Schieffer v. Catholic Archdiocese of Omaha

• Decision Date: 17 December 1993
• Docket Number: No. S-91-388,S-91-388
• Citation: 244 Neb. 715,508 N.W.2d 907
• Parties: Rosemary SCHIEFFER, Appellant, v. CATHOLIC ARCHDIOCESE OF OMAHA, a Corporation, and Timothy Lange, Appellees.
• Court: Nebraska Supreme Court

Page 907

508 N.W.2d 907

244 Neb. 715

Rosemary SCHIEFFER, Appellant, v. CATHOLIC ARCHDIOCESE OF OMAHA, a Corporation, and Timothy Lange, Appellees.

No. S-91-388.

Supreme Court of Nebraska.

Dec. 17, 1993.

Syllabus by the Court

1. Demurrer: Pleadings. In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but 2. Pleadings. A petition is sufficient if, under the facts alleged, the law entitles a plaintiff to recover. That is to say, facts are sufficient to constitute a cause of action when they are a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.

cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

3. Actions: Mental Distress. To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege facts showing (1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

4. Torts: Intent. Consent ordinarily bars recovery for intentional interferences with person or property.

5. Torts: Intent. When a defendant by his conduct intentionally interferes with a legally protected interest of person or property, either consent to the invasion resulting from such conduct or consent to the conduct that brought about the invasion avoids liability.

6. Actions: Alienation of Affections: Criminal Conversation. Causes of action based on criminal conversation or alienation of affections are barred by Neb.Rev.Stat. § 25-21,188 (Reissue 1989).

7. Res Judicata. The doctrine of res judicata is based on the principle that a final judgment on the merits by a court of competent jurisdiction is conclusive upon the parties in any later litigation involving the same cause of action.

8. Torts: Negligence: Liability: Employer and Employee. For the doctrine of respondeat superior to apply, an employee must be liable for a tort committed in the scope of his employment. Likewise, an underlying requirement in actions for negligent supervision and negligent training is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer.

9. Demurrer: Pleadings. Neb.Rev.Stat. § 25-854 (Reissue 1989) does not provide an absolute right to amend a petition after a demurrer has been sustained, nor is the statute without limitation.

Herbert J. Friedman, of Friedman Law Offices, Lincoln, for appellant.

Patrick G. Vipond and William R. Settles, of Kennedy, Holland, DeLacy & Svoboda, and Edward D. Hotz, of Zweiback, Hotz & Lamberty, Omaha, for appellee Catholic Archdiocese of Omaha.

John M. Gerrard, of Gerrard, Stratton & Mapes, P.C., Norfolk, for appellee Lange.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

BOSLAUGH, Justice.

This is a suit for damages brought by the plaintiff, Rosemary Schieffer, against the defendants, Catholic Archdiocese of Omaha (Archdiocese), a corporation, and Timothy Lange. The original petition, filed March 27, 1990, was filed in the name of Jane Doe. Separate actions against the defendants were also filed by the plaintiff's husband and daughter. All of these actions were consolidated. General demurrers to the petitions of the plaintiff and her husband were sustained and the petitions dismissed on September 28, 1990. Apparently, there were no appeals from the order of dismissal.

Motions to strike and to make the plaintiff's original petition more definite and certain were filed by the defendants, and the demurrers to that petition were withdrawn. The motions were sustained in part, and on December 10, 1990, the plaintiff filed an amended petition. The amended petition alleged intentional infliction of emotional distress, negligence, and breach of fiduciary duty in separate causes of action. The amended petition also contained a fourth The plaintiff's 11 assignments of error combine to assert that the trial court erred (1) by sustaining the defendants' demurrers and dismissing the amended petition, (2) by failing to allow the plaintiff an opportunity to amend her amended petition, and (3) by failing to specify the grounds for sustaining the defendants' demurrers.

cause of action involving the plaintiff's husband's alleged loss-of-consortium claim that had been assigned to her. Demurrers to the amended petition were sustained on February 8, 1991, and the amended petition dismissed. This appeal followed.

In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Hamilton v. City of Omaha, 243 Neb. 253, 498 N.W.2d 555 (1993).

A petition is sufficient if, under the facts alleged, the law entitles a plaintiff to recover. That is to say, facts are sufficient to constitute a cause of action when they are a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff. Gerken v. Hawkins Constr. Co., 243 Neb. 157, 498 N.W.2d 97 (1993).

Viewed most favorably to the plaintiff, the amended petition alleges the following:

In 1979, the plaintiff began counseling with the defendant Lange concerning family matters. Lange was the plaintiff's parish priest and "spiritual leader." During this time period, the plaintiff was vulnerable because of prior emotional problems. While she was in this vulnerable state and during the course of pastoral counseling, Lange made sexual advances toward the plaintiff that continued for a period of 3 years. In 1982, Lange and the plaintiff began a sexual relationship that continued until approximately June 1989.

The amended petition further alleges that at all times applicable to this action, Lange was an employee of the defendant Archdiocese and at all times was acting within the scope and course of his employment. Further, Lange and the Archdiocese were charged with the obligation to administer pastoral and spiritual advice and care to the plaintiff and her family, and as such, held a position of trust and responsibility to the plaintiff and her family.

The first assignment of error is that the trial court erred by sustaining the demurrers of the defendants and dismissing the plaintiff's amended petition. The plaintiff argues that she stated facts sufficient to constitute a cause of action as to all of her claims. We discuss the various causes of action in turn, beginning first with the allegations against the defendant Lange. The plaintiff's claims against Lange, as alleged in the amended petition, are based on intentional infliction of emotional distress, negligence, and breach of fiduciary duty.

The plaintiff's first cause of action alleges that the conduct of Lange was outrageous and extreme and caused her severe emotional distress. As a proximate result of that conduct, the plaintiff suffered severe and permanent emotional injury and incurred current and future medical expenses. The plaintiff also claims that she has lost faith in the Catholic Church and in God.

With regard to intentional infliction of emotional distress, this court has delineated three elements that must be met for this cause of action:

"(1) [t]hat there has been intentional or reckless conduct; (2) [t]hat the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community; and (3) [t]hat the conduct caused emotional distress so severe that no reasonable person should be expected to endure it."

Nichols v. Busse, 243 Neb. 811, 817, 503 N.W.2d 173, 179 (1993), quoting Gall v. Great Western Sugar Co., 219 Neb. 354, 363 N.W.2d 373 (1985).

There are several reasons why the plaintiff's alleged claim for intentional infliction In tort law, consent ordinarily bars recovery for intentional interferences with person or property. According to W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 18 at 112 (5th ed. 1984), it is a fundamental principle of common law that "to one who is willing, no wrong is done." That text further states:

                of emotional distress was subject to demurrer.  What is involved in this case is conduct between consenting adults.  There is no allegation that the defendant used force or fraud to accomplish his sexual relations with the plaintiff during the period from 1982 to 1989.  The amended petition does allege that the plaintiff was "vulnerable" because of "prior emotional problems."   This allegation falls far short of alleging that the plaintiff was incapable of consenting to what took place
                

[W]hen the defendant by his conduct intentionally interferes with a legally protected interest of person or property, either consent to the invasion resulting from such conduct, or consent to the conduct that brought about the invasion, avoids liability. One, of course, consents to an invasion such as a sex contact if he or she wants or desires the invasion. Consent avoids recovery simply because it destroys the wrongfulness of the conduct as between the consenting parties, however harmful it might be to the interest of others, and even though it is perhaps both immoral and criminal.

Id. ...