Berry v. Watchtower Bible & Tract Soc'y of N.Y., Inc.

• Decision Date: 15 July 2005
• Docket Number: No. 2003–779.,2003–779.
• Citation: 152 N.H. 407,879 A.2d 1124
• Court: New Hampshire Supreme Court
• Parties: Holly BERRY and another. v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. and another.

152 N.H. 407

879 A.2d 1124

Holly BERRY and another.

v.WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. and another.

No. 2003–779.

Supreme Court of New Hampshire.

Argued: Oct. 20, 2004.

Opinion Issued: July 15, 2005.

Gawryl & MacAllister, of Nashua (Jared O'Connor on the brief), and Marci A. Hamilton, of Washington Crossing, Pennsylvania, orally, for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (Donald E. Gardner and Brian J.S. Cullen on the brief, and Mr. Gardner orally), and Watchtower Bible and Tract Society of New York, Inc., Legal Department, Robert C. James, Patterson, New York, on the brief, for defendants Watchtower Bible & Tract Society of New York, Inc. and Wilton Congregation of Jehovah's Witnesses.

BRODERICK, C.J.

The plaintiffs, Holly Berry and Heather Berry, appeal orders of the Superior Court (Groff , J.) dismissing their claims. We affirm.

I

The plaintiffs brought an action for damages against the defendants, Watchtower Bible & Tract Society of New York, Inc. (Watchtower); the Wilton Congregation of Jehovah's Witnesses (Wilton Congregation); and their father, Paul Berry, for injuries from sexual and other abuse allegedly committed by Berry. Although it is unclear from the record whether Berry remains a defendant, he is not involved in this appeal.

The plaintiffs' claims against Watchtower and Wilton Congregation are based upon allegations that their mother, Sara Poisson, informed certain elders of the Wilton Congregation about the purported abuse, and that they failed to report it to law enforcement authorities and improperly counseled Poisson about how she should handle the alleged abuse. Specifically, the plaintiffs alleged that Watchtower and Wilton Congregation were negligent in failing to report the suspected abuse (Count I); breached their fiduciary duties by failing to report it (Count II); breached their common law duties by failing to report the abuse as required by RSA 169–C:29 (2002) (Count III); and engaged in willful concealment of the abuse (Count IV).

Watchtower and Wilton Congregation moved for summary judgment on all claims, asserting, among other things, that: (1) the religious privilege identified in RSA 516:35 (1997) and New Hampshire Rule of Evidence 505 (Rule 505 ) precluded them from making disclosure of any confidential information obtained from the plaintiffs' parents; (2) they had no common law or fiduciary duty to protect the plaintiffs from abuse; and (3) the reporting statute, RSA 169–C:29, did not create a private right of action.

Relying upon Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995), the trial court ruled that RSA 169–C:29 did not create a private right of action and that the elders did not owe the plaintiffs any fiduciary duty. The trial court, however, concluded that Watchtower and Wilton Congregation did have a common law duty to protect the plaintiffs from abuse. Finally, with regard to the reporting statute, the trial court ruled that it applied to "any other person," and thus applied to Watchtower and Wilton Congregation.

Following an evidentiary hearing, the court ruled that the elders were ordained ministers for purposes of Rule 505 and that the matters discussed with them by the plaintiffs' mother were "of such a nature that the discussions [were] subject to the requirement of confidentiality." The court concluded that "[w]ithout the waiver of both Ms. Poisson and Mr. Berry, the Elders [were obligated to] maintain the privilege and [could not] disclose any information." Because Rule 505 requires confidentiality, the court determined that Watchtower and Wilton Congregation did not have a duty to report or disclose the alleged abuse, despite the requirements of the reporting statute. Accordingly, the court ruled that "to the extent the plaintiffs' claims of negligence are premised on the duty of the defendants to report the allegations or admissions of child abuse, [their] action [is] dismissed."

In November 2003, the trial court ruled that all conduct complained of by the plaintiffs, whether sounding in common law negligence or deceit, fell under the heading of "clerical malpractice" and that it would be a violation of the Establishment Clause of the First Amendment for the court to "review and interpret church law, policies, or practices in the determination of the claims." (Quotation omitted.) Accordingly, all remaining claims against Watchtower and Wilton Congregation were dismissed. This appeal followed.

II

The plaintiffs raise several issues, including: (1) whether the elders in the Wilton Congregation were required to report the alleged abuse pursuant to the child abuse reporting statute, RSA 169–C:29 ; (2) whether Jehovah's Witness elders are "clergy" for purposes of the evidentiary religious privilege, see RSA 516:35 ; N.H.R. Ev . 505 ; (3) whether the religious privilege applies when the communication is a non-private communication made in the presence of third parties; (4) whether Watchtower and Wilton Congregation owe a common law duty to the plaintiffs to take remedial action to protect them; (5) whether the reporting statute supersedes the religious privilege; (6) whether an inquiry into the conduct of Watchtower and Wilton Congregation to discover those actions taken in relation to the plaintiffs' alleged abuse violates the religious privilege; and (7) whether such an inquiry violates the Establishment Clause's rule against judicial intervention in ecclesiastical disputes.

Some of the plaintiffs' claims were disposed of by summary judgment and some were dismissed by the trial court. "In reviewing a grant of summary judgment, we look at the affidavits and other evidence, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party." Sandford v. Town of Wolfeboro, 143 N.H. 481, 484, 740 A.2d 1019 (1999) (quotation omitted). "If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment." Id. (quotations and brackets omitted). In reviewing the trial court's grant of a motion to dismiss, "our task is to ascertain whether the allegations pleaded in the plaintiff's writ are reasonably susceptible of a construction that would permit recovery." Rayeski v. Gunstock Area, 146 N.H. 495, 496, 776 A.2d 1265 (2001) (quotation omitted). "We assume all facts pleaded in the plaintiff's writ are true, and we construe all reasonable inferences drawn from those facts in the plaintiff's favor." Id. "We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law." Id. (quotation omitted).

III

Sara Poisson and Paul Berry were married in 1980 and moved to Greenville in 1984. Poisson's daughter, Holly, was born of a prior marriage in 1978. Poisson and Berry's daughter, Heather, was born in 1982. Both Poisson and her husband were practicing Jehovah's Witnesses.

In the Jehovah's Witness faith, elders are selected by the governing body of the local congregation to be the congregation's spiritual leaders. Elders are lay people who do not have any formal religious training or education. They hold secular employment and are not compensated for their work as elders. As elders they are responsible for meeting with individual members of the congregation when requested to do so and working with them to identify problems and provide spiritual counsel. In the Wilton Congregation, at any given time, there were five to ten elders.

The plaintiffs allege that Poisson approached the elders seeking spiritual advice because she and her husband were having marital problems, which included verbal, mental and physical abuse. In response to her requests, the elders provided the couple with spiritual advice and assistance, which included joint prayers, Bible readings, and discussion of the Scriptures for application to their identified problems. According to Poisson, she reported to the elders on ten to twelve separate occasions that her husband was abusing their children. The plaintiffs further allege that "[i]n accord with directions to publishers, policies and practices of the organization of Jehovah's Witnesses, the elders ... told the Plaintiffs' mother she should keep the matter within the organization of Jehovah's Witnesses." In 2000, Berry was convicted of sexually assaulting Holly when she was a young child. State v. Berry, 148 N.H. 88, 803 A.2d 593 (2002).

IV

The plaintiffs argue that the plain language of RSA 169–C:29 required elders of the Wilton Congregation to report the suspected child abuse to law enforcement authorities. Watchtower and Wilton Congregation argue that the plaintiffs presented no evidence that the elders had reason to suspect sexual abuse or physical injury and further that RSA 169–C:29 does not provide a civil remedy for their failure to report suspected abuse.

RSA 169–C:29 provides:

Any physician, surgeon, county medical examiner, psychiatrist, resident, intern, dentist, osteopath, optometrist, chiropractor, psychologist, therapist, registered nurse, hospital personnel ..., Christian Science practitioner, teacher, school official, school nurse, school counselor, social worker, day care worker, any other child or foster care worker, law enforcement official, priest, minister, or rabbi or any other person having reason to suspect that a child has been abused or neglected shall report the same in accordance with this chapter.

An "abused child" includes children who have been sexually abused, or physically or psychologically injured. RSA 169–C:3 (2002). The trial court held that

to the extent the plaintiffs' claims of negligence are premised on the duty of the defendants to report the allegations or admissions of child abuse, the plaintiffs' action must be dismissed. The Elders were barred by the Religious Privilege from disclosing any of the allegations or admissions to anyone and thus no duty to report the allegations could have arisen.

We concur...