Dausch v. Rykse, 93-1459

• Citation: 52 F.3d 1425
• Decision Date: 16 December 1994
• Docket Number: No. 93-1459,93-1459
• Parties: Linda E. DAUSCH, Plaintiff-Appellant, v. Reverend Greg RYKSE, Knox Presbyterian Church, Chicago Presbytery, also known as Presbytery of Chicago, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1425

52 F.3d 1425

Linda E. DAUSCH, Plaintiff-Appellant, v. Reverend Greg RYKSE, Knox Presbyterian Church, Chicago

Presbytery, also known as Presbytery of Chicago,

et al., Defendants-Appellees.

No. 93-1459.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 10, 1993.

Decided Dec. 16, 1994.

Steven K. Jambois, Mary L. Chirillo (argued), Kralovec, Jambois & Schwartz, Chicago, IL, for Linda E. Dausch.

Barry G. Bollinger, Craig G. Stifler, Kelly Ann Giampa (argued), Bollinger, Ruberry & Garvey, Chicago, IL, for Greg Rykse.

David G. Mountcastle, Mountcastle, Kelly & Dyer, Wheaton, IL, for Knox Presbyterian Church defendant-appellee.

Kathleen Mulligan (argued), James W. Teevans, Gardner, Carton & Douglas, Chicago, IL, for Chicago Presbytery.

Before GIBSON ^*, COFFEY and RIPPLE, Circuit Judges.

PER CURIAM.

Linda E. Dausch, a member of the congregation of the Knox Presbyterian Church ("Knox Church"), sought counseling from her church's pastor, Reverend Greg Rykse. She alleged in her complaint that it was one of the duties of Rykse and of the Knox Church and the Chicago Presbytery ("the church defendants") to provide psychological counseling to members of the congregation. However, according to Mrs. Dausch's complaint, Rykse "engaged in dangerous and improper counseling relations with plaintiff," which included "engaging in sexual contact during the course of psychotherapy with the plaintiff, an emotionally dependent patient."

The case before us, brought under diversity jurisdiction ¹ and controlled by Illinois law, is an appeal from the dismissal of Mrs. Dausch's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Against the individual defendant Rykse, the complaint sets forth claims for professional negligence (Count I), breach of fiduciary duty (Count III), negligent infliction of emotional distress (Count V), and violation of the Sexual Exploitation of Psychotherapy Act, 740 ILCS 140/1 et seq. (Count IX). Knox Church and Chicago Presbytery were also charged with professional negligence (Count II), breach of fiduciary duty (Count VI), and negligent infliction of emotional distress (Count VIII). ²

1.

Because our review of this case is limited to the sufficiency of Mrs. Dausch's complaint, we must accept all well-pled facts as true and must draw all reasonable inferences in favor of the appellant Mrs. Dausch. Dowlatshahi v. Motorola, Inc., 970 F.2d 289, 290 (7th Cir.1992).

Applying this standard, the complaint presented these facts: ³ During the period between January 1988 and June 1990, Rykse held himself out, and was held out by the church defendants, to be a duly qualified person engaged in providing psychological counseling to members of his congregation. Complaint p 12, R.33 at 5. Such counseling was "in furtherance of the business and purpose" of the church defendants, and was within the scope of his employment. Id. Linda Dausch sought psychological counseling from Rykse between January 1988 and June 1990 in order to assist her in coping with certain emotional conditions she was experiencing, particularly depression. pp 14-15, R.33 at 5-6. Rev. Rykse accepted her for professional psychological treatment. p 16, R.33 at 6. Operating within the framework of this counseling relationship, Rykse "compelled, encouraged, fostered and engaged in dangerous and improper counseling relations with plaintiff." p 17, R.33 at 6-7. The relations included sexual contact during the course of the psychotherapy. p 51, R.33 at 19. The church defendants knew or should have known of these improper counseling relations. p 18, R.33 at 7.

2.

On February 9, 1993, the district court granted the defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Mem.Op. at 17.

The court turned first to Mrs. Dausch's allegations of professional negligence against the church defendants. In the court's view, these allegations were most accurately characterized as a claim for clergy malpractice. The court held that such a cause of action was not recognized in Illinois and therefore could not be the basis for holding the church defendants vicariously liable. It also determined, in the alternative, that, even if such a cause of action existed, the church defendants could not be held vicariously liable for actions done by Rykse solely for his own benefit and not as part of his ministerial duties. Nor, according to the district court, could the church defendants be held liable for failing to exercise reasonable care over Rykse when acting outside the scope of his employment because there was no allegation that the church defendants knew or should have known of Rykse's improper relations or of the need to exercise control over him. Under such circumstances, the fact that Rykse was the church defendants' employee was not a sufficient basis for vicarious liability.

The district court next addressed the professional negligence allegation against Rykse. The court reiterated that Illinois does not recognize a cause of action for clergy malpractice. It noted that courts that have considered but rejected such a claim have recognized the free exercise implications of any such recognition. The district court also recognized, however, that such free exercise considerations would not be relevant if Rykse's conduct was not part of the belief and practices of his church. Repeating its earlier view with respect to the church defendants, the district court concluded that Mrs. Dausch had failed to allege adequately that Rykse's psychological counseling was not part of the church's religious beliefs and practices. As a result, concluded the court, the free exercise clause of the First Amendment was implicated and Mrs. Dausch failed to state a valid claim.

The district court next turned to the allegations that the defendants had breached a fiduciary duty to Mrs. Dausch. At the outset, the district court concluded that, even though the church defendants might be characterized as her "spiritual and religious advisors," Mem.Op. at 14, that relationship was not, under the law of Illinois, that of a fiduciary. With respect to Rykse, the court concluded that he did not have a fiduciary duty but rather a general duty to refrain from violating the law. More fundamentally, the court determined that the allegation of a fiduciary duty was simply an elliptical way to state a clergy malpractice claim, a cause of action that it had already held to be not recognized in Illinois.

The district court dismissed, on the same rationale, Mrs. Dausch's allegations of negligent infliction of emotional distress. Because Illinois does not recognize clergy malpractice claims, it would also not recognize claims for negligent infliction of emotional distress in these circumstances. Finally, the court dismissed Mrs. Dausch's counts concerning the church defendants' negligent hiring, training, and supervision of Rykse because adjudication of such claims would foster excessive state entanglement with religion.

For the reasons that follow, we affirm the district court's dismissal of counts against the church defendants, Counts II, VI, and VIII. Concerning the counts against Rykse, we affirm the district court's dismissal of Count III, breach of fiduciary duty. We also affirm the dismissal of Count V, alleging negligent infliction of emotional distress against Rykse; because there was no assignment of error, this count is not properly before the court. We reverse the dismissal of the remaining counts, Counts I and IX, and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART

COFFEY, Circuit Judge, concurring.

I agree with Section A.1. (Professional Negligence and Negligent Infliction of Emotional Harm--Defendant Ryske) subsections a. and b. and Section B. (Sexual Exploitation in Psychotherapy Act) of Judge Ripple's opinion, but wish to make it clear that this is in no way to be interpreted as expanding the liability of the clergy and thus spiritual counseling, or some combination of spiritual and secular counseling, remains shielded by the First Amendment. Thus Dausch's claims for professional negligence (Count I) and violation of the Illinois psychotherapy statute (Count IX) are the only claims against Rev. Ryske that survive on remand. This position is also consistent with Section C. (Breach of Fiduciary Duty) of Judge Ripple's concurrence which affirms the dismissal of Dausch's breach of fiduciary duty claim against Rev. Ryske (Count III), but it is at odds with Section A.1. (Professional Negligence and Negligent Infliction of Emotional Harm--Defendant Ryske) subsection c. of Judge Ripple's analysis as it unfortunately combines the reversal of the trial judge's dismissal of Dausch's professional negligence claim with the reversal of the trial judge's dismissal of her claim for negligent infliction of emotional distress (Count V). I also wish to point out that Dausch's brief on appeal fails to assign error to the court's dismissal of that claim, thus it is not before the court. Further, Dausch's complaint in my opinion fails to allege facts sufficient to state a cause of action against the church defendants sounding in professional negligence (Count II), breach of fiduciary duty (Count VI), and negligent infliction of emotional distress (Count VIII). I agree with the trial court's action and Section C. (Breach of Fiduciary Duty) of Judge Ripple's analysis, affirming the dismissal of Dausch's breach of fiduciary duty claim. However, I disagree with Section A.2 (Professional Negligence and Negligent Infliction of Emotional Harm--Church defendants) of Judge Ripple's analysis for Dausch's complaint fails to adequately allege that the church defendants knew or should have known of the improper counselling conduct of Rev. Ryske. I further note that Dausch's complaint fails to allege any basis for a claim under the...