05-4915-cv
Doe v. Newbury Bible Church
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2005
(Argued: March 13, 2006 Decided: November 14, 2007)
Docket No. 05-4915-cv
___________________________________________________________
JOHN DOE,
Plaintiff-Appellant,
-v.-
THE NEWBURY BIBLE CHURCH, THE NEWBURY CHRISTIAN SCHOOL, THE
NEWBURY BIBLE CHURCH AND SCHOOL,
Defendants-Appellees,
JOSEPH RINALDI,
Defendant.
___________________________________________________________
Before: JACOBS, Chief Judge; WESLEY, Circuit Judge;
KOELTL, District Judge. 1
Appeal from an order of the United States District
Court for the District of Vermont (Murtha, J.), which
adopted the Report and Recommendation of Magistrate Judge
Niedermeier and granted defendants-appellees= motion for
summary judgment. The judgment of the District Court
granting defendants-appellees= motion for summary judgment
is affirmed.
1
The Honorable John G. Koeltl of the United States District Court
for the Southern District of New York, sitting by designation.
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___________________________________________________________
ERIC R. GARDNER, Keene, New Hampshire, for Plaintiff-
Appellant.
GREGORY M. EATON, Aten Clayton & Eaton PLLC, Littleton, New
Hampshire, for Defendants-Appellees.
___________________________________________________________
PER CURIAM:
The plaintiff-appellant John Doe (ADoe@) appeals from
the District Court=s order dismissing his claims against the
defendants-appellees the Newbury Bible Church, the Newbury
Christian School, and the Newbury Bible Church and School
(collectively, the Achurch defendants@) pursuant to the
church defendants= motion for summary judgment. Doe sued
the church defendants and Joseph Rinaldi, the former pastor
of the Newbury Bible Church, alleging that he was sexually
molested as a boy by Rinaldi. Rinaldi defaulted and is not
a party to this appeal.
In a prior decision, this Court found that all but one
of Doe=s theories of liability against the church defendants
were without merit because there is no evidence that the
church defendants knew or had reason to know that Rinaldi
had a propensity for sexual misconduct. Doe v. Newbury
Bible Church, 445 F.3d 594, 595 (2d Cir. 2006). The
remaining theory of liability on appeal is Doe=s claim that
the Vermont Supreme Court=s decision in Doe v. Forrest, 853
A.2d 48 (Vt. 2004) adopted the Restatement (Second) of
Agency ' 219(2)(d) as a basis under which the church
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defendants could be held vicariously liable under state law.
In relevant part, section 219(2) provides that A[a]
master is not subject to liability for the torts of his
servants acting outside the scope of their employment,
unless ... (d) the servant purported to act or to speak on
behalf of the principal and there was reliance upon apparent
authority, or he was aided in accomplishing the tort by the
existence of the agency relation.@ Restatement (Second) of
Agency ' 219(2) (1958). In Forrest, the Vermont Supreme
Court expressly adopted section 219(2)(d) and found that
under section 219(2)(d) a county sheriff=s department could
be vicariously liable for sexual misconduct by a police
officer. Forrest, 853 A.2d at 57, 67. The court noted that
A[w]hat makes the circumstances of this case virtually
unique from a policy perspective is the extraordinary power
that a law enforcement officer has over a citizen,@ but
declined to decide whether section 219(2)(d) was applicable
to other professions. Id. at 61, 66 n.6.
Finding the issue to be an unresolved issue of Vermont
law and controlling in this appeal, we certified the
following question of state law to the Vermont Supreme
Court: AUnder Vermont law, as expressed in Doe v. Forrest,
176 Vt. 476, 853 A.2d 48 (2004), is a church subject to
vicarious liability for tortious acts of its pastor under
the Restatement (Second) of Agency ' 219(2)(d) if the pastor
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was allegedly >aided in accomplishing the tort by the
existence of the agency relation= with the church?@ Newbury
Bible Church, 445 F.3d at 597.
The Vermont Supreme Court has answered our question in
the negative, holding that under Vermont law section
219(2)(d) does not apply to situations involving tortious
acts by a pastor. Doe v. Newberry Bible Church, No. 2006-
186, 2007 WL 2068322, at & 8 (Vt. July 20, 2007).
Therefore, the judgment of the District Court granting
the church defendants= motion for summary judgment is
AFFIRMED.
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