Opinion
No. CV02-0099218 S
March 5, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This case involves allegations of sexual assault on the then minor plaintiff by a former Roman Catholic priest assigned to the Norwich Diocese. Count Four of the plaintiff's complaint is based on the doctrine of respondeat superior, the plaintiff contending, in paragraph fifteen of that count, that:
At all times relevant hereto, the defendant Primavera was an agent, servant and/or employee of the defendant Diocese of Norwich, Bishop Daniel Reilly and St. Mark The Evangelist Church, and was acting within the scope of his authority. Further, the defendant Diocese, Bishop and church had either actual or constructive notice of Primavera's propensity towards committing such conduct, or of the actual conduct, or both. The said defendants are liable for his conduct and its consequences.
The defendants have moved to strike the Fourth Count, arguing that as a matter of law, the doctrine of respondeat superior cannot be invoked so as to impose vicarious liability on the Diocese, Bishop or church as a result of the alleged sexual assault by the co-defendant Catholic priest. They point to a relatively long line of cases, beginning with Nutt v. Norwich Roman Catholic Diocese, 921 F. Sup. 66, 70-71 (D.Conn. 1995), which hold that, as a matter of law, whenever any Catholic priest sexually assaults a minor, that priest has abandoned his religious institutional employer's business so as to preclude the doctrine of respondeat superior from being invoked for the purpose of imposing vicarious liability on his employer or supervisors. See e.g, Beach v. Jean, 46 Conn. Sup. 252, 257-59 (1999); Doe v. Hartford Roman Catholic Diocesan Corp., 45 Conn. Sup. 388, 390-95, 23 Conn.L.Rptr. 34 (1998); Paula Linda Reed v. Peter Zizka, Hartford/New Britain J.D. at Hartford, Docket No. CV 95-0555221 S, (Aurigemma, J.); Sharon See v. Bridgeport Roman Catholic Diocesan Corp. et al., Fairfield J.D. No. CV 93-0300945 S, July 31, 1997 (Thim, J.) ( 20 Conn.L.Rptr. 271), John Doe v. Norwich Roman Catholic Diocesan Corp., et al, Middlesex J.D. No. CV 93-0069529 S, June 26, 1996 (Stengel, J.) ( 17 Conn.L.Rptr. 277). In Mullen v. Horton, 46 Conn. App. 759, 770-71 (1997), the Appellate Court, in dictum, appeared to endorse this position.
The plaintiff contends that the question of whether the activities of Primavera were indeed undertaken within the scope of his authority as a priest should be viewed as a matter of fact, not of law, and since this issue is presented to the court in the form of a motion to strike, rather than a motion for summary judgment, the court must construe the facts alleged in this count in the light most favorable to the plaintiff. If the court does so, and if it therefore accepts as true the allegation that the defendant Primavera was acting within the scope of his employment, then this count does indeed state a claim for which relief may be granted, and the motion to strike should be denied.
The defendant points out that Reed v. Zizka, supra, involved a motion to strike which was granted. Additionally, although Judge Arterton initially denied a similar motion to strike in Martinelli v. Bridgeport Roman Catholic Diocese Corp., 989 F. Sup. 110, 117-18 (1997), she later, in the course of the trial, reversed herself and struck the respondeat superior count from the bench, without rendering a written decision.
This precedent would be persuasive, but for two facts. First, this is, indeed, a motion to strike rather than a motion for summary judgment, and any court needs to exercise caution in deciding whether to grant such a motion, which would have the effect of denying the plaintiff the opportunity to try to prove the facts which he has alleged. Second, in the nine years since Judge Covello initially ruled that, as a matter of law, sexual molestation could not be considered as being within the scope of a priest's employment, the number of reported allegations of sexual assaults by priests has risen so dramatically that one must wonder whether Judge Covello, and particularly those judges who followed Nutt in ruling on motions to strike, rather than motions for summary judgment, would be so quick to conclude that there could not possibly be a factual dispute over whether such molestation could take place within the scope of a priest's employment. A contemporary court cannot ignore, for example, the fact that recent reports suggest that "based on survey responses from 97 percent of dioceses (195 dioceses) and from 142 religious communities, representing approximately 80 percent of religions priests across the country . . . the total number of priests with allegations of abuse was 4,392, representing approximately 4 percent of all priests in ministry between 1950-2002."
From a press release for "Nature And Scope Of Sexual Abuse Of Minors By Catholic Priests And Deacons In The United States, 1950-2002," a study produced by the John Jay College of Criminal Justice and authorized and paid for by the U.S. Conference of Catholic Bishops (USCCB).
Assuming that these reports are accurate, they would suggest the addition of facts that were not available to those judges who have been confronted with this issue in the past. This is not to say that these statistics would definitively establish that sexual abuse of minors is within the scope of a priest's employment, but rather than it can no longer be said, as a matter of law, that such conduct "represents one of those exceptional cases in which the servant's digression from duty is so clear cut that the disposition of the case is a matter of law." Mullen v. Horton, 46 Conn. App. at 770-71. This court, at least, is not prepared to conclude that an activity which might be undertaken by as many as four percent of an employer's employees is a clear cut "digression from duty" as a matter of law.
Further examination of the facts may well establish that such activity is definitively beyond the scope of a priest's employment, but the court, which certainly cannot accept this proposition as a matter of faith, is also in no position to accept it as a matter of law. This court expresses no opinion whatsoever as to what the results of such an examination would be, but it is unwilling to resolve this question as a matter of law in light of the number and scope of the revelations that have occurred over the nine years since Nutt. Such a conclusion must await a determination on the facts or, perhaps, a determination that there are no facts in dispute with regard to the matter. In either event, the issue of the viability of a count based on the doctrine of respondeat superior is not ripe for determination on a Motion to Strike.
For the above reasons, the Motion to Strike the Fourth Count of the plaintiff's complaint is denied.
Jonathan E. Silbert, Judge