Byrd v. Faber

• Decision Date: 16 January 1991
• Docket Number: No. 89-1722,89-1722
• Citation: 57 Ohio St.3d 56,565 N.E.2d 584
• Parties: , 5 A.L.R.5th 1115 BYRD et al., Appellees, v. FABER; Ohio Conference of Seventh-day Adventists et al., Appellants.
• Court: Ohio Supreme Court

Page 56

57 Ohio St.3d 56

565 N.E.2d 584, 5 A.L.R.5th 1115

BYRD et al., Appellees, v. FABER Ohio Conference of Seventh-day Adventists et al., Appellants.

No. 89-1722.

Supreme Court of Ohio.

Submitted Oct. 24, 1990.

Decided Jan. 16, 1991.

Syllabus by the Court

A plaintiff bringing a negligent hiring claim against a religious institution must plead operative facts with particularity in order to survive a Civ.R. 12(B)(6) motion to dismiss.

Appellees, Leroy and Garnet Byrd, and their children, Jennifer and Heather, are Seventh-day Adventists who attended the Hill Church in Knox County, Ohio during the period relevant to this case. While the Byrds attended the Hill Church they were under the guidance of Reverend Richard P. Faber, who was assigned to the church as pastor by the Seventh-day Adventist organization. In 1984, the Byrds requested that Faber provide them with counseling for their marital and personal problems. Faber agreed and provided counseling for the appellees from 1984 until 1987.

During the course of the counseling, Faber allegedly forced Garnet Byrd to engage in sexual activity with him. As a result, the Byrds filed suit against Faber in the Knox County Court of Common Pleas, alleging professional malpractice, fraud, intentional infliction of emotional distress, and nonconsensual sexual conduct. The Byrds also filed suit against the Ohio Conference of Seventh-day Adventists, Columbia Union Conference of Seventh-day Adventists and the General Conference of Seventh-day Adventists, appellants herein. The Byrds' complaint alleges liability for Faber's actions under the doctrine of respondeat superior and the negligent hiring of Faber.

The appellants subsequently filed a Civ.R. 12(C) motion for judgment on the pleadings on the respondeat superior and negligent hiring claims. ¹ The trial court granted the motion and the Byrds appealed. On appeal, the appellate court reversed, holding that the allegations of the complaint, when taken as true, do state a cause of action against the appellants.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Alan P. Gustafson, Utica, for appellees.

Vorys, Sater, Seymour & Pease Bruce L. Ingram, Tony C. Merry, Columbus, and Richard B. Murray, Mount Vernon, for appellants.

Dobbs & Dobbs and James B. Dobbs, Columbus, urging reversal for amici curiae, Baptist Joint Committee on Public Affairs, American Jewish Congress, Christian Legal Society, Nat. Ass'n of Evangelicals and Nat. Council of Churches of Christ in the U.S.A.

ALICE ROBIE RESNICK, Justice.

This appeal is concerned solely with the liability of the appellants, the Ohio Conference of Seventh-day Adventists et al. The claims against Faber are still pending in the trial court, and consequently, are not before us at this time. However, as the appellants' liability is in several respects dependent upon the liability of their employee, Faber, it is necessary for us to discuss certain aspects of the appellees' case against Faber. Initially, we must determine whether it is possible for the appellees to bring a claim against Faber for clergy malpractice. If such a cause of action is viable, then it is conceivable that recovery might also be available against the appellants through application of the doctrine of respondeat superior.

In their complaint, appellees allege that Faber "did not exercise the degree of care and skill ordinarily exercised by others of his profession * * *." This allegation is advanced as a claim separate and distinct from their claims of fraud, intentional infliction of emotional distress, and nonconsensual sexual conduct. In its opinion, the court of appeals assumed that through this allegation, the appellees had stated a valid claim for clergy malpractice. However, our holding in Strock v. Pressnell (1988), 38 Ohio St.3d 207, 527 N.E.2d 1235, prevents the appellees, based upon the facts as presented in their complaint, from maintaining a separate cause of action for clergy malpractice.

As we noted in Strock, supra, the doctrine of charitable immunity no longer protects religious institutions and other nonprofit organizations from tort liability. Albritton v. Neighborhood Centers Assn. (1984), 12 Ohio St.3d 210, 12 OBR 295, 466 N.E.2d 867. Consequently, a church may be held liable both for the negligence of its employees who are acting within the scope of their employment as well as for its own negligence. For example, it has been held that if a church hires an individual despite knowledge of prior improper behavior in his former church-related employment, the church may be liable in tort for negligent hiring. Bender v. First Church of the Nazarene (Sept. 7, 1989), Licking App. No. CA-3448, unreported, 1989 WL 104765; see, also, Matthews v. Wittenberg College (1960), 113 Ohio App. 387, 17 O.O.2d 431, 178 N.E.2d 526.

However, there is considerable disagreement regarding the potential liability of a member of the clergy for "clergy malpractice." "Clergy malpractice" has been defined as the failure to exercise the degree of care and skill normally exercised by members of the clergy in carrying out their professional duties. In Strock v. Pressnell, supra, we held that in order to generate a cause of action for "clergy malpractice," the cleric's behavior must "fall outside the scope of other recognized torts." Id. 38 Ohio St.3d at 212, 527 N.E.2d at 1239. If the cleric's behavior fits within an established category of liability, such as fraud, duress, assault, or battery, it would be redundant to simultaneously hold the cleric liable for "clergy malpractice": " '[t]o avoid a redundant remedy, * * * any functional theory of clergy malpractice needs [to] address incidents of the clergy-communicant relationship not already actionable.' " Id., citing Hester v. Barnett (Mo.App.1987), 723 S.W.2d 544, 551.

The appellees' claim for clergy malpractice does not address any aspect of the clergy-communicant relationship not already actionable. The gravamen of their complaint is that Faber forced Garnet Byrd to engage in sexual conduct with him. For this activity, Faber may be found liable not only for nonconsensual sexual conduct, i.e., battery, but also for fraud and intentional infliction of emotional distress. In essence, through the creative use of tort law, appellees may recover several times for the same injury. To then allow recovery for clergy malpractice on the basis of this same conduct would be to grant a redundant remedy. Appellees have not named any activity engaged in by Faber for which recovery in tort is not available. Hence, under Strock, supra, there is no basis for recognizing their claim for clergy malpractice, either against Faber, or, through application of the doctrine of respondeat superior, against the appellants.

We move now to the appellees' claims for nonconsensual sexual conduct, fraud, and intentional infliction of emotional distress. If the appellees are able to prove any of these claims as against Faber, then they may be able to recover against the appellants through application of the doctrine of respondeat superior. This case differs from Strock, supra, where the plaintiff was unable to recover from the employer because he had no underlying claim against the employee. As we stated in Strock, "[i]t is axiomatic that for the doctrine of respondeat superior to apply, an employee must be liable for a tort committed in the scope of his employment." Id., 38 Ohio St.3d at 217, 527 N.E.2d at 1244. Here, the possibility exists that Faber is liable in tort to the Byrds for nonconsensual sexual conduct, fraud, and intentional infliction of emotional distress. Thus, theoretically, the appellants may be liable to the appellees under the doctrine of respondeat superior.

However, close examination of the appellees' complaint and of the principles of respondeat superior liability reveals that the appellees have failed to state a viable claim against the appellants. As noted above, the gravamen of the appellees' complaint is that Faber engaged in nonconsensual sexual conduct with Garnet Byrd. Without this allegation, the appellees would have no basis for claiming that Faber engaged in fraud or the intentional infliction of emotional distress; without it, their complaint would have no factual basis. Consequently, in order to determine whether the appellants may be liable for the alleged wrongs of Faber, we must decide whether a church may be held liable under the doctrine of respondeat superior for nonconsensual sexual conduct between a pastor and a parishioner.

It is well-established that in order for an employer to be liable under the doctrine of respondeat superior, the tort of the employee must be committed within the scope of employment. Moreover, where the tort is intentional, as in the case at bar, the behavior giving rise to the tort must be "calculated to facilitate or promote the business for which the servant was employed * * *." Little Miami RR. Co. v. Wetmore (1869), 19 Ohio St. 110, 132; Taylor v. Doctor's Hosp. (1985), 21 Ohio App.3d 154, 21 OBR 165, 486 N.E.2d 1249. For example, an employer might be liable for an intentional tort if an employee injures a patron when removing her from the employer's business premises or blocking her entry. The removal of patrons, who may be unruly, underage, or otherwise ineligible to enter, is calculated to facilitate the peaceful and lawful operation of the business. Consequently, an employer might be liable for an injury inflicted by an employee in the course of removal of a patron. See, e.g., Stewart v. Napuche (1952), 334 Mich. 76, 53 N.W.2d 676; Kent v. Bradley (Tex.Civ.App.1972), 480 S.W.2d 55.

However, the employer would not be liable if an employee physically assaulted a patron without provocation. As we held in Vrabel v. Acri (1952), 156 Ohio St. 467, 474, 46 O.O. 387, 390, 103 N.E.2d 564, 568, "an intentional and wilful attack committed by an agent or employee,...