Opinion
No. CV 10-6012967-S
June 2, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 105
The plaintiff, Robert Gough, has filed a seven-count revised complaint against the defendants, St. Peters Episcopal Diocese (St. Peters) and the Episcopal Diocese of Connecticut (the Diocese), alleging assault and battery (count one); negligent assault and battery (count two); negligent infliction of emotional distress (count three); negligence as to St. Peters (Count four); negligence as to the Diocese (count five); breach of fiduciary duty as to St. Peters (count six); and breach of fiduciary duty as to the Diocese (count seven).
In his complaint, the plaintiff alleges the following relevant facts. From approximately age twelve to nineteen, the plaintiff was an acolyte at St. Peters, where he also participated in church youth activities and received mentoring, advice, and spiritual counseling from his priest, Father Bruce Jacques, who was an agent of the Diocese and subject to its canons. Sometime during the plaintiff's middle school years, Jacques told him that he was "conducting research regarding children and how they change physically." He informed the plaintiff that "several of the acolytes were participating in this research, naming particular acolytes, and that this research was solely for church purposes."
The plaintiff agreed to participate in the research because his priest and fellow acolytes were involved. Jacques brought the plaintiff to his office and asked him sexual questions while taking notes. Jacques then sexually abused the plaintiff and told him not to tell anyone. If he did, Jacques warned, he would be removed from the acolyte guild, would no longer see his friends in or at church again, and would not be allowed in church. Approximately two weeks later, Jacques approached the plaintiff and stated that he wished to continue his research and asked the plaintiff to come to his office. He again asked the plaintiff more sexual questions and asked if he could touch him. The plaintiff stated that he did not feel well and wished to go home. One month later, Jacques again asked the plaintiff if he could continue his research and warned that if the plaintiff did not acquiesce, he would be required to end his project. The plaintiff told Jacques that he could not continue helping him. The plaintiff further alleges that St. Peters and the Diocese occupied positions of trust and confidence for him but nonetheless allowed Jacques to sexually assault him by failing, inter alia, to properly supervise and evaluate Jacques and by retaining him as a priest despite his exploitation of his position of trust and inability to control his sexual impulses.
The defendants have filed this motion to strike counts one, two, three, which allege claims under respondeat superior, and counts six and seven, alleging breach of fiduciary duty.
DISCUSSION
When ruling on a motion to strike, "[w]e take the facts to be those alleged in the complaint that has been stricken and we construe 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 . . . It 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 . . . 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). "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, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
I COUNTS ONE, TWO THREE: RESPONDEAT SUPERIOR CLAIMS
The defendants move to strike counts one (assault and battery), two (negligent assault and battery) and three (negligent infliction of emotional distress) on the ground that the plaintiff has failed to allege that the sexual abuse by Jacques fell within his scope of employment and in furtherance of the business of the church and diocese. "Under the doctrine of respondeat superior, a master is liable for the wilful torts of his servant committed [1] within the scope of the servant's employment and [2] in furtherance of his master's business . . . [I]t must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Internal quotation marks omitted.) Cornelius v. Dept. of Banking, 94 Conn.App. 547, 557, 893 A.2d 472, cert. denied, 278 Conn. 913, 899 A.2d 37 (2006).
"An employee acts within the scope of his employment as long as he is discharging his duties or endeavoring to do his job, no matter how irregularly, or with what disregard of instructions." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 786, 835 A.2d 953 (2003). The phrase, "scope of employment" "is not synonymous with the phrase during the period covered by his employment . . ." (Internal quotation marks omitted.) Mullen v. Horton, 46 Conn.App. 759, 764, 700 A.2d 1377 (1997). "In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer." Harp v. King, supra, 266 Conn. 782-83.
"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." (Internal quotation marks omitted.) Mullen v. Horton, supra, 46 Conn.App. 764. "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 . . . [b]ut there are occasional cases [in which] a servant's digression from [or adherence to] duty is so clear-cut that the disposition of the case becomes a matter of law." (Internal quotation marks omitted.) Harp v. King, supra, 783.
In the present case, the defendants contend that vicarious liability is not applicable in cases such as this, where a church official sexually abuses a minor, because such abuse is a total abandonment of church business and not within the scope of employment. In response, the plaintiff argues that St. Peters and the Diocese are vicariously liable for claims arising out of his alleged sexual abuse by Jacques.
"A majority of courts that have considered the issue have rejected respondeat superior claims in cases alleging sexual abuse by priests . . . because such acts by the priests are not in furtherance of the church's business."`(Internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Docket No. CV 08 5029882 (September 2, 2010, Berger, J.). Similarly, the complaint in the present case lacks allegations that the sexual abuse was in furtherance of the defendants' business because there is no allegation that the defendants substantially benefitted, either directly or indirectly from Jacques' research regarding children and how they change physically. See Doe v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial District of New Haven, 45 Conn.Sup. 388, 392 [ 23 Conn. L. Rptr. 34] (1998). There is no allegation, for example, that the research was designed to increase financial donations, profits or encourage volunteerism. See, e.g., Doe v. Norwich Roman Catholic Diocesan Corp., 309 F.Sup.2d 247, 252 (Conn. 2004) (denying defendant's motion to dismiss based on allegations that the abuse occurred during counseling sessions that were designed to increase financial donations to the church and volunteer time spent by plaintiff and her family); Mullen v. Horton, 46 Conn.App. 759, 770, 700 A.2d 1377 (1997) (holding that defendants were not entitled to judgment as a matter of law where priest abused plaintiff during counseling sessions from which the defendant derived profits). The allegation that Jacques told the plaintiff that the research was conducted "solely for church purposes" is too general an allegation and is therefore insufficient to establish that the abuse was in furtherance of Jacques' employment. See Doe v. Norwich Roman Catholic Diocesan Corp., supra, Docket No. CV 08-5029882 (granting a motion to strike based on plaintiff's vague assertions of a counseling relationship). Accordingly, the motion to strike counts one, two and three is granted.
II COUNTS SIX AND SEVEN: BREACH OF FIDUCIARY DUTY CLAIMS
The defendants move to strike counts six and seven, alleging breaches of fiduciary duty as to St. Peters and the Diocese, on the ground that the plaintiff has failed to allege facts establishing the existence of a fiduciary relationship. It is well established that "[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 interest of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." (Internal quotation marks omitted.) Jarvis v. Lieder, 117 Conn.App. 129, 144, 978 A.2d 106 (2009). The Supreme Court has "specifically refused to define a fiduciary relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other." (Internal quotation marks omitted.) Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982).
"In the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another . . . In the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." (Internal quotation marks omitted.) Biller Associates v. Peterken, 269 Conn. 716, 723-24, 849 A.2d 847 (2004). "The law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 41, 761 A.2d 1268 (2000).
"The existence of a fiduciary duty is largely a factual determination and the extent of the duty and the resulting obligations may vary according to the nature of the relationship: the obligations do not arise as a result of labeling, but rather by analysis of each case." Hoffnagle v. Henderson, Superior Court, judicial district of Hartford, Docket No. CV 02-0813972 (April 17, 2003, Beach, J.). Furthermore, "[i]t is inappropriate to decide a question of fact on a motion to strike . . . It is appropriate, however, for this court to decide whether the plaintiff . . . has [pleaded] sufficient facts to allege a fiduciary relationship." (Internal quotation marks omitted.) Golek v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 08-5007118 (August 22, 2008, Roche, J).
"The Connecticut state courts have yet to address the issue of whether a diocese has a fiduciary duty to prevent its priests from sexually abusing parishioners. However, [t]he leading authority on this issue is the Second Circuit's [decision in Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir. 1999)] . . . Because of the dearth of case law on the subject in Connecticut, Martinelli has become the seminal case on the issue." Doe v. Norwich Roman Catholic Diocese Corp., Superior Court, judicial district of New London, Docket No. CV 08-2005553 (June 18, 2009, Martin, J.) ( 48 Conn. L. Rptr. 59, 61). In Martinelli, the Second Circuit upheld the jury's finding that a fiduciary relationship existed between the plaintiff and the diocese based on the "particulars of [the plaintiff's] ties to [the abusive priest] and the [d]iocese's knowledge and sponsorship of that relationship . . ." Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 429. The Martinelli 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 was a teenager who 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., 429-30. See also Doe v. Norwich Roman Catholic Diocese Corp., Superior Court, judicial district of New London, Docket No. CV 08-2005553 (June 18, 2009, Martin, J.) ( 48 Conn. L. Rptr. 59, 62) (denying a motion to strike a breach of fiduciary duty claim where the plaintiff alleged that she was a minor, the defendant knew of and sponsored her relationship with the abusive priest and she attended religious education classes where she was taught to trust the diocese).
In the present case, the plaintiff has alleged facts sufficient to state a claim for breach of fiduciary duty against St. Peters and the Diocese. The plaintiff has alleged that he was a minor at the time of the abuse. See id. He has alleged that he participated in church youth groups and activities, received mentoring from Jacques and served as an acolyte for seven years at the same parish at which Jacques was employed and over which the diocese exercised control. Through these activities, the plaintiff alleges that he was taught to place his trust in St. Peters and the Diocese, who knew or should have known that Jacques posed a danger but nonetheless retained him as a priest and allowed him to come into contact with the plaintiff. In light of these allegations, the defendants' motion to strike counts six and seven is denied.
CONCLUSION
For the reasons stated above, the motion to strike counts one, two and three of the plaintiff's complaint is hereby GRANTED, and, as to counts six and seven, DENIED.