Doe v. Dorsey, 95-2601

• Decision Date: 22 November 1996
• Docket Number: No. 95-2601,95-2601
• Citation: Doe v. Dorsey, 683 So.2d 614 (Fla. App. 1996)
• Parties: 21 Fla. L. Weekly D2497, 22 Fla. L. Weekly D188 John DOE, Appellant, v. Norbert DORSEY, as Bishop of the Diocese of Orlando, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 614

683 So.2d 614

21 Fla. L. Weekly D2497, 22 Fla. L. Weekly D188

John DOE, Appellant, v. Norbert DORSEY, as Bishop of the Diocese of Orlando, etc., et al., Appellees.

No. 95-2601.

District Court of Appeal of Florida Fifth District.

Nov. 22, 1996.

Sheldon D. Stevens of Stevens & Menyhart, P.A., Merritt Island, and Sharon Lee Stedman, of Sharon Lee Stedman, P.A., Orlando, for Appellant.

Philip M. Burlington, of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Academy of Florida Trial Lawyers, Amicus Curiae for Appellant.

Robert J. Pleus, Jr. and Kevin W. Shaughnessy of Akerman, Senterfitt & Eidson, P.A., Orlando, for Appellees.

Robert S. Glazier, Miami, for First Baptist Church of Hialeah and Temple Shir Ami, Amicus Curiae, for Appellees.

HARRIS, Judge.

The issue in this case is whether the statute of limitations and/or the First Amendment provision requiring separation of church and state bars this action against the church and its bishop based on the alleged negligent "hiring" or retention of a priest who commits sexual misconduct. We affirm.

For the purpose of this appeal, it is admitted that the parish priest committed improper acts with an altar boy starting when the boy was thirteen and continuing long after he reached majority. As a matter of fact, this "relationship" continued for over seven years after the young man reached majority. At some point, for some reason, the young man finally realized that the priest had indeed committed horrible wrongs against him and that the church, either directly or through the appropriate bishop, might be civilly responsible for these wrongs.

Therefore, plaintiff sued the priest (who is not a party to this appeal) alleging the intentional tort of sexual abuse of a minor; he also sued the church and the bishop alleging the tort of negligence based on the improper hiring or retention of one they knew or should have known was unsuitable to have contact with children. Even though the trial court held that the allegations of acts relating to a minor were time barred, it nevertheless sustained the allegations of sexual battery after plaintiff became an adult as against a claim of the statute of limitations but held that an action on even these allegations was barred by the provisions of the First Amendment. That issue will be discussed later.

There are two possible hurdles in the path of this action. First, plaintiff waited until he was twenty-seven years old to bring the action founded upon the abuse inflicted on him when he was a minor. The trial court, based on the statute of limitations, dismissed these allegations. Second, since the action against the church and the bishop is based on allegations of negligence of the church, appellees strongly urge that the First Amendment of the United States Constitution prevents the court from intruding into the church's selection, training, supervision, and assignment of priests. ¹ We agree with the trial court that plaintiff's action resulting from injuries caused by abuse inflicted on him while he was a minor and based on the negligent retention policies of the church is barred by the statute of limitations. Section 95.11(3)(a), Florida Statutes, limits an action for negligence to four years. This period is tolled until a minor plaintiff reaches majority. Section 95.051(1)(h). Although plaintiff urges that section 95.11(7) is the appropriate statute of limitations to apply in this case, we find that such section applies only to causes of action for "intentional torts based on abuse." Even though the priest's abusive conduct prompted this action against the church and the bishop, the alleged cause of action against them is a negligence action based on the alleged improper selection or retention policies and practices of the church in relation to its priests, not any active abuse by the appellees. We, therefore, find that section 95.11(3)(a), and not 95.11(7), is the applicable statute of limitations in this case, and that it started running when plaintiff turned eighteen.

Even if section 95.11(3)(a) is the applicable statute, urges appellant, since the improper conduct of the priest continued until plaintiff was twenty-six, the statute should not start running until that time. The problem with this argument is that appellant ceased being a minor subject to child abuse when he became "of age". Would the State be able to prosecute a Lothario who seduced a maiden below the age of consent but was able to continue the relationship with the young woman after she became an adult solely for the acts which occurred after she became an adult on the basis that her consent was obtained only because she remained "under his spell?" We think not. Further, we do not believe that the fact that religion is implicated in "the spell," has any significance at law.

Appellant also urges that the statute does not begin to run until the young man is aware of his injuries, and since this young man did not become aware of his injuries and their probable connection to the improper acts of the priest until 1992, the statute did not start running until that time. We simply cannot accept this argument. This young man knew the identity of the tortfeasor (the priest) and the improper conduct engaged in by the tortfeasor (child abuse) long before he reached the age of majority. This was sufficient knowledge to file an action against the priest for the wrongful sexual battery committed against him and, again assuming such cause of action is available, against the church and bishop for making such conduct possible because of the negligent retention of the priest.

The court was involved in a similar action, albeit involving a young girl instead of a young boy, in Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 302, 533 N.W.2d 780, 785 (1995), and held that plaintiff's action was barred by the statute of limitations:

It is well settled that a cause of action accrues when there exists a claim capable of enforcement, a suitable party against whom it may be entered, and a party with a present right to enforce it. (Citations omitted). A party has a present right to enforce a claim when the plaintiff has suffered actual damage, defined as harm that has already occurred or is reasonably certain to occur in the future. (Citation omitted).

In the case at bar, the negligent retention of a priest who would commit child abuse, at least...