John Doe – Massachusetts

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  04/03/12 Massachusetts

  John DOE 1 v. CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS
  CHRIST OF LATTER-DAY SAINTS, & others. 2 No. 11-P-610.

  The Appeals Court of Massachusetts affirmed Summary Judgement in the following case:
  April 3, 2012.

  By the Court (GRASSO, FECTEAU & SULLIVAN, JJ.).

  ’’MEMORANDUM AND ORDER

  PURSUANT TO RULE 1:28

  *1 The plaintiff, John Doe, appeals the allowance of summary judgment in favor of the
  defendants, the Corporation of the President (COP) of the Church of Jesus Christ of Latter-
  Day Saints (church), former clergyman Stephan Day, and his former assistant, Daniel Rice,
  and T. Stephen Fotheringham, Robert Norman, and Charles Hobbs. The plaintiff initiated a
  suit against the defendants for negligence, gross negligence, intentional infliction of
  emotional distress and civil conspiracy, relating to their alleged liability for the sexual abuse
  of the minor plaintiff by Kevin Curlew, a member of the Methuen ward of the church. As a
  result of his actions in the fall or winter of 2004, while acting as a volunteer babysitter during
  a monthly church group meeting, Curlew was convicted of two counts of assault and battery
  and indecent assault and battery on a child under fourteen, G.L. c. 265, §§ 1 3A (a), 1 3B .As
  against defendants COP, Day, and Rice, the plaintiff specifically avers that there exist
  genuine issues of material fact, effectively precluding summary judgment, as to the
  following contentions raised: (1 ) these defendants maintained a special duty to the children
  of the church, or in the alternative, through their actions voluntarily assumed such a duty,
  and thereafter breached that duty,

  (2) they intended to inflict emotional distress on the plaintiff, and (3) they conspired to avoid
  their legal obligation to report the incidents to law enforcement. As against defendants
  Fotheringham, Norman, and Hobbs, volunteer clergyman and volunteer mission presidents,
  respectively, the plaintiff contends these individuals were grossly negligent in failing to warn
  the other church members of known dangerous propensities of Curlew. We affirm the grant
  of summary judgment on all claims. 3

  Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991) .

  B. Summary Judgment. 1 . Negligence. The plaintiff contends defendants COP, Day, and
  Rice breached their duty to protect him from the criminal acts of Curlew because such acts
  were “reasonably foreseeable.” As to this, on this record, while we do not condone the
  actions of Curlew, we fail to discern a genuine issue of material fact upon which a rational
  jury could find liability on the part of these defendants. *2 While the possibility that criminal
  conduct will occur is always present in our modern society, liability for the criminal acts of
  third parties exists where there is a “reasonable expectation ],” that the “defendant [should]
  anticipate harmful acts of third persons and take appropriate measures to protect the
  plaintiff from harm.” Luoni v. Berube, 431 Mass. 729, 732, 729 N.E.2d 1108 (2000) . The
  defendants have produced deposition testimony suggesting that the ward and stake officials
  responsible for church affairs in the Methuen ward were unaware of any past sexual
  transgressions with children by Curlew. In particular, it is undisputed that neither Bishop
  Adams or the defendant Day had any knowledge that Curlew had prior criminal convictions
  for, or a history of, sexual abuse of children. Nor was Curlew registered as a sex offender in
  Massachusetts at this time. 4 At best, the plaintiff claims that two non-defendant former
  missionaries were given warnings expressed by Miklos Jako, an aspiring writer and
  nonmember of the church, and that these missionaries indicated at the time that they would
  report this information. However, there is no documentation of such a report, neither former
  missionary could remember making a report, and no official of the Methuen ward or the
  stake could remember
  receiving such a report. 5

  At its core, plaintiffs argument is that the church officials in Methuen “should have known”
  more, either because the internal communication of Jako's allegations should have been
  better relayed, or because the local ward or the stake should have done more to find out
  about Curlew, based on his status as a probationer ten years earlier. This duty can not arise
  as a matter of church membership. The Supreme Judicial Court has specifically held that
  church membership “do[es] not establish ... the type of relationship to the plaintiff from
  which a fiduciary duty could possibly arise under civil law.” Petrell v. Shaw, 453 Mass. 377,
  382, 902 N.E.2d 401 (2009) . Instead, the plaintiff argues that this duty arises either
  because of a “special relationship” between the church and its members, or a duty
  voluntarily assumed by the church. Neither claim has merit. A special duty may find its
  “source in existing social values and customs”. Mullins v. Pine Manor College, 389 Mass.

  47, 51, 449 N.E.2d 331 (1983) , quoting from Schofield v. Merrill, 386 Mass. 244, 247, 435
  N.E.2d 339 (1982) . On this record, the plaintiff has failed to provide evidence as to the
  standard customs or procedures for either (1) reporting allegations of misconduct (learned
  of during the course of religious conversion) 6 within religious organizations, or (2)
  screening volunteer babysitters at informal church (or other) functions. 7 In the absence of
  such evidence, no rational jury could find for the plaintiff on a theory of special duty. See
  Kourouvacilis

  v. General Motors Corp., 410 Mass. At 716, 575 N.E.2d 734 . For similar reasons, the claim
  of assumed duty is legally insufficient. 8 The babysitting was an informal arrangement
  whereby the Relief Society, with the knowledge of the church elders, solicited volunteers
  from the ward membership. The fact that the ward had, arguably, “undertaken to render a
  service is not sufficient to impose a duty.” Mullins, supra at 53-54 & n. 10, 449 N.E.2d 331 .
  Furthermore, where the undertaking is gratuitous, the duty is only to refrain from gross
  negligence. Id. at 53 n. 10, 449 N.E.2d 331 .

  *3 In the absence of some evidence that the members of the ward relied on the ward to
  screen babysitters at that time, or as noted above, that screening of volunteers was so
  widespread that reliance could otherwise be inferred, 9 we must conclude that this claim
  fails as a matter of law. 1 0

  2. Intentional infliction of emotional distress. No further abuse occurred after the initial
  complaint made by the plaintiff to the church. Therefore the sole ground for the claim of
  intentional infliction of emotional distress against COP, Day, and Rice is the fact that Doe
  saw Curlew at church on one occasion after he reported the abuse. The plaintiff posits that
  a “rational person” should have known that allowing Curlew to access the church premises,
  albeit under arranged supervision, following the accusations against him was “clearly
  outrageous.” See Agis v. Howard Johnson Co., 371 Mass. 140, 144-145,

  355 N.E.2d 315 (1976) . Essential to the plaintiff's claim is the underlying logic that the
  decision to allow Curlew onto the church grounds involves a type of secular action that the
  court may determine to be tortious. The First Amendment to the United States Constitution,
  however, prohibits courts from doing just that, and “places beyond [the court's] jurisdiction
  disputes involving church doctrine, canon law, polity, discipline, and ministerial
  relationships.” Petrell, supra at 381-382, 902 N.E.2d 401 , quoting from Williams v.
  Episcopal Diocese of Mass., 436 Mass. 574, 579, 766 N.E.2d 820 (2002) . See Maffei v.
  Roman Catholic Archbishop of Boston, 449 Mass. 235, 243, 867 N.E.2d 300 (2007)
  (describing religious controversies that are “off limits to our courts”). The decision to allow
  Curlew access to the church grounds and the reasons therefore inherently involves an
  assessment of Curlew's

  relationship with the church, and involve the secular review of ecclesiastical discipline and
  church doctrine. As such, we are prohibited from assigning liability to such actions. Even if
  we were not so prohibited, the undisputed facts do not sufficiently make out a claim for
  intentional infliction of emotional distress. See Jones v. Maloney,

  While it is undisputed that Curlew returned to the church after the plaintiff made the
  defendants aware of the inappropriate touching, the plaintiff offers no evidence
  that defendants COP, Day, or Rice intended this single visual encounter between the
  plaintiff and Curlew to occur, or that they should have known it likely to occur, or that it could
  be viewed as extreme and outrageous. While this court neither questions nor seeks to
  minimize the traumatizing effect of the incident on the plaintiff, our analysis must be
  confined to the undisputed facts in the record in the context of the elements of this cause of
  action. We must conclude that the defendants' actions do not constitute intentional infliction
  of emotional distress as matter of law. Sena v. Commonwealth, 417 Mass. 250, 264, 629
  N.E.2d 986 (1994) , quoting from Agis, supra at 145, 355 N.E.2d 315 (only conduct that
  transcends all “bounds of decency and ... [and is] utterly intolerable in a civilized
  community” will rise to the level of extreme and outrageous conduct). *4 3. Civil conspiracy.
  The crux of the plaintiff's claim of civil conspiracy against COP is that the defendants waited
  sixteen days before reporting the incident to civil authorities and in the interim proceeded to
  seek legal and medical consultations. While this conduct may or may not have conformed to
  legal requirements for mandated reporters, G.L. c. 119, § 51 A , any inference that this
  course of action was part of an unlawful collusion to avoid law enforcement is speculation
  and contrary to the right, recognized by the judge below, of an individual to consult a lawyer
  prior to speaking with police, without such action used as evidence of a conspiracy. See
  Kurkerv. Hill, 44 Mass.App.Ct. 184, 189, 689 N.E.2d 833 (1998) .

  4. Actions against Norman, Hobbs, and Fortheringham for gross negligence. A claim of
  gross negligence requires “an act or omission respecting legal duty of an aggravated
  character as distinguished from a mere failure to exercise ordinary care.” Zavras v.

  Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct. 17, 20 n. 4, 687 N.E.2d 1263
  (1997) , quoting from Altman v. Aronson, 231 Mass. 588, 591-592, 121 N.E. 505 (1919) (it
  “is substantially and appreciably higher in magnitude than ordinary negligence”). Upon this
  record, it is undisputed that at no time during their terms as volunteer clergymen or mission
  presidents did any of these three defendants learn that Curlew had a history of sexual
  assault. First and foremost, Norman served as president of the Manchester, New
  Hampshire mission from July, 1 992, to July, 1 995, ending his tenure four months prior to
  Curlew formally joining the church. Norman further testified without contradiction that he did
  not interview nor become familiar with Curlew in any capacity. With regard to the
  circumstances surrounding Curlew's baptism into the church, the record contains no
  evidence that either Fotheringham 11 or Hobbs 12 had actual knowledge of Curlew's past
  sexual misconduct as a result of the baptism process.

  Conclusion. For the reasons expressed above, we must affirm the allowance of summary
  judgment in favor of the defendants.

  Judgment affirmed.

  All Citations

  81 Mass.App.Ct. 1126, 964 N.E.2d 370 (Table), 2012 WL 1080445

  Footnotes

  1 By his mother and next friend, Mother Doe. We use the pseudonyms supplied by the
  parties.

  2 Stephen Day, Daniel Rice, Charles Hobbs, Robert Norman, and T. Stephen

  Fotheringham.

  3 As we affirm the decision below on the asserted grounds, we decline to address whether
  the named church defendants

  are entitled to protection under the Volunteer Protection Act of 1997, 42 U.S.C. § 14501 et
  seq. (2006).

  4 Curlew had been convicted of a sexual offense in Maine, but that conviction had been
  vacated.

  5 Bishop Adams (who is not a defendant) did know that Curlew had been on
  probation in 1995 for an altercation with his sister, and that his baptism had been
  delayed for this reason, but Adams did not pass this information on to anyone else. It

  is undisputed that Day, who was the bishop responsible for the Methuen ward at the time
  the sexual assault took place, was unaware of the fact that Curlew had been on probation
  ten years earlier.

  6 We express no opinion as to whether the free exercise of religion would permit such an
  inquiry. See Petrell, supra at

  7 In Mullins, supra, unlike here, there was expert testimony and evidence that the college
  community had adopted standards that reflected a community consensus regarding
  safeguarding student welfare. There is no evidence in this record that, in 1995 when Jako
  spoke to the two missionaries, there was a consensus as to how that information would be
  reported or used within a church community. Nor is there evidence tending to show that in
  2004, when these events occurred, there was a community consensus that volunteer
  babysitters in churches or other religious organizations would have to be screened.

  8 In addition, the ward had also adopted a “two adult” policy, which the plaintiff claims that
  the defendants violated. However, the record reflects only that Curlew, not the defendants,
  violated the rule by following the plaintiff into the bathroom.

  9 While the plaintiff's mother offered deposition testimony that she assumed that the ward
  performed criminal offender record information (CORI) checks on volunteers, such a check
  would not have revealed any sexually based offense.

  10 We thereby hold that defendants Hobbs, Norman, and Fotheringham did not act with
  “gross negligence,” as alleged by the plaintiff. See part four, infra.

  11 While there is a baptismal certificate which suggests, as contended by the
  plaintiff, that Fotheringham must have interviewed Curlew prior to baptism, if such an
  interview occurred, and if so what was discussed, remains a matter of conjecture on
  this record.

  1 2 While the plaintiff asserts that this fact is indeed disputed since a missionary recorded in
  a personal journal that “President Hobbs will be interviewing [Curlew],” Hobbs testified that
  he did “not recall ever meeting [Curlew] or even being aware of his baptism. 1 did not
  interview him prior to his baptism.” To the extent this fact is thereby “disputed,” we find that it
  nevertheless does not rise to the level of a genuine dispute of material fact sufficient to state
  a claim for gross negligence.”

  End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
  Doe v. Corporation Of President of Church Of Jesus..., 81 Mass.App.Ct. 1126...

  964 N.E.2d 370

  © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2