DeBose By and Through DeBose v. Bear Valley Church of Christ, No. 92CA1929

• Docket Nº: No. 92CA1929
• Citation: 890 P.2d 214
• Case Date: November 17, 1994
• Court: Court of Appeals of Colorado

Page 214

890 P.2d 214 Denise DeBOSE and J.D.B., a minor child, By and Through his
parent and next friend, Denise DeBOSE,
Plaintiffs-Appellees and Cross-Appellants,
v.
BEAR VALLEY CHURCH OF CHRIST, a Colorado corporation,
Defendant-Appellant and Cross-Appellee,
and
Homer Wolfe, Defendant-Appellant. No. 92CA1929. Colorado Court of Appeals,
Div. III. Nov. 17, 1994.
As Modified on Denial of Rehearing
Jan. 5, 1995. ^*
Certiorari Granted June 19, 1995.

Page 218

Holland, Seelen & Pagliuca, Joyce Seelen, Jeffrey S. Pagliuca, Denver, for plaintiffs-appellees and cross-appellants.

Quigley & Bruce, Neil Quigley, Denver, for defendant-appellant and cross-appellee Bear Valley Church of Christ.

Blunk, Johnson & Johnson, James D. Johnson, Sheila E. Barthel, Denver, for defendant-appellant Homer Wolfe.

Opinion by Judge CRISWELL.

The defendants, Homer Wolfe and Bear Valley Church of Christ (Church), appeal from judgments entered on jury verdicts in favor of plaintiffs, Denise DeBose (mother) and J.D.B. (minor), based on findings that both defendants breached a fiduciary duty owed to both plaintiffs and that they were guilty of outrageous conduct with respect to the minor. In addition, the Church was found liable to the minor because of its negligence in hiring and supervising Wolfe, a pastor employed by it. The minor cross-appeals, asserting that the court committed instructional error with respect to this claim of negligence. Although we conclude that the evidence was sufficient to sustain the judgments, we also conclude that the several verdicts upon which the judgment for the minor was based are either duplicative of the damages awarded him or are otherwise inconsistent. In addition, we conclude that the trial court erroneously admitted improper expert testimony and that it committed instructional error. Hence, we reverse and remand the cause for a new trial.

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The jury's verdicts were based on incidents that allegedly occurred in pastoral counselling sessions conducted by Wolfe with the minor. Plaintiffs assert that these incidents involved the improper touching of the minor by Wolfe, constituting sexual abuse, which caused the minor and his mother severe emotional injury.

The minor testified that he counseled with Wolfe for several years prior to and immediately after entering middle school. He said that, commencing with the first counseling session, Wolfe would have the minor sit on his lap or sit next to him on a couch. Wolfe would then rub the minor's back and thigh. On occasions, Wolfe would slide the minor's shirt up while rubbing his back, and in several instances, Wolfe would rub the inside of the minor's thigh under his shorts next to his penis, which would be touched. While thus engaged, Wolfe would say to the minor that his father loved him, his mother loved him, God loved him, and Wolfe loved him.

Wolfe, on the other hand, denied having any physical contact with the minor in any of their counseling sessions. However, plaintiffs introduced evidence that in other instances involving other counselees Wolfe had employed massage as a counseling technique. Wolfe admitted doing so; he testified, nevertheless, that he limited his massaging to the back and the lower portions of the counselee's legs. He denied touching any counselee's thighs or genitalia.

Wolfe's testimony was that he never attempted to engage in any therapeutic or secular counseling. Rather, he described his counseling as "Biblical" or "Christian" in origin. He said that, over the years of his counseling, he carefully explained to his counselees that he had "no power to change" their lives, but that he could only "be a facilitator in order to help them get communication with God."

Wolfe also testified that, in order to aid counselees in this communication, he had found it necessary for him to discover their problems; that many persons, particularly those in their pre-adolescent and adolescent years, were "unable to communicate and perhaps not being able to as well as they would like"; that he could not help a person to receive help from God without first finding out "what's wrong with them"; and that "massaging their backs and legs in order to relax them ... helped a great deal in our communication."

He denied having any sexual motivation for his massaging activities.

Plaintiffs' claims against the Church were based upon evidence which, if credited, would support the finding that the elders of the Church were, during the time that the minor was in counseling with Wolfe, made aware of Wolfe's massaging techniques and alleged improprieties with other counselees, but they made no investigation and took no steps to put a stop to his activities.

The issues of liability submitted for jury determination, all of which were resolved in plaintiffs' favor, were:

--Whether Wolfe or the Church violated a fiduciary duty owed to either of the plaintiffs;

--Whether the actions of Wolfe or the Church constituted outrageous conduct;

--Whether the Church was negligent in its hiring or supervision of Wolfe;

--Whether the Church ratified Wolfe's action; and

--Whether the minor was comparatively negligent.

Although one was requested by the defendants, no instruction was given with respect to the significance of Wolfe's alleged sincere belief that massage facilitated a counselee's communication with God.

I.

We first reject the defendants' general assertion that, under the evidence presented here, any judgment against either of them would, in violation of the First Amendment, constitute an unlawful abridgement of their freedom of religion under the free exercise clause thereof or an improper intrusion into religious matters under its establishment clause, or both.

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A.

In Destefano v. Grabrian, 763 P.2d 275 (Colo.1988) our supreme court held that the free exercise clause of the First Amendment was not implicated by a civil action against a priest for damages suffered as a result of the priest's consensual sexual relationship with a parishioner, which commenced during the course of pastoral marriage counseling with both the parishioner and her husband. That conclusion, however, was based upon the admitted fact that the sexual activities of the priest were not "dictated by his sincerely held religious beliefs [and were not] consistent with the practice of his religion." Had such conduct been based upon such a belief or practice, the circumstances would have presented "a difficult first amendment issue." Destefano v. Grabrian, 763 P.2d at 284.

Here, however, Wolfe asserts that, unlike the priest's activities in Destefano, any touching of the minor that might have occurred was not designed to satisfy any of Wolfe's sexual desires, but was intended to facilitate the minor's communication with God. We must, therefore, consider the effect that such assertion has upon Wolfe's common law liability.

The First Amendment contains both a guarantee that persons shall have the right to exercise their "religion" freely and a prohibition that the government shall not establish any "religion." It has been made applicable to the states by the Fourteenth Amendment. Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).

Whether a person's beliefs are "religious" for purposes of the First Amendment, or are based simply upon moral or political values, is a question for the court. However, in construing the free exercise clause, the term "religion" has received an expansive interpretation. See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) (for purpose of exemption from draft, a "religious" belief is simply the "ultimate," imperative, belief of an individual; belief in an external power not necessary). Thus, beliefs are "religious" for First Amendment purposes even if they are not acceptable, logical, consistent, or comprehensible. Only claims "so bizarre, so clearly nonreligious in motivation" should be denied free exercise protection. Thomas v. Review Board, 450 U.S. 707, 715, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624, 632 (1981). See also Note, Toward a Constitutional Definition of Religion, 91 Harv.L.Rev. 1056 (1978).

Here, Wolfe's reliance upon the efficacy of massage as a means of enhancing communication with God may more accurately be described as a "practice," rather than as a "belief." Nevertheless, if his testimony is accepted, that this is a technique that he has found to be useful in furthering such communication, the practice has just as much a religious basis as would the practice of those who assume that a moment of silence facilitates such communication.

Further, if Wolfe's belief in such a practice is sincere, there need be, contrary to the views of the trial court, no necessity for further evidence to establish a "religious or Biblical justification" for the practice. On the contrary, if the belief or practice can be classified as religious, courts may not inquire into the validity of such belief or practice. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); Wolf v. Rose Hill Cemetery Ass'n, 832 P.2d 1007 (Colo.App.1991).

Nevertheless, belief is one thing, conduct another. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). And, there are instances in which courts have imposed civil liability upon pastors and churches for their conduct, even though such conduct was inspired by a religious belief. In other instances, the religious nature of the conduct has been deemed to provide a defense to a civil claim based on that conduct. See Christofferson v. Church of Scientology, Inc., 57 Or.App. 203, 644 P.2d 577 (1982) (cited with approval in Destefano v. Grabrian, supra ). See generally Annotation, Free Exercise of Religion Clause of First Amendment as Defense to Tort Liability, 93 A.L.R.Fed. 754 (1989); Note, Intentional Infliction of Emotional Distress by Spiritual Counselors: Can Outrageous Conduct Be "Free Exercise"?, 84...