Doe v. Marianist Province of the U.S.

• Decision Date: 06 April 2021
• Docket Number: No. SC 98307,SC 98307
• Citation: 620 S.W.3d 73
• Parties: John DOE 122, Appellant, v. MARIANIST PROVINCE OF THE UNITED STATES and Chaminade College Preparatory, Inc., Respondents, and Fr. Martin Solma, Defendant.
• Court: Missouri Supreme Court

620 S.W.3d 73

John DOE 122, Appellant,

v. MARIANIST PROVINCE OF THE UNITED STATES and Chaminade College Preparatory, Inc., Respondents,andFr. Martin Solma, Defendant.

No. SC 98307

Supreme Court of Missouri, en banc.

Opinion issued April 6, 2021

Doe was represented by Kenneth M. Chackes of Ken Chackes LLC in St. Louis, (314) 872-8420.

The school was represented by Alexandra S. Haar, Gerard T. Noce and Justin L. Assouad of HeplerBroom LLC in St. Louis, (314) 241-6160.

Paul C. Wilson, Judge

This is an appeal from a grant of summary judgment in favor of the Marianist Province of the United States ("the Marianist Province") and Chaminade College Preparatory, Inc. ("the High School" and, together with the Marianist Province, "Chaminade").¹ John Doe 122 ("Doe") filed suit against Chaminade, alleging he suffered sexual abuse while he was a student at the High School in the early 1970s. The issues on appeal are whether Gibson v. Brewer , 952 S.W.2d 239 (Mo. banc 1997), bars Doe's negligence-based claims and whether, given Chaminade's statement of material facts and the deposition testimony of Doe's expert, summary judgment was proper on Doe's claims of intentional failure to supervise. This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution. The judgment is affirmed in part and vacated in part, and the case is remanded for further proceedings.

Background

The following facts are taken from Doe's allegations. He was born in 1953 and graduated from the High School as a senior in 1971. Doe was sexually abused by Brother John Woulfe ("Brother Woulfe"),² a Marianist brother who was Doe's counselor. Doe met with Brother Woulfe approximately eight to ten times during his senior year. Brother Woulfe provided Playboy magazines and cigarettes to Doe. Brother Woulfe later encouraged Doe to masturbate while looking at the magazines, sometimes while Brother Woulfe also masturbated.

Brother Woulfe touched Doe's penis and, in the last encounter, put his mouth on Doe's penis.

After graduation, Doe attempted to put the abuse behind him and moved to Arizona. He had no further memories of the abuse after 1973. In 2012, Doe received a letter from Father Solma indicating Chaminade had received an allegation of sexual abuse against Brother Woulfe. This letter brought back his memories of abuse.

In November 2015, Doe filed suit against Chaminade, alleging sexual abuse and battery in Count I, negligent supervision in Count II, intentional failure to supervise clergy in Count III, negligent failure to supervise children in Count IV, intentional infliction of emotional distress in Count V, and breach of fiduciary duty in Count VI. After a period of discovery, Chaminade moved for summary judgment, arguing the statute of limitations barred all of Doe's claims, Gibson barred Doe's negligence-based claims, and Doe's intentional failure to supervise claim failed because Doe admitted he had no direct proof that Chaminade knew Brother Woulfe was abusing students at the High School before Brother Woulfe allegedly abused Doe. Doe opposed the motion and filed a statement of additional facts with supporting exhibits.

In March 2019, the circuit court sustained Chaminade's motion for summary judgment on all counts, determining, inter alia , that Gibson barred Doe's negligence-based claims and that Doe's intentional failure to supervise clergy claim was not supported by sufficient competent evidence that Chaminade knew of Brother Woulfe's history of abuse.³ Doe appealed to the court of appeals, which transferred the case to this Court pursuant to Rule 83.02.

Analysis

The propriety of summary judgment is an issue of law, and this Court's review of a grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). The Court "review[s] the record in the light most favorable to the party against whom judgment was entered." Id. Summary judgment is proper only if the moving party establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. at 382. See also Rule 74.04. A genuine issue exists when the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. ITT Commercial Fin. Corp. , 854 S.W.2d at 382. A genuine issue is a dispute that is real, not merely argumentative, imaginary, or frivolous. Id. The Court accords the non-movant the benefit of all reasonable inferences from the record. Id.

I.

Doe contends the circuit court erred in dismissing his negligence-based claims (Counts II and IV) because Gibson was wrongly decided. Doe claims that the First Amendment does not bar generally applicable tort rules that apply to all employers, including the duty to use reasonable care in supervising employees who work with children in order to prevent sexual abuse.

In Gibson , a boy and his parents asserted multiple claims against a Catholic priest and diocese. Gibson , 952 S.W.2d at 243. They alleged the priest invited the boy to spend the night and watch movies in the church rectory and that, early in the morning, the priest touched the boy in a sexual, offensive, and unwelcome manner. Id. They asserted nine counts, including three claims against the diocese, i.e., negligent hiring or retention, negligent failure to supervise, and intentional failure to supervise clergy. See id. at 243-44, 248. The circuit court dismissed all the counts against the diocese. Id. at 244.

Regarding the plaintiff's claim of negligent hiring or retention, this Court concluded:

Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. To establish a claim for negligent hiring or retention, a plaintiff must show: (1) the employer knew or should have known of the employee's dangerous proclivities, and (2) the employer's negligence was the proximate cause of the plaintiff's injuries.

Religious organizations are not immune from civil liability for the acts of their clergy. If neutral principles of law can be applied without determining questions of religious doctrine, polity, and practice, then a court may impose liability. For example, a church can be vicariously liable for the negligent operation of a vehicle by a pastor in the scope of employment. This Court—when abolishing the doctrine of charitable immunity in Missouri—authorized a person who slipped and fell on church premises to sue for negligence. The result is that the church, as the owner and occupier of the premises in question, is subject to all the duties and liabilities which are incident to the ownership and possession of real estate.

Questions of hiring, ordaining, and retaining clergy, however, necessarily involve interpretation of religious doctrine, policy, and administration. Such excessive entanglement between church and state has the effect of inhibiting religion, in violation of the First Amendment.

By the same token, judicial inquiry into hiring, ordaining, and retaining clergy would result in an endorsement of religion, by approving one model for church hiring, ordination, and retention of clergy. A church's freedom to select clergy is protected as a part of the free exercise of religion against state interference. Ordination of a priest is a quintessentially religious matter, whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals of this hierarchical church. The trial court did not err in dismissing the claims of negligent hiring/ordination/retention.

Id. at 246-47 (quotation marks and citations omitted). Regarding the claim of negligent failure to supervise clergy, this Court concluded:

Negligent supervision implicates the duty of a master to control conduct of a servant:

A master is under the duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.

Adjudicating the reasonableness of a church's supervision of a cleric—what the church "should know"—requires inquiry into religious doctrine.... [T]his would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision.

Not recognizing the cause of negligent failure to supervise clergy is not an establishment of religion because it is a nondiscriminatory religious-practice exemption. It achieves a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Nonrecognition of this negligence tort preserves the autonomy and freedom of religious bodies while avoiding any semblance of established religion.

Id. at 247-48 (quotation marks and citations omitted).

Doe contends Gibson was wrongly decided because it misread the relevant United States Supreme Court's First Amendment precedent at that time. Doe argues that, even though high court decisions from other states are not binding on this Court, the sheer volume of decisions⁴ that were handed down after Gibson and that rejected its conclusions demonstrates Gibson was wrongly decided and should now be overruled.⁵

The First Amendment, made applicable to the states through the Fourteenth Amendment, provides in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." In Employment Division, Department of Human Services of Oregon v. Smith , the Supreme Court held the application of neutral legal...