Doe v. Boy Scouts of Am. Corp.

Decision Date11 October 2016
Docket NumberSC 19516
Citation147 A.3d 104,323 Conn. 303
CourtConnecticut Supreme Court
Parties John Doe v. The Boy Scouts of America Corporation et al.

Wesley W. Horton, with whom were Brendon P. Levesque and Philip T. Newbury, Jr., for the appellant (named defendant).

Paul A. Slager, with whom was Jennifer B. Goldstein, for the appellee (plaintiff).

Erin K. Olson, Margaret A. Garvin and Brian D. Kent filed a brief for the National Center for Victims of Crime et al. as amici curiae.

Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa, Robinson and Sheldon, Js.*

ROGERS, C. J.

The primary issue that we must resolve in this appeal is whether the trial court should have instructed the jury that the defendant, The Boy Scouts of America Corporation,1 could not be held responsible for the sexual abuse of the plaintiff, John Doe,2 by a fellow member of the Boy Scouts unless the plaintiff proved that the defendant's own conduct increased the risk that the plaintiff would be subjected to such abuse. The plaintiff brought this action against the defendant claiming that, while he was a member of a Boy Scout troop during the mid-1970s, he was sexually abused during scouting activities by his Boy Scout patrol leader, Siegfried Hepp. The plaintiff alleged that the defendant negligently had failed to take adequate precautions to prevent Hepp's sexual abuse of the plaintiff. In addition, the plaintiff alleged negligent infliction of emotional distress, recklessness and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq. After a trial, the jury returned a verdict in favor of the plaintiff on all claims. The trial court ultimately rendered judgment in accordance with the verdict, and this appeal followed.3 The defendant claims on appeal that: (1) the trial court improperly denied its request to charge the jury that the defendant could not be held liable for negligence unless the plaintiff proved that the defendant's conduct created or increased the risk that the plaintiff would be harmed by Hepp; (2) the defendant had no duty to protect the plaintiff from Hepp's criminal or intentional misconduct because it did nothing to increase the risk of harm to the plaintiff and the harm was not foreseeable; (3) the plaintiff presented insufficient evidence to support a finding that the defendant's conduct had caused the plaintiff's damages; (4) the plaintiff presented insufficient evidence to support a finding that the defendant had been reckless; (5) the trial court incorrectly determined that the statute of limitations set forth in General Statutes § 52–577d rather than that set forth in General Statutes § 52–584 applied to the plaintiff's negligence and recklessness claims; (6) the trial court incorrectly determined that the statute of limitations set forth in § 52–577d rather than that set forth in General Statutes § 42–110g (f) applied to the plaintiff's CUTPA claim; and (7) the damages award was excessive. We agree with the defendant's first claim and, therefore, conclude that the judgment must be reversed and the case must be remanded for a new trial at which the jury may be properly instructed on the defendant's negligence claim. We further agree with the defendant's sixth claim that the trial court improperly determined that § 52–577d applies to the plaintiff's CUTPA claim. We reject the defendant's second through fifth claims, however, and we need not reach his seventh claim because we are remanding the case for a new trial.

The record reveals the following facts that the jury reasonably could have found and the procedural history. The defendant is a nonprofit organization chartered by Congress in 1910. The defendant issues charters to local volunteer groups, known as local councils, which are incorporated as charitable organizations in the states in which they are located. In turn, the local councils issue charters to local community organizations, such as churches, schools or service clubs, that want to establish a Boy Scout troop. The chartered local organization then forms a troop committee for the purpose of providing oversight to the local troop, including choosing the troop's adult leaders.

From the 1920s through the mid-1970s, the defendant maintained in a central location files containing the names of persons who were ineligible to volunteer as members of the local chartered organization or as troop leaders because they had been the subjects of allegations of sexual misconduct (ineligible volunteer files).4 When an ineligible volunteer file was created, the volunteer's registration was revoked and he was barred from participating in the Boy Scouts in the future. Most of the ineligible volunteer files involved allegations against adults, but a number of files were created for minors under the age of eighteen.

Although the defendant maintained the ineligible volunteer files in its offices, information regarding a volunteer's alleged misconduct was ordinarily shared with the local council, and the ineligible volunteer was notified by letter when a file was created. The files were confidential, however, and were not made available to the general public.

The plaintiff, who was born in June, 1964, was a member of a Boy Scout troop in New Fairfield during the mid-1970s. The troop had thirty-five to forty members and was subdivided into patrols of five to seven members. Hepp, who was born in 1961, was the plaintiff's patrol leader. Hepp sexually abused the plaintiff on three separate occasions. On the first two occasions, Hepp and the plaintiff were at a Boy Scout camp. Hepp asked the plaintiff if he wanted to go fishing and then, when they were alone in the woods, Hepp showed the plaintiff pornography and performed oral sex on him. On the third occasion, Hepp and the plaintiff were at a Boy Scout jamboree. Hepp came into the plaintiff's tent at the end of the day, told the plaintiff to take his pants off and then performed anal sex on him.

In 2012, the plaintiff brought this action alleging that he had suffered physical, emotional and psychological injuries as the result of the sexual assaults by Hepp, and that the defendant was liable for his damages because it had negligently failed to take adequate steps to prevent his injuries. In addition, the plaintiff alleged that the defendant had negligently inflicted emotional distress, that its conduct was reckless and that its conduct constituted a CUTPA violation. The defendant claimed by way of special defenses that the plaintiff's negligence and recklessness claims were barred by § 52–584 or, in the alternative, by General Statutes § 52–577, that Hepp's intentional criminal acts were intervening causes that superseded any negligence by the defendant, that the plaintiff failed to mitigate his damages, and that the CUTPA claim was barred by § 42–110g (f).

The defendant subsequently filed a motion for summary judgment claiming, among other things, that it was entitled to judgment as a matter of law because it owed no duty of care to the plaintiff under the circumstances of this case, that the plaintiff had failed to establish a prima facie case with respect to its recklessness and CUTPA claims, and that the CUTPA claim was barred by the statute of limitations. The trial court denied the defendant's motion.

At trial, the plaintiff's theory was that the defendant had been negligent because, even though it had been aware of numerous incidents of sexual abuse during scouting activities in the decades preceding the 1970s, both by adult and by minor Boy Scout participants, it failed to take precautions against sexual abuse by: (1) providing education or training to local councils about the risk of sexual abuse; (2) distributing information or training to Boy Scout members or their parents regarding the risk of sexual abuse; and (3) creating other barriers to minimize the risk of sexual abuse. In support of these claims, the plaintiff presented evidence in the form of expert testimony by Michael Kalinowski, an associate professor of family studies and human development at the University of New Hampshire and a former member of the New Hampshire Task Force on Sexual Abuse Prevention, with special expertise in the subject of institutional responsibilities for keeping children safe. Kalinowski testified that, in his opinion, the defendant's failure to inform the public about the risk of sexual abuse during Boy Scout activities created a dangerous situation for members of the Boy Scouts and was negligent. In addition, Gary Schoener, a clinical psychologist with expertise in assisting institutions to set up programs to prevent sexual abuse in institutional settings, testified that, on the basis of his review of the ineligible volunteer files, it was his opinion that the defendant must have been aware before the mid-1970s of incidents of sexual abuse of members of the Boy Scouts by fellow members. The plaintiff also entered into evidence three Scout Handbooks, published in 1972, 1975 and 1976 under the auspices of, and copyrighted by, the defendant. The Scout Handbooks generally promoted camping as a central activity of the Boy Scouts and stated that some patrols may choose to go on overnight camping trips by themselves, led only by a patrol leader and with no adult supervision.5

At the conclusion of the plaintiff's case, the defendant filed a motion for a directed verdict in which it contended, among other things, that the plaintiff's negligence and recklessness claims were barred by § 52–584 or § 52–577, that the defendant had no duty to protect the plaintiff, that the plaintiff had failed to prove that the defendant caused his damages, and that the CUTPA claim was barred by the statute of limitations. The trial court denied the motion.

At the conclusion of the presentation of evidence, the defendant submitted a request to charge the jury that contained the following proposed instruction: “The plaintiff claims that ... Hepp...

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