Doe v. Lds Church

• Citation: 141 Wn. App. 407,167 P.3d 1193
• Decision Date: 17 September 2007
• Docket Number: No. 58021-3-I.,No. 57416-7-I.,57416-7-I.,58021-3-I.
• Court: Court of Appeals of Washington
• Parties: "Jane DOE" (a pseudonym) and Michael F. Osborne, on behalf of "Rebecca Doe" (a pseudonym), a minor, Respondents, v. CORPORATION OF the PRESIDENT OF the CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah Corporation Sole, aka "Mormon Church" and "John Roe" (a pseudonym), Appellants.

167 P.3d 1193

141 Wn. App. 407

"Jane DOE" (a pseudonym) and Michael F. Osborne, on behalf of "Rebecca Doe" (a pseudonym), a minor, Respondents, v. CORPORATION OF the PRESIDENT OF the CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah Corporation Sole, aka "Mormon Church" and "John Roe" (a pseudonym), Appellants.

No. 57416-7-I.

No. 58021-3-I.

Court of Appeals of Washington, Division 1.

September 17, 2007.

Sean P. Wickens, Armijo Wickens, PS, Tacoma, WA, Thomas Daniel Frey, Michael Charles Bolasina, Stafford Frey Cooper, Charles Cooper Gordon, Jeffrey Iver Tilden, Gordon Murray Tilden LLP, Seattle, WA,

Marcus B. Nash, Attorney at Law, Salt Lake City, UT, for Appellants.

Michael Thomas Pfau, Michelle Menely, Steven Thomas Reich, Gordon Thomas Honeywell Malanca Peterson, Timothy David Kosnoff, Attorney at Law, Seattle, WA, Bradley Alan Maxa, Gordon Thomas Honeywell, Tacoma, WA, for Appellants/Respondents.

Stewart Andrew Estes, Keating Bucklin & McCormack, Seattle, WA, Amicus Curiae on behalf of Washington Defense Trial Lawyers.

Kelby Dahmer Fletcher, Peterson Young Putra et al., Seattle, WA, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, Amicus Curiae on behalf of Washington State Trial Lawyers Association Foundation.

APPELWICK, C.J.

¶ 1 Two sisters who had been sexually abused by their stepfather sought damages from the Corporation of the President of the Church of Jesus Christ of Latter Day Saints (LDS Church) for negligence and intentional infliction of emotional distress. They also sought damages against their stepfather for intentional infliction of emotional distress. A jury found the LDS Church liable both for the failure of a bishop to report the abuse of the older sister and for the subsequent abuse of the younger sister. The jury also found the LDS Church liable for intentional infliction of emotional distress, due to intimidating statements made by the bishop to the victim. Lastly, the jury found the stepfather liable for intentional infliction of emotional distress. The trial court entered a judgment against the stepfather and the church, holding them jointly and severally liable. LDS Church appeals the verdict. The victims cross-appeal the issue of whether the church owed them a common law duty to protect them.

¶ 2 We affirm the jury verdict for the tort of outrage against the LDS Church, but vacate the determination of joint and several liability with the stepfather. We affirm that the LDS Church did not owe a common law duty to protect the plaintiffs. We reverse the jury verdict of negligence against the LDS Church, concluding that the bishop was not a social service counselor as defined by the mandated reporting statute and therefore did not have a duty to report the abuse. We remand to the trial court for entry of a judgment consistent with this opinion.

FACTS

¶ 3 Peter Taylor¹ (Taylor) was accused of and pleaded guilty to sexually abusing his stepdaughters. Taylor, his former wife, Dianne Osborne, and her two daughters were members of the Church of Jesus Christ of Latter Day Saints during all relevant times. Taylor was a high priest, which is a position of leadership attained by most adult males actively involved in the LDS Church. He abused Jessica Cavalieri (Jessica) from 1988 to 1995. He abused her younger sister, Ashley Cavalieri, (Ashley) from 1992 to 1998.²

¶ 4 Members of the LDS Church who are experiencing problems are instructed to "make a diligent effort, including earnest prayer and scripture study, to find solutions and answers themselves. If they still need help, they should counsel first with their bishop." Bishops counsel ward and stake members who seek "spiritual guidance, who have weighty personal problems or . . . serious transgressions."³

¶ 5 Bruce Randall Hatch served as an ordained LDS bishop from 1990 until 1996.⁴ At the same time, he maintained a regular full-time job as an engineer. Bishop Hatch received training and education by the LDS Church on the topic of child sexual abuse, and attended training sessions two to three times a year. Bishop Hatch had also worked extensively with church youth and was a scout master. However, he had never received professional training in the fields of psychology, psychotherapy or counseling, or techniques for questioning children about abuse.

¶ 6 According to Jessica, sometime in 1995 she met with Bishop Hatch and told him her stepfather was sexually abusing her. Jessica testified that she told her friend, Cherisse Anderson (Cherisse) that "[Taylor] was coming into [her] room at night, and abusing [her]." Cherisse encouraged her to speak to their bishop. Jessica stated that she went to Bishop Hatch because she "just wanted the abuse to stop. That's it." Jessica testified that Bishop Hatch referred to a conversation with Cherisse in which Cherisse had suggested that Taylor had been touching Jessica inappropriately. Jessica testified that after some "back and forth," she told Bishop Hatch that her stepfather "touched me on my private parts in the middle of the night, in my bed, and it did make me uncomfortable."

¶ 7 According to Jessica, Bishop Hatch responded, "I'm so glad you came and talked to me, because I don't have to report it." Jessica said that Bishop Hatch then talked about another family in the ward. She testified that he told her "that one of the twin daughters had gone to the school counselor, and told the school counselor that her dad was abusing her, and the school counselor reported it to Child Protection. And [then] he said that, Child Protection went into the house, the family is losing everything, they are going bankrupt, and everybody in the ward is gossiping about them." When asked at trial, Jessica replied that she knew about the Roberts family at the time "because there were people talking about it." She stated that

[the] message came across pretty loud and clear when he said, "I'm so glad you came to me and not to a school counselor, or not to a teacher," and so on and so forth, meaning that he wouldn't have to report it. But, had I gone to somebody else, they would have reported it. And the situation, what happened to the Roberts family, would be what would happen to my family.

When asked how that made her feel, she replied,

partially relieved that I didn't go to somebody else who would report it, because again, I didn't want to be the breakup— the cause of the breakup of the family. I felt, you know, that I could never live that down.

And then part of me was kind of scared, because thinking of what if, what if I had gone to somebody, and, you know, who knows what could happen now?

If something like that happens, because somebody's abusing you, I mean, everybody loses. It's not just the perpetrator.

After her conversation with Bishop Hatch, Jessica went into the hallway while the bishop spoke with her mother and Taylor.⁵ She thought Bishop Hatch was telling them about the abuse. After that meeting, Taylor's nightly molestations stopped. Instead he did things that Jessica considered "sexual harassment" rather than sexual abuse. Jessica testified that she thought her mother knew about the abuse and ongoing harassment, but did not do anything to stop it.

¶ 8 Later, Jessica explained that "[t]elling Bishop Hatch was the first—he was the first person I was telling who had, I felt, power and authority to do something about [the abuse]. Jada [Eering] couldn't do anything about it. Cherisse couldn't do anything about it. But Bishop Hatch had the opportunity, the power, and authority, I felt to do something."

¶ 9 While Jessica testified that she thought that Bishop Hatch's purpose in calling her mother and Taylor into his office was to tell them about the abuse, Dianne Osborne testified that Bishop Hatch did not mention any abuse. Instead, he asked her about morning and evening family prayer, and how the family was doing in general.

¶ 10 Bishop Hatch's account of his conversation with Jessica differs considerably. According to his testimony, Jessica's friend Cherisse approached him and reported that Jessica had said that Taylor was coming into Jessica's room and improperly touching her. Bishop Hatch testified that Jessica's mother called him to set up an appointment. He stated that during the appointment he asked "What's the problem?" and Jessica replied "[Taylor] has been coming into my room, and I want him to stay out of it." After a few more words regarding Jessica's wish to keep Taylor out of her room, Bishop Hatch asked Jessica's mother to excuse them. He testified that he asked Jessica "did he fondle you? Did he try to kiss you? What did he do? And she said, No. He didn't—he didn't touch me. He didn't do any of that." Bishop Hatch's testimony continues with his explanation that he "talked with her quite at length about it's never the fault of a young person, if an adult, using his authority, tries to do something that's improper, that you don't have to tolerate it, and that you should tell somebody immediately about it, and not to feel guilty." He then repeated his questioning about Taylor touching her, and she again denied it. He testified that he asked if Taylor ever "talk[ed] dirty" to her, or tried to watch her while she dressed or bathed, and she answered, "as far as I know, no." Bishop Hatch stated that he told Jessica that she had a number of alternatives—she could talk to her mother, her grandparents, her church leaders, or her school counselor if Taylor ever attempted to do any of the things he had asked about. Finally, Bishop Hatch testified that he suggested to both Jessica and her mother that they put a lock on Jessica's door.

¶ 11 Throughout his testimony, Bishop Hatch maintained that while he knew that Taylor's presence in Jessica's room made her "very nervous," Jessica's denial of abuse led him to believe that Taylor had not actually touched or abused her. As such, Bishop Hatch felt that he could not tell Dianne Osborne that Jessica was being abused. He could,...