Opinion
No. X03-HHD-CV10-6016974-S
August 30, 2011
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The defendants have moved to strike Counts One, Three, Five, Seven, Ten, Eleven and Twelve of the complaint on the grounds that plaintiff has failed to allege any facts to establish that his alleged sexual abuse was committed within the scope of Father Maciel's authority or in furtherance of the defendants' religious mission. Defendants further submit that the plaintiff has failed to allege facts through which he could establish that the defendants owed him a duty of care, and that the alleged harm was foreseeable to the defendants.
FACTS:
On June 21, 2010, the plaintiff, Jose Raul Gonzalez Lara, brought this action, alleging that Father Marcial Maciel Degollado (Father Maciel), who was the founder of the Legionaries of Christ and also the plaintiff's biological father, repeatedly sexually molested him. As a result, the plaintiff brought this action against various defendants, including the estate of Father Maciel, Legionaries of Christ (the Legionaries), Legion of Christ, Inc., Legion of Christ College, Inc. and Catholic World Mission, Inc. In his complaint, the plaintiff alleges that Father Maciel, who died in 2008, was a Roman Catholic priest in charge of the Legionaries and its affiliates, including the defendants. At all relevant times, Father Maciel was an employee, agent of the Legionaries, a worldwide business, which conducts business through Legion of Christ College, Inc. in Connecticut. The defendants acted as joint venturers, co-conspirators, agents or apparent agents of each other and/or partners.
The plaintiff alleges that Father Maciel sexually molested numerous minor children, whom he recruited for the Legionaries, beginning in the 1940s and 1950s. Furthermore, he alleges that the Legionaries knew or should have known about his sexual abuse at least in the 1950s, if not sooner. Additionally, on October 26, 1976, Father Juan Vaca, the Legionaries' national director, sent a letter to Father Maciel, accusing him of sexually abusing 20 Legionaries' seminarians. The plaintiff alleges that the Legionaries knew or should have known about this letter and Father Maciel's "deviant sexual pursuits." In 1976, Bishop John R. McGann, ordinary of the Rockville diocese, reported Father Maciel's behavior to the Vatican and Pope Paul VI, but the Vatican took no action, allowing Father Maciel to continue in his position of power with "unlimited access to children." In 1978, Bishop McGann sent the same letter to the Vatican and although the Vatican acknowledged receiving it, no action was taken.
In 1980, the plaintiff was born in Mexico, as the son of Blanca Gutierrez Lara and one Raul Rivas, an alias used by Father Maciel. It is further alleged that Father Maciel used the Legionaries' money and property to support the plaintiff, his mother and other children. The plaintiff alleges that the Legionaries knew or should have known that Father Maciel had a child, that he was using the Legionaries' funds to support the plaintiff and his family and that he was misrepresenting himself to his son. Plaintiff also alleges that the Legionaries knew or should have known that Father Maciel used its property to facilitate his abuse of the plaintiff.
The plaintiff further alleges that "from at least the 1950s until 2002, the Legionaries, Father Maciel, the presiding Pope, the Vatican and its officials engaged in a conspiracy to conceal their knowledge of Maciel's serial delicts, including the repeated sexual abuse of children." The plaintiff claims that other officials in the Legionaries knew of Father Maciel's misconduct. Father Maciel made all seminarians promise never to speak ill of the Legion, him or their superiors. Furthermore, the plaintiff alleges that Father Maciel and the Legionaries gained influence and protection from the Vatican through giving substantial money to Vatican officials and providing banquets, facilities and other benefits to them.
As a result, the plaintiff brought different causes of actions against various defendants in a twelve-count complaint. On January 20, 2011, the defendants filed a motion to strike, accompanied by a memorandum of law. The plaintiff filed his opposition to the motion to strike with a supporting memorandum of law on March 16, 2011. On April 15, 2011, the defendants filed a reply memorandum. The court heard oral argument on May 16, 2011.
DISCUSSION: CT Page 18410
"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, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The trial court is "limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). The court construes "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 . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
In their memorandum, the defendants argue that Counts One, Three and Five should be stricken because the plaintiff has failed to plead that the alleged domestic abuse fell within the scope of Father Maciel's authority or furthered the defendants' religious mission. They also argue that Count Seven should be stricken because the plaintiff has failed to plead that it was foreseeable that the defendants' conduct posed an unreasonable risk of causing emotional distress to the plaintiff. Lastly, they argue that the court should strike Counts Ten, Eleven and Twelve because the plaintiff has failed to allege facts to establish that the defendants owed him a duty of reasonable care.
The plaintiff argues that he has sufficiently alleged that the Legionaries knew of Father Maciel's propensity to abuse children, and that it failed to act with reasonable care. He contends that the court should not strike the counts alleging negligent hiring and supervision because Father Maciel and the Legionaries were in an employer-employee relationship. Additionally, the plaintiff argues that under the "aided-in-agency doctrine," the defendants are liable for Father Maciel's actions. Similarly, he argues that because he pleaded sufficient facts to allege that his severe emotional distress caused by Father Maciel's sexual abuse was foreseeable, the Legionaries should be liable.
A Counts One, Three and Five — Reckless and Negligent Battery and Reckless Infliction of Emotional Distress:
In the first count of his complaint, the plaintiff brings a reckless battery claim against the Legionaries by alleging that it knew or should have known that Father Maciel had a propensity to molest children, but he was allowed by the Legionaries to maintain his position, which enabled him to have access to and sexually abuse the plaintiff. The plaintiff further alleges that because the defendants failed to take action against Father Maciel, he was able to hold himself out as fit, qualified and competent in all respects to work with children. The Legionaries knew of Father Maciel's use of power and resources gained from the Legionaries to exercise undue influence over children, including the plaintiff. Between 1987 and 1998, while the plaintiff was a minor, Father Maciel sexually molested him repeatedly with the knowledge that this would have serious consequences for the minor plaintiff. As a result, the plaintiff has suffered severe pain, bodily intrusion and emotional distress, some of which may be permanent. Consequently, the plaintiff has incurred and will continue to incur expenses related to counseling and therapy, lost wages and employment opportunities.
In the third count, the plaintiff alleges that due to Father Maciel's negligence and carelessness, he has suffered severe pain and bodily intrusion along with severe emotional injuries.
In Count Five, the plaintiff alleges that through Father Maciel's wrongful actions, he recklessly inflicted, or knew or should have known that such actions were likely to cause, severe emotional distress on the plaintiff. The plaintiff alleges that Maciel's conduct was extreme, outrageous and beyond the bounds of decency, and that it caused him severe emotional distress.
"[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003). Our Supreme Court has held that "[v]icarious liability is based on a relationship between the parties . . . either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another]. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n. 16, 849 A.2d 813 (2004).
"When vicarious liability is alleged, the injured plaintiff may look for reparation from either the [employee] or the [employer]." Colon v. Board of Education, 60 Conn.App. 178, 188 n. 4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). The Connecticut Supreme Court has "long adhered to the principle that in 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 [employer], and not solely the affairs of the [employee], which are being furthered in order for the doctrine to apply." (Citations omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990). "Ordinarily it is a question of fact as to whether a willful 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.) Id., 207.
In Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66 (D.Conn. 1995), a federal district court granted summary judgment on all counts based on the doctrine of respondeat superior because it held that as a matter of law, the alleged sexual abuse of two altar boys "cannot be said to further the defendant's business and therefore is outside of the scope of employment." Id., 71. The Appellate Court, discussing Nutt v. Norwich Roman Catholic Diocese in Mullen v. Horton, stated that the "facts of Nutt clearly represent[ed] a situation in which the priest wholly abandoned his pastoral duties. Thus, Nutt represent[ed] one of those exceptional cases in which the servant's digression from duty is so clear that the disposition of the case is a matter of law." Mullen v. Horton, 46 Conn.App. 759, 770-71, 700 A.2d 1377 (1997).
The Superior Court, however, in Nelligan v. Norwich Roman Catholic Diocese, denied the defendants' motion to strike a count based on the doctrine of respondeat superior by holding that if the court "accepts as true the allegation that the defendant [priest] was acting within the scope of employment, then this count does indeed state a claim for which relief may be granted . . ." Nelligan v. Norwich Roman Catholic Diocese, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 02 0099218 (March 5, 2004, Silbert, J.) [ 36 Conn. L. Rptr. 597]. Although the Nelligan case involved allegations of sexual assault on the then minor plaintiff by a former Roman Catholic priest as well, the court notes that it is not bound by other Superior Court decisions.
"Clearly, [a 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 Diocese, 49 Conn.Sup. 667, 671, 909 A.2d 983 (2006).
In this case, the plaintiff alleges that Father Maciel "was an employee, agent or apparent agent of the defendant, Legionaries of Christ . . ." Although plaintiff does not allege specifically that Counts One, Three and Five against the Legionaries are brought pursuant to the doctrine of respondeat superior, these claims are clearly brought under that theory. These counts are based on allegations that Father Maciel sexually molested him. Since such sexual abuse cannot be said to further the defendants' business or that Father Maciel was acting within the scope of his employment, it is clear that plaintiff is not entitled to proceed against these defendants under respondeat superior.
The motion is granted as to counts One, Three and Five.
In his opposition to the motion to strike, the plaintiff argues that under the aided-in-agency doctrine, "the defendants are liable for the actions of the pedophile priest, Maciel." "Under the aided-in-agency theory, an employer may be held liable for the intentional torts of an employee acting outside the scope of his or her employment if the employee `was aided in accomplishing the tort by the existence of the agency relation.'" Ocana v. American Furniture Co., 135 N.M. 539, 552, 91 P.3d 58 (2004) (quoting Restatement (Second) of Agency § 219(2)(d) (1958)). Restatement (Second) of Agency § 219(2)(d) (1958) provides in relevant part: "A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless . . . (d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation."
The court notes, however, that Restatement (Second), Agency has been superseded by Restatement (Third), Agency. Section 7.08 of Restatement (Third), comment (b) (2006) states in relevant part: "Section 219(2)(d) [Restatement (Second), Agency] concludes with a further general basis for an employer's vicarious liability, which is whether an employee `was aided in accomplishing the tort by the existence of the agency relation.' This Restatement does not include `aided in accomplishing' as a distinct basis for an employer's (or principal's) vicarious liability."
Count Seven — Negligent Infliction of Emotional Distress:
The plaintiff brought the seventh count against the Legionaries alleging that it "should have realized that its conduct and negligence posed an unreasonable risk of causing Raul emotional distress, and that such distress might result in illness and/or bodily injury. The negligence of the Legionaries caused Raul emotional distress, resulting in illness and bodily harm . . ."
"To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Shenkman-Tyler v. Central Mutual Ins. Co., 126 Conn.App. 733, 744, 12 A.3d 613 (2011).
"The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." (Internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010).
Here, the plaintiff has failed to allege that the Legionaries' conduct created an unreasonable risk of causing emotional distress to the plaintiff, or that the Legionaries should have foreseen that its actions would cause the plaintiff's emotional distress severe enough that it might result in his illness or bodily harm. He has alleged nothing beyond mere conclusions of law that the Legionaries should have known that its negligence posed an unreasonable risk of causing his emotional distress. The motion to strike count seven is therefore granted.
Count Ten — Negligence:
In the tenth count, the plaintiff alleges that the Legionaries owed him a duty not to cause any injuries to him by one of its priests, employees or agents under its supervision. Additionally, he alleges that the Legionaries owed him duties to warn, "to not allow [Father Maciel] to misrepresent" and to make sure Father Maciel was not alone with children. Furthermore, he alleges that the Legionaries was careless and negligent in many ways as set forth in subparagraphs (a) through (m). As a result of the Legionaries' negligence, the plaintiff suffered injuries.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . ." (Internal quotation marks omitted.) Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004). A duty of care "may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction, Co., 286 Conn. 563, 578, 945 A.2d 388 (2008).
"Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).
In subparagraphs 83(a) through 83(m), plaintiff alleges that the Legionaries knew or should have known that Father Maciel had a propensity to sexually batter minors but failed to take adequate steps to prevent the alleged sexual abuse of the plaintiff in various ways, including its failure to establish and enforce a policy of reporting, investigating and removing priests who allegedly engaged in sexual misconduct and its failure to warn and protect the plaintiff from the alleged sexual battery and exploitation. The plaintiff also alleges that the Legionaries systematically covered up sexual misconduct by its priests, including Father Maciel. The court finds that the plaintiff has alleged sufficient facts to establish the existence of a legal duty because these allegations are sufficient to suggest that the harm suffered by the plaintiff was foreseeable, thereby giving rise to a duty to use reasonable care by the Legionaries. The motion to strike Count Ten is therefore denied.
Counts Eleven and Twelve — Negligent Retention and Negligent Supervision:
In Count Eleven, the plaintiff alleges that the Legionaries had a duty to evaluate whether Father Maciel was fit and competent to work with children. He further alleges that defendant knew or should have known that Maciel was not fit to work with children or knew or should have known that he posed a threat of sexually assaulting minors, including the plaintiff.
In Count Twelve, plaintiff alleges that defendant had a duty to supervise the performance of Father Maciel in his duties, including his role in supervising minors and providing them with spiritual instruction, guidance and counseling. He alleges further that in its breach of this duty, defendant generally permitted and encouraged Father Maciel to work with minors even though it "knew or should have known of Maciel's sexual proclivities and prurient interests and potential for sexual battery of minors."
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). "In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury." (Internal quotation marks omitted.) Hearn v. Yale-New Haven Hospital, Superior Court, Judicial District of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J.).
"The claim of negligent retention has been recognized by the Superior Court, but not by the Appellate Court of the state . . . It requires a plaintiff to plead and prove that an employer, during the course of employment, became aware of problems that indicate a lack of fitness for the position, that the unfitness was likely to cause the sort of harm incurred by the plaintiff, and that the employer failed to take action." (Internal quotation marks omitted.) Loglisci v. Stamford Hospital, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 08 5009309 (February 22, 2011, Jennings, Jr., J.T.R.).
"Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of [foreseeability]. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee's propensity for the type of behavior causing the plaintiff's harm." (Citations omitted; internal quotation marks omitted.) Elbert v. Connecticut Yankee Council, Inc., Superior Court, Judicial District of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.). "By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008).
In Count Eleven, the plaintiff alleges that the Legionaries was negligent in retaining Father Maciel because it failed to perform an appropriate background investigation of Father Maciel, failed to perform psychiatric evaluation on Father Maciel or suppressed such results, failed to evaluate him during his tenure, and also failed to review his conduct during his time alone with minors when it knew or should have known that he was not fit and competent to work with minors and knew or should have known that he posed a threat of sexually molesting minors. The plaintiff alleges that the Legionaries knew or should have known about Father Maciel's sexual abuse of "numerous minor children whom he recruited for the Legionaries of Christ" in the 1940s and 1950s. Additionally, the complaint contains other allegations, such as an alleged accusation by an older seminarian and priest-rector of the Legionaries that Father Maciel made "sexual advances on youths in the Legionaries' house in Mexico" and a letter sent to Father Maciel, which also accused him of sexually abusing 20 Legionaries' seminarians. The plaintiff alleges that the Legionaries knew of such accusations. The court therefore finds that plaintiff properly pleaded a negligent retention claim.
In Count Twelve, plaintiff alleges that the Legionaries had a duty to supervise the performance of Father Maciel in his duties, but breached this duty when it failed to take appropriate measures to prevent the plaintiff's injuries. He also alleges that defendant permitted and encouraged Father Maciel to work with minors even though it knew or should have known of his sexual proclivities and prurient interests and potential for child sexual abuse. In subparagraphs 96(a) to 96(e), the plaintiff alleges that the Legionaries was negligent in the following ways: it failed to properly monitor Father Maciel's conduct; it allowed him to have unsupervised contact with minors; it allowed him to be alone with minors when it knew or should have known that doing so posed a risk that he would sexually batter them; it allowed him to use funds of the Legionaries to travel around the world and support his children; and that it allowed him to misrepresent his identity to the plaintiff and other children. The court finds that plaintiff has properly stated a cause of action sounding in negligent supervision. The motion to strike Count Twelve is therefore denied.
To summarize: the motion is granted as to Counts One, Three, Five and Seven and denied as to Counts Ten, Eleven and Twelve. It is so ordered.