Schmidt v. Archdiocese of Portland

• Decision Date: 19 March 2008
• Docket Number: 020403531.,A124850.
• Citation: 180 P.3d 160,218 Or. App. 661
• Parties: David SCHMIDT, Plaintiff-Appellant, and N.M., Plaintiff, v. ARCHDIOCESE OF PORTLAND IN OREGON, an Oregon corporation; Roman Catholic Archbishop of Portland in Oregon, dba Archdiocese of Portland in Oregon and Roman Catholic Archbishop of Portland in Oregon, and successors, a corporation sole; Mt. Angel Abbey, an Oregon not for profit corporation and Louis Charvet, Defendants-Respondents, and Swiss-American Congregation of the Ordo Sancti Benedicti, Defendant.
• Court: Oregon Court of Appeals

180 P.3d 160

218 Or. App. 661

David SCHMIDT, Plaintiff-Appellant, and N.M., Plaintiff, v. ARCHDIOCESE OF PORTLAND IN OREGON, an Oregon corporation; Roman Catholic Archbishop of Portland in Oregon, dba Archdiocese of Portland in Oregon and Roman Catholic Archbishop of Portland in Oregon, and successors, a corporation sole; Mt. Angel Abbey, an Oregon not for profit corporation and Louis Charvet, Defendants-Respondents, and Swiss-American Congregation of the Ordo Sancti Benedicti, Defendant.

020403531.

A124850.

Court of Appeals of Oregon.

Argued and Submitted January 26, 2007.

Decided March 19, 2008.

Erin K. Olson argued the cause for appellant. On the opening brief was David Slader, Portland. On the reply brief were David Slader, Kelly W.G. Clark, Kristian Roggendorf, and O'Donnell & Clark LLP.

James N. Finn, Portland, argued the cause for respondent Archdiocese of Portland and Roman Catholic Archbishop of Portland in Oregon. On the brief were Thomas Dulcich, Margaret Hoffmann, Sara Kobak, Portland, and Schwabe, Williamson & Wyatt, P.C.

John T. Kaempf, Portland, argued the cause for respondent Mt. Angel Abbey and Louis Charvet. With him on the brief were Richard J. Whittemore, Portland, and Bullivant Houser Bailey P.C.

Before ORTEGA, Presiding Judge, and EDMONDS and ARMSTRONG, Judges.

ORTEGA, P.J.

Plaintiff initiated an action in tort against the Catholic Archdiocese of Portland, Mt. Angel Abbey, and Charvet, a former priest at the abbey.¹ The action was based on plaintiff's allegations that Charvet masturbated in his presence on one occasion during plaintiff's freshman year of high school at Mt. Angel Seminary and that another priest, Frank, who is now deceased, sexually assaulted him when he was seven or eight years old. Plaintiff sought to hold Charvet directly liable for his conduct and to hold the archdiocese and the abbey vicariously liable for both priests' conduct under the doctrine of respondeat superior.

Defendants moved for summary judgment, and the trial court granted the motions, concluding that the extended statute of limitations provided in ORS 12.117² for actions constituting "child abuse" did not apply to Charvet's conduct and that neither priest's conduct was within the scope of his employment so as to provide a basis for vicarious liability on the part of the archdiocese and the abbey. Plaintiff now appeals, contending that issues of fact and law precluded summary judgment. We affirm.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On review of the grant of summary judgment, we state the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving party — in this case, plaintiff. ORCP 47 C; Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001).

The summary judgment record includes the following facts. Plaintiff was raised in a Roman Catholic family in the town of Mt. Angel. The family regularly attended mass at St. Mary's Church, which was on the same street as, and several properties away from, their home. Mt. Angel Abbey, a Benedictine monastery and seminary, is located in Mt. Angel. By agreement with the archdiocese, priests from the abbey often staffed St. Mary's Church.

One day in the early 1950's, when plaintiff was seven or eight years old, he, two of his siblings, and several friends were roller skating on the sidewalk around St. Mary's Church when plaintiff fell down and scraped his knees. According to plaintiff, Frank, "dressed like a priest," was walking nearby. Frank walked over to where plaintiff had fallen, helped plaintiff up, took him by a nearby stairway into the basement of the church, sat him on a table, and asked him to "take [his] pants down to look at [his] scraped knees." According to plaintiff, Frank looked at plaintiff's scraped knees, then began fondling plaintiff's penis through his underwear and, ultimately, sodomized him.

Some years later, plaintiff attended Mt. Angel Seminary for his freshman year of high school. Charvet was a freshman advisor and dormitory proctor. Plaintiff testified that, early in the second semester of his freshman year—that is, in January or February 1958—Charvet asked plaintiff to meet him at a specified time in Charvet's office, which was located at the end of plaintiff's dormitory. When plaintiff arrived at the office, Charvet was sitting behind a desk. The office was large and had a "normal" level of lighting. While plaintiff was in the office, the door was closed; plaintiff did not know whether it was locked. Charvet, wearing a cassock and scapular, instructed plaintiff to stand in front of the desk and began asking him what he knew about sexuality and reproduction. Among other topics, Charvet asked plaintiff whether he had ever masturbated and began explaining "what that was about."

Plaintiff testified that, during that discussion, "I could see that there was a lot of motion going on under [Charvet's] cassock and I assumed what I was seeing was he was masturbating and it became frightening to me and I left—I just mentally left the room." Plaintiff did not know whether Charvet's hand was touching his skin, did not see Charvet's genitals, and did not see Charvet's hand on his penis; he concluded that Charvet was masturbating based on the "motion" that he saw and the fact that "[i]t went on for a long time," "[m]aybe ten minutes." Plaintiff also testified that, although he did not know if Charvet ever "achieved some form of climax," Charvet "became very distracted in what he was doing to himself." Plaintiff believed that it was "obvious" what Charvet was doing. He testified that Charvet did not "proposition" him to participate in what Charvet was doing, did not touch him, and did not ask him to do the same thing. Plaintiff testified that, although Charvet did not prevent him from leaving the office, his own "training" did. Plaintiff testified that he never had any further "incidents" of that kind involving Charvet and that he never told anyone at the school, at Mt. Angel Abbey, or at any church about the incident, because he did not think that doing so "would do much good."

In February 1999, plaintiff began seeing a mental health counselor, English. Some time after that, he remembered the incidents involving Frank and Charvet.

In April 2002, plaintiff initiated this action against, as pertinent here, Charvet, the archdiocese, and the abbey. In his operative complaint, plaintiff alleged two claims for relief: a claim for sexual battery based on Frank's alleged sexual assault and a claim for intentional infliction of emotional distress and for breach of fiduciary duty based on the theory that Charvet sexually abused plaintiff by masturbating in his presence. Plaintiff sought economic damages in the amount of $150,000 for costs of counseling and psychological treatment and noneconomic damages in the amount of $4 million. In its answer, the archdiocese denied the relevant factual allegations and asserted, among other affirmative defenses, that plaintiff's claims are barred by the applicable statutes of limitation and are not subject to ORS 12.117, which provides for an extended limitations period for actions based on child abuse. The archdiocese also contended that, to the extent that ORS 12.117 does apply, it is unconstitutional in various respects. Charvet and the abbey also denied the relevant factual allegations and asserted a limitations defense, among other affirmative defenses.

As noted, defendants moved for summary judgment. As pertinent here, in support of its motion, the archdiocese contended that Frank's conduct was not within the scope of employment for the purposes of vicarious liability because, as demonstrated by the summary judgment record, the alleged sexual abuse occurred within minutes of plaintiff's first-ever encounter with Frank and, accordingly, there was no evidence that Frank used or manipulated a position of trust to ingratiate himself with plaintiff or to create an opportunity to sexually abuse him, as occurred in Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999). In support of its parallel motion, the abbey likewise argued that plaintiff's deposition testimony was insufficient to demonstrate that plaintiff had the requisite prior relationship or contact with Frank or Charvet for purposes of respondeat superior liability. Charvet contended that plaintiff's testimony was insufficient to demonstrate that he ever touched plaintiff or propositioned him to engage in any sexual activity in a manner that would constitute child abuse as defined in ORS 12.117.

In opposition, relying on Chesterman v. Barmon, 305 Or. 439, 753 P.2d 404 (1988), plaintiff argued that the required causal connection between the priests' employment and plaintiff's injuries need not be demonstrated by evidence of so-called "grooming" conduct by the priests. According to plaintiff, there is sufficient alternative evidence relating to Frank's and Charvet's priestly functions and duties and the relationship generally between priests and parishioners to demonstrate that the priests' actions toward plaintiff were an outgrowth of, and were engendered by, conduct that was within the scope of their employment. Plaintiff also contended that the definition of child abuse in ORS 12.117 includes both "sexual exploitation" and "cruelty," that neither of those standards requires physical contact with the child, and that Charvet's conduct of masturbating in plaintiff's presence therefore was not excluded from that definition.

The archdiocese replied that Frank's status as a Catholic priest standing alone was insufficient to show that he was acting within the scope of his employment; that there was no evidence that, around the time of the incident involving Frank, plaintiff was involved in any church-related activities such as serving as an altar boy; and that holding the archdiocese...