Connolly v. Roman Catholic Archbishop of Boston
| Decision Date | 17 May 2019 |
| Docket Number | 1882CV1119,1782CV1126 |
| Parties | Dan CONNOLLY v. ROMAN CATHOLIC ARCHBISHOP OF BOSTON, a Corporation Sole et al.[1] Paul Connolly Roman Catholic Archbishop of Boston, a Corporation Sole et al.[2] |
| Court | Massachusetts Superior Court |
These consolidated actions seek redress for sexual abuse allegedly committed by the late Father Brian Gallagher on the plaintiffs, brothers Dan and Paul Connolly, as young boys. The plaintiffs claim defendants Roman Catholic Archbishop of Boston, a corporation sole, (RCAB); Missionary Society of St Columban (Columban Fathers); and others are liable, under several tort theories, for the abuse so alleged.
The matter is before the Court now on motion to dismiss filed pursuant to Mass.R.Civ.P. 12(b)(6) by both RCAB and Columban Fathers (hereinafter sometimes, defendants). The defendants move to dismiss the counts pleaded against them respectively, for vicarious liability and ratification with respect to Gallagher’s alleged conduct, and breach of fiduciary duty.[3] After hearing, each motion is allowed in part and denied in part.
The plaintiffs identify the following facts as material to the claims at issue.[4]
Gallagher was ordained as a Columban Fathers’ priest in 1952 in Ireland, his home country, and remained a Columban Fathers’ priest until his death on November 5, 2014. From approximately 1953 to 1973, Gallagher was assigned by Columban Fathers to serve in various positions in Japan. The plaintiffs allege, upon "information and belief," that Gallagher sexually abused many minor boys while ministering for the Columban Fathers. The plaintiffs also allege, upon "information and belief," that Columban Fathers transferred Gallagher out of Japan because of his sexual abuse of young boys there.
In 1973, Columban Fathers transferred Gallagher to the United States. The plaintiffs allege that, prior to that year, the Columban Fathers, including certain yet to be identified individuals, "were aware or reasonably should have been aware" of Gallagher’s serial sexual abuse of young boys.
Beginning in or about 1973, Columban Fathers assigned Gallagher to a residence house/seminary it owned and operated in the town of Milton, Massachusetts (Columbans’ Milton House or Milton House). The Columbans’ Milton House was used primarily to house members of the Columban Fathers located in the area. The plaintiffs allege, upon "information and belief," that Gallagher was in charge of the Milton House.
With the permission of Gallagher, in 1976 RCAB assigned Father Paul Shanley to the Columbans’ Milton House location as his residency and ministry position. Shanley, under the auspices of RCAB, established the Exodus Center there as a retreat for "troubled homosexual" men, where they could receive counseling and lodging. Individuals who have identified as sexual abuse victims of Shanley allege he sexually abused them at RCAB’s Exodus Center during that time period. Shanley was later criminally convicted of sex abuse of minor boys.
RCAB was responsible for the hiring, training, retention, assignment, and supervision of priests who were its employees "and/or agents" and who served as priests at the Archdiocese of Boston (Archdiocese) churches and other facilities within the Archdiocese. The plaintiffs allege that, in or about the same time period Gallagher and the Columban Fathers allowed RCAB and Shanley to operate the Exodus Center, RCAB and/or the Columban Fathers authorized or allowed Gallagher to represent himself as a priest and/or chaplain "and/or agent" of the Archdiocese, to wear the clerical clothing and vestments of a Roman Catholic priest, to say Masses and administer the sacraments recognized by the Roman Catholic Church, to teach and counsel its parishioners, including minors, on behalf of the Archdiocese, and otherwise to exercise the rights, duties, privileges and responsibilities of a priest and/or chaplain of the Archdiocese.
During this period, St. Mark’s Parish in the Dorchester section of the city of Boston was a Catholic parish of the Archdiocese. It was also Shanley’s home parish and one with which he was "well-connected." Gallagher was assigned by the Columban Fathers and/or RCAB to serve as a priest of St. Mark’s Parish, or was permitted to act as if he had been so assigned. Gallagher often said Mass. there, performed other priestly duties there, and/or at other churches or rectories of the Archdiocese nearby.
During this period, St. Joseph’s Nursing Care Center in Dorchester was a nursing care facility maintained by RCAB. The Columban Fathers and/or RCAB assigned Gallagher to be the chaplain at this facility or permitted him to act as if he had been so assigned.
The plaintiffs allege RCAB and Columban Fathers granted Gallagher and other priests "extraordinary" power and control over parishioners, and particularly over children such as the plaintiffs. RCAB and Columban Fathers allegedly "cloaked" Gallagher "in an aura of credibility, plausibility and legitimacy as a priest who could be trusted around children and contributed to empowering [him] to commit acts of sexual abuse against children." According to the plaintiffs, by "aiding in the agency" of Gallagher, RCAB and Columban Fathers "imbued" him "with unchecked power to sexually abuse Catholic boys."
At relevant times during this period, each of the plaintiffs was a minor child living with their parents in Dorchester. They and their families were active members of St. Mark’s Parish, where the plaintiffs and their other brothers were altar servers. Each plaintiff and his siblings attended the St. Mark’s Parish elementary school, and their mother worked in the rectory of St. Mark’s Parish. At relevant times, two of the plaintiffs’ other brothers had jobs as dishwashers at St. Joseph’s Nursing Cate Center. Gallagher, in his capacity as a priest of St. Mark’s Parish and/or as the chaplain of St. Joseph’s Nursing Care Center, was a regular visitor to the plaintiffs’ family home.
In or about 1973-1975, Gallagher sexually assaulted Paul Connolly; the assaults included rape.
In or about 1976, in the kitchen of the plaintiffs’ family home, Gallagher isolated Dan Connolly and sexually assaulted him by putting his hands down Dan’s pants, and fondling his genitalia and repeatedly inserting his fingers into Dan’s rectum. During this same period, Gallagher isolated Dan in the backyard of the plaintiffs’ home and sexually assaulted him in the same manner. During this same period, Gallagher took Dan into Gallagher’s parked car and sexually assaulted him. Dan was in the back seat with no pants or shirt on. Gallagher was in the front seat with his penis and testicles exposed. Gallagher reached back and touched Dan. During this same period, Gallagher took Dan alone into a basement and sexually assaulted him. Gallagher tied Dan’s hands and wrists with wires and took Dan’s pants off.
The plaintiffs allege, on "information and belief," that at the time of Shanley’s assignment to the Exodus Center, RCAB was aware, "or reasonably should have been aware," that he was a sex abuser of young boys, because, starting in 1967, RCAB had received numerous reports concerning sex abuse of minors perpetrated by Shanley. The plaintiffs additionally allege, on "information and belief," that certain yet to be identified individuals, employees "or agents" of RCAB, were aware, "or reasonably should have been aware," that Gallagher was sexually abusing young boys while he was assigned to and performing ministry positions at St. Mark’s Parish and St. Joseph’s Nursing Care Center. The plaintiffs further allege, on "information and belief," that certain yet to be identified individuals, employees "or agents" of Columban Fathers were aware, "or reasonably should have been aware," that Gallagher was sexually abusing young boys while he was assigned to the Columbans’ Milton House and working in ministry positions at St. Mark’s Parish and St. Joseph’s Nursing Care Center.
The standard of review governing the defendants’ motions is well settled. In considering a motion to dismiss under Mass.R.Civ.P. 12(b)(6), the Court accepts as true the facts alleged in the complaint, "as well as any favorable inferences that reasonably can be drawn from them," Polay v. McMahon, 468 Mass. 379, 382 (2014), quoting Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014), but disregards "legal conclusions cast in the form of factual allegations," id., quoting Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6 (2009). For a claim to survive a rule 12(b)(6) motion, the allegations of fact, when taken as true, must reasonably permit the inference that the defendant is liable for the misconduct so claimed. See Polay v. McMahon, supra .
In their respective operative pleadings, the plaintiffs have asserted substantively identical claims as each other, including as to the counts at issue here for vicarious liability and ratification with respect to the alleged actions of Gallagher, and for breach of fiduciary duty. With modest factual differences, those counts also allege substantively identical claims against the defendants. The Court therefore considers them together, and addresses them in turn.
a. Counts I & VIII (Vicarious Liability)
In Counts I and VIII of their respective complaints, each of the plaintiffs alleges claims against RCAB and Columban Fathers on a theory that they each were vicariously liable for Gallagher’s tortious conduct. As the Supreme Judicial Court has explained, "[l]iability on those grounds ‘is the proposition that an employer, or master, should be held vicariously liable for the torts of...
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