Hector Doe v. The Norwich Roman Catholic Diocesan Corp. et al. (2015)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (# 114)

Using the pseudonym Hector Doe, the plaintiff filed an eight-count complaint on July 11, 2014, against The Norwich Roman Catholic Diocesan Corp. (the Diocese), The Academy at Mount Saint John (the Academy), and Daniel Reilly.  The eight counts assert claims arising out of sexual abuse allegedly inflicted on the plaintiff while he was a minor and a student at the Academy.  On February 6, 2015, the defendants moved to strike counts two, four, five, six, seven, and eight of the plaintiff's complaint.  The ground as to all counts except the fourth count is that the plaintiff has failed to allege facts that could establish that the defendants are vicariously liable for the alleged sexual abuse under the doctrine of respondeat superior.  As to count four, the basis for the motion is that the plaintiff has not alleged facts that could establish that the defendants owed a fiduciary duty to the plaintiff.  The plaintiff submitted no written opposition to the motion but did, by counsel, participate in oral argument on June 16, 2015.¹

FACTS

“[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ The role of the trial court in ruling on a motion to strike is to examine the [pleading], construed in favor of the [pleader], to determine whether the [pleader has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  A motion to strike does not admit legal conclusions or the correctness of opinions.  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  In this light, the key facts are as follows.

In 1992 and 1993, the plaintiff, a minor, was a boarding student at the Academy.²  The Academy catered to students with behavioral and educational challenges, and the plaintiff had been placed there by the state Department of Children and Families.  The Academy was operated by the Diocese.  Reilly was the Bishop and Chief Executive Officer of the Diocese.  The late Brother K. Paul McGlade was executive director of, and a teacher at, the Academy.

In January of 1992, at the Academy, the plaintiff expressed interest in learning to play the piano.  McGlade offered to give the plaintiff private piano lessons.  At the first piano lesson, McGlade inappropriately touched the plaintiff.  Approximately two weeks later, McGlade spoke to the plaintiff after music class about overriding a decision to deny the plaintiff a pass to go home.  McGlade then molested and sexually assaulted the plaintiff.  McGlade told the plaintiff not to tell anyone about the encounter, and said that the plaintiff would likely get the home pass.  McGlade instructed the plaintiff to follow up with him after mass on Sunday.  He also offered to make the plaintiff an altar boy.  After mass that Sunday, McGlade again sexually assaulted the plaintiff.

DISCUSSION

“[T]o 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 ․ A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase ‘during the period covered by his employment.’  ․ While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful ․ that does not end the inquiry.  Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business ․ Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable.”  (Citations omitted;  internal quotation marks omitted.)  A–G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208–10, 579 A.2d 69 (1990).  “Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further his master's business ․ But there 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.

Courts in Connecticut have considered the issue of respondeat superior in numerous cases involving sexual misconduct by members of the clergy.  In a few cases, the court has allowed plaintiffs to proceed on a theory of respondeat superior.  In Mullen v. Horton, 46 Conn.App. 759, 761, 700 A.2d 1377 (1997), a parishioner sought psychological counseling from a priest.  The parishioner and the priest began a sexual relationship, and sexual activity occurred during the counseling sessions.  Id. The court concluded that it was an issue of fact “whether [the priest's] actions constituted a negligent, disobedient and unfaithful conducting of church business or a complete abandonment of church business,” because “a trier of fact could reasonably find that consensual sexual relations between two adults arising out of emotional, spiritual church sponsored counseling sessions represented a negligent and misguided effort at pastoral counseling.”  Id., 770–71.  Similarly, in Doe v. Norwich Roman Catholic Diocesan Corp., 309 F.Sup.2d 247, 252 (D.Conn.2004), a priest allegedly sexually assaulted the plaintiff during counseling sessions in attempt to bring the plaintiff closer to the Church and her religious faith, thereby increasing financial donations to the Church and volunteer time given by the plaintiff and her family in furtherance of Church's business.  The District Court held that “the acts as alleged, however misguided,” were not so clearly outside the priest's scope of employment that the question was one of law.  Doe v. Norwich Roman Catholic Diocesan Corp, supra.

In Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F.Sup. 110, 118 (D.Conn.1997), a priest's sexual abuse of the plaintiff “was directly connected with the administration of sacraments in the context of a broader effort by the abuser to educate and interest the victim in liturgical reform.”  More specifically, some of the sexual encounters were presented as part of the sacraments of reconciliation and communion.  Id. Though the court noted that the plaintiff faced a “daunting burden at trial,” it declined to grant summary judgment as to whether the abuse occurred within the scope of the priest's employment.  Id.

A majority of courts, however, “have rejected respondeat superior claims in cases alleging sexual abuse by priests.”  (Internal quotation marks omitted.)  Doe v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Docket No. CV–11–5035749–S (January 7, 2014) [58 Conn. L. Rptr. 132].  For example, in Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66, 69 (D.Conn.1995), a priest showed pornographic movies to two twelve-year-old altar boys and repeatedly molested them.  The District Court granted the institutional defendants' motion for summary judgment and held that they could not be liable under the doctrine of respondeat superior.  Id., 71.  In Mullen v. Horton, supra, 46 Conn.App. 770–71, the Connecticut Appellate Court cited Nutt with approval and commented that it “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.”

Connecticut trial courts have consistently struck respondeat superior claims arising out of sexual abuse by members of the clergy.  Doe v. Hartford Roman Catholic Diocesan Corp., 45 Conn.Sup. 388, 716 A.2d 960 [23 Conn. L. Rptr. 34] (1998), was similar to Mullen v. Horton, supra, 46 Conn.App. 759, in that the sexual abuse occurred during counseling sessions concerning spiritual and personal matters.  Doe v. Hartford Roman Catholic Diocesan Corp, supra, 389.  The court distinguished Mullen, however, because Doe involved a minor “who legally lack[ed] the capacity to consent to sexual relations, rendering the sexual relationship, as a matter of law, nonconsensual,” and because “the church did not directly or indirectly profit from the priest's actions.”  Doe v. Hartford Roman Catholic Diocesan Corp., supra, 394.  See also Doe v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07–CV–085029882–S (September 2, 2010) (striking counts for respondeat superior because allegations that abusive priest was counselor or spiritual advisor to plaintiff were too general and insufficient to suggest that alleged abuse benefitted church business);  Doe v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Docket No. CV–11–5035749–S (January 7, 2014) [58 Conn. L. Rptr. 132] (granting motion to strike respondeat superior counts where plaintiff stated “only in conclusory fashion” that sexual abuse occurred while perpetrator was acting in scope of his duties as priest in furtherance of church purposes).

In the present case, the defendants argue that counts two, five, six, seven, and eight fail to state a claim under the doctrine of respondeat superior.  Specifically, they argue that the plaintiff has not alleged facts to establish that the alleged sexual abuse fell within McGlade's scope of employment or furthered the defendants' business.  The plaintiff counters that because the alleged abuse occurred during piano lessons, McGlade's actions were committed in the scope of his employment and in furtherance of the defendants' business.

In his complaint, the plaintiff alleges three incidents of sexual abuse.  Only the first incident is alleged to have occurred during a piano lesson:  while McGlade was playing the piano, with the plaintiff seated next to him on the piano bench, McGlade allegedly touched the plaintiff's right thigh and groin.  Approximately two weeks later, McGlade allegedly hugged the plaintiff from behind, pressing his erect penis into the clothed back of the plaintiff, after music class.  The third incident allegedly occurred after Mass on the Academy's premises, but is not alleged to have involved any class or lesson.

Even construed in the light most favorable to the legal sufficiency of the complaint, McGlade's actions upon which the complaint is based cannot, as a matter of law, be considered part of McGlade's fulfillment of his employment duties, either as executive director of the Academy or as a teacher of the piano or any other subject.  Specifically, that McGlade allegedly inappropriately touched the plaintiff while the plaintiff was playing the piano does not imply, let alone allege, that this touching was somehow a misguided teaching method.  The abuse may have occurred during a music lesson, but it had no apparent, let alone explicitly alleged, educational purpose.  McGlade's tortious conduct was not in furtherance of the defendants' business.  What appears from the allegations of counts two, five, six, seven and eight is that McGlade abandoned, indeed betrayed, his duties as director of, and teacher at, the Academy.  The plaintiff's respondeat superior claims are insufficient as a matter of law.

Turning to count four, for breach of fiduciary duty, “[i]t is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them.  [A] fiduciary or confidential relationship 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.”  (Internal quotation marks omitted;  emphasis omitted.)  Biller Associates v. Peterken, 269 Conn. 716, 723, 849 A.2d 847 (2004).  The determination of whether a fiduciary duty exists is a question of law.  Id., 721.

“The Appellate Court has stated that it ‘know[s] of no case ․ to support the proposition that [the student-teacher relationship], without something more, [is] fiduciary in nature ․’ Golek v. Saint Mary's Hospital, Inc., 133 Conn.App. 182, 198, 34 A.3d 452 (2012).  ‘Something more’ in the fiduciary relationship context has been defined by Connecticut Superior Courts as ‘acts of fraud, misconduct or misappropriation on behalf of the superior party.’  Doe v. Terwilliger, Superior Court, judicial district of New Haven, Docket No. CV–09–5024692–S (June 8, 2010) [49 Conn. L. Rptr. 1].” Chambers v. Middletown, Superior Court, judicial district of Middlesex, Docket No. CV–14–6011312–S (January 21, 2015) [59 Conn. L. Rptr. 613].  The United States Court of Appeals for the Second Circuit has also required something more than a general clergy-parishioner relationship in order to create a fiduciary relationship.  In Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir.1999), the plaintiff brought a breach of fiduciary duty claim against a diocese.  Specifically, that plaintiff, who was fourteen at the time of the alleged abuse, claimed that a priest of his parish abused his position of trust and induced members of a church sponsored youth group to engage in sexual relations with him.  Id., 414.  Ultimately, the Second Circuit upheld the jury's finding that a fiduciary relationship existed between the plaintiff and the diocese.  The court based its finding of a fiduciary relationship not on the general clergy-parishioner relationship, but rather on the ‘particulars of [the plaintiff's] ties to [the abusive priest] and the [d]iocese's knowledge and sponsorship of that relationship ․’ Id., 429.  The court found the relationship to be fiduciary in nature because the diocese had sponsored and encouraged the abusive priest's contact with the youth of the parish, the plaintiff attended a Catholic high school within the diocese, participated in church sponsored activities, including the liturgical reform group for which the priest served as a mentor and spiritual adviser, and had been taught throughout grade school catechism classes to trust and respect the bishop of the diocese, whom he considered his ‘caretaker and moral authority.’  Id., 429.”  Ahern v. Kappalumakkel, 97 Conn.App. 189, 197, 903 A.2d 266 (2006);  see also Doe v. Norwich Roman Catholic Diocese Corp., Superior Court, judicial district of New London, Docket No. CV–08–5005553–S (June 18, 2009) (48 Conn. L. Rptr. 59) (listing specific allegations regarding how plaintiff was brought up as Catholic and taught to put her faith in the Church and how diocese knew about and concealed sexual abuse by priest).

In this case, it is easy to argue that McGlade was in a fiduciary relationship with the plaintiff.  An adult known as “Brother Paul,” McGlade was head of the Academy.  He oversaw and supervised the academy's operations, which by necessary inference included student safety and general well-being.  Also by fair and necessary inference from the allegations of the complaint, McGlade was in a position of great power over the plaintiff, a twelve-year-old child, not just generally as head of the school but particularly having the power to determine whether the plaintiff could become an altar boy and even when he could go home.  McGlade was also a teacher and, whether or not specifically employed as such, the plaintiff's piano teacher.  Finally, McGlade committed multiple acts of misconduct toward the plaintiff.  But McGlade is not the defendant in this case.

In this case, the Diocese, the Academy, and Reilly argue that the plaintiff has not alleged facts showing that they had a fiduciary duty to the plaintiff.  The plaintiff counters that his allegations are enough to show that the defendants owed him such a duty.  The plaintiff alleges that the defendants had a fiduciary duty to the plaintiff including to investigate complaints of sexual abuse of children.  Count four, however, does not allege that the defendants authorized or even knew of a relationship between McGlade and the plaintiff having the characteristics of a fiduciary relationship.

The plaintiff alleges that McGlade abused him, with escalating severity, once during a music lesson, once after a class and once after Mass. Count four does not allege that the plaintiff or anyone else ever reported, or complained about, misconduct by McGlade to any of the defendants or that they otherwise knew of, let alone authorized, McGlade's misconduct toward the plaintiff or any other student.  Therefore, even if a fiduciary relationship existed between McGlade and the plaintiff, the complaint does not allege facts from which the court could impute such a relationship to the Diocese, the Academy, or Reilly.³

In conclusion, the plaintiff's claims against the Diocese, the Academy, and Reilly sounding in respondeat superior and breach of fiduciary duty are legally insufficient.  Accordingly, the court grants the defendant's motion to strike counts two, four, five, six, seven, and eight.

Cole–Chu, J.

FOOTNOTES

FN1. At oral argument, the court noted that pages 17 and 18 of the complaint, containing most of the allegations of count four, were missing from the complaint as filed.  The court ordered the plaintiff to re-file the complaint.  On August 27, 2015, the court issued an order that the plaintiff re-file the complaint by August 31, 2015, and, if the plaintiff did not do so, that the defendants file it.  The plaintiff did not re-file the complaint.  On September 1, 2015, the defendants filed a complete copy of the complaint as served (albeit with some illegible text).  Because the missing pages included allegations which are subject to the motion to strike, the present motion is deemed submitted as of September 1, 2015..  FN1. At oral argument, the court noted that pages 17 and 18 of the complaint, containing most of the allegations of count four, were missing from the complaint as filed.  The court ordered the plaintiff to re-file the complaint.  On August 27, 2015, the court issued an order that the plaintiff re-file the complaint by August 31, 2015, and, if the plaintiff did not do so, that the defendants file it.  The plaintiff did not re-file the complaint.  On September 1, 2015, the defendants filed a complete copy of the complaint as served (albeit with some illegible text).  Because the missing pages included allegations which are subject to the motion to strike, the present motion is deemed submitted as of September 1, 2015.

FN2. That the plaintiff was a boarding student is apparent from the following allegations:  ¶ 16 (plaintiff was “placed, through DCF [the state Department of Children and Families], at the Academy”;  ¶¶ 27, 29, 34, 42, 48 and 51 concerning a “home pass” for the plaintiff;  ¶ 53 (plaintiff using the home pass and communicating with his mother);  and ¶ 55 (DCF effort to return the plaintiff to the Academy.  The interpretation of pleadings is a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005)..  FN2. That the plaintiff was a boarding student is apparent from the following allegations:  ¶ 16 (plaintiff was “placed, through DCF [the state Department of Children and Families], at the Academy”;  ¶¶ 27, 29, 34, 42, 48 and 51 concerning a “home pass” for the plaintiff;  ¶ 53 (plaintiff using the home pass and communicating with his mother);  and ¶ 55 (DCF effort to return the plaintiff to the Academy.  The interpretation of pleadings is a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

FN3. In Bass v. Miss Porter's School, 738 F.Sup.2d 307, 330 (D.Conn.2010), the court stated, “research has not revealed a single case in any state or federal court within the Second Circuit holding or even suggesting that a secondary school—public or private, boarding or day-session—or its employees owe a fiduciary duty to its students.”  See Chambers v. Middletown, Superior Court, judicial district of Middlesex, Docket No. CV–14–6011312–S, (January 21, 2015) [59 Conn. L. Rptr. 613].  The plaintiff, at age twelve, presumably was not in secondary school, and the younger the student the easier it is to allege and to find the presence of a fiduciary relationship.  However, the plaintiff has not offered the court any authority that, for example, decisions concerning middle school students are different from those referred to in Bass..  FN3. In Bass v. Miss Porter's School, 738 F.Sup.2d 307, 330 (D.Conn.2010), the court stated, “research has not revealed a single case in any state or federal court within the Second Circuit holding or even suggesting that a secondary school—public or private, boarding or day-session—or its employees owe a fiduciary duty to its students.”  See Chambers v. Middletown, Superior Court, judicial district of Middlesex, Docket No. CV–14–6011312–S, (January 21, 2015) [59 Conn. L. Rptr. 613].  The plaintiff, at age twelve, presumably was not in secondary school, and the younger the student the easier it is to allege and to find the presence of a fiduciary relationship.  However, the plaintiff has not offered the court any authority that, for example, decisions concerning middle school students are different from those referred to in Bass.

Cole–Chu, Leeland J., J.