Jane Doe v. Norwich Roman Catholic Diocesan Corp. et al. (2012)

MEMORANDUM OF DECISION

I

The plaintiff, Jane Doe, has brought this action against the defendants, Norwich Roman Catholic Diocesan Corporation (the Diocese), Bishop Daniel Reilly, Monsignor Thomas R. Bride (collectively, the Diocese defendants) and St. Joseph Church Corporation of New London (the church) seeking damages for alleged sexual assaults committed by Father Thomas Shea at the church when the plaintiff was a child.   The case has had a long history of disputed issues that, with one exception, this court will not recite in this memorandum.   On February 29, 2012, the defendants filed motions for summary judgment on the plaintiff's most recent complaint, filed on January 26, 2011, in which she alleges that the defendants were negligent (counts one through four), reckless (counts five through eight), breached a fiduciary duty (counts nine through twelve) and conspired to commit fraud (counts thirteen through sixteen).   The plaintiff filed her memoranda in opposition to the motions on April 9, 2012 and this court heard oral argument on April 19, 2012.

II

“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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden [of production] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ The presence ․ of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.”  (Internal quotation marks omitted.)   RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

III

A.

The plaintiff alleges that the Diocese and Reilly in counts one and five and three and seven, respectively, knew of Shea's alleged unlawful actions.   Despite this knowledge, the Diocese and Reilly allegedly breached their duty to the plaintiff by failing to use reasonable care and by allowing Shea to prey upon her.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ [T]he existence of a duty of care is an essential element of negligence ․ A duty to use 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.”  (Citations omitted;  internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 139–40, 2 A.3d 859 (2010).

“Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent ․ [R]ecklessness ․ [is] a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”   (Citations omitted;  internal quotation marks omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 832–33, 836 A.2d 394 (2003).

“The issue of notice or knowledge ․ is a question of fact and therefore properly within the province of the trier ․ A party's actual knowledge is a question of fact for the trier ․ Likewise, what [the defendants] had reasonable cause to believe or should have known presents a factual question best left to the ultimate trier.   Knowledge, like intent, most often must be inferred from the surrounding circumstances.”  (Citation omitted;  internal quotation marks omitted.)  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 45 Conn.Sup. 397, 406, 716 A.2d 967 (1998).   Furthermore, “[u]nder Connecticut law, the defendants did not owe a duty of care to the plaintiffs to protect them from [the priest's] actions unless the defendants knew or had reason to know that [the priest] had the propensity to engage in sexual misconduct.”   See v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. CV 93 0300948 (July 31, 1997, Thim, J.) (20 Conn. L. Rptr. 271, 275).

At the April 19, 2012 oral argument, this court ruled that the Diocese and Reilly's motion as to the negligence and reckless counts (one, three, five, and seven) must be denied as there are material facts at issue.¹  This court reserved its decision on the remaining issues, namely the negligence and reckless claims as to Bride and the church as well as the breach of fiduciary duty allegations and the civil conspiracy counts against all defendants.

B.

In counts four and eight, the plaintiff alleges that Bride acted both negligently and recklessly in failing to take actions to protect her from Shea. She incorporates the allegations against the Diocese, but does not allege anything specific as to Bride.   The evidence, including the supplemental material filed after oral argument,² indicates that Bride worked throughout much of the 1970s as assistant chancellor for Bishop Hines and then as chancellor for Bishop Reilly.   He first met Shea in 1966 in Rochester, New York, but did not meet him again until June 1975.   Bride stated that he had no knowledge of Shea's sexual activities, had not heard any rumors about him, had not been told anything about him by Hines and did not know the reason for Shea's immediate transfer from a Higganum church to St. Joseph's.   Bride also testified that he knew nothing about Shea's treatment by psychiatrists for inappropriate conduct with young girls;  he did, however, testify that he knew something was wrong, but not the nature of the problem.   He knew that Shea was to be under the supervision of Monsignor St. Onge while at the church.   Finally, Bride was certainly involved with the investigatory and disciplinary actions which took place in the 1980s.

The plaintiff argues that Bride's role as chancellor or secretary for the two bishops at the time of the incidents makes his knowledge a question of fact.   “It is ․ well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”   (Internal quotation marks omitted.)  Tryon v. North Branford, 58 Conn.App. 702, 716, 755 A.2d 317 (2000).   Moreover, a party's “conclusory and self-serving statements do not constitute evidence that is sufficient to prove the non-existence of the material fact of operation such that the defendant is entitled to a judgment as a matter of law.”   Cabral v. Marrero, Superior Court, judicial district of Fairfield, Docket No. CV 05 4005141 (July 5, 2007, Tyma, J.).   As noted, “what [the defendants] had reasonable cause to believe or should have known presents a factual question best left to the ultimate trier.   Knowledge, like intent, most often must be inferred from the surrounding circumstances.”  (Internal quotation marks omitted.)  Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 45 Conn.Sup. 406.   Furthermore, “the credibility of the witnesses and the weight to be accorded their testimony is a matter for the jury to decide.”  Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976).

In the present case, questions of material fact are best left for the trier of fact based on the evidence that Bride served as secretary or chancellor for two bishops and Bride's knowledge that some kind of a problem required Shea's immediate transfer and his supervision by St. Onge. Accordingly, Bride's motion for summary judgment as to these counts is denied.

C.

The church also maintains that summary judgment must be granted in its favor on the counts of negligence (count two) and recklessness (count six).   It argues that there are no material facts at issue as to it because the Diocese, to the exclusion of the church, has total supervisory control—including training, assigning, supervising, evaluating, investigating and disciplining—over its clergy.   Therefore, the church argues there is no genuine issue of material fact that it had no legal duty to the plaintiff.   Moreover, it argues that there are no other facts alleged or evidence produced by the plaintiff which show that the church knew anything about Shea's sexual proclivities.   The plaintiff argues, however, that genuine issues of material facts exist including, but not limited to, St. Onge's (the church's pastor) knowledge about Shea prior to Shea's transfer to the church in 1975;  his special supervisory duties regarding Shea;  Shea's assignment and roles at the church;  and whether Shea lived at the rectory for several years.

The church relies on Noll v. Hartford Roman Catholic, Superior Court, complex litigation at Middletown, Docket No. X04 CV 02 4000582 (July 9, 2007, Beach, J.).   In Noll, the court granted summary judgment for the local church based on an argument that is essentially the same as presented herein.  Id. The court stated:  “The church also refers to General Statutes § 33–279 et seq.   The brief statutory scheme contemplates the formation of church corporations, under the auspices of the archdiocese.  Section 33–279.   Section 33–280 provides that ‘[s]uch corporation may receive and hold all property conveyed to it for (religious and charitable purposes).’   Section 33–281 states that such corporation ‘shall at all times be subject to the general laws and discipline of the Roman Catholic Church and shall receive and enjoy its franchises as a body politic, solely for the purposes mentioned in section 33–280 ․’ (Emphasis added).   The statutes appear to provide for the acquisition, retention and succession interests in property only.   The church claims that because its sole function concerns the possession of property, and church doctrine holds that it has no power or authority in the governance of clergy, then it has no duty to the plaintiff to constrain, train, supervise or otherwise influence the behavior of clergy assigned to it.

“On the surface, this is a somewhat counterintuitive position.   The facts set forth in the affidavit, supported by statutory authority, though, are strong enough to require some factual information to the contrary if summary judgment is to be avoided.   Despite a lengthy memorandum in opposition and myriad exhibits, however, there are no facts suggested by the plaintiff to raise a genuine issue as to the duty of the individual Roman Catholic church.

“The plaintiff did submit a great deal of material suggesting that people associated with the church may have had notice of [the priest's] inappropriate behaviors and yet did nothing effective to restrain, discourage or warn of the behavior.   Though the plaintiff's materials mention ‘the defendants' responsibilities, there is no specific mention of a duty of the individual church.   The excerpts from experts' materials, while interesting, sheds little light on whether [the individual] church as a corporate body had anything to do with the conduct or priests.   There is, then, no genuine issue presented by the materials as to the individual church, and summary judgment shall enter in its favor.”  Id.

Similar to Noll, the church in the present case argues that pursuant to the statutes and the dictates of the Diocese, it does nothing more than hold property.   Additionally, Bishop Michael R. Cote ³ submitted an affidavit which indicates that the local church has no control over its pastors.   As in Noll, the plaintiff does not allege a duty in the complaint ⁴ and does not present any evidence or affidavits that mention the church's role in connection with its clergy.   While she alleges that St. Onge, the church's pastor, knew about Shea prior to his transfer to the church in 1975 and that St. Onge was to supervise Shea, this knowledge and supervision is attributed to the Diocese and not to the church as the church merely holds property.   Hence, there is no genuine issue of material fact as to the church and summary judgment for the church on these counts must be granted.

D.

Counts nine through twelve allege that the defendants had a fiduciary relationship with the plaintiff and that they breached their duty by failing to take any action to protect her.   Previously, this court had the opportunity to address these claims in connection with a motion to strike an earlier version of the plaintiff's complaint.   In this court's September 2, 2010 memorandum of decision, it stated that “[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 ․ In Ahern [v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006) ], 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.”   This court found that the complaint as drafted did not allege “something more” and struck the counts:  “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.’ “

After the plaintiff filed the January 26, 2011 revised complaint, the church filed an answer on March 15, 2011 and the Diocese defendants filed their answer on March 17, 2011 denying the breach of fiduciary duty allegations.   A review of the various paragraphs of the revised complaint indicates that the plaintiff alleges the “something more” as required by Ahern.   After pleading in a number of paragraphs that the plaintiff was taught to put her faith and trust in the Diocese and its clergy, paragraph twenty-eight alleges that during this period the plaintiff would meet regularly with Shea after mass “when he would provide spiritual and psychological counseling to her.”   Paragraph thirty-one states that “[a]t all material times herein, the [p]laintiff continued to meet with Father Shea for counseling because she trusted him as a priest and servant of the [d]efendants Diocese and [c]hurch and as a spiritual authority who was qualified and endorsed by the defendants Diocese and [c]hurch to provide counseling and guidance to her.”   Shea is not a defendant, but had he been, there could be questions of material fact as to whether a fiduciary relationship existed and, of course, through him with the Diocese as well.

Disregarding the sexual assault allegations for the moment and simply looking at the facts supplied by the plaintiff concerning Shea, that is, the parishioner relationship and the relationship of the priest and the Diocese, the motion for summary judgment must be denied as to the Diocese because there are genuine material facts at issue.   Nevertheless, the same does not hold true for Reilly, Bride and the church.   There are no allegations or evidence that either of the individuals had any relationship at all with the plaintiff.   As for the church, as discussed previously, it is simply legally part of the Diocese.   Hence, summary judgment must be granted at to counts ten, eleven and twelve and denied as to count nine.

E.

Finally, the defendants seek summary judgment on the civil conspiracy counts (counts thirteen through sixteen).   The discussion in See v. Bridgeport Roman Catholic Diocesan Corp., supra, 20 Conn. L. Rptr. 271, is instructive.   “The concept of civil conspiracy is ․ used to extend liability in tort ․ beyond the active wrongdoer to those who have merely planned, assisted, or encouraged his acts ․ A civil action for conspiracy is an action for damages caused by acts committed pursuant to an agreement ․ To establish the liability of a party, it is necessary to prove that the party was actuated by the same wrongful intent and had substantially the same knowledge of the wrongful means and purposes as the other participants in the conspiracy ․ The elements 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 results in damage to the plaintiff ․

“The defendants first contend that liability under a conspiracy doctrine is precluded by the intracorporate conspiracy doctrine.   This doctrine relates to the first element of a civil conspiracy, i.e., a combination between two or more persons.   In Day v. General Electric Credit Corp., 15 Conn.App. 677, 684, 546 A.2d 315, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988), the Appellate Court explained this doctrine as follows:  ‘Employees of a corporation acting in the scope of their employment cannot conspire with one another or with the corporation that employs them:  each acts for the corporation and the corporation cannot conspire with itself.’   Fletcher's Treatise on Corporations defines the doctrine as follows:  ‘A corporation cannot conspire with itself anymore than an individual can, and hence it appears to be the general rule that a corporation cannot conspire with its officers, agents or employees when they are acting solely for the corporation.   The corporation may be held liable for conspiracy, however, (1) where its officers, agents or employees were acting for personal reasons, (2) or where they have an independent personal stake in achieving the object of the conspiracy, (3) or where an independent third party conspired with the corporation.’  “ (Citations omitted;  internal quotation marks omitted.)   Id., 277.

The intracorporate conspiracy doctrine necessitates the granting of the current motions.   The plaintiff has made no allegations and presented no evidence that the Diocese's employees were acting for personal reasons, had any independent personal stake in achieving the object of the conspiracy or that an independent third party conspired with the corporation.   As previously discussed, the church is technically a separate corporation, but for the purposes of this case, it is a distinction without a difference.   As to the United States Conference of Catholic Bishops (USCCB), assuming arguendo that it is a third party, and, moreover, that the plaintiff can still include these allegations in the complaint, the plaintiff has provided no evidence that the USCCB conspired with the named defendants as to any allegations concerning this plaintiff.

IV

In summary, the court grants the defendants' motions for summary judgment as to counts two, six, ten through sixteen and denies the motions for summary judgment as to counts one, three, four, five, seven, eight and nine.

Berger, J.

FOOTNOTES

FN1. “The court's determination of an action against the defendants based upon their alleged negligent supervision of [a priest] would not prejudice or impose upon any of the religious tenets or practices of Catholicism.   Rather, such a determination would involve an examination of the defendants' possible role in allowing one of its employees to engage in conduct which they, as employers, as well as society in general expressly prohibit.”  Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66, 74 (D.Conn.1995)..  FN1. “The court's determination of an action against the defendants based upon their alleged negligent supervision of [a priest] would not prejudice or impose upon any of the religious tenets or practices of Catholicism.   Rather, such a determination would involve an examination of the defendants' possible role in allowing one of its employees to engage in conduct which they, as employers, as well as society in general expressly prohibit.”  Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66, 74 (D.Conn.1995).

FN2. At oral argument, this court allowed the plaintiff time to find and submit additional evidence as to Bride and appropriate time for the defendants to respond..  FN2. At oral argument, this court allowed the plaintiff time to find and submit additional evidence as to Bride and appropriate time for the defendants to respond.

FN3. Bishop Cote was installed as the fifth bishop of the Diocese of Norwich in 2003..  FN3. Bishop Cote was installed as the fifth bishop of the Diocese of Norwich in 2003.

FN4. Indeed, paragraph two, counts two and six, alleges:  “The Defendant Diocese ․ controls, supervises, and is responsible for the actions and conduct of its personnel.”   Paragraph three, counts two and six, in relevant part, avers:  “[Reilly] had ecclesiastical jurisdiction over Roman Catholic priests in the Defendant Diocese and controlled, supervised, advised and was responsible for the actions and conduct of all clergy within said Diocese.”.  FN4. Indeed, paragraph two, counts two and six, alleges:  “The Defendant Diocese ․ controls, supervises, and is responsible for the actions and conduct of its personnel.”   Paragraph three, counts two and six, in relevant part, avers:  “[Reilly] had ecclesiastical jurisdiction over Roman Catholic priests in the Defendant Diocese and controlled, supervised, advised and was responsible for the actions and conduct of all clergy within said Diocese.”

Berger, Marshall K., J.