Opinion
X03HHDCV106016974S
04-28-2017
Jose Raul Gonzalez Lara et al. v. Legionaries of Christ (Legionari di Cristo) et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Ingrid L. Moll, J.
This case arises out of the alleged sexual abuse by Father Marciel Maciel Degollado (Maciel), the founder of the Legionaries of Christ, of the plaintiffs, Jose Raul Gonzalez Lara (Raul) and Omar Gonzalez Lara (Omar), who claim to be Maciel's son and stepson, respectively. Before the court is the motion for summary judgment dated November 7, 2016, filed by defendants Legionaries of Christ (Legionari di Cristo), the Legion of Christ, Inc., Legion of Christ College, Inc., and Catholic World Mission, Inc. (collectively, defendants) (motion) (#243.00).
I
FACTUAL BACKGROUND
The plaintiffs, Raul and Omar, claim to be, respectively, the son and stepson of Maciel. Maciel was the founder of the religious congregation of the Legionaries of Christ, and he served as its general director until January 2005. Maciel passed away in January 2008. The defendants are Legionaries of Christ, the Legion of Christ, Inc., Legion of Christ College, Inc., and Catholic World Mission, Inc. The Legionaries of Christ (the Rome defendant) is an entity organized by the Republic of Italy representing the religious congregation of the Legionaries of Christ, which is headquartered in Rome, Italy. The defendants Legion of Christ, Inc., Legion of Christ College, Inc., and Catholic World Mission, Inc. (the Connecticut defendants) are individual nonprofit corporations. Legion of Christ, Inc. was incorporated in Connecticut in 1971. Legion of Christ College, Inc. was incorporated in Connecticut in 1997. Catholic World Mission, Inc. was incorporated in New York in 1998. The Connecticut defendants did not employ Maciel, and they did not have any legal relationship with, or supervisory authority over, Maciel. Maciel never served as an officer or board member of any of the Connecticut defendants.
Because the estate of Maciel did not appear in this action, the court refers to the remaining defendants as " the defendants."
The plaintiffs, who are Mexican nationals, claim that Maciel, whom they knew as Jaime Alberto Gonzalez y Rodriguez, sexually abused them on multiple occasions in various countries abroad, as well as in Florida and New York. Raul claims that, during the period 1987 through 1998, he was abused by Maciel on nine occasions when he was a minor and on one occasion after he reached the age of majority (i.e., once in Colombia, once in England, once in Italy, twice in Mexico, once in Spain, twice in Florida, and twice in New York). Omar claims that, during the period 1991 to 1996, he was abused by Maciel one time when he was a minor and seven times after he reached the age of majority (i.e., once in Colombia, twice in Mexico, once in Spain, once in Florida, and three times in New York). During the foregoing periods of abuse, the plaintiffs knew Maciel to be a layperson. During such time, the plaintiffs had no knowledge that Maciel was the founder of, or a priest associated with, the Legionaries of Christ; instead, they believed that Maciel worked for Shell Oil or the CIA. Notably, there is no evidence that the plaintiffs had a priest-parishioner relationship with Maciel. There is no admissible evidence that any of the defendants knew of the existence of either of the plaintiffs during any relevant time, nor is there any evidence that the plaintiffs knew of the defendants' existence at any relevant time or that they knew that Maciel was a priest.
Neither Raul nor his mother contacted the Legionaries of Christ until after Maciel passed away. Raul's first communications with the Legionaries of Christ were for the purpose of demanding a purported inheritance of several million dollars. After five meetings, in late 2009, Raul first disclosed to the Legionaries of Christ of the alleged abuse. Raul raised a $6 million demand to $26 million in exchange for keeping confidential his claim of sexual abuse. The defendants declined to make such an agreement, and Raul was subsequently convicted in Mexico of attempted blackmail.
The court briefly addresses the " affidavit of plaintiff Raul Gonzalez Lara" dated December 15, 2016 (affidavit), submitted after the summary judgment hearing. (#257.00.) Although the court denied the defendants' motion to strike the affidavit (#258.00), the affidavit has virtually no evidentiary value. First, the affidavit contains several statements that begin with " [N]ow I understand . . ." " I now understand . . ." " As I learned through the deposition testimony . . ." " I now realize . . ." and " I have since learned . . ." Those statements are inadmissible because they are conclusory in nature, are not based on personal knowledge, and are instead based on speculation and/or hearsay. Thus, such statements run afoul of Practice Book § 17-46, provides in relevant part that " opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Accordingly, such statements lend no evidentiary support to the plaintiffs' opposition to the defendants' motion.
Second, the affidavit attaches, but provides no evidentiary foundation for, certain " scholastic records" (attached as Exhibits 3 and 4 to the affidavit). Not only are the copies attached to the affidavit not " [s]worn or certified copies, " as required by Practice Book § 17-46, but the affidavit makes no attempt to satisfy any hearsay exception that would render them admissible. Instead, the affidavit refers to the documents attached as Exhibit 3 as " purporting to be" from a particular school in Mexico, which Raul states he does not recall attending. Moreover, Raul does not aver that he recognizes the signature on the records; instead, he states that " [t]he parent signature appears to be from an alias used by Fr. Maciel." Thus, absent an evidentiary foundation, the attached scholastic records are inadmissible. Even if the court deemed such records admissible, there is no evidence that any or all of the defendants had knowledge of any purported forgery on the part of Maciel and/or knowledge of the plaintiffs' existence by virtue of such records.
In any event, to the extent the affidavit contains admissible evidence with probative value, the court has noted the relevant facts herein.
II
PROCEDURAL BACKGROUND
On June 21, 2010, Raul filed his initial complaint, in which he asserted twelve counts against the defendants Legionaries of Christ, The Legion of Christ, Inc., Legion of Christ College, Inc., Catholic World Mission, Inc., and the Estate of Father Marcial Maciel Degollado (estate of Maciel). Specifically, Raul's original complaint asserted the following claims against the defendants: (1) count one--reckless battery; (2) count three--negligent battery; (3) count five--reckless infliction of emotional distress; (4) count seven--negligent infliction of emotional distress; (5) count ten--negligence; (6) count eleven--negligent retention; and (7) count twelve--negligent supervision. On January 20, 2011, the defendants moved to strike all of the above-mentioned counts directed to them. (#113.00.) On August 30, 2011, the court, Miller, J., granted the motion as to counts one, three, five, and seven, and denied the motion as to counts ten through twelve, thereby leaving in Raul's negligence, negligent retention, and negligent supervision claims. (#122.00.) On October 5, 2011, the defendants filed their answer and special defenses, and the defendant Legionaries of Christ also filed a counterclaim against Raul in three counts (extortion under Connecticut law, extortion under Mexico law, and civil conspiracy). (#125.00.) On December 8, 2011, Raul filed his answer and special defenses thereto. (#134.00.)
See footnote 1 of this opinion.
Raul's initial complaint asserted the following claims against the estate of Maciel: (1) count two--reckless battery; (2) count four--negligent battery; (3) count six--reckless infliction of emotional distress; (4) count eight--negligent infliction of emotional distress; (5) count nine--breach of fiduciary duty; and (6) count ten--negligence.
On December 15, 2011, Raul filed a motion to add Omar as an additional party plaintiff and a request to amend the complaint (#137.00), which the court, Miller, J., granted on February 2, 2012 (#137.86). In the amended complaint, Raul and Omar asserted the following claims against the defendants: (1) counts six (Raul) and fourteen (Omar)--negligence; (2) counts seven (Raul) and fifteen (Omar)--negligent retention; and (3) counts eight (Raul) and sixteen (Omar)--negligent supervision. (#137.00.)
The amended complaint asserted the following claims against the estate of Maciel: (1) counts one (Raul) and nine (Omar)--reckless battery; (2) counts two (Raul) and ten (Omar)--negligent battery; (3) counts three (Raul) and eleven (Omar)--reckless infliction of emotional distress; (4) counts four (Raul) and twelve (Omar)--negligent infliction of emotional distress; (5) counts five (Raul) and thirteen (Omar)--breach of fiduciary duty; and (6) counts six (Raul) and fourteen (Omar)--negligence. (#137.00.)
On February 14, 2012, Raul withdrew his claims against the estate of Maciel. (#159.00.) On March 5, 2012, defendants Legion of Christ, Inc., Legion of Christ College, Inc., and Catholic World Mission, Inc. filed their answer and special defenses to the amended complaint. (#165.00.) That same day, Legionaries of Christ filed its answer, special defenses, and counterclaim. (#166.00.) On March 29, 2012, the plaintiffs filed their reply to special defenses of Legion of Christ, Inc., Legion of Christ College, Inc., and Catholic World Mission, Inc. (#169.00.) On April 9, 2012, the plaintiffs filed their reply to special defenses and an answer and special defenses to the counterclaim by Legionaries of Christ. (#172.00.) On November 30, 2012, Legionaries of Christ filed its reply to special defenses. (#193.00.) Years of discovery followed.
On September 5, 2016, the undersigned's assignment to the X03 complex litigation docket commenced. On November 7, 2016, the defendants filed the instant motion, accompanying memorandum, affidavits, and exhibits. (##243.00-244.00.) On November 18, 2016, the plaintiffs moved to bifurcate the court's consideration of choice of law issues and the application of substantive law for summary judgment purposes. (#246.00.) The court granted in part the plaintiffs' motion to bifurcate, permitting the plaintiffs' response to the defendants' motion to be limited to the choice of law analysis and those sections of the defendants' moving papers that discuss Connecticut law. (#246.86.) On December 2, 2016, the plaintiffs filed their memorandum in opposition to the defendants' motion, as well as accompanying materials. (##252.00-253.00.) On December 8, 2016, the defendants filed their reply. (#255.00.) The court heard oral argument on December 12, 2016.
The court stated that " [i]n the event the court concludes that Mexico law applies to one or more issues, the court will give the plaintiffs additional time to respond to those sections of the defendants' moving papers." (#246.86.)
On December 22, 2016, Raul filed an affidavit dated December 15, 2016 in further opposition to the motion (affidavit). (##256.00-257.00.) On December 23, 2016, the defendants moved to strike the affidavit on various grounds. (#258.00.) The plaintiffs filed a memorandum in opposition, and the defendants filed a reply. (##264.00-265.00.) On April 26, 2017, the court denied the motion to strike. (The court's consideration of the affidavit is discussed above.)
On January 11, 2017, one month after oral argument, the plaintiffs filed a supplemental affidavit and second revised expert report of Thomas Doyle (a 185-page document) in connection with summary judgment. (#259.00.) On January 13, 2017, the defendants moved to strike the supplemental affidavit and expert report. (#261.00.) No objection was filed. On April 26, 2017, the court granted the motion to strike the supplemental affidavit and expert report as untimely.
On January 19, 2017, following the court's denial of a motion to seal (#254.86), the plaintiffs filed certain substitute exhibits, which the parties agreed need not be sealed, in opposition to the defendants' motion for summary judgment (#263.00).
On April 21, 2017, both plaintiffs filed a withdrawal of their complaint against the estate of Maciel. (#267.00.)
III
CHOICE OF LAW
" The threshold choice of law issue in Connecticut, as it is elsewhere, is whether there is an outcome determinative conflict between applicable laws of the states with a potential interest in the case. If not, there is no need to perform a choice of law analysis, and the law common to the jurisdiction should be applied." (Internal quotation marks omitted.) Cohen v. Roll-A-Cover, LLC, 131 Conn.App. 443, 465-66, 27 A.3d 1 (2011).
The parties appear to agree that for summary judgment purposes, if any choice of law inquiry is made, the choice is between Connecticut law and the law of Mexico; no other law is suggested or provided. The plaintiffs contend that " Connecticut law should apply to Plaintiffs' causes of action in negligence under Connecticut's choice of law principles, " and that the defendants are not entitled to summary judgment under Connecticut law. (#252.00 at 1; see also #246.00 at 1 (Plfs.' Mot. to Bifurcate) (" Plaintiffs contend that Connecticut law is clearly the only operative law").) As between Connecticut and Mexican law, the defendants do not advocate for one versus the other. Instead, they argue that, " [r]egardless of whether Connecticut or Mexican law applies . . . the Defendants are entitled to summary judgment." (#244.00 at 11.)
During the December 12, 2016 oral argument, plaintiffs' counsel confirmed that footnote 7 of their opposition brief (#252.00 at 33) does nothing to change their position that Connecticut should apply to the plaintiffs' claims.
As discussed below in part IV of this opinion, the court has concluded that the plaintiffs cannot prevail under Connecticut law. For purposes of the defendants' motion, the parties agree that, if Mexican law were to apply, the plaintiffs would be without a remedy. Compare #252.00 at 1 (Plfs.' Mem. in Opp.) (" Plaintiffs would be unable to seek redress for their injuries if Mexican law applied"), with #244.00 at 12 (Defs.' Mem. in Supp.) (" If the court applies the law of Mexico . . . all of the Defendants also prevail on summary judgment").
Because (1) the parties do not dispute, at least for purposes of the defendants' summary judgment motion, that plaintiffs cannot prevail under Mexican law, and (2) the court has concluded the plaintiffs cannot prevail under Connecticut law, there is no outcome determinative conflict between such laws. Therefore, " there is no need to perform a choice of law analysis, and the law common to the jurisdiction should be applied." (Internal quotation marks omitted.) Cohen, 131 Conn.App. at 466.
IV
ANALYSIS
A
" The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book § 17-49 provides that 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." " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court in support of a motion for summary judgment." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). " A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Buell Indus., Inc. v. Greater New York Mut. Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002).
B
The defendants move for summary judgment with regard to counts six through eight and fourteen through sixteen of the amended complaint. (#243.00.) Counts six through eight are, respectively, Raul's negligence, negligent retention, and negligent supervisions claims against the defendants. Counts fourteen through sixteen are, respectively, Omar's negligence, negligent retention, and negligent supervision claims against the defendants.
The reference to count " fifteen" in ¶ 6 of the motion (#243.00) is obviously a clerical error, as Omar's negligent supervision claim against the defendants is set forth in count sixteen.
The defendants first argue that, under Connecticut law, they are entitled to summary judgment on the plaintiffs' negligence-based claims because " none of them owed any duty to these Plaintiffs." (#244.00 at 12.) The plaintiffs contend that the defendants owed them a duty because: (1) the defendants' conduct created and increased the foreseeable risk that Maciel would sexually abuse children; and (2) the defendants and Maciel had a special relationship such that the defendants had a duty to control him. The court agrees with the defendants that the plaintiffs cannot prevail, as a matter of law, on either of these theories.
The plaintiffs contend, in a footnote, that " [t]he law of the case is also that the defendants possessed a duty to protect the plaintiffs, " citing the court's memorandum of decision, Miller, J., denying the defendants' motion to strike (#122.00). This contention can be rejected in short shrift because, with respect to duty, the court was only considering whether the plaintiffs had pled sufficient facts to survive a motion to strike.
" A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury . . . Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action." (Internal quotation marks omitted.) Lawrence v. O and G Indus., Inc., 319 Conn. 641, 649, 126 A.3d 569 (2015). See also Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004) (" there can be no actionable negligence . . . unless there exists a cognizable duty of care" [internal quotation marks omitted]).
" The test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Lawrence, 319 Conn. at 650. Both of these prongs must be satisfied in order to establish duty.
" Because foreseeability is a necessary component of duty, the absence of foreseeability forecloses the existence of a duty of care . . . The converse is not true, however: the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care . . . Thus, foreseeability is not commensurate with duty, and proof of foreseeability does not establish the existence of a duty of care." (Citation omitted; internal quotation marks omitted.) Ryan Transp., Inc. v. M and G Assocs., 266 Conn. 520, 528-29, 832 A.2d 1180 (2003).
" With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. See W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 56, pp. 373-74; see also 2 Restatement (Second), supra, § § 314A, 315, at pp. 118, 122. In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, in the absence of a special relationship of custody or control, there is no duty to protect a third person from the conduct of another . . ." (Citation omitted; emphasis in original.) Ryan Transp., Inc., 266 Conn. at 526.
Section 315 of the Restatement (Second) of Torts provides:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
Restatement (Second), Torts § 315 (1965). " [W]hen a duty is not found to exist under the public policy prong of the test, there is no need to perform an analysis under the foreseeability prong." Ryan Transp., Inc., 266 Conn. at 529 (affirming grant of summary judgment in favor of defendant Auto Lock based on conclusion that defendant did not owe plaintiff a duty of care).
The court first considers the plaintiffs' claim that the defendants owed them a duty of care because their conduct created and increased the risk that Maciel would sexually abuse children. In support of this argument, the plaintiffs rely on Doe v. Saint Francis Hosp. & Med. Ctr., 309 Conn. 146, 175, 72 A.3d 929 (2013). Citing Restatement (Second) of Torts § § 302B and 449, our Supreme Court stated: " An exception to the general rule that one has no legal obligation to protect another may arise when the defendant's own conduct creates or increases the foreseeable risk that such other person will be harmed by the conduct of a third party, including the foreseeable criminal conduct of that third party." Doe, 309 Conn. at 175. " [F]or purposes of this exception, the issue is twofold: (1) whether the defendant's conduct gave rise to a foreseeable risk that the injured party would be harmed by the intentional misconduct of a third party; and (2) if so, whether, in light of that risk, the defendant failed to take appropriate precautions for the injured party's protection." Id. at 180.
Restatement (Second) of Torts § 302B (1965), entitled " Risk of Intentional or Criminal Conduct, " provides: " An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal."
Restatement (Second) of Torts § 449 (1965), entitled " Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct Negligent, " provides: " If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby."
The plaintiffs seek to stretch the holding of Doe v. Saint Francis Hosp. & Med. Ctr. to support their claim that the defendants owed them a duty because they provided Maciel with financial resources, which enabled Maciel to take the plaintiffs on personal trips, during which he sexually abused them. The plaintiffs press this argument despite the fact that (1) the defendants did not know the plaintiffs existed, and (2) the relationship between Maciel and the plaintiffs in no way constituted a priest-parishioner relationship or otherwise derived from a connection between Maciel and the defendants.
Here, the court concludes, as a matter of law, narrowly limited to this set of facts, that the plaintiffs' claims fall outside the scope of foreseeable risk for purposes of § 302B. The plaintiffs claim that " [t]he Legion Defendants, knowing what they knew about Maciel's propensity to sexually abuse children, put Maciel in a leadership position which allowed him to access and sexually abuse children, including Plaintiffs." The plaintiffs essentially argue that the defendants had a duty to prevent Maciel from having any access to any children anywhere in the world, including his own children. Although the court is well familiar with the body of so-called clergy abuse cases in Connecticut and within the Second Circuit, in which claims of sexual abuse arise out of a priest-parishioner relationship, the court is not aware of any case recognizing the sweeping duty advocated by the plaintiffs. Of course, issues concerning foreseeability are generally so fact-intensive that they are to be determined by the trier of fact; however, the court concludes that scope of foreseeable risk under the unique circumstances of this case is a matter of law. See Ruiz v. Victory Properties, LLC, 315 Conn. 320, 336, 107 A.3d 381 (2015) (" [I]n some cases, the injury is so remotely or tenuously connected to the conduct of the defendant that it must be deemed unforeseeable as a matter of law . . .").
The court next considers the plaintiffs' argument that the defendants had a duty to control Maciel to prevent him from causing physical harm because a special relationship existed between them (the defendants and Maciel), namely, an employer-employee relationship. In support of this argument, the plaintiffs principally rely on Restatement (Second) of Torts § 319.
Section 319, entitled " Duty of Those in Charge of Person Having Dangerous Propensities, " provides: " One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." The comments and illustrations to the rule demonstrate that § 319 does not apply to an employer-employee relationship. Comment (a) provides that § 319 " applies to two situations. The first situation is one in which the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. The second situation is one in which the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know." The illustrations accompanying § 319 provide examples of the " situations" described in comment (a), as follows:
Illustrations:
1. A operates a private hospital for contagious diseases. Through the negligence of the medical staff. B, who is suffering from scarlet fever, is permitted to leave the hospital with the assurance that he is entirely recovered, although his disease is still in an infectious stage. Through the negligence of a guard employed by A, C, a delirious smallpox patient, is permitted to escape. B and C communicate the scarlet fever and smallpox to D and E respectively. A is subject to liability to D and E.
2. A operates a private sanitarium for the insane. Through the negligence of the guards employed by A, B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A is subject to liability to C.
Restatement (Second) of Torts § 319 (1965).
In Kaminski v. Town of Fairfield, 216 Conn. 29, 578 A.2d 1048 (1990), our Supreme Court had occasion to opine on the scope of § 319. It stated:
Both of the official illustrations to § 319 deal with the liability of institutions, such as hospitals, that have formal custodial responsibility for those in their charge. Similarly, the reported cases that have recognized a duty to control have generally done so in the context of professional custodians with special competence to control the behavior of those in their charge. Citing § 319, courts have found that third parties have stated a cause of action in negligence against: a prison warden; Frett v. Government of Virgin Islands, 839 F.2d 968, 975 (3d Cir. 1988); security guards; Karbel v. Francis, 1985- NMCA 030, 103 N. Mex. 468, 471, 709 P.2d 190 (1985); a mental hospital and its personnel; White v. United States, 780 F.2d 97, 103, 250 U.S. App.D.C. 435 (D.C.Cir. 1986); Johnson v. Village of Libertyville, 146 Ill.App.3d 834, 839, 100 Ill.Dec. 154, 496 N.E.2d 1219 (1986); Allentown State Hospital v. Gill, 88 Pa.Commw. 331, 488 A.2d 1211, 1213 (1985); a children's center; Nova University, Inc. v. Wagner, 491 So.2d 1116, 1118 (Fla. 1986); and a retirement home. Garrison Retirement Home Corporation v. Hancock, 484 So.2d 1257, 1261 (Fla.App. 1985). These cases suggest that, in the proper factual circumstances, this court may want to consider whether to recognize the principles of § 319 insofar as they impose a special duty upon custodians to control the behavior of their wards.Kaminski, 216 Conn. at 34-35. In Kaminski, the Court concluded that the parent-child relationship at issue in that case was not the type of custodial relationship intended to be captured by § 319. Id. at 35-36.
The Supreme Court later opined on the applicability of § 319 to an employer-employee relationship, stating that " [a]n employment relationship . . . is not within the scope of these sections [referring to § § 316, 318, and 319 of the Restatement (Second) of Torts]." Murdock, 268 Conn. at 569. The Court explained: " § 319 requires those exercising custodial control over an individual, such as sheriffs or wardens, to prevent such an individual from harming third parties." (Emphasis added.) Id. Because there was no custodial relationship at issue in Murdock, the court concluded § 319 did not apply.
The plaintiff contends that the employer-employee relationship between the defendants and Maciel constitutes a special relationship under § 319 that gives rise to a duty to control a third party. Yet, this was the very argument rejected by the Court in Murdock . Even assuming there was an employment relationship between all the defendants on the one hand and Maciel on the other hand, such relationship " is not within the scope of" § 319 of the Restatement (Second), as any relationship among them is undisputedly not of a custodial nature. Simply stated, § 319 does not furnish a basis for the plaintiffs' claims here.
The plaintiffs argue that, in the event the court concludes that Maciel's sexual abuse of the plaintiffs occurred outside the scope of employment, the defendants are still liable under Restatement (Second) of Torts § 317.
In Cannizzaro v. Marinyak, 312 Conn. 361, 371, 93 A.3d 584 (2014), our Supreme Court applied Restatement (2d) of Torts § 317, concluding that the defendant did not owe a duty of care to the plaintiff.
Section 317, entitled " Duty of Master to Control Conduct of Servant, " provides:
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
Restatement (Second) of Torts § 317 (1965). Comment (b) to § 317 provides in relevant part: " [T]he master . . . is under no peculiar duty to control the conduct of his servant while he is outside of the master's premises, unless the servant is at the time using a chattel entrusted to him as servant." The plaintiffs rely solely on § 317(a)(ii), relating to the employee's use of the employer's chattel.
Plaintiffs' reliance is entirely misplaced, however. There is simply no evidence in the record to suggest that Maciel was using chattel belonging to any of the defendants in connection with the sexual abuse of the plaintiffs. The plaintiffs claim that the financial resources that Maciel derived from his employment as a priest, which enabled him to live a certain lifestyle, constitute " chattel" for purposes of § 317(a)(ii).
" Chattel" is defined by Webster's Third New International Dictionary (1966) as " an item of tangible movable or immovable property except real estate, freehold, and that movable property which is by its nature considered to be essential to such an estate." Black's Law Dictionary (6th Ed. 1990) defines " chattel" as " [a]n article of personal property, as distinguished from real property. A thing personal and movable. It may refer to animate as well as inanimate property." " [D]ecisional law indicates that an employer has a duty stemming from an employee's use of its chattel only where that use is directly involved in the harm or injury to plaintiff." Doe ex rel. Doe v. Federal Express Corp., 571 F.Supp.2d 330, 333 (D.Conn. 2008); see id. at 334 (" In the instant case, FedEx Kinko's goodwill, telephone and uniform do not represent chattels directly involved in causing the sexual abuse of John Doe. The relationship of the harm to the use of the alleged chattels is attenuated and therefore does not fall within the foreseeable exceptions to the general rule of no employer liability for off-duty employee conduct").
In Murdock, 268 Conn. at 569-70, because the Court concluded that an employer-employee relationship is not governed by § 319, it went on to analyze the plaintiffs claim under § 317, stating the following:
Section 317 of the Restatement (Second) does address a duty arising out of an employment relationship, but by its express terms, § 317 is inapposite to the present case. Section 317 imposes a duty on an employer to control the conduct of an off-duty employee when the conduct complained of occurs on the employer's premises or utilizes a chattel of the employer's, if the employer knows or has reason to know that he can control the employee and recognizes the necessity of doing so. Therefore, § 317 does not apply in the present case because the altercation between the plaintiff and [the offending third party/employee] occurred off department premises and did not involve any chattel of [the employer].(Emphasis in original.) Id. at 569-70; see also Cannizzaro v. Marinyak, 312 Conn. 361, 368, 93 A.3d 584 (2014) (concluding that § 317 governs analysis where plaintiff claimed that employment relationship created duty to protect plaintiff from harm).
The same analysis and conclusion result here. The plaintiffs cite no authority to expand the traditional definition of " chattel" to encompass monetary resources, and the court declines to do so here. Moreover, the relationship between the use of the finances provided to Maciel and the harm to the plaintiffs is too attenuated even, assuming arguendo, money could be deemed " chattel" to fall within the exception of § 317(a)(ii). For these reasons, § 317(a)(ii) does not apply, and the court finds the plaintiffs' attempt to distinguish Murdock 's analysis under § 317 to be without merit.
To avoid the above principles, the plaintiffs argue that any and all actions by Maciel were within his scope of employment as a Legion priest and that he did not have a private life outside of the Legionaries. They go so far to state that Maciel " acted on behalf of the Legion twenty four hours a day, seven days a week." For this assertion, the plaintiffs cite ¶ 44 of the affidavit of Thomas P. Doyle (#252.00). This assertion, even if it were not conclusory in nature, cannot overcome the legal conclusion reached previously by the court. Specifically, the court, Miller, J. already held, as a matter of law, that the alleged sexual abuse by Maciel of the plaintiffs was outside the scope of Maciel's employment because such conduct could not be said to further the defendants' business. (#122.00 at 8.) The court cited, and joined, other courts that have reached that conclusion as a matter of law. (#122.00 at 6-8 (citing cases).)
The plaintiffs also seem to suggest that even if a duty cannot properly be derived from the Restatement (Second) of Torts, the court should nonetheless find a duty for various public policy reasons. As the Court in Murdock declined that invitation, so too does this court under the circumstances of this case. It is important to keep in mind what is not at issue in this case: This case has nothing to do with a duty owed by these defendants, or any other religious organization, to children who suffer sexual abuse by a priest in the child's parish, where there exists a priest-parishioner relationship.
Because the court concludes on public policy grounds that these defendants did not owe these plaintiffs a duty, " there is no need to perform an analysis under the foreseeability prong." Ryan Transp., Inc., 266 Conn. at 529; see also Murdock, 268 Conn. at 575 n.23. In the absence of a duty on the part of these defendants as to these plaintiffs, the plaintiffs cannot prevail on their negligence-based claims. Therefore, the defendants are entitled to summary judgment on counts six through eight and fourteen through sixteen.
V
CONCLUSION
Based on the foregoing, the court grants the defendants' motion for summary judgment (#243.00).