BishopAccountability.org

Michael Gibson V. Father Michael Brewer

By Robert G. Ulrich
Court of Appeals of Missouri, Western District
March 5, 1996

http://mo.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19960305_0002.mo.htm/qx

MICHAEL GIBSON, NARRON GIBSON AND MARIANNE GIBSON, APPELLANTS-RESPONDENTS,
v.
FATHER MICHAEL BREWER, RESPONDENT-APPELLANT, AND CATHOLIC CHANCERY - DIOCESE OF KANSAS CITY-ST. JOSEPH, RESPONDENT.


APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI The Honorable Gene R. Martin, Judge.

Before Berrey, P.j., Ulrich & Ellis, JJ. Ulrich, J. concurs by way of separate Concurring opinion. Ellis, J. concurs with majority.

The opinion of the court was delivered by: Berrey

This appeal follows the trial court's dismissal of all but three counts of a nine-count amended petition for failure to state a claim upon which relief may be granted. In their petition, appellants, Michael Gibson and his parents, Narron and Marianne, allege the following causes of action against respondents Father Michael Brewer and the Catholic Chancery - Diocese of Kansas City-St. Joseph: (i) battery; (ii) negligent hiring/ordination and retention; (iii) negligent failure to supervise; (iv) negligent infliction of emotional distress; (v) intentional infliction of emotional distress; (vi) breach of fiduciary duty; (vii) conspiracy; (viii) agency liability; and (ix) independent negligence of the respondent Diocese. In each count, the Gibsons seek joint and several liability against both respondents.

The trial court dismissed all counts against the Diocese for "failure to state a claim upon which relief can be granted and because such claims as alleged against [the Diocese] infringe upon its rights provided by the First Amendment to the United States Constitution." The trial court then dismissed counts (ii) (negligent hiring/ordination and retention), (iii) (negligent failure to supervise), (viii) (agency liability), and (ix) (independent negligence of the Diocese) against Father Brewer because they "are not directed toward defendant Brewer although the prayer of each such count requests judgment against defendant Brewer. Consequently, these counts fail to state a claim upon which relief can be granted against defendant Brewer." The court also dismissed counts (vi) (breach of fiduciary duty) and (vii) (conspiracy) against Father Brewer finding that they stated no claim upon which relief could be granted. Therefore, counts (i) (battery), (iv) (negligent infliction of emotional distress) and (v) (intentional infliction of emotional distress) remained viable causes of action against Father Brewer because "these claims do not involve clergy malpractice."

The Gibsons appeal the dismissal of their various causes of action alleging they have stated viable claims which do not constitute clergy malpractice and which do not violate the First Amendment. Father Brewer cross-appeals the failure of the trial court to dismiss counts (i) (battery), (iv) (negligent infliction of emotional distress) and (v) (intentional infliction of emotional distress) against him contending that the Gibsons failed to allege sufficient facts to support their battery claim and that the Gibsons improperly pled their intentional and negligent infliction of emotional distress claims.

Judgment affirmed in part and reversed in part.

In assessing the sufficiency of a petition subject to a motion to dismiss, all facts properly pleaded are assumed to be true, the averments are given a liberal construction, and the petition is given the favor of those inferences fairly discernable from the facts alleged. Commercial Bank of St. Louis County v. James, 658 S.W.2d 17, 21-22 (Mo. banc 1983). While mere Conclusions of the pleader, not supported by factual allegations, are to be disregarded, id. at 22, a petition suffices against a motion to dismiss if the averments, given every reasonable intendment, invoke a substantive remedy. Hyde v. City of Columbia , 637 S.W.2d 251, 254 (Mo. App. 1982), cert. denied, 459 U.S. 1226, 103 S. Ct. 1233, 75 L. Ed. 2d 467 (1983).

The facts, as alleged by the Gibsons and accepted as true for purposes of this appeal, are as follows. Appellants, Narron and Marianne Gibson, have been members of the St. Elizabeth Parish Church and the Catholic Diocese of Kansas City - St. Joseph for more than 20 years. All of the Gibson children, including appellant Michael Gibson, attended Diocesan grade schools and high schools. Respondent Father Michael Brewer ("Father Brewer") was a priest, ordained, trained and supervised by respondent Diocese of Kansas City - St. Joseph ("Diocese"). St. Elizabeth Parish is a parish of and operates under the direct control of the Diocese. Father Brewer operated as a parish priest under the direct control of the Diocese.

In his capacity as Associate Pastor, Father Brewer came to know the Gibson family as well as other families in the St. Elizabeth Parish. He socialized with parishioners and their children and became their friends. The Gibsons, in particular, became close to Father Brewer and admitted him to their home and treated him like a member of their family.

In August of 1990, Father Brewer invited Michael Gibson and a friend to spend the night and watch movies in the parish Rectory where he lived. After watching movies, and in the early morning hours while Michael slept, Father Brewer touched and fondled Michael Gibson in a "sexual, offensive and unwelcome manner."

After they learned of Father Brewer's actions, Narron and Marianne Gibson confronted the Diocese regarding the incident. The Gibsons allege Diocesan agents told them "this happens to young men all the time" and that Michael "would get over it." They claim the Diocese wanted to keep the incident quiet and suggested the Gibsons meet with respondent Brewer to resolve the situation. According to the petition, Diocesan representatives also assured the Gibsons that Father Brewer would no longer be in contact with young boys, yet failed to take any action.

The Gibsons further allege they learned of other incidents similar to Michael's. The petition avers the Gibsons continued to express their concern to the Diocese regarding Father Brewer's alleged "improper contact" with young boys, but that Diocesan agents referred to the incident with Michael as "an innocent pat on the butt." The Gibsons allege Diocesan agents told them to "forgive and forget" and that Father Brewer was going to be transferred to another parish located at Blue Springs, Missouri.

According to the petition, the Gibson family continued attempts to resolve the situation with the Diocese, but they were ignored. The Diocese is alleged to have failed to take any action regarding this particular act or any prior acts of improper sexual conduct on the part of Father Brewer. Additional allegations of the Gibsons' amended petition are addressed below. However, before addressing each count individually, we take up the Diocese's contention that the First Amendment shields it from all liability in this matter.

We first note that religious institutions are not immune from tort liability, the doctrine of religious or charitable immunity having been abolished in Missouri. Abernathy v. Sisters of St. Mary's , 446 S.W.2d 599 (Mo. banc 1969). "Likewise, the First Amendment has not been construed to create blanket tort immunity for religious institutions or their clergy." Strock v. Pressnell , 38 Ohio St. 3d 207, 527 N.E.2d 1235, 1237 (Ohio 1988). When protection is sought under the Free Exercise Clause of the First Amendment, a court must determine whether the defendant's conduct involves religious beliefs or practices. Wisconsin v. Yoder , 406 U.S. 205, 215-16, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1972). "If no legitimate religious beliefs or practices are at issue, then the free-exercise defense becomes frivolous." Strock , 527 N.E.2d at 1238.

In this case, the Diocese argues that with the exception of the Gibsons' battery and vicarious liability counts, each of their claims against the Diocese must fail because of the religious freedom guarantees found in the First Amendment. We cannot agree under the facts of this case. As the Diocese admits in its brief, the First Amendment does not protect inappropriate physical contact between a priest and a minor. Such conduct is not in any way related to the teachings, beliefs or practices of the Catholic Church. Moreover, as this court stated in Hester v. Barnett , 723 S.W.2d 544, 555 (Mo. App. 1987) (citing Sherbert v. Verner , 374 U.S. 398, 403, 83 S. Ct. 1790, 1793, 10 L. Ed. 2d 965 (1963)), conduct or actions which pose some substantial threat to public safety, peace or order may be subject to governmental regulation, even though prompted by religious beliefs or principles.

This is because the freedom to believe has consistently been distinguished from the freedom to act. *fn1 In Employment Div., Dep't of Human Resources v. Smith , 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), the Supreme Court held that a state may constitutionally prohibit the sacramental use of peyote without violating the Free Exercise Clause. Laws, it is reasoned, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." 494 U.S. at 879. To hold otherwise would be "to make the professed doctrines of religious belief superior to the law of the land." Id.

The Diocese, although a religious organization, is also a member of society at large and can be bound to "neutral laws of general applicability" without offending the First Amendment. Id. "[Its] activities, as opposed to beliefs, therefore, cannot be totally autonomous from the state when it comes to matters of high order, such as health, safety, and public peace." Carl H. Esbeck, Tort Claims Against Churches and Ecclesiastical Officers: The First Amendment Considerations , 89 W. Va. L. Rev. 1, 7 (1986).

Therefore, both Father Brewer and the Diocese may be liable for their respective tortious conduct. Having thus dispelled the Diocese's blanket tort immunity defense, we now address separately each of the Gibsons' causes of actions.

Count I. Battery

A battery occurs when one individual willfully touches another in a harmful or offensive manner. In Count I of their petition, the Gibsons allege Father Brewer "touched Michael Gibson in a way that was offensive to Michael and would be to others." They further allege that "as a result of this touching, Michael Gibson has suffered severe mental and emotional injuries that have required counseling."

Father Brewer

Father Brewer argues the trial court should have dismissed the Gibsons' battery claim because their pleadings do not allege facts sufficient to show that a battery occurred. Citing Commercial Bank of St. Louis County v. James, 658 S.W.2d 17, 22 (Mo. banc 1983), Father Brewer contends the pleadings fail to state the facts of the case with sufficient particularity to place him on notice as to the precise nature of the allegations against him. We disagree.

While the Gibsons' pleadings do not specifically state what Father Brewer did to Michael, they do provide enough information to meet the pleading requirements and to give Father Brewer sufficient notice as to the allegations lodged against him. Rule 55.05 . In addition to the allegations discussed above, the petition alleges that in August of 1990 Father Brewer asked Michael Gibson and a friend to spend the night at the Rectory (where Father Brewer lived) watching movies. The Gibsons allege Michael and his friend accepted, and that in the early hours of the next morning, Father Brewer touched or fondled Michael in an unwelcome or offensive manner. These allegations, accepted as true, sufficiently state a claim for battery.

In a footnote, Father Brewer also argues that even if Michael Gibson can assert a cause of action for battery, his co-plaintiffs, his parents, cannot. On this point, we agree. If there was any battery in this case, the only victim was Michael, not his parents. Therefore, only Michael can bring this particular claim.

The trial court correctly refused to dismiss Michael's Count I against Father Brewer. However, Count I should be dismissed as to the plaintiffs Marianne and Narron Gibson.

Diocese

We further hold that the trial court correctly dismissed the battery claim against the Diocese. The Gibsons do not allege that anyone but Father Brewer touched Michael in an offensive manner. This being the case, no one but Father Brewer can be held directly liable for the alleged battery of Michael. *fn2

Count II. Negligent Hiring/Ordination and Retention

In the second count of their petition, the Gibsons allege "the Catholic Church was negligent in hiring/ordaining defendant Brewer and the Diocese and Parish thereafter negligently retained defendant Brewer after each knew or reasonably should have known of prior sexual misconduct and/or a propensity to such conduct." To recover on a negligent hiring and retention theory in Missouri, a plaintiff must prove that (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. Gaines v. Monsanto Co. , 655 S.W.2d 568, 570-71 (Mo. App. 1983).

Father Brewer

Thus, the trial court correctly dismissed the negligent hiring and retention claim as to Father Brewer because this cause of action is premised upon the direct negligence of the employer and not the independent negligence of the employee. Gaines , 655 S.W.2d at 570.

Diocese

The Gibsons do, however, allege facts sufficient to support their claim against the Diocese for negligent retention. In their petition, the Gibsons assert (1) that the Diocese knew or should have known of Father Brewer's dangerous proclivities, and (2) that the Diocese's negligent retention of Father Brewer was the proximate cause of their injury.

The Gibsons state in paragraph 21 of their first amended petition that "when defendant Brewer was hired/ordained by the Catholic Church, and assigned to the St. Elizabeth Parish, defendants were aware or should have been aware of prior sexual misconduct and/or a propensity to such conduct by defendant Brewer." Paragraph 24 further alleges that "as a result of the negligence of the Catholic Church, the Diocese and St. Elizabeth Parish, [the Gibsons] have suffered extreme mental and emotional injury." Paragraph 11, incorporated into Count II, then states that "after the sexual assault, the Gibsons informed the Diocese and its agents of the incident. They were told that this 'happens to young men all the time' and that Michael 'would get over it'. . . . [The Gibsons] were assured that defendant Brewer would not be or no longer be in contact with young boys." Apparently, however, Father Brewer was not placed on administrative leave, nor encouraged to seek professional help. Rather, according to the Gibsons' amended petition, he was eventually transferred to another parish.

Assuming the truth of these allegations, as we must in our review of the trial court's grant of the motion to dismiss, we believe it would not be impossible as a matter of law for the Gibsons to recover on the theory pleaded. While it might be difficult for the Gibsons to prove that the Diocese's negligent hiring or retention of Father Brewer was the proximate cause of their injuries, "matters of foreseeability and proximate cause must be left for the court and jury after presentation of evidence." Gaines , 655 S.W.2d at 571. Ultimately, any liability on the Diocese's part would depend upon sufficient proof of notice of Father Brewer's dangerous proclivities. Strauss v. Hotel Continental Co. , 610 S.W.2d 109, 114 (Mo. App. 1980). But a motion to dismiss is not the appropriate method for making such a decision in view of the allegations of both constructive and actual notice as set out in the Gibsons' amended petition. See Jones v. Trane , 153 Misc. 2d 822, 591 N.Y.S.2d 927, 932 (Sup. 1992).

The Diocese insists, however, that the First Amendment to the United States Constitution prohibits a claim against it for negligent hiring, ordination, retention or supervision of Father Brewer because judicial inquiry into church policies of hiring or retention might foster excessive entanglement with religion. The Diocese contends that internal administration controls its hiring practices and that the relationship between a church and its clergy is purely ecclesiastical or Canon Law.

We agree that the Gibsons' claim of negligent hiring or retention infringes upon the church's First Amendment protection.

The legitimate concern is that "to determine whether a religious organization has exercised due care in hiring, it is necessary to examine its employment policies and practices" which may be "infused with the religious tenets of the particular sect involved." Byrd v. Faber , 57 Ohio St. 3d 56, 565 N.E.2d 584, 590 (Ohio 1991). In Byrd , the plaintiffs, Leroy and Garnet Byrd, sought marital and personal counseling from Reverend Richard Faber of the Seventh-day Adventist Hill Church. During the course of the counseling, Faber allegedly forced Garnet Byrd to engage in sexual activity with him. As a result, the Byrds filed suit against Faber and the Seventh-day Adventists church. Their complaint alleged the church was liable for Faber's actions under the doctrine of respondeat superior and negligent hiring. Id. at 585.

The Ohio Supreme Court first noted that a church may, indeed, be liable in tort for its own negligence. Id. at 586. The court then held that a heightened standard of pleading would be required in Ohio when a claim is brought against a religious institution for negligent hiring. Id. at 589. The court reasoned that such a rule would serve a gatekeeping function to limit the number of claims and thereby avoid unnecessary First Amendment problems. Id. However, the court emphasized that the First Amendment would not protect the church if the plaintiffs, in fact, demonstrated negligent hiring. Id. at 590.

Additional cases from other jurisdictions have allowed a negligent hiring/retention cause of action to stand against a church where the church had knowledge of the proclivity of its priest or pastor, Moses v. Diocese of Colorado , 863 P.2d 310 (Colo. 1993), cert. denied, U.S. , 114 S. Ct. 2153, 128 L. Ed. 2d 880 (1994); Destefano v. Grabrian , 763 P.2d 275 (Colo. 1988); Erickson v. Christenson , 99 Ore. App. 104, 781 P.2d 383 (Or. App. 1989); and Jones v. Trane , 153 Misc. 2d 822, 591 N.Y.S.2d 927 (Sup. 1992), while others have held that this tort requires the courts to interpret church canons and practices in violation of the First Amendment. Schmidt v. Bishop , 779 F. Supp. 321 (S.D.N.Y. 1991); Pritzlaff v. Archdiocese of Milwaukee , 194 Wis. 2d 303, 533 N.W.2d 780 (Wis. 1995); Isely v. Capuchin Province , 880 F. Supp. 1138 (E.D. Mich. 1995).

Since Missouri has not decided whether the First Amendment grants immunity to a church, it is appropriate for us to look to other jurisdictions and United States Supreme Court decisions regarding similar issues. In 1929, the United States Supreme Court held that hiring decisions of the church are "purely ecclesiastical" and, as such, are binding on the courts even though affecting civil rights. Gonzalez v. Roman Catholic Archbishop , 280 U.S. 1, 50 S. Ct. 5, 7-8, 74 L. Ed. 131 (1929). Thereafter, in 1952, the Court held that where no improper methods of choice are utilized, a church's freedom to select its clergy must be given federal constitutional protection as part of the free exercise of religion against state interference. Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church , 344 U.S. 94, 73 S. Ct. 143, 97 L. Ed. 120 (1952).

In light of these Supreme Court decisions, we find the reasoning of Isely v. Capuchin Province , 880 F. Supp. 1138 (E.D. Mich. 1995), persuasive. In Isely , the United States District Court for the Eastern District of Michigan cited the above-referenced Supreme Court decisions and held that questions of hiring and retention of clergy necessarily require interpretation of church canons and therefore civil claims of negligent hiring/retention violate of the First Amendment. 880 F. Supp. at 1150. The court noted that "any inquiry into the decision of who should be permitted to become or remain a priest necessarily would involve prohibited excessive entanglement with religion." Id. *fn3

Thus, we hold that the trial court properly dismissed the negligent hiring count on First Amendment grounds.

Count III. Negligent Failure to Supervise

For their Count III, the Gibsons allege the Diocese was negligent in its supervision, or lack of supervision, of Father Brewer. They contend the trial court erred in dismissing this cause of action. The Restatement (Second) of Agency 213 (1958), states that "[a] person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: . . . (c) in the supervision of the activity...." Missouri courts have recognized the tort theory of negligent supervision in a variety of settings, *fn4 and the cases applying this tort theory have held that the duty to supervise runs to an individual, not an activity. Bequette v. Buff, 862 S.W.2d 921, 924 (Mo. App. 1993). To recover under Missouri law, the Gibsons must show that "a reasonable person would recognize that an incident of the type alleged could occur and that steps should be taken to prevent it." A.R.H. v. W.H.S. , 876 S.W.2d 687, 689 (Mo. App. 1994).

Father Brewer

The trial court properly dismissed Count III as to Father Brewer because this cause of action is premised upon the direct negligence of the Diocese and not the independent negligence of Father Brewer. Rest. (2d) of Agency, 213(c) (1958); see also Hammonds, 899 S.W.2d at 530-31. Moreover, it is clear from the petition that the Gibsons assert this claim only against the Diocese.

Diocese

The Gibsons allege the Diocese had a duty to supervise Father Brewer's activities, that the Diocese failed to do so, and that, as a result of the Diocese's failure to supervise Father Brewer, Father Brewer was allowed to victimize Michael Gibson and "other young boys." While the duty to supervise is a "narrow one" in Missouri, A.R.H. v. W.H.S. , 876 S.W.2d at 689, we cannot say as a matter of law that the Gibsons failed to state a claim.

In Hammonds , (supra) , a patient filed suit against an obstetrician for negligent supervision of a hospital resident physician. The court first noted the patient's petition regarding negligent supervision was not as clear and specific as it could have been. Hammonds, 899 S.W.2d at 529-30. Yet, the court held that the petition clearly stated negligence as a cause of action and that a fact issue as to whether the obstetrician exercised the requisite control over the resident and was negligent in her supervision precluded a grant of summary judgment. 899 S.W.2d at 530.

In A.R.H. v. W.H.S. , (supra) , a young woman filed suit against her grandmother alleging negligent supervision. The plaintiff sought to recover for sexual assaults committed by her stepgrandfather, the husband of the defendant. The Eastern District reversed the trial court's grant of summary judgment in the grandmother's favor. A.R.H. v. W.H.S. 876 S.W.2d at 688. The court first noted the exercise of due care may require more vigilance and caution when a child is involved if there is a potentially dangerous condition of which the supervisor is or should be aware. 876 S.W.2d at 689. The court then recognized the potential conflict of duties that might occur if liability were imposed for the grandmother's failure to control the stepgrandfather or to warn others of his behavior. 876 S.W.2d at 689-90. Ultimately, however, the court held that such an argument did not defeat potential liability. Id. The court reasoned:

It is by no means clear the only alternatives available to Grandmother to protect Plaintiff from Step-grandfather's abuse would have necessitated an attempt to control Step-grandfather's conduct or informing others of his conduct. It is at least a reasonable inference from the facts alleged in the petition that Grandmother could have prevented further abuse either by taking steps to ensure that Plaintiff remained with her or within her view at all times when she was in her custody or by declining to accept custody and supervision of the children in her home. Neither of these alternatives would require Grandmother to compromise her duty of loyalty to her husband. Thus, at least at this stage of the proceedings, we cannot say that allowing Plaintiff to go forward with her cause of action for negligent supervision would necessarily subject Grandmother to conflicting duties which would justify barring the action . . .

876 S.W.2d at 690.

Similarly, in this case, we cannot say that allowing the Gibsons to go forward with their negligent supervision claim would involve the courts dictating who may "preach from the pulpits." Other alternatives were available to the Diocese, and imposing a duty on the church to monitor its clerics does not require the courts to dictate who may be a priest or what role the cleric may perform. Assuming the Diocese had knowledge of Father Brewer's sexual proclivities, the Gibsons sufficiently state a cause of action for negligent supervision.

While some courts have held that either a negligent hiring or a negligent supervision cause of action creates excessive government entanglement, we believe a cause of action for negligent supervision, unlike the cause of action for negligent hiring or retention, is far less likely to conflict with the First Amendment. See Isely v. Capuchin Province , 880 F. Supp. 1138 (E.D. Mich. 1995). Civil courts may apply "neutral" principles of law to religious organizations so long as this can be done without deciding underlying questions of church law and policies, Serbian E. Orthodox Diocese v. Milivojevich , 426 U.S. 696, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976), and application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution. Moses v. Diocese of Colorado , 863 P.2d 310 (Colo. 1993), cert. denied, U.S. , 114 S. Ct. 2153, 128 L. Ed. 2d 880 (1994).

Society's interest in protecting minors from sexual abuse by adults is evidenced in Missouri by our statutory laws making such conduct criminal. In this case, imposing a duty on the church to supervise its priests creates a perfectly neutral principle of law. While the threat of a money damage award may have an indirect affect on the Diocese's personnel decisions, the intrusion is slight when compared to the state's interest in protecting its children. Gray v. Ward , No. 50264 (Mo. App. W.D.) (handed down this same date). Moreover, as candidly admitted by the Diocese, inappropriate physical contact between a priest and a young male parishioner is in no way related to the teachings of the Catholic Church.

For these reasons, we hold that the trial court erred is dismissing the Gibsons' Count III.

Count IV. Negligent Infliction of Emotional Distress

A claim for negligent infliction of emotional distress requires the plaintiff to show that: "(1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress; and (2) the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant." Bass v. Nooney Co. , 646 S.W.2d 765, 772-73 (Mo. banc 1983).

Father Brewer

In his cross-appeal, Father Brewer argues the Gibsons' claim of negligent infliction of emotional stress should have been dismissed for the following reasons: (a) the Gibsons' claim of negligent infliction of emotional distress is actually a clergy malpractice claim in disguise; (b) the Gibsons failed to successfully plead the elements of a negligent infliction of emotional distress claim; (c) Father Brewer's conduct constituted, at most, the intentional tort of battery; and (d) by incorporating all of their previous counts into their count for negligent infliction of emotional distress, the Gibsons failed to state a claim for negligent infliction of emotional distress.

We reject the contention that this cause of action is a clergy malpractice claim in disguise. In Hester v. Barnett , 723 S.W.2d 544, 551 (Mo. App. 1987), this court refused to recognize a claim of clergy malpractice in an effort to avoid a redundant remedy. The court reasoned that the alleged conduct of the clergyman was already actionable under ordinary negligence or intentional tort theories. Id. "It is counter-intuitive to then hold that one cannot recover against a cleric based on such theories because they constitute clergy malpractice." Gray v. Ward , No. 50264 (Mo. App. W.D.) (handed down this same date).

We also reject the argument that the Gibsons failed to sufficiently plead their negligent infliction of emotional distress claim. Father Brewer suggests the Gibsons failed to plead severe and medically diagnosable emotional damage. We disagree. The Gibsons assert that "the defendants realized or should have realized that their conduct involved an unreasonable risk of causing distress or injury and damages to the Gibsons" and that "the Gibsons have all suffered severe mental and emotional injury and damages." In paragraph 15 of their amended petition, the Gibsons claim they have suffered "anxiety, guilt, depression, and a loss of sleep in the past, now and in the future. . ." Such allegations, if proven true, support a claim for negligent infliction of emotional distress.

Father Brewer next argues Count IV should have been dismissed because Father Brewer's conduct constituted, at most, the intentional tort of battery. He contends that a claim of negligent infliction of emotional distress requires, at its core, a negligent act. However, the Gibsons allege not only that Father Brewer committed the intentional tort of battery but also that the respondents should have realized their acts would likely cause severe emotional distress.

An allegation of sexual abuse is not exclusively or inherently a claim for battery. K.G. v. R.T.R. , 1995 WL 225316 (Mo. App. E.D. April 18, 1995). In K.G. , the plaintiff filed suit against her father seeking recovery for childhood sexual abuse. The trial court granted the defendant's motion to dismiss on the ground the petition was barred by the two-year statute of limitations for battery claims. On appeal, the case was reversed and remanded. Id. at 4. The Eastern District noted "the petition may support proof of a claim for negligent or intentional infliction of emotional distress...." Id.

Finally, Father Brewer contends the Gibsons improperly pled their claim for negligent infliction of emotional distress by incorporating "all paragraphs and allegations set forth above." The argument is that such a reference fails to advise Father Brewer of the issue tendered for trial. We, however, disagree that Hester v. Barnett , 723 S.W.2d 544 (Mo. App. 1987), commands such a Conclusion.

In Hester , this court affirmed the dismissal of the plaintiffs' count for intentional infliction of emotional distress for failure to state a claim upon which relief can be granted. Id. at 562. In that case, the plaintiffs attempted to incorporate into their intentional infliction claim "those actions described specifically in other Counts." This court held that such an adoption by reference was ineffective since the statements and publications alleged in the plaintiffs' earlier counts "constitute defamation, and only defamation." Id. at 561.

In this case, as previously noted, the Gibsons' claim regarding sexual abuse is not inherently or exclusively one for battery. K.G. v. R.T.R. , 1995 WL 225316 (Mo. App. E.D. April 18, 1995). Rather, the petition may also support proof of a claim for negligent or intentional infliction of emotional distress. Id. Thus, the Hester court's concern is not applicable here. Allowing the incorporation by reference in Hester would have permitted a redundant and duplicate remedy -- not an alternative remedy. Hester , 723 S.W.2d at 561. In the instant case, the Gibsons negligent infliction of emotional distress claim is a possible alternative remedy to their battery and other claims. In an effort to avoid repetition and redundancy in pleadings, Missouri Supreme Court Rule 55.12 allows a plaintiff to adopt by reference statements "in a different part of the same pleading or in another pleading or in any motion." Id. at 561.

We therefore hold that the trial court correctly allowed the negligent infliction of emotional distress claim against Father Brewer.

Diocese

The Gibsons plead that the Diocese took the following actions after being informed of Father Brewer's alleged actions towards Michael: (a) told the Gibsons this "happens to young men all the time" and that Michael "would get over it"; (b) wanted to keep the incident quiet; (c) suggested the Gibsons meet with Father Brewer to resolve the situation; and (d) assured the Gibsons that Father Brewer would no longer be allowed to be in contact with young boys. After hearing of further alleged incidents between Father Brewer and young children, the Gibsons "several times expressed their concerns to the Diocese or its agents" and, in response, were told that the incident with Michael had been "an innocent pat on the butt" and that the Gibsons should "forgive and forget" and get on with their lives.

The Diocese argues that the Gibsons' claim of negligent infliction of emotional distress is a mere re-characterization of their claims for negligent hiring, ordination, retention and supervision of Father Brewer. We disagree. While those counts involve the Diocese's dealings with Father Brewer, we find that the negligent infliction claim also looks to the Diocese's interactions with the Gibsons.

The Diocese also argues that these claims were properly dismissed because they violate the First Amendment. As discussed earlier in this opinion, we disagree. Finding that there is no First Amendment bar to the Gibsons' negligent infliction of emotional distress claim, we next review the elements of the Gibsons' cause of action. Applying the facts alleged in the Gibsons' amended petition to the elements discussed above, we find that the Gibsons state a claim against the Diocese.

First, it must be determined whether the Diocese should have realized its conduct involved an unreasonable risk of causing distress. Because we have before us a dismissal based solely on the pleadings, the dispositive question is whether the pleaded acts of the Diocese, offering basically no comfort, consolation or resolution to the Gibsons' complaints, could ever "create an unreasonable risk of inflicting the requisite harm." See Young v. Stensrude, 664 S.W.2d 263, 265 (Mo. App. 1984), cert. denied, 493 U.S. 1028, 110 S. Ct. 738, 107 L. Ed. 2d 756 (1990). We believe the answer is in the affirmative. By so holding, we express no opinion as to the merits of the Gibsons' claims, we merely allow them the opportunity to prove the truth of their allegations. Next, the Gibsons must plead that they have suffered an emotional distress or mental injury that is medically diagnosable and of sufficient severity as to be medically significant. Our Missouri Supreme Court discussed the type of harm necessary to support a threshold tort of emotional distress in Bass v. Nooney Co. , 646 S.W.2d 765 (Mo. banc 1983). The Bass court noted that "shock" requiring at least minimum medical attention would suffice, as would "nervousness, sleeplessness, or nausea for which a physician would prescribe medication." Id. at 773 n.4.

In their amended petition, the Gibsons allege that as a direct and proximate result of the respondents' acts they have suffered "anxiety, guilt, depression, and a loss of sleep in the past, now and in the future." Assuming the Gibsons can prove these allegations, we believe the alleged harm meets the test of Bass , (supra) . The trial court thus erred in dismissing the Gibsons' negligent infliction claim against the Diocese.

Count V. Intentional Infliction of Emotional Distress

To state an intentional infliction of emotional distress claim, the plaintiff must plead (1) extreme and outrageous conduct by a defendant who (2) intentionally or recklessly causes (3) severe emotional distress. Pretsky v. Southwestern Bell Tel. Co., 396 S.W.2d 566 (Mo. 1965), cited with approval in Nazeri v. Missouri Valley College , 860 S.W.2d 303, 316 (Mo. banc 1993). This cause of action is based upon "extreme and outrageous conduct" which was defined by our Supreme Court as:

conduct [that] has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

Pretsky, 396 S.W.2d at 568-69, quoting Restatement (Second) of Torts 46 cmt. d (1965).

It is for the court to determine in the first instance whether the alleged wrongful conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. May v. Greater Kansas City Dental Soc'y, 863 S.W.2d 941, 948 (Mo. App. 1993). Determining what is extreme and outrageous conduct is a difficult proposition where each case must turn on its own specific and peculiar facts. J.R. v. P.B.A., 773 S.W.2d 235, 236 (Mo. App. 1989).

Father Brewer

Father Brewer contends that because the battery cause of action is available to Michael, a claim for intentional infliction of emotional distress is not available. In support, he cites Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993), where the plaintiff alleged both defamation and intentional infliction of emotional distress. In Nazeri, the court held that no claim for intentional infliction of emotional distress may lie when the underlying conduct consists only of defamation and damages for mental suffering are recoverable. Id. at 316.

However, as noted under Count IV above, the Gibsons' claim regarding sexual abuse is not inherently or exclusively one for battery. K.G. v. R.T.R. , 1995 WL 225316 (Mo. App. E.D. April 18, 1995). Rather, the petition may support proof of a claim for negligent or intentional infliction of emotional distress. Id. We therefore affirm the trial court's refusal to dismiss the Gibsons' intentional infliction claim against Father Brewer. While the Gibsons must eventually choose which alternative count to submit to the jury, Bandag of Springfield, Inc. v. Bandag, Inc. , 662 S.W.2d 546, 554 (Mo. App. 1983), care should be exercised when "weeding out" alternative counts of "prima facie tort." Nazeri, 860 S.W.2d at 316 n.9.

The Gibsons' intentional infliction of emotional distress claim (like their negligent infliction claim) is a possible alternative remedy to the battery claim. Moreover, submission of both causes of actions may ultimately be viable since only Michael can bring the battery claim. Thus, Michael may choose to submit on the battery claim, and Narron and Marianne may choose to submit on the intentional infliction claim.

We further hold that the Gibsons are not precluded as a matter of law from proving that Father Brewer's actions are "extreme and outrageous." In our society, acts of child molestation are certainly deemed atrocious and utterly intolerable.

Diocese

Turning our attention to the Diocese, the issue becomes whether the pleaded acts against of the Diocese could ever raise to extreme and outrageous conduct as a matter of law. If our answer is in the negative, or if the other elements have not been met, we must affirm the trial court's decision.

Under the circumstances alleged, we find that the Gibsons have stated a claim. Based on the pleadings, the Gibsons approached the Diocese worried that their child had been abused. They were told to forget the incident and that these kinds of incidents happen all the time. This response, given the severity of the allegations, is inherently outrageous. Of course, as more facts come to light through discovery, evidence might support a finding that the Diocese's response was not outrageous. At this juncture, however, the element of outrageous conduct has been sufficiently alleged. A dismissal will be upheld only if it appears the plaintiffs could prove no set of facts to support their claims which would entitle them to relief. Y.G. v. Jewish Hosp. , 795 S.W.2d 488, 494 (Mo. App. 1990).

Count VI. Breach of Fiduciary Duty

For Count VI, the Gibsons allege the Diocese and Father Brewer held and breached a fiduciary relationship of trust and confidence with the Gibsons.

In Missouri, there is no list of specific factors that must exist to establish a fiduciary relationship. There are, however, basic elements. Chmieleski v. City Products Corp. , 660 S.W.2d 275, 293 (Mo. App. 1983). These include: (1) one party must be subservient to the dominant mind and will of the other as a result of age, state of health, illiteracy, mental disability, or ignorance; (2) things of value such as land, monies, a business, or other things of value which are the property of the subservient person must be possessed or managed by the dominant party; (3) there must be a surrender of independence by the subservient party to the dominant; (4) there must be an automatic or habitual manipulation of the actions of the subservient party by the dominant party; and (5) there must be a showing that the subservient party places a trust and confidence in the dominant party. Id. at 294.

Father Brewer

In this case, the Gibsons failed to properly plead the existence of the second element in the relationship between themselves and Father Brewer. There is no allegation that Father Brewer possessed or managed any property or things of monetary value belonging to the Gibsons. According to the Missouri Supreme Court, imposition of a fiduciary duty requires evidence of a "special trust with respect to...property or business." Wilhoit v. Fite , 341 S.W.2d 806, 813 (Mo. 1960). Just as the existence of a family relationship does not, of itself, establish a fiduciary or confidential relationship, Beach v. Beach , 207 S.W.2d 481, 486 (Mo. 1947), we doubt whether the mere existence of a cleric-parishioner relationship gives rise to a fiduciary relationship. Thus, the trial court correctly dismissed Count VI as to Father Brewer for failure to state a claim upon which relief can be granted.

Diocese

The trial court dismissed the breach of fiduciary claim against the Diocese for failure to state a claim and because of First Amendment concerns. For the reason noted above, we affirm the trial court's dismissal for failure to state a claim.

Count VII. Conspiracy

Father Brewer and the Diocese

In Count VII of their petition, the Gibsons assert the Diocese, through unknown agents, conspired with Father Brewer to commit the acts alleged. To support this claim, the Gibsons allege the Diocese knew or should have known of Father Brewer's propensity to commit sexual molestation, and yet conspired over the years to keep the sexual misconduct from the public and failed to take any action by warning the Gibsons or removing Father Brewer from his position where contact with young boys is likely. The Gibsons also allege the Diocese conspired to cover up the specific allegations regarding Michael.

A civil conspiracy is an agreement or understanding between two persons to do an unlawful act, or to use unlawful means to do an act otherwise lawful. Ritterbusch v. Holt , 789 S.W.2d 491, 494 (Mo. banc 1990). To state a claim for conspiracy, the petition must not only allege the defendants conspired and agreed to commit an unlawful act but must also allege that the defendants did, in fact, commit an unlawful act in pursuit of the conspiracy and to the plaintiff's damage. First Sec. Bank v. Fastwich, Inc. , 612 S.W.2d 799, 806 (Mo. App. 1981). However, this cause of action is subject to the established rule that mere Conclusions of conspiracy by the pleader cannot be taken as true and must be disregarded in determining whether a petition states a claim upon which relief can be granted. Id. at 807.

In this case, the Gibsons summary allegations fail to allege specific facts demonstrating a meeting of the minds among the alleged co-conspirators. A petition fails to state a cause of action for civil conspiracy unless it pleads "specific facts showing [a] 'meeting of minds' among alleged conspirators." Snelling v. Westhoff , 972 F.2d 199, 200 (8th Cir. 1992), cert. denied, 506 U.S. 1053, 113 S. Ct. 977, 122 L. Ed. 2d 132 (1993). That the Diocese "should have known" of Father Brewer's propensities to commit the alleged acts is not sufficient to demonstrate a meeting of minds. The trial court therefore correctly sustained both respondents' motions to dismiss the conspiracy claim for failure to state a claim.

Count VIII. Agency Liability

In Count VIII, the Gibsons allege the Diocese is responsible for the acts of Father Brewer under the doctrine of respondeat superior.

Father Brewer

Under the doctrine of respondeat superior, a principal or employer is held liable to a third party for a tort committed by an agent or employee if the agent or employee committed the tort while engaged in an activity falling within the scope of his authority or employment. P.S. v. Psychiatric Coverage, Ltd. , 887 S.W.2d 622, 624 (Mo. App. 1994). By its very definition, respondeat superior imposes liability upon the principal or employer. Thus, the trial court correctly dismissed this cause of action as against Father Brewer.

Diocese

It is possible, however, to hold the Diocese liable for the alleged torts of Father Brewer even though such acts are not directed, commanded or expressly authorized by the Diocese. Id. The focus in such cases is whether the act in question was committed within the agent or employee's scope and course of authority or employment. Id.

In P.S. v. Psychiatric Coverage, Ltd. , the issue was whether a psychiatric clinic was liable under respondeat superior for an employee-therapist's sexual misconduct with a patient. The court first noted that the precise question was one of first impression in Missouri. It then looked to other jurisdictions and held that the employer-clinic was not liable as a matter of law because the psychologist was not acting within the scope of his employment. Id. at 625. The court reasoned that the psychologist was hired by the clinic to provide therapy and that sexual misconduct in connection with therapy is not the general kind of activity a therapist is employed to perform, "regardless of whether sexual misconduct takes place during or in connection with therapy." Id.

Similarly, in this case, Father Brewer was acting outside the scope of his duties when he allegedly battered Michael. Sexual misconduct by a priest is not within the course and scope of his duties. One cannot reasonably claim (1) that sexual misconduct is an act done to further the interests of the Diocese or (2) that such acts are usual, customary and expected. See MAI 3d 13.02 (1991); Maryland Casualty Co. v. Huger , 728 S.W.2d 574, 580-81 (Mo. App. 1987).

The Gibsons would have this court hold that Father Brewer's alleged acts of sexual misconduct were committed within the scope of his employment because "as part of his job as Associate Pastor, Father Brewer socialized with the families in the parish and became friends with them." The Gibsons allege they admitted Father Brewer to their home and treated him like a member of the family based upon representations by the Diocese regarding Father Brewer's good character and standing. However, a master is not responsible for acts which are clearly inappropriate to or unforeseeable in the accomplishment of the authorized result. Wellman v. Pacer Oil Co. , 504 S.W.2d 55, 58 (Mo. banc 1973) (adopting Rest. 2d of Agency 231 Cmt. (a)), cert. denied, 416 U.S. 961, 94 S. Ct. 1981, 40 L. Ed. 2d 313 (1974). The fact that Father Brewer was a priest 24 hours a day does not make the Diocese responsible for all his activities, and it does not make any and all his activities come within the scope of his duties. Maryland Casualty Co. v. Huger , 728 S.W.2d 574, 581-82 (Mo. App. 1987).

Count IX. Independent Negligence of the Defendant Diocese

Father Brewer

The pleadings are clear that this claim is asserted only against the respondent Diocese. Hence, the trial court correctly dismissed this count against Father Brewer.

Diocese

We further agree with the Diocese that this count is merely a re-characterization of the earlier claims of negligent hiring, retention, ordination and/or supervision. Thus, the trial court correctly dismissed this cause of action against the Diocese.

We therefore affirm the trial court's dismissal of Counts (i) (battery), (ii) (negligent hiring/ordination and retention), (vi) (breach of fiduciary duty), (vii) (conspiracy), (viii) (agency liability) and (ix) (independent negligence) as to the respondent Diocese. However, we reinstate Counts (iii) (negligent failure to supervise), (iv) (negligent infliction of emotional distress) and (v) (intentional infliction of emotional distress) as against the Diocese. Furthermore, we affirm the trial court's dismissal of Counts (ii) (negligent hiring/ordination and retention), (iii) (negligent failure to supervise), (vi) (breach of fiduciary duty), (vii) (conspiracy), (viii) (agency liability) and (ix) (independent negligence of the respondent Diocese) as to Father Brewer. We also affirm the trial court's decision to allow Counts (i) (battery), (iv) (negligent infliction of emotional distress) and (v) (intentional infliction of emotional distress) to proceed against Father Brewer.

ROBERT W. BERREY, III, JUDGE

Ulrich, J. concurs by way of separate Concurring opinion.

Ellis, J. concurs with majority.

CONCURRING OPINION

I concur with the majority on each of the points addressed. However, as to the Gibsons' claim of negligent supervision, although I agree with the majority's Conclusion that the Gibsons have stated a cause of action, I agree for the reasons stated herein.

The issue is whether the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution, applied to the states by the Fourteenth Amendment, preclude suits against an ecclesiastical entity for the negligent supervision of its cleric. *fn1 Courts have answered this question both ways. Courts that have entertained actions against ecclesiastical entities on theories of negligent hiring or supervision have generally determined that the church "must have acted recklessly in that it knew or should have known that injury would result therefrom." Stephanie D. Young, Sexual Molestation Within America's Parishes and Congregations; Should the Church be 'Thy Priest Keeper?,' 91 WEST VIRGINIA L. REV. 1097, 1107 (1989). Courts that have concluded the Free Exercise Clause denies suits against ecclesiastical entities for negligent supervision have done so on the premise that:

Personnel decisions by church-affiliated institutions affecting clergy are per se religious matters and cannot be reviewed by civil courts, for to review such decisions would require the courts to determine the meaning of religious doctrine and canonical law and to impose a secular court's view of whether in the context of the particular case religious doctrine and canonical law support the decision the church authorities have made. This is precisely the kind of judicial second guessing of decision-making by religious organizations that the Free Exercise Clause forbids.

Scharon v. St. Luke's Episcopal Presbyterian Hosp., 929 F.2d 360, 363 (8th Cir. 1991).

Some courts have determined that neither negligent hiring nor negligent supervision are tenable allegations against ecclesiastical bodies. In Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 303, 533 N.W.2d 780, 791 (Wis. 1995), cert. denied, 1996 U.S. Lexis 1015 (1996), the Wisconsin Supreme Court explained:

Any inquiry into the policies and practices of the church Defendants in hiring or supervising their clergy raises the same kinds of First Amendment problems of entanglement discussed above, which might involve the court in making sensitive judgments about the propriety of the church Defendant's supervision in light of their religious beliefs.... The traditional denominations each have their own intricate principles of governance, as to which the state has no right of visitation. Church governance is founded in scripture, modified by reformers over almost two millennia.

It would therefore also be inappropriate and unconstitutional for this Court to determine after the fact that the ecclesiastical authorities negligently supervised or retained the defendant Bishop. Any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the text and history of the establishment clause.

Id. (quoting Schmidt v. Bishop, 779 F. Supp. 321, 322 (S.D.N.Y. 1991)).

Courts holding the opposite position conclude that an ecclesiastical entity may be held liable for negligent supervision where the complainant asserts that the entity knew its offending cleric was potentially dangerous. In Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (Ohio 1991), the Ohio Supreme Court stated that "the most liberal construction of the First Amendment will not protect a religious organization's decision to hire someone who it knows is likely to commit criminal or tortious acts." 565 N.E.2d at 590.

Supervision of clerics by ecclesiastical entities necessarily includes directing, promoting, promulgating and encouraging theology peculiar to the entity. Government is precluded by the First and Fourteenth Amendments from involvement or interference with that theology. Therefore, the First Amendment and the Fourteenth Amendments necessarily apply when considering whether a cause of action can be stated against an ecclesiastical entity for negligently supervising its cleric.

While the First Amendment mandates protection of the sovereignty's citizens' free exercise of religion, the right to free exercise of a chosen form of religion is not absolute. Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). "Conduct remains subject to regulation for the protection of society." Id. at 304. A state may justify encroachment on religious liberty only by showing that the regulation is the least restrictive means of achieving a compelling state interest. Penner v. King, 695 S.W.2d 887, 890 (Mo. banc 1985)(citing Thomas v. Review Board, 450 U.S. 707, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981)).

Protecting children is a compelling state interest. Application of the right of ecclesiastical entities to preclude state interference with ecclesiastical decisions may conflict with the state's compelling interest to protect its citizens, especially children, among the most defenseless of its citizens. The conflict requires a balance between the constitutional right and the compelling state interest in which the least restrictive means is applied to achieve the compelling state interest. Id. Society need not tolerate reckless, willful, or intentional conduct by an ecclesiastical entity that promotes criminal activity injurious to children. Where a cleric, known by ecclesiastical authority to be a pedophile, is placed by that authority in an unsupervised position to associate with children, thereby endangering them, the ecclesiastical body's protected right to supervise its employees and the state's compelling interest to protect children encroach. To conclude that the entity is immune from suit under such circumstances is tantamount to concluding that the First Amendment grants a right to ecclesiastical entities to endanger children and that the right supersedes the state's compelling interest to protect them. The First Amendment grants no such right to ecclesiastical authority. However, the Free Exercise Clause and the Establishment Clause do protect the free exercise of religion and must be reckoned with. The Free Exercise Clause and the Establishment Clause and the state's compelling interest to protect children must be balanced. The balance required in such situation compels the least intrusive means of effecting the state's compelling interest and demands a well articulated and limited application of the state's police power to protect the health, education and welfare of its citizens. Thus, for a plaintiff to plead a cause of action on a theory of negligent supervision of a cleric by an ecclesiastical entity for the sexual molestation of a child by the cleric, the plaintiff must plead facts that assert: (1) the cleric was employed by or under the control of the defendant ecclesiastical entity; (2) the entity knew or should have known the cleric had sexually molested a child or presently manifested proclivity to sexually abuse children; (3) the ecclesiastical entity knew or should have known that to place the cleric in a position to associate with the plaintiff child would create a substantial likelihood of harm for the child; (4) the ecclesiastical entity, with complete indifference to or conscious disregard for such harm, placed the cleric in such position; (5) the cleric sexually molested, or attempted to sexually molest, the plaintiff child; and (6) as a result of the cleric's conduct, the plaintiff child was injured. *fn2 By such assertions, the plaintiff charges that the ecclesiastical entity acted in a willful or reckless manner, thereby endangering the welfare of the minor plaintiff.

Therefore, the Gibsons, to state a claim of negligent supervision against the Diocese of Kansas City-St. Joseph, based on Father Brewer's alleged sexual molestation of Michael, must allege: Father Brewer was employed by and under the control of the Diocese; the Diocese knew or should have known that Father Brewer had sexually abused a child or then had the proclivity to sexually molest children; the Diocese knew, or should have known, that to place Father Brewer in a position to associate with children created a substantial likelihood of harm for a child; the Diocese, with complete indifference to or conscious disregard for such harm, placed Father Brewer in a position that permitted him to sexually molest Michael; Father Brewer sexually molested Michael; and that as a result of the sexual molestation, Michael was injured. The Gibson's petition alleged, or reasonable inferences to allegations specifically asserted included that: Father Brewer was employed by the Diocese; Father Brewer had previously engaged in "sexual misconduct" (sexual molestation of children); the Diocese knew Father Brewer had previously sexually molested children; Michael was a child; the Diocese, with complete indifference or conscious disregard for the likelihood of harm to Michael, placed Father Brewer in position to harm Michael; Father Brewer sexually molested Michael; and Michael was injured by the sexual molestation. The facts asserted in the petition support a reasonable inference that the "sexual misconduct" that Father Brewer was alleged to have previously committed was sexual misconduct involving children. Although the petition does not artfully state the elements of negligent supervision against the Diocese as articulated herein, the petition does assert a cause of action for negligent supervision against an ecclesiastical entity, the Diocese of Kansas City-St. Joseph. Therefore, the trial court erroneously dismissed the Gibson's claim that the Diocese of Kansas City-St. Joseph negligently supervised Father Brewer.




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