Opinion
No. X07 CV 08 5029882S
September 2, 2010
MEMORANDUM OF DECISION
I
The plaintiff, Jane Doe, commenced this action on December 4, 2008. She alleges that Father Thomas Shea, "acting as a priest, supervising and chaperoning minor parishioners," sexually assaulted and battered her in 1976 when she was a minor child. Shea allegedly worked for the defendants, the Norwich Roman Catholic Diocesan Corporation, also known as the Roman Catholic Diocese of Norwich (the Diocese), and St. Joseph's Church Corporation, also known as St. Joseph's Church, in New London (the Church). On November 19, 2009, the plaintiff filed a revised complaint alleging in twenty counts that the Diocese and the Church, along with the other defendants, Bishop Daniel Reilly and Monsignor Thomas R. Bride, acted negligently, recklessly and wantonly; are responsible for Shea's acts under a theory of respondeat superior; breached their fiduciary duty to her; and engaged in a conspiracy to commit fraud.
Shea is now deceased.
In February 2010, all of the defendants moved to strike the respondeat superior, breach of fiduciary duty and conspiracy counts of the revised complaint. The defendants argue that the plaintiff fails to state claims upon which relief could be granted because: (1) as to the respondeat superior counts, the plaintiff has not alleged, nor can she allege, that Shea's acts were in furtherance of the defendants' business; (2) as to the breach of fiduciary duty counts, the defendants and Shea did not have a fiduciary relationship with the plaintiff; and (3) as to the conspiracy counts, no separate cause of action for civil conspiracy exists independent of the underlying cause of action. On February 16, 2010, the plaintiff filed a memorandum in opposition to the motions to strike. The plaintiff argues that she has alleged that: (1) Shea's acts occurred within the scope of his employment and were done with the purpose of furthering the defendants' business; (2) the defendants had a fiduciary relationship with the plaintiff; and (3) the plaintiff has alleged a civil conspiracy independent of the underlying cause of action, i.e., she alleges conspiracy based on fraud. The court heard oral argument on May 17, 2010.
The Diocese, Reilly and Bride filed their motion to strike on February 1, 2010 and the Church filed its motion on February 5, 2010 adopting the Diocese's arguments.
II
"[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 . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "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).
III A.
In counts nine through twelve, the plaintiff alleges that the defendants concealed Shea's behavior thereby allowing him to molest the plaintiff and are thus vicariously liable under the doctrine of respondeat superior. The defendants argue that Shea's sexual abuse of the plaintiff cannot be considered in furtherance of their business as a matter of law. The plaintiff counters that she has alleged that Shea's acts occurred within the scope of his employment in order to further the codefendants' business.
"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 . . . The master is not held on any theory that he personally interferes to cause the injury. It is simply on the ground of public policy, which requires that he 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 the orders which he has given them on the subject . . . [I]n order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business. But it 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." (Citation omitted; internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500-01, 656 A.2d 1009 (1995).
"`[I]n the course of his employment' means while engaged in the service of the master, and it is not synonymous with the phrase `during the period covered by his employment.' . . . Thus, it must be the affairs of the principal [or master], and not solely the affairs of the agent [or servant], which are being furthered in order for the doctrine to apply." (Citations omitted; internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 839 n. 15, 836 A.2d 394 (2003).
A majority of courts that have considered the issue have rejected respondeat superior claims in cases alleging sexual abuse by priests. See annot., 5 A.L.R. 5th 530 (1992) ("Most courts . . . have taken a narrower view of the meaning of scope of employment, holding that the conduct must be in accordance with the principles of the church or in some way in furtherance of the purpose of the church or religious society, or foreseeable or characteristic of the church or religious society. These courts have thus held sexual misconduct by clergy not to be within the scope of employment"). "Cases of sexual abuse often represent such a strong deviation from furthering an employer's business. In most cases of alleged sexual abuse by priests, the courts have held that respondeat superior is not applicable to hold a church or diocese liable, because such acts by the priests are not in furtherance of the church's business." Doe v. Norwich Roman Catholic Diocesan Corp., 268 F.Sup.2d 139, 142 (D.Conn. 2003); accord Nutt v. Norwich Roman Catholic Diocesan, 921 F.Sup. 66, 71 (D.Conn. 1995); Sparano v. Daughters of Wisdom, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0199399 (July 1, 2004, Adams, J.) ( 37 Conn. L. Rptr. 422, 424); Dumais v. Hartford Roman Catholic Diocese, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0077631 (July 31, 2002, Sferrazza, J.) ( 32 Conn. L. Rptr. 693, 693); Doe v. Hartford Roman Catholic Diocesan Corp., 45 Conn.Sup. 388, 394-95, 716 A.2d 960 [ 23 Conn. L. Rptr. 34] (1998).
While there is no definitive appellate authority on the issue, "[o]ur Appellate Court has held, as a matter of law, that the department of mental retardation incurred no vicarious liability under respondeat superior when a person who was assigned to counsel mentally retarded clients regarding life skills sexually assaulted a client. Gutierrez v. Thorne, 13 Conn.App. 493, 499, 537 A.2d 527 (1988). In Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1997), the Appellate Court observed, in dictum, that cases in which a priest sexually molests a minor clearly represent a situation in which the priest wholly abandoned his pastoral duties . . . The court further commented that the scenario of a priest assaulting a child is such a digression from duty . . . so clear cut that the disposition of the case is a matter of law." (Citations omitted; internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 49 Conn.Sup. 667, 670-71, 909 A.2d 983 (2006).
In the present case, the plaintiff asserts that she has pleaded facts that are legally sufficient to support the cause of action. She argues that the question of whether Shea's acts occurred within the scope of his employment and to further the codefendants' business should be left to the fact finder. "Ordinarily it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further his master's business . . . [T]here are occasional cases where a servant's digression from duty is so clear-cut that the disposition of the case becomes a matter of law." (Citation omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990).
The plaintiff's allegations here constitute a clear deviation from Shea's duties of employment as a matter of law. "Clearly . . . [the priest's] sexual assaults on the plaintiff were repugnant to his employer's business and in utter contravention of the employer's aims and rules. Unlike a situation in which a servant performs the master's work poorly or misunderstands what the master wants done, the molestation of children is a total abdication of the master's work so that the pedophile priest can satisfy personal lust." Doe v. Norwich Roman Catholic Diocesan Corp., supra, 49 Conn.Sup. 671.
"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, [cannot] be said to further the [employer's] business and therefore is outside of the scope of employment. Nutt v. Norwich Roman Catholic Diocese, supra, [ 921 F.Sup.] 71; see also Milla v. Roman Catholic Archbishop of Los Angeles, 187 Cal.App.3d 1453, 1461, 232 Cal. Rptr. 685, 690 (1986) (`[i]t would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop or the Roman Catholic Church . . . [or that] the Archbishop ratified the . . . acts of the priests') (internal quotation marks omitted); Joshua S. v. Casey, 206 App.Div.2d 839, 615 N.Y.S.2d 200 (1994) (alleged sexual assault by clergy was not within scope of employment); Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584, 588 (Ohio 1991) (church did not hire minister to sexually abuse congregation nor did it have reason to foresee such abuse); Kennedy v. Roman Catholic Diocese of Burlington, 921 F.Sup. 231, 233 (D. [Vt.] 1996) (priest's sexual misconduct was not in scope of his employment); Tichenor v. Roman Catholic Church of New Orleans, 32 F.3d 953, 959 (5th Cir. 1994) (`[w]e reject the contention that [the priest] was acting within the scope of his employment')." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of New Haven, Docket No. CV 97 0402793 (April 15, 1998, Fracasse, J.) ( 23 Conn. L. Rptr. 34, 36).
The cases cited by the plaintiff are readily unpersuasive. In Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F.Sup. 110, 118 (D.Conn. 1997), the court denied the diocese's motion for summary judgment finding that the "sexual abuse was directly connected with the administration of sacraments in the context of a broader effort by the abuser to educate and interest the victim in liturgical reform . . . and raise a genuine factual dispute as to whether the sexual encounters between plaintiff and [the priest] were the culmination of . . . transaction[s] related directly to [the priest's] duties to administer and promote the sacrament." Nevertheless, the court expressed doubt that the plaintiff would be able to prove that the priest's activity advanced the church's business; id.; and ultimately the issue was never tried. See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 416 (2d Cir. 1999).
In Mullen v. Horton, supra, 46 Conn.App. 765, the Appellate Court found that the trial court improperly granted a summary judgment motion concerning a priest who was hired to give pastoral counseling in conjunction with his priestly duties. The court found that the "sexual relationship with the plaintiff was a misguided attempt at pastoral-psychological counseling, or even an unauthorized, unethical, tortious method of pastoral counseling, but not an abandonment of church business." Id., 765-66. Notwithstanding and as noted above, the court also stated in dictum that the sexual abuse of children would present a very different situation. See id., 770-71 ("[w]hile a trier of fact could reasonably find that consensual sexual relations between two adults arising out of emotional, spiritual church sponsored counseling sessions represented a negligent and misguided effort at pastoral counseling, a trier of fact could not reasonably find that a priest's showing pornographic films to young boys and then criminally sexually molesting them in out-of-town motel rooms merely represented a negligent and misguided effort at pastoral counseling").
In the present case, the plaintiff alleges: "For the purpose of furthering his assigned duties as priest and counselor, Father Shea identified the plaintiff . . . as a female child in need of help. Father Shea then sought and gained the trust and confidence of the plaintiff so that she would respect Father Shea's authority and guidance and comply with his instructions . . . Father Shea also sought and gained the plaintiff's trust, friendship, admiration and obedience. As a result, the plaintiff . . . was conditioned to comply with Father Shea's direction and to look to him as an authority on matters spiritual, moral, ethical and temporal. Using the power, authority and trust of his position as priest, spiritual advisor, confessor and holy authority figure to the plaintiff, Father Shea enticed, induced, directed, and coerced the plaintiff to engage in Father Shea's sexual abuse and exploitation of the plaintiff."
These allegations, no matter how liberally construed, do not rise to the level of those found in Martinelli. The allegation that Shea may have been a counselor or a spiritual advisor to the plaintiff is too general and is insufficient to suggest that the alleged abuse benefitted the codefendants or occurred in the conduct of the codefendants' business. Hence, the motions to strike the respondeat superior counts are granted because the plaintiff has alleged no facts from which it could be deemed that Shea's sexual assaults furthered the codefendants' business. See, e.g., Sparano v. Daughters of Wisdom, Inc., supra, CT Page 16967 37 Conn. L. Rptr. 424 (granting motion to strike vicarious liability count); Dumais v. Hartford Roman Catholic Diocese, supra, 32 Conn. L. Rptr. 693 (same); Reed v. Zizka, Superior Court, judicial district of Hartford, Docket No. CV 95 0555221 (March 5, 1998, Aurigemma, J.) (same); but see Nelligan v. Norwich Roman Catholic Diocese, Superior Court, judicial district of Middlesex, Docket No. CV 02 0099218 (March 5, 2004, Silbert, J.) ( 36 Conn. L. Rptr. 597, 597-98) (denying motion to strike vicarious liability count in light of number and scope of revelations of priest sex abuse that occurred from 1995 to 2004).
B.
In counts thirteen through sixteen, the plaintiff alleges that she had a fiduciary relationship with the defendants based upon "the unique bond between the parish, the priest and their parishioners" and that each defendant was the "representative of the Roman Catholic Church" and responsible for the supervision of the clergy and the care of the parishioners. The defendants seek to strike these counts arguing that the plaintiff has not alleged facts that constitute a fiduciary relationship under Connecticut law because she has not set forth facts beyond a normal clergy-parishioner relationship. The plaintiff argues that she has sufficiently alleged a fiduciary relationship.
"[A] prerequisite to finding a fiduciary duty is the existence of a fiduciary relationship . . . Our Supreme Court has chosen to maintain an imprecise definition of what constitutes a fiduciary relationship in order to ensure that the concept remains adaptable to new situations . . . Consequently, under Connecticut law, a fiduciary or confidential relationship is broadly defined as a relationship that is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." (Citation omitted; internal quotation marks omitted.) Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006). In Ahern, the court opined that while a fiduciary relationship could possibly exist between a priest and a parishioner, "something more" than a general priest-parishioner relationship must be present. Id., 194-95. The court examined cases from other jurisdictions where a fiduciary relationship was found, e.g., where a formal pastoral counseling relationship existed; id. 195-96; and where a minor was entrusted to the care of the diocese and it had been caretaker, teacher and moral authority to the minor. Id., 197. The court therein found that the trial court properly rendered summary judgment because the relationship between the priest and the parishioner was not a fiduciary relationship, but was mostly social and not based on formal counseling. Id., 199-200.
In the present case, the plaintiff alleges that Shea held himself out as a "religious instructor and counselor" and "undertook the religious instruction and spiritual and emotional counseling of the plaintiff." As noted above, she also alleges that the defendants were "the representative[s] of the Roman Catholic Church responsible for the supervision of the clergy within said church and the care of all the parishioners, including children, within said church." The court finds that these allegations are conclusory and lack specificity. The plaintiff's vague assertions do not constitute a formal counseling relationship or rise to such a level that the defendants could be said to be the plaintiff's caretakers, teachers and moral authority. While it is possible that a fiduciary relationship could exist, there is no support for that in these pleadings because the plaintiff has failed to allege "something more." Therefore, the motions to strike the counts of the revised complaint alleging breach of fiduciary duty are granted.
The plaintiff compares her allegations to those found in Doe v. Norwich Roman Catholic Diocese Corp., Superior Court, judicial district of New London, Docket No. CV 08 5005553 (June 18, 2009, Martin, J.) ( 48 Conn. L. Rptr. 59). The Doe court cited to more than a dozen paragraphs of detailed allegations of the plaintiff's relationship with the church, its clergy, priests and Bishop in denying the defendants' motion to strike. Id., 61-62. That level of specificity is missing in the present case.
C.
Finally, in paragraph eighteen of counts seventeen through twenty, the plaintiff alleges that the defendants conspired with "the USCCB and other unnamed bishops and/or members of the clergy to intentionally, recklessly and/or negligently carry out a plan or scheme designed to conceal criminal conduct of Catholic priests, aid and abet the concealment of criminal conduct, aid and abet criminal sexual conduct, fail to report criminal conduct, obstruct justice, obstruct criminal investigation, obstruct state and/or local law enforcement, evade criminal and/or civil prosecution and liability, bribe and/or pay money to victims in order to keep its criminal conduct secret, and commit fraud and/or fraudulent inducement of its parishioners in furtherance of its scheme to protect predatory priests and other clergy from criminal and civil prosecution, to maintain and increase charitable contributions and/or to avoid public scandal in the Roman Catholic Church." In paragraph nineteen, she further alleges that in furtherance of the scheme to conspire and defraud the defendants concealed allegations of sexual abuse by Shea and other members of the clergy for over twenty-five years; made false representations concerning the sexual abuse by Shea and other members of the clergy with the intent that the hearers would rely on the misrepresentations and did so to their detriment; moved Shea from parish to parish without informing parishioners of the allegations about him; maintained secret files concerning sexual misconduct by Shea that were not available to the public; fraudulently and consciously misled parishioners and the public that Shea was mentally fit and qualified to be a priest when they knew or had reason to believe that he was a pedophile; and fraudulently expended the parishioners' charitable contributions to conceal Shea's misconduct.
The USCCB is the United States Conference of Catholic Bishops.
The defendants move to strike these counts. They argue that the plaintiff must allege, but does not and cannot allege, that the defendants conspired with Shea to sexually abuse the plaintiff. The plaintiff counters that she has alleged all the elements of a civil conspiracy based on an underlying cause of action for fraud in her revised complaint.
"The contours of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful 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 damage to the plaintiff . . .
"Under Connecticut law, technically speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . A claim of civil conspiracy, therefore, is insufficient unless based on some underlying cause of action . . . Consequently, for a plaintiff to recover on a conspiracy claim, the court must find the facts necessary to satisfy the elements of an independent underlying cause of action . . . More specifically, where the plaintiff is unable to establish the underlying cause of action for fraud, the cause of action for conspiracy to defraud must also fail." (Citations omitted; internal quotation marks omitted.) Litchfield Asset Management v. Howell, 70 Conn.App. 133, 139-40, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).
"In order to plead a cause of action for fraud, a plaintiff must allege that: (1) a false representation was made [by the defendant] as a statement of fact; (2) the statement was untrue and known to be so by [the defendant]; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 628, 910 A.2d 209 (2006).
Construing the revised complaint broadly and in the manner most favorable to sustaining its legal sufficiency; see American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120; the court finds that the plaintiff has not properly alleged fraud. "[W]hen a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient; the specific acts relied upon must be set forth in the complaint." Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 628. In paragraph nineteen (b) of the conspiracy counts, the plaintiff alleges that the defendants made false representations concerning the sexual abuse by Shea and other members of the clergy with the intent that the hearers would rely on the misrepresentations and did so to their detriment. This allegation and those contained in paragraphs eighteen and the remainder of paragraph nineteen are conclusory and do not set forth specific acts. "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., supra, 224 Conn. 215. Therefore, the court grants the defendants' motions to strike counts seventeen through twenty.
Some of the plaintiff's allegations seem to be fraudulent nondisclosure. See Carr v. Fleet Bank, 73 Conn.App. 593, 595, 812 A.2d 14 (2002) ("[f]raud by nondisclosure, which expands on the first three of these four elements [of fraud], involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak" [internal quotation marks omitted]). For example, in paragraph ten (v) of the second count, incorporated by reference in the seventeenth count, she alleges that the defendants failed to warn or advise the plaintiff's parents of Shea when the defendants knew or should have known of his conduct. Nevertheless, the plaintiff does not argue that she is alleging fraudulent nondisclosure in her memorandum in opposition to the motions to strike and the various allegations of nondisclosure do not seem to set forth specific acts.
IV
Accordingly, the motions to strike counts nine through twenty are granted.