Opinion
No. CV-08-5005553
June 18, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 112)
INTRODUCTION
This case arises out of the alleged sexual abuse of the plaintiff. Mary Doe, by James Curry, a priest who was employed by the defendant, Norwich Roman Catholic Diocese Corporation, a/k/a Roman Catholic Diocese of Norwich. The defendant moves to strike the plaintiff's claims for breach of fiduciary duty, negligence, and reckless and wanton conduct on the ground that they are time-barred by the relevant statutes of limitations. The defendant also moves to strike the plaintiff's breach of fiduciary duty claim on the ground that it is legally insufficient.
FACTS
On January 16, 2008, the plaintiff filed a seven-count complaint against the defendant, bringing claims for "breach of fiduciary duty/fraudulent concealment," "negligence," "reckless and wanton conduct," "common law fraudulent concealment/negligence," "common law fraudulent concealment/reckless and wanton conduct," "equitable tolling/negligence," and "equitable tolling/reckless and wanton conduct." The plaintiff alleges the following facts, which are common to all counts. In her youth, the plaintiff was a resident of Groton, Connecticut and a parishioner at St. Mary's of Fort Hill in Groton, Connecticut (St. Mary's), which was a Roman Catholic church within the Diocese of Norwich. Curry was a Roman Catholic priest who was employed by the defendant and assigned to St. Mary's.
The plaintiff was raised with a strict Catholic upbringing. She and her family members were devout Catholics who observed Catholic tradition, attended Sunday mass at St. Mary's, sang in the church choir and observed Catholic holy days of obligation. Curry almost always officiated the masses at St. Mary's that the plaintiff and her family attended. The plaintiff and her mother were actively involved with the fundraising and social events sponsored by St. Mary's, which included church rummage sales, church bazaars, spaghetti and pot luck dinners, musicals and strawberry festivals.
In 1966, when the plaintiff was approximately eight years old, she went to confession to speak with Curry, who advised her to meet with him privately after confession was over. The plaintiff then met with Curry in the sacristy of St. Mary's where he provided counseling to the plaintiff. Curry proceeded to groom the plaintiff and gain her trust by praying with her, massaging her shoulders, stroking her hair, kissing her forehead, hugging her, and telling her to "trust in the Lord," that she was "special," and that things were "going to be okay."
The plaintiff continued to meet with Curry for counseling. Her mother approved of the counseling, trusting Curry because he was a Norwich Diocese priest and a spiritual authority who was qualified and endorsed by the Bishop of Norwich to provide counseling and guidance. During the third or fourth session, Curry gave the plaintiff the church wine used at mass for the consecration and proceeded to sexually abuse her by removing her clothing and forcibly engaging in sexual intercourse, sodomy, oral sex, kissing and fondling.
Curry continued to meet with and sexually abuse the plaintiff, procuring her presence by telling her mother that he needed the plaintiff to work around the church or rectory. The sexual abuse took place in the St. Mary's sacristy, the St. Mary's rectory, Curry's car and the St. Mary's Center, and continued until 1975, when the plaintiff was sixteen years old. Following each sexual assault, Curry directed the plaintiff to ask for God's forgiveness for what she had done, to pray with him "for the lost souls," and to say "forgive me God for putting Father Curry to the temptation," and the plaintiff complied. Curry also stated that "as long as you stay on the path you won't burn in hell."
Curry threatened that if the plaintiff told anyone, she and her mother would be "drummed out of the Church" and "ruined here on earth," and that "both would go to hell for eternity, invoking the punishment of Satan." As a result, the plaintiff believed that the sexual acts were her fault, that she had sinned against God by tempting Curry and having sex with him, and that her and her mother would be ruined on earth, would be barred from the church and would suffer eternal damnation if she told anyone about the sexual acts.
The defendant knew that there were other complaints involving sexual abuse of minors by Curry, but it failed to investigate, warn, or inform parishioners and families within the Norwich Diocese, including the plaintiff and her family, of the danger that Curry posed to children. Additionally, the defendant fraudulently concealed the existence of the plaintiff's cause of action and allowed the abuse to occur and/or continue, and prevented the plaintiff from receiving counseling to help alleviate the damage caused by the sexual abuse. As a result, the plaintiff suffered serious and debilitating psychological injuries and spiritual damage and did not become aware of the existence of her cause of action until March of 2007.
On August 26, 2008, the defendant filed a motion to strike counts one, four, five, six and seven of the plaintiff's complaint. On November 10, 2008, the plaintiff filed a memorandum in opposition to the defendant's motion to strike. On January 7, 2009, the defendant filed a reply to the plaintiff's memorandum in opposition, and on January 20, 2009 the defendant filed an "addendum" to its motion to strike. On February 11, 2009, the plaintiff filed a reply to the defendant's reply.
DISCUSSION
"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.) Fort Trumbull Conservancy, LLC v. Alves, 269 Conn. 480, 498, 815 A.2d 1188 (2003). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
"[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 149, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendant argues that counts one, four and five are time-barred by General Statutes § 52-577, fn1 the statute of repose on tort actions, or General Statutes § 59-577d, the statute of repose on sexual abuse actions. The defendant further argues that count one of the plaintiff's complaint, which alleges a claim for breach of fiduciary duty, "should be stricken" because it fails to allege facts showing that "her relationship with the church" was more than "the ordinary parishioner-clergy relationship." In response, the plaintiff argues that she "has pled facts supporting a fiduciary duty and its breach by failure to investigate, warn, or inform, along with the resulting damage due to said failures"; and that "[t]he statute of limitations [has been] tolled pursuant to the fraudulent concealment statute," General Statutes § 52-595.
Section 52-577d provides as follows: "Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority." "[S]ection 52-577d is not an accrual statute," but rather "a statute of repose." Rosado v. Bridgeport Roman Catholic Diocese Corp., Superior Court, judicial district of Fairfield at Bridgeport. Docket No. CV 93 0302072-S (September 15, 1997, Thim, J.).
While the defendant also argues that counts six and seven should be stricken, the court need not address these arguments because the plaintiff stated in her memorandum in opposition that she "has agreed to delete the Sixth and Seventh Counts" in her complaint.
Where "the defendant [has] fraudulently concealed [the plaintiff's] cause of action," the plaintiff may invoke section 52-595, which tolls "the relevant statute of limitations until the `time when the person entitled to sue thereon first discovers its existence.'" Campbell v. Plymouth, 74 Conn.App. 67, 83-84 n. 9, 811 A.2d 243 (2002). Section 52-595 provides as follows: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
As an initial matter, the court will address and dispose of the defendant's argument that the plaintiff's claims should be stricken because they are time-barred. "[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006). However, the plaintiff's alleged failure to comply with a statute of limitations may be the proper basis of a motion to strike where (1) "[t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations"; or (2) "a statute gives a right of action which did not exist at common law and fixes the time within which the right must be enforced." Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993). These exceptions do not apply here because the parties have not agreed that the complaint sets forth all the facts relating to the statute of repose issue, and neither General Statutes §§ 52-577 nor 52-577d provide rights of action that did not exist at common law. Accordingly, given that a motion to strike is not the proper vehicle by which to raise a statute of limitations issue, the defendant's argument that counts one, four and five of the plaintiff's complaint are time-barred lacks merit. However, because the defendant also challenges the legal sufficiency of count one, the court will now examine whether count one states a legally sufficient claim for breach of fiduciary duty.
This rule applies to statutes of repose as well as statutes of limitations. See Metcoff v. NCT Group, Inc., Superior Court, judicial district of Waterbury. Complex Litigation Docket, Docket No. X04 CV040184701S (January 10, 2005, Alander, J.) ("As a general rule, a claim that an action is barred by statutes of limitations and statutes of repose, such as § 52-577, may not be raised by a motion to strike.").
The second exception technically does not involve a "statute of limitations," but rather, a "right conditioned upon a time limitation." Advest, Inc. v. Wachtel, 235 Conn. 559, 566-67 n. 6, 668 A.2d 367 (1995) ("Statutes of limitations should not be confused with a right conditioned upon a time limitation"). This exception exists because "the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created and not of the remedy alone" Id. 240.
Additionally, because the court may not review the statute of limitations issues in the present case, the court need not examine the parties' arguments as to the applicability of General Statutes § 52-595, the fraudulent concealment tolling statute.
"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." Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006). "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." (Internal quotation marks omitted.) Id.
The Connecticut state courts have yet to address the issue of whether a diocese has a fiduciary duty to prevent its priests from sexually abusing parishioners. However, "[t]he leading authority on this issue is the Second Circuit's [decision in Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir. 1999)]." Doe v. Norwich Roman Catholic Diocesan Corp., 309 F.Sup.2d 247, 252 (D.Conn. 2004) (applying Connecticut law). "Because of the dearth of case law on the subject in Connecticut, Martinelli has become the seminal case on the issue." Ahern v. Kappalumakkel, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-01-0075617-S (March 9, 2004, Robinson, J.).
The Appellate Court recently examined a different but related issue on first impression: whether a clergy member has a fiduciary duty to parishioners. See Ahern v. Kappalumakkel, 97 Conn.App. 194 ("neither this court, nor our Supreme Court, has specifically addressed whether a clergy-parishioner relationship may give rise to a cause of action for breach of fiduciary duty"). The court held that that such a fiduciary duty exists where there is "a formal pastoral counseling relationship" between the clergy member and the parishioner. Id., 199.
In Martinelli, the court applied Connecticut law and held that a diocese may be liable for breach of a fiduciary duty due to its priest's abuse of a parishioner where "the Diocese's relationship with [the parishioner], based on the particulars of his ties to [the priest] and the Diocese's knowledge and sponsorship of that relationship, was of a fiduciary nature." Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 429.
"The [ Martinelli] court found the relationship to be fiduciary in nature because the diocese had sponsored and encouraged the abusive priest's contact with the youth of the parish, the plaintiff attended a Catholic high school within the diocese, participated in church sponsored activities, including the liturgical reform group for which the priest served as a mentor and spiritual adviser, and had been taught throughout grade school catechism classes to trust and respect the bishop of the diocese, whom he considered his `caretaker and moral authority.'" Ahern v. Kappalumakkel, supra, 97 Conn.App. 197.
In the plaintiff's breach of fiduciary duty claim (count one), she alleges the following facts, which are relevant to the issue presently before the court:
"7. The plaintiff . . . was raised as a devout Catholic with a strict Catholic upbringing, observing Catholic tradition, attending Sunday mass, singing in the church choir, and observing Catholic Holy Days of Obligation . . .
"12. The plaintiff was raised to put her faith in her church, its clergy, priests, and the Bishop of Norwich Diocese and placed her trust in St. Mary's, James Curry, and the Norwich Diocese and Bishop Vincent J. Hines for her moral and spiritual welfare.
"13. At St. Mary's, the plaintiff received the sacraments of the Catholic Church, including baptism, her first communion, penance (confession), and confirmation. The plaintiff received the sacrament of confirmation from Bishop Vincent J. Hines, who at the time was Bishop of Norwich Diocese. Whenever the plaintiff went to confession, her confessions were heard by James Curry.
"14. The plaintiff attended CCD classes starting from approximately kindergarten through approximately the eighth or ninth grade.
"15. Said CCD classes were sponsored by St. Mary's. The Norwich Diocese advised and encouraged its parishes, including St. Mary's, to hold CCD classes for its child parishioners.
"16. The plaintiff learned in CCD classes that, as a good Catholic, she was to adhere to the teachings of the Catholic Church, follow the mandates and guidance of the Norwich Diocese and its bishop, and hold its clergy, priests, and bishop in the highest regard . . ."
19. The plaintiff was taught in CCD classes to put her trust and faith in the Norwich Diocese and its churches, clergy, priests, and Bishop and that they were to serve as her guide in all matters of Catholic faith, including the Catholic Church's role of worship and its teachings about the almighty power of God, the goal of eternal salvation in Heaven, and the damnation of hell for living a sinful life.
"20. The plaintiff put her faith in and trusted the Norwich Diocese and its churches, clergy, priests and bishop to guide her in all matters of Catholic Faith, including the Catholic Church's rules of worship and its teachings about the almighty power of God, the goal of eternal salvation in Heaven, and the damnation of hell for living a sinful life.
"21. As a result of the facts alleged above, the plaintiff developed a justifiable trust in James Curry and the Norwich Diocese.
"22. James Curry and the Norwich Diocese had a superiority of knowledge, authority and influence over the plaintiff, and there existed a special relationship of trust and confidence between the plaintiff and James Curry and between the plaintiff and the Norwich Diocese . . .
"38. The Norwich Diocese and its bishops authorized and encouraged its parish priests, including James Curry, to provide counseling, spiritual guidance and instruction to young Catholic children who were parishioners of churches within the Norwich Diocese, which included the plaintiff.
"39. By [doing so], the Norwich Diocese intended to represent to the parishioners within the Norwich Diocese . . . that it did not know that James Curry was a danger to children . . .
"43. The Norwich Diocese fraudulently concealed the existence of the plaintiff's cause of action in that it knew that there were other complaints involving sexual abuse of minors by James Curry, received either prior to or during the plaintiff's abuse.
"44. After receiving said information, the Norwich Diocese failed to investigate, warn, and inform parishioners and families within the Norwich Diocese, including the plaintiff and her family, of the danger that Curry posed to children.
"45. Said failure allowed the abuse to occur and/or continue and prevented the plaintiff from receiving counseling to help alleviate the damage caused by the sexual abuse."
In light of these allegations — in particular, the allegations indicating that the defendant knew of and sponsored Curry's relationship with the plaintiff and that the plaintiff was taught to put her trust and faith in the defendant and its churches, clergy, priests and Bishop — the court holds that the plaintiff has stated a legally sufficient breach of fiduciary duty claim. See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 429.
CONCLUSION
The defendant's motion to strike counts one, four and five of the plaintiff's complaint is denied. The plaintiff "has agreed to delete the Sixth and Seventh Counts" in her complaint, thus, the plaintiff will file an amended complaint omitting these counts.