Doe 1 v. Roman Catholic Diocese

• Decision Date: 18 January 2005
• Docket Number: No. M2001-01780-SC-R11-CV.,M2001-01780-SC-R11-CV.
• Citation: 154 S.W.3d 22
• Parties: John DOE 1 ex rel. Jane DOE 1, et al. v. ROMAN CATHOLIC DIOCESE OF NASHVILLE, et al.
• Court: Tennessee Supreme Court

154 S.W.3d 22

John DOE 1 ex rel. Jane DOE 1, et al. v. ROMAN CATHOLIC DIOCESE OF NASHVILLE, et al.

No. M2001-01780-SC-R11-CV.

Supreme Court of Tennessee, at Nashville.

October 6, 2004 Session.

January 18, 2005.

John A. Day, Brentwood, Tennessee, and John J. Hollins, Jr., Nashville, Tennessee, for the appellants, John Doe 1 by next friend Jane Doe 1, Jane Doe 1, and John Doe 2.

Thomas F. Mink, II, Keith W. Blair, and L. Gino Marchetti, Jr., all of Nashville, Tennessee, for the appellee, Roman Catholic Diocese of Nashville.

OPINION

FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON, JANICE M. HOLDER, WILLIAM M. BARKER, J.J., and ALLEN WALLACE, SP. J., joined.

In two separate civil actions, the plaintiffs, John Doe 1, Jane Doe 1 and John Doe 2 brought claims of reckless infliction of emotional distress against the defendant, the Roman Catholic Diocese of Nashville. The lawsuits were consolidated for certain pretrial purposes and also for purposes of appellate review. The trial court denied in part the plaintiffs' motion to compel the defendant to provide answers to discovery and ultimately granted the defendant summary judgment as to all plaintiffs. On appeal, the Court of Appeals, holding that reckless infliction of emotional distress must be based on conduct that was directed at the plaintiff, affirmed summary judgment for the defendant. The Court of Appeals also declined to consider the plaintiffs' appeal of the partial denial of their motion to compel, regarding the issue as moot. We granted the plaintiffs' application for permission to appeal. After carefully considering the relevant authority, we hold that to be actionable, reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff. Applying this holding, we conclude that the defendant is not entitled to summary judgment. Furthermore, in light of our holding, we vacate the trial court's denial of the plaintiffs' motion to compel. We remand this case to the trial court for further proceedings consistent with this opinion, including reconsideration of the plaintiffs' discovery requests.

I. Factual and Procedural Background

Because this appeal concerns a grant of summary judgment, the following statement of facts is based upon a view of the record that is most favorable to the nonmoving parties, John Doe 1 by his next friend Jane Doe 1 ("John Doe 1"), Jane Doe 1 individually and John Doe 2 (collectively the "plaintiffs"). Robinson v. Omer, 952 S.W.2d 423, 424-25 (Tenn.1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn.1993). Edward McKeown ("McKeown") became a Roman Catholic priest in 1970 and soon thereafter began working for the defendant, the Roman Catholic Diocese of Nashville (the "Diocese"). Over the next nineteen years, he worked in various parishes across Tennessee, serving frequently in positions that brought him regularly into contact with youth.

In 1973, a minor boy attending a Diocesan school informed a priest with the Diocese, Father Frank Richards ("Father Richards"), that during a camping trip McKeown had plied the boy with alcohol and then forcibly molested him. Father Richards discounted the allegation and took no follow-up action. In July 1986, a parent of the same boy informed Bishop James Niedergeses ("Bishop Niedergeses")¹ of the Diocese that McKeown had sexually assaulted her son in 1972 or 1973; Bishop Niedergeses stated that the parent came forward in the interest of preventing such abuse from recurring. When Bishop Niedergeses confronted McKeown with the allegation, McKeown readily admitted to the abuse. Consequently, Bishop Niedergeses consulted with Father Charley Giacosa ("Father Giacosa"), who as Episcopal Vicar of the Diocese assisted the Bishop with personnel matters. The parties dispute whether Father Giacosa gave notice of the abuse to Alice Reid of the Tennessee Department of Human Services and whether Ms. Reid recommended an investigation and the filing of a report.² Bishop Niedergeses testified that at the time he suspected that he "needed to find out whether this person [McKeown] would be a threat to anybody else." Although Bishop Niedergeses did not personally conduct such an investigation, he asked Father Giacosa to "explore any possibilities." However, Father Giacosa testified not only that "[his] role was not an investigative role," but also that he was unaware of any investigation whatsoever into the scope of McKeown's sexual misconduct.

In response to the revelation of McKeown's sexual misconduct, in September 1986 Father Giacosa arranged for the St. Luke Institute in Maryland to conduct a ten-day psychological and medical evaluation of McKeown. McKeown was diagnosed with pedophilia and ephebophilia, a sexual disorder similar to pedophilia but characterized by attraction to adolescent males aged fourteen to twenty. Records of the evaluation indicate that McKeown admitted that he had "had sexual contact with approximately thirty boys over the past 14 years" and estimated that he had "had sexual contact with minors on the average `once or twice a month' for the past 14 years." The typical age of his victims was stated to be twelve to thirteen years old.³ The records indicate that McKeown made contact with his victims mostly "through the parish" and via his work with youth and that he typically provided alcohol to the boys "as a seductive device." The records further state that McKeown had engaged in molestation as recently as July 1986. Bishop Niedergeses first testified that he received, read and relied on these records in his dealings with McKeown, but later testified that he "had never seen them before" at the time of his deposition.

Nonetheless, in September 1986, Dr. Frank Valcour ("Dr. Valcour") of the St. Luke Institute sent to Bishop Niedergeses a personally-addressed report which summarized McKeown's evaluation. This report noted that McKeown "in a forthright way acknowledge[d] other sexual contact over the years" subsequent to his "first experience of sexual acting out [sic] with a minor" and that he was "interested in correcting his behavior." Dr. Valcour's report identified as troublesome McKeown's tendency to "offer alcohol to young people he was with to facilitate sexual interaction." Moreover, Dr. Valcour cautioned, "I had mentioned to Father Giacozza [sic] over the phone that given the number of sexual contacts, it might be prudent to review any assignment for Father McKeown that would give him widespread public exposure."⁴ In conclusion, Dr. Valcour warned that it was "absolutely imperative that [McKeown] not be in the presence of teenagers unless another responsible adult is with him."

Father Giacosa not only denied discussing McKeown's pattern of abuse with Dr. Valcour, but also denied having any knowledge prior to McKeown's criminal prosecution for sexual abuse in 1999 that McKeown had had multiple victims. Father Giacosa testified that Bishop Niedergeses never brought to his attention information concerning McKeown's habitual sexual predation. Father Giacosa further testified that had Bishop Niedergeses done so, he would have taken additional remedial measures appropriate to such a broader scope of criminal misconduct by McKeown. However, McKeown himself testified that neither Bishop Niedergeses nor Father Giacosa questioned him as to whether he had sexually assaulted victims other than the boy whose parent came forward in July 1986. Bishop Niedergeses admitted that he did not inquire into the number or identities of McKeown's other victims.⁵

After receiving St. Luke Institute's evaluation of McKeown, the Diocese decided to provide him with in-patient treatment for his sexual disorder. The St. Luke Institute was then at full capacity, and Dr. Valcour warned Bishop Niedergeses that waiting six to eight weeks to obtain an opening there was risky and unwise. Therefore the Diocese sent McKeown in October 1986 to the Institute of Living in Hartford, Connecticut. In informing McKeown of his assignment to in-patient treatment, Bishop Niedergeses explained that "[e]vidently, you find it difficult to control your sexual interest in adolescent boys;" Bishop Niedergeses testified that he referred to McKeown's victims in the plural because he relied on the reports furnished to him by the St. Luke Institute.⁶ McKeown underwent intensive in-patient treatment at the Institute of Living from October 1986 to March 1987, and he remained in Hartford for a short time thereafter for out-patient treatment.

During this time, the Institute of Living communicated with Bishop Niedergeses and Father Giacosa concerning the progress of McKeown's treatment, his history of sexually molesting numerous minors, and his prognosis.⁷ In connection with McKeown's release, Dr. Thomas Conklin ("Dr. Conklin") of the Institute of Living cautioned Bishop Niedergeses that "now and in the future" McKeown should not be given responsibilities that "would place him in frequent or ongoing contact with adolescents." Dr. Conklin also emphasized in an April 1987 letter to Father Giacosa that McKeown's condition would require permanent follow-up treatment: "There is no cure for Father McKeown's condition and so it is necessary that there be a continual program of therapy and monitoring to help him to maintain the same degree of control that he has now into the future." In addition to prescribing continued psychotherapy and weekly injections of Depo-Provera⁸ "for the indefinite future," Dr. Conklin recommended to Father Giacosa that McKeown return to the Institute of Living on an annual or semiannual basis for a "`brief refresher course.'"⁹

Upon his return to Nashville sometime in the Spring of 1987, McKeown continued psychotherapy and Depo-Provera treatments. He lived on Diocesan property and resumed working for the Diocese as co-director of a Diocese-wide program of group meetings designed to...