Fearing v. Bucher

• Decision Date: 16 April 1997
• Citation: 147 Or.App. 446,936 P.2d 1023
• Parties: Steven FEARING, Appellant, v. Melvin BUCHER and Archdiocese of Portland in Oregon, Respondents, and Province of St. Barbara, Order of Friars Minor, a California corporation, and Franciscan Friars of California, Defendants. 9412-08665; CA A89144.
• Court: Oregon Court of Appeals

Page 1023

936 P.2d 1023

147 Or.App. 446

Steven FEARING, Appellant, v. Melvin BUCHER and Archdiocese of Portland in Oregon, Respondents and Province of St. Barbara, Order of Friars Minor, a California corporation, and Franciscan Friars of California Defendants.

9412-08665; CA A89144.

Court of Appeals of Oregon.

Argued and Submitted Oct. 30, 1996.

Decided April 16, 1997.

Kelly Clark argued the cause and filed the briefs, Wilsonville, for appellant.

Karen O'Kasey argued the cause, Portland, for respondent Archdiocese of Portland in Oregon. With her on the brief were Thomas V. Dulcich and Schwabe, Williamson & Wyatt.

Arden E. Shenker waived appearance, Portland, for respondent Melvin Bucher.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LANDAU, Judge.

This is an action for damages arising out of allegations that plaintiff's former priest sexually assaulted him when plaintiff was a child, over 20 years ago. Plaintiff sued the priest, defendant Melvin Bucher, for the assaults. He also sued Bucher's order, the Franciscan Friars of California, and the Archdiocese of Portland (Archdiocese), on theories of respondeat superior and negligent retention, supervision and training of Bucher, requesting both compensatory and punitive damages. Plaintiff settled with Bucher and the Franciscan Friars and proceeded against the Archdiocese. The Archdiocese moved for dismissal of both claims, arguing that they had been untimely filed and, in the alternative, that plaintiff failed to state a claim, both because an employer cannot be vicariously liable for acts of sexual assault by its employees and because allowing a negligent retention, supervision and training claim against the Archdiocese would interfere unconstitutionally with the internal policies and practices of a religious institution. Plaintiff contended that the claims had been timely filed under ORS 12.117, which provides an extended limitation period for victims of child abuse, and that his allegations were sufficient to state a claim. The trial court held that the extended limitation period described in ORS 12.117 applies only to claims of intentional child abuse and, because there is no allegation that the Archdiocese intentionally engaged in such conduct, dismissed plaintiff's claims as untimely.

Plaintiff appeals, arguing that the trial court erred in concluding that the claims are not subject to ORS 12.117 and that his complaint states facts sufficient to entitle him to a trial on the merits. The Archdiocese contends that the trial court properly dismissed the claims against it. We conclude that, as to the respondeat superior claim, plaintiff's complaint fails to state facts that constitute a claim and that dismissal was proper on that ground; we do not address the parties' other arguments as to that claim. We also conclude that, as to the negligence claim, the extended limitation period of ORS 12.117 applies to negligence claims for "knowingly allowing, permitting or encouraging" child abuse, but that, because plaintiff's complaint contains no such allegations, dismissal of the complaint was proper on timeliness grounds.

In reviewing the dismissal of a complaint, we look only to the pleadings, assume that all alleged facts are true and draw all necessary inferences in favor of the plaintiff. Allen v. Lawrence, 137 Or.App. 181, 186, 903 P.2d 919 (1995), rev den 322 Or. 644, 912 P.2d 375 (1996); Dauven v. St. Vincent Hospital, 130 Or.App. 584, 586, 883 P.2d 241 (1994). On December 21, 1994, plaintiff filed his complaint. After several rounds of motions, plaintiff ultimately filed a second amended complaint, which contains the following relevant allegations:

"2.

" * * * At all relevant times, St. Anthony's Parish was an assumed business name of the Archdiocese. At all relevant times, Defendant Melvin Bucher (hereinafter 'Bucher') was a Franciscan priest, an employee of the Franciscans, the Archdiocese, and St. Anthony's, and acting in the course and scope of his employment.

" * * * * *

"3.

"From 1970 through 1972, on at least twenty occasions while Fearing was a minor, Bucher sexually assaulted Fearing by exposing himself to Fearing, kissing Fearing, touching Fearing's genitalia, and performing oral sex on Fearing (hereinafter the 'Assaults').

"4.

"On or about October, 1993, Fearing discovered the causal connection between the Assaults and the damages he suffered as a result of the Assaults, described more fully below.

"5.

"As a result of the Assaults, Fearing suffered physical and emotional injury, pain and suffering, emotional trauma, permanent psychological injury, as well as lost earning capacity and other economic damages * * *.

" * * * * *

"8.

"As part of his employment with the Archdiocese, the Franciscans, and St. Anthony's, Bucher was directed to fulfill the role of youth pastor and priest at St. Anthony's.

"9.

"Bucher improperly performed his employment duties as youth pastor and priest at St. Anthony's, by using and manipulating his fiduciary position, respect and authority as youth pastor and priest, in order to:

"A.) Identify Fearing's family as one which had an adolescent boy as a family member;

"B.) Meet Fearing's family and gain their trust and confidence as spiritual guide, youth pastor and priest;

"C.) Befriend Fearing's family;

"D.) Become a frequent social guest in the Fearing family home;

"E.) Gain the trust and confidence of the Fearing family as a valuable and trustworthy friend and mentor to Fearing, then a minor adolescent;

"F.) Gain the support, acquiescence and permission of Fearing's family for Bucher to spend substantial periods of time alone with Fearing;

"G.) Win the friendship, trust and admiration of Fearing himself;

"H.) Become Fearing's spiritual advisor, mentor and confessor;

"I.) Gain opportunity to socialize with Fearing and to spend time alone with him;

"J.) Physically touch Fearing;

"K.) Gain opportunity to commit the Assaults. (The above performance of employment duties as youth pastor and priest, including the Assaults, are hereinafter collectively referred to as the 'Manipulations').

"10.

"[The actions described in paragraph 9] were committed in connection with Bucher's employment, were committed within the time and space limits of his employment as youth pastor and priest, were committed out of a desire, at least initially and partially, to fulfill his employment duties as youth pastor and priest, and * * * were generally actions of a kind and nature which Bucher was required to perform as youth pastor and priest.

" * * * * *

"12.

"The Franciscans, the Archdiocese and St. Anthony's carried a duty to Fearing, as a minor parishioner being served by the ministry of St. Anthony's, the Franciscans, and the Archdiocese, to exercise reasonable care in the hiring, assignment, supervision and retention of its priests, including Bucher, lest minor adolescent parishioners, such as Fearing, be sexually molested, abused, and assaulted by priests, including Bucher.

"13.

"St. Anthony's, the Franciscans, and the Archdiocese breached their duty to Fearing, creating an unreasonable risk of foreseeable harm to Fearing, and were negligent in one or more of the following particulars:

"A. In failing to devise, implement and execute an effective process for psychological, emotional and spiritual screening of potential priests, including Bucher, before hiring, and for screening and rejecting individuals who were not good candidates for a vow of chastity and might accordingly be an unreasonable risk to engage in inappropriate sexual conduct outside the vow of chastity, including pedophilia;

"B. In failing to devise, implement and execute an effective process for periodic or random psychological, emotional and spiritual screening and supervision of existing priests, including Bucher, and screening and removal of individuals, including Bucher, who were unsuccessful in their vow of chastity, who were having difficulty in fulfilling their vow of chastity, and might accordingly be an unreasonable risk to engage in inappropriate sexual conduct outside the vow of chastity, including pedophilia;

"C. In failing, despite knowledge of a high incidence of pedophilia among its priests, and Catholic priests generally, to devise, implement and execute an effective process of educating and informing parishioners and parishes, including St. Anthony's, of the problem of pedophilia among priests, and educating and informing parishioners to recognize and report suspected pedophilia by priests;

"D. In failing, despite knowledge of a...