton, 46 Conn. App. 759 (1997).

In Nutt the United States District Court, applying Connecticut law, dismissed a vicarious liability claim against a church and a diocese where it was alleged that a priest showed X-rated films to, and sexually abused, twin minor boys. The court found that the sexually abusive conduct alleged was an "abandonment of the church's business" and, as a matter of law, was outside the scope of the priest's employment. 921 F. Sup. 71. In Mullen, the Connecticut Appellate Court reversed a summary judgment dismissing claims against employers of a priest. In that case the priest was a practicing psychologist who maintained an office and private practice (giving his profits to the church). The plaintiff sought his counseling because he was a psychologist and a priest and over several years, had a sexual relationship with him. The Appellate Court held that a trier of fact could have reasonably determined that the priest's alleged sexual exploitation of the plaintiff which occurred during church-sanctioned pastoral-psychological counseling sessions and church retreats was a "misguided attempt" at such counseling or even "unauthorized unethical and tortious" . . . "but not an abandonment of church business." 46 Conn. App. at 765-66.

In Dumais v. Hartford Roman Catholic Diocese, Superior Court, judicial district of Hartford, X07 CV01 0076315 (July 31, 2002 Sferrazza, J.) ( 32 Conn. L. Rptr. 693), the court granted a motion to strike a vicarious liability claim against a church and diocese for a priest's alleged sexual assaults on the basis that there was no allegation that the abuse was done in any way to further or advance the business of the church or diocese, even in some misguided manner. Even more recently, the United States District Court dismissed vicarious liability claims against a church and diocese which alleged that a priest, alleged to have sexually abused a minor, was "acting within the scope of his duties as a Roman Catholic priest for [the diocese and church] . . . and in furtherance of their business purpose." The court, noting there were no facts alleged to support this conclusory allegation, held, as a matter of law, that the priest's actions were not in furtherance of church business. Doe v. The Norwich Roman Catholic Diocesan Corp., et al., 268 F. Sup.2d 139 (D.Conn. 2003).

Sparano counters the above cases by pointing out a separate line of cases which hold that an employer may be vicariously liable even when the offending employee acted against employer policy, was disobedient or acted outrageously. See e.g. Belanger v. Village Pub I, 26 Conn. App. 509 (1992) (vicarious liability found when barmaid over-served a patron against orders; "even an innocent employer must compensate an injured party"); Glucksman v. Walters, 38 Conn. App. 149, cert. denied, 235 Conn. 914 (1995) (off-duty YMCA employee attacked player during basketball game in violation of policy that employees were supposed to maintain order and conduct themselves appropriately whether on duty or not).

Sparano has also brought to this court's attention a more recent opinion in Doe v. Norwich Roman Catholic Diocesan Corp. In that case, following Judge Goettel's opinion discussed above, the plaintiff amended her complaint to add allegations that the priest's actions were committed during counseling sessions attempting to bring the plaintiff closer to the church and increase contributions of time and money for church activities. Based on these new allegations, Judge Goettel refused to strike the amended vicarious liability count, stating that on these new fact assertions, the case was controlled by Mullen v. Horton, supra. Doe v. Norwich Roman Catholic Diocesan Corporation, F. Supp.2d 3:02 CV 1649 (GLG) (Feb. 17, 2004).

This court is not persuaded by Sparano's arguments. The allegations in the complaint do not spell out the actions of a wayward employee who started out on her employer's business, but somehow went astray or became misguided. There is nothing in the complaint upon which to base even an inference that the alleged sexual abuse, assault or exploitation was a misguided attempt of, or deviation from, teaching and chaperoning students or that the Daughters receive, or could receive, any benefit from it whatsoever. In other words, the alleged activity is nothing less than a clear digression from duty and an abandonment of the Daughters' interests.

Sparano also contends that a recent Superior Court decision sheds new light on the issue of whether it is appropriate to strike a vicarious liability count in these types of cases. In Nelligan v. Norwich Roman Catholic Diocese, Superior Court, judicial district of Middlesex at Middletown, CV02 0099218 (March 5, 2004) ( 36 Conn. L. Rptr. 597), Judge Silbert denied a motion to strike a count seeking to hold a diocese, church and bishop liable for an alleged sexual assault on a minor by a Roman Catholic priest. Judge Silbert took note of a recent study by the John Jay College of Criminal Justice authorized and paid for by the United States Conference of Catholic Bishops, "Nature and Scope of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States, 1950-02" which reported that based on survey responses from 97% of the Catholic Dioceses and from 142 religious communities representing approximately 80% of religious priests in the country, 4% of all priests had allegations of abuse against them. Judge Silbert concluded that further factual inquiry was called for:

[t]his court, at least, is not prepared to conclude that an activity which might be undertaken by as many as four percent of an employer's employees is a clear cut digression from duty as a matter of law

Whether one agrees with Judge Silbert's thoughtful and thought provoking analysis is not particularly relevant to the disposition of the pending motion in this case involving the alleged activities of a catholic nun. There are no comparable statistics or studies involving sexual abuse, or allegations of such abuse, by nuns.¹ The plaintiff's allegations seeking to hold Daughters vicariously liable are insufficient, as a matter of law, and the second count is stricken.

1 Daughters offers that a computer search of state and federal cases yielded only one case in which a sexual abuse claim was brought against a nun.

IV. Civil Conspiracy

Daughters and Sister Clynes move to strike Counts Six and Eight which purport to set forth a claim for civil conspiracy against them. These counts allege that from 1973 to the present these two defendants, along with the defendant Congregation, combined among themselves to "create an environment" in which they failed to investigate or report to law enforcement authorities persons they knew or should have known were sexually abusing children, failed to promulgate policies to enforce celibacy, policies regarding prevention of sexual abuse by teachers and nuns, and adhered to policies that discouraged dissemination of information about sexual misconduct of nuns with minors.

In furtherance of this combination and conspiracy it is alleged the defendants agreed not to advise the public of Sister Clynes' actions or remove Clynes from access to children; agreed not to suspend her and to hide her behavior from the public. The counts allege this "combination and conspiracy . . . led to" plaintiff's damages.

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).

In Dumais supra, the court struck a conspiracy count holding it inadequate for such a count to allege an agreement and acts in furtherance of the agreement, but not that the act that caused the injury, i.e. the sexual abuse itself.

The allegations of the complaint in this case are similar. 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 many other things, and these allegations fall far 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.

TAGGART D. ADAMS SUPERIOR COURT JUDGE