Jane Doe I v. Malicki

• Decision Date: 26 July 2000
• Docket Number: No. 3D99-549.,3D99-549.
• Parties: JANE DOE I and Jane Doe II, Appellants, v. Jan MALICKI, St. David Catholic Church and the Archdiocese Of Miami, Appellees.
• Court: Florida District Court of Appeals

771 So.2d 545

JANE DOE I and Jane Doe II, Appellants, v. Jan MALICKI, St. David Catholic Church and the Archdiocese Of Miami, Appellees.

No. 3D99-549.

District Court of Appeal of Florida, Third District.

July 26, 2000.

Motion for Certification and Rehearing Denied December 7, 2000.

Cain & Snihur and May L. Cain and William J. Snihur, Jr., Miami, for appellants.

Gilbride, Heller & Brown and James F. Gilbride and Hetal D. Desai, Miami; J. Patrick Fitzgerald, Coral Gables, for appellees.

Caruso, Burlington, Bohn & Compiani (West Palm Beach), for Academy of Florida Trial Lawyers as amicus curiae.

Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.

FLETCHER, Judge.

Jane Doe I and Jane Doe II appeal the dismissal of their claims against St. David Catholic Church [St. David] and the Archdiocese of Miami [Archdiocese] for damages allegedly incurred as a result of being sexually assaulted by a Catholic priest on the premises of the defendant church.

At the time of the alleged incidents, Jane Doe I was a minor parishioner of St. David who worked for the church in exchange for free tuition at St. Thomas High School. Jane Doe II was a parishioner who also worked at the church in exchange for her children's tuition at St. David. Plaintiffs filed a complaint against Father Jan Malicki,¹ St. David, and the Archdiocese, alleging that Father Malicki sexually molested, assaulted and/or battered them while they were employed at St. David. These allegations formed the basis for three claims against the defendants St. David and the Archdiocese—(i) negligent hiring and supervision, (ii) respondeat superior, and (iii) breach of implied contract.

The defendants moved to dismiss the claims against them on the ground that they were barred by the First Amendment of the United States Constitution. The trial court agreed with the defendants and dismissed the claims against St. David and the Archdiocese. For the reasons which follow, we reverse and remand for reinstatement of plaintiffs' claims.

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."² Beginning early in First Amendment jurisprudence, however, the courts recognized that although the freedom of religious beliefs guaranteed by the First Amendment is absolute, conduct based on said beliefs is nevertheless subject to regulation for the protection of society. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878). Ever since, the courts have struggled with the problem of how best to provide this protection without becoming excessively entangled in the doctrines and internal policies of religious institutions.³

In recent years courts throughout the nation have confronted the issue of a religious institution's liability in response to increased litigation arising from allegations of sexual misconduct by members of the clergy. Various theories of liability have been used in an attempt to resolve any First Amendment entanglement problem. And, not surprisingly given the delicate balance between religious freedom and the protection of the public safety, there is considerable diversity in the judicial analysis employed by the different courts. See Joseph B. Conder, Liability of Church or Religious Society for Sexual Misconduct of Clergy, 5 A.L.R. 5th 530 (1993). In Florida, the Fourth and Fifth District Courts of Appeal have both been presented with cases involving clergy misconduct. Doe v. Evans, 718 So.2d 286 (Fla. 4th DCA 1998); Doe v. Dorsey, 683 So.2d 614 (Fla. 5th DCA 1996). Of the two cases, Dorsey is the more factually similar to the instant case. In that case a claim of negligent hiring or retention was brought against a church and its bishop on allegations of sexual misconduct by a priest with a minor. The plaintiff, however, was twenty-six years old when he filed the action. Because of this, the appellate court decided the case in favor of the defendants on the statute of limitations defense and did not reach the First Amendment issue. Nevertheless, the court stated:

"In any event, we are persuaded that just as the State may prevent a church from offering human sacrifices, it may protect its children against injuries caused by pedophiles by authorizing civil damages against a church that knowingly (including should know) creates a situation in which such injuries are likely to occur."

683 So.2d at 617.

The Court went on to say that it would draw the line at criminal conduct.

In Evans the appellate court affirmed the dismissal of a claim for negligent hiring, supervision and retention brought by an adult parishioner against a church, diocese and bishop based on the First Amendment. The alleged misconduct in that case, however, involved a voluntary sexual relationship between the parishioner and her pastor during marital counseling. The court recognized that this presented a "less compelling factual scenario" than cases involving criminal assaults, especially against children. 718 So.2d at 289-90 ("[T]he plaintiff's allegations of `sexual relationship' in the instant case fall short of alleging criminal conduct.")

As the Evans opinion points out, there is a split of authority in other jurisdictions. Compare Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir.1999)

; Nutt v. Norwich Roman Catholic Diocese, 921 F.Supp. 66 (D.Conn.1995); Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988); Jane Doe v. Hartford Roman Catholic Diocesan Corp., 45 Conn.Supp. 388, 716 A.2d 960 (1998); Konkle v. Henson, 672 N.E.2d 450 (Ind.Ct.App.1996); Mrozka v. Archdiocese of St. Paul and Minneapolis, 482 N.W.2d 806 (Minn.Ct.App. 1992); F.G. v. MacDonell, 291 N.J.Super. 262, 677 A.2d 258 (1996); Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791 (1997); Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991); and Erickson v. Christenson, 99 Or.App. 104, 781 P.2d 383 (1989); with Dausch v. Rykse, 52 F.3d 1425 (7th Cir. 1994); Schmidt v. Bishop, 779 F.Supp. 321 (S.D.N.Y.1991); Teadt v. Lutheran Church Missouri Synod, 237 Mich.App. 567, 603 N.W.2d 816 (1999); and Bladen v. First Presbyterian Church of Sallisaw, 857 P.2d 789 (Okla.1993).

Most of the courts which have rejected these types of claims have done so based on the belief that to determine liability they would be required to interpret church doctrine. See, e.g., Evans, 718 So.2d at 291

("[A] court's determination regarding whether the church defendant was `reasonable' would necessarily entangle the court in issues of the church's religious law, practices and policies.") Those courts which have accepted the claims see their role as simply applying neutral principles of law⁴ to nonreligious conduct. See, e.g., Konkle, 672 N.E.2d at 456 ("[R]eview of [plaintiff's] claim does not require any inquiry into religious doctrine or practice. [Defendant's] actions were not religiously motivated. Instead, review only requires the court to determine if the Church Defendant knew of [defendant's] inappropriate conduct, yet failed to protect third parties from him.").

After carefully reviewing the case law, and taking into consideration the particular factual allegations herein, we find the latter cases to be more persuasive. In their complaint, the plaintiffs alleged that they were both employees and parishioners of the defendant church, that they were sexually assaulted and/or battered by Father Malicki while working at the defendant church, and that, despite knowing that Father Malicki had committed several sexual assaults and/or batteries, he was retained by the defendants as a priest and given the task of supervising the plaintiffs. The issue to be determined by the court, therefore, is whether the defendants had reason to know of Father Malicki's misconduct and did nothing to prevent reasonably foreseeable harm from being inflicted upon the plaintiffs. This determination is one governed by tort law and does not require inquiry into the religious doctrines and practices of the Catholic church.

Accordingly, we reverse and remand this cause for reinstatement of the plaintiffs' complaint.

NESBITT, Senior Judge, concurs.

SCHWARTZ, Chief Judge (dissenting).

The basis of my respectful but entire disagreement with the court lies in my inability to accept the proposition which forms the foundation of its conclusion: that the determination of whether the defendant church is liable for negligence in its hiring, retention or supervision of a priest is governed by neutral principles of "tort law and does not require inquiry into religious doctrines and practices of the Catholic Church." To my mind, the notion that the relationships between the church, its bishops and its priests—and any consequent tort responsibility for hiring, firing, retention and assignment—can, much less should, be equated to those involving, say, a landlord and the custodian to whom it entrusts the keys to his tenants' apartments, Mallory v. O'Neil, 69 So.2d 313 (Fla.1954); Tallahassee Furniture Co. v. Harrison, 583 So.2d 744 (Fla. 1st DCA 1991), review denied, 595 So.2d 558 (Fla. 1992), is not only unsupportable, but demeaning to the religion itself. It is fundamentally, constitutionally impermissible for a judge or jury to determine whether civil liability arises from decisions made in such an obviously sectarian context and upon such an obviously non-secular basis. In Goodman v. Temple Shir Ami, 712 So.2d 775 (Fla. 3d DCA), review granted, 727 So.2d 905 (Fla.1998), appeal dismissed, 737 So.2d 1077 (Fla.1999), cert. denied, 528 U.S. 1075, 120 S.Ct. 789, 145 L.Ed.2d 666 (2000), this court itself recognized that whether a congregation has "good cause" to fire its rabbi is so infused with issues of the clergyman's doctrinal acceptability that "ordinary" principles of contract law cannot be properly applied with the result that an otherwise "ordinary" contract of employment...