Bernie v. Catholic Diocese of Sioux Falls

#25974 - #25983-a-SLZ
2012 S.D. 63

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
(#25974)

TERESA BERNIE, Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

BLUE CLOUD ABBEY; DOE PRIEST;
SISTERS OF THE BLESSED SACRAMENT;
OBLATE SISTERS OF THE BLESSED
SACRAMENT; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR
3; and DOE PERPETRATOR 4, Defendants.

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(#25975)

GALEN DRAPEAU, Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

BLUE CLOUD ABBEY; FR. FRANCIS;
OBLATE SISTERS OF THE BLESSED
SACRAMENT; SR. FRANCIS; SR. M.
AGNES; AND MOE SHEVELIN, Defendants.

****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

****
THE HONORABLE BRADLEY G. ZELL
Judge

****
ARGUED ON MAY 22, 2012
OPINION FILED 09/05/12
---------------------------------------------------------------------------------------------------------------------
(#25976)

L.C.A.; J.C.B.; L.J.C.; G.D.; B.C.D.;
R.B.; M.L.B.; F.B.C.; Y.P.C., Plaintiffs and Appellants,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

BLUE CLOUD ABBEY; FR. FRANCIS;
OBLATE SISTERS OF THE BLESSED
SACRAMENT; SR. FRANCIS; FR. GEORGE;
FR. LEO; DOE PRIEST; SISTERS OF THE
BLESSED SACRAMENT; SR. M. DAVIDICA;
SR. M. THEOPHANE; SR. ELETA MARIE;
SR. M. BAPTISTA; OBLATE SISTERS OF
THE BLESSED SACRAMENT; SR. JOHN
MARIE; SR. AGNES; BENNY LEE;
MOE SHEVELIN, Defendants.

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(#25977)

MARY MCGHEE DOG SOLDIER, Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

BLUE CLOUD ABBEY, Defendant.

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(#25978)

ALFRED EAGLE DEER, SR., Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendant.
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(#25979)

RITA FAYE FLOOD, Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

BLUE CLOUD ABBEY, Defendant.

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(#25980)

GROVER CURTIS MALLORY, Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

SISTERS OF THE BLESSED SACRAMENT, Defendant.

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(#25981)

RODERICA ROUSE, Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

BLUE CLOUD ABBEY, Defendant.

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(#25982)

LOREN RAYMOND ZEPHIER, Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

BLUE CLOUD ABBEY, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#25983)

ISADORE M. ZEPHIER, Plaintiff and Appellant,

v.

CATHOLIC DIOCESE OF SIOUX FALLS, Defendant and Appellee,

and

BLUE CLOUD ABBEY, Defendant.

****

(#25974 — #25983)

REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California

and

MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiffs and
appellants.

JAMES E. MCMAHON
ROCHELLE SWEETMAN of
Murphy, Goldammer & Prendergast, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee.
#25974 - #25983

ZINTER, Justice

[¶1.] A number of former students who attended a boarding school alleged

that they had been sexually abused while attending the school. They sued some of

the alleged perpetrators and four entity defendants, including the Catholic Diocese

of Sioux Falls. 1 The circuit court granted summary judgment in favor of the

Diocese on all three of the students’ substantive claims. We affirm.

Facts and Procedural History

[¶2.] These cases arise from alleged acts of sexual abuse at St. Paul’s School

in Marty, which is located on the Yankton Sioux Reservation. The creation of the

school can be traced to 1921, when St. Meinrad Archabbey, a religious order of

Benedictine monks located in Indiana, sent Father Sylvester Eisenman to the

Dakotas. The school was founded around 1922 by a combination of efforts of Father

Eisenman, the Sisters of the Blessed Sacrament, 2 and the Bureau of Catholic

Indian Missions (BCIM). 3 We have not been provided with any evidence that the

1. The students did not sue the school, which was incorporated as “St. Paul’s
Indian Mission Corporation.” The students’ suits against the other entity
defendants are the subject of the appeals in Bernie v. Blue Cloud Abbey et al.,
___ S.D. ___, ___ N.W.2d ___. In those appeals, we conclude that these suits
are barred because an extended statute of limitations for childhood sexual
abuse (SDCL 26-10-25) does not apply to the entity defendants. That issue
was not preserved for appellate review in these appeals involving the
Diocese.

2. The Sisters of the Blessed Sacrament is a religious order of women based in
Philadelphia, Pennsylvania. The order was founded in 1891.

3. The BCIM was created in 1874 under the direction of the Archbishop of
Baltimore for the protection and promotion of Catholic Indian mission
interests in the United States. The United States government was
overseeing the internal and external relations of Native Americans, and in
(continued . . .)
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#25974 - #25983

Diocese 4 was involved in the creation of the school.

[¶3.] Father Eisenman and other monks from St. Meinrad Archabbey

staffed the school until approximately October 1954. At that time, Blue Cloud

Abbey, a religious order of Benedictine monks founded by (but separate from) St.

Meinrad Archabbey, assumed responsibility for the school. The Sisters of the

Blessed Sacrament also provided staffing for the school until 1954, when the Oblate

Sisters of the Blessed Sacrament 5 began providing teachers, staff, and volunteers.

[¶4.] In 1955, title to the school was transferred from the BCIM to St. Paul’s

Indian Mission Corporation, a South Dakota non-profit corporation organized by

Blue Cloud Abbey. According to the bylaws, membership in St. Paul’s Indian

Mission Corporation consisted of “those persons who have made Solemn Vows for

Blue Cloud Abbey, and who are residing and have been appointed by the Abbot of

Blue Cloud to reside at St. Paul’s Indian Mission.” 6 There is no evidence that any

________________________
(. . . continued)
order to interact with Native Americans, the Catholic Church was required to
work through federal government channels. To facilitate its mission with
Native Americans, the Catholic Church established a single entity in
Washington D.C., the BCIM, to serve as the channel through which various
Catholic organizations could petition the United States Indian Office.

4. The Diocese is a South Dakota non-profit corporation.

5. The Oblate Sisters of the Blessed Sacrament was founded by the Sisters of
the Blessed Sacrament in 1949 as an all Indian religious order at St. Paul’s
Mission. The Oblate Sisters of the Blessed Sacrament is, however, a separate
corporation incorporated under the laws of South Dakota.

6. The bylaws also provided that “[t]he board of Directors, of which the elected
Abbot of Blue Cloud Abbey is ex-officio a member, shall consist of four
members, of which the Abbot of Blue Cloud is one.” Board positions were to
be filled from qualified members of the corporation. The Abbot of Blue Cloud
(continued . . .)
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#25974 - #25983

employee of the Diocese ever acted as an officer, director, or employee of St. Paul’s

Indian Mission Corporation. In 1975 and 1976, St. Paul’s Indian Mission

Corporation transferred ownership and operation of the school to the Yankton Sioux

Tribe.

[¶5.] Between 2004 and 2008, former students of St. Paul’s School

commenced lawsuits against the Diocese, Blue Cloud Abbey, the Sisters of the

Blessed Sacrament, and Oblate Sisters of the Blessed Sacrament. The students also

sued a number of the alleged perpetrators. The alleged perpetrators included nuns

from the Oblate Sisters of the Blessed Sacrament and the Sisters of the Blessed

Sacrament, as well as monks and priests from Blue Cloud Abbey. 7 No claims were

asserted against Diocesan priests, employees, or volunteers. Nevertheless, the

students alleged that the Diocese was vicariously liable for the other defendants’

actions under the doctrine of respondeat superior. The students also alleged the

Diocese was directly liable under theories of breach of fiduciary duty and negligence

in failing to properly hire, train, and supervise those who worked at the school. All

abuse was alleged to have occurred before the Yankton Sioux Tribe acquired

ownership and control of the school in 1975 and 1976.

________________________
(. . . continued)
Abbey was the ex-officio president of the board of directors, and the bylaws
provided that “[t]he Abbot shall preside at all meetings of the members and of
the board of directors, and shall perform all other duties ordinarily incident
to the office of President.”

7. Father George Lyon testified (by deposition) that the only Catholic priests at
the school were Benedictine monks.

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#25974 - #25983

[¶6.] After a prior appeal and remand from this Court, see Zephier v.

Catholic Diocese of Sioux Falls, 2008 S.D. 56, 752 N.W.2d 658, the circuit court

granted summary judgment in favor of the Diocese on all substantive and some

procedural issues. Substantively, the court ruled that the Diocese was not

vicariously liable for the acts of the other defendants on the theory of respondeat

superior. The court concluded that, assuming the Diocese was the principal, the

alleged perpetrators were not acting within the scope of their agency or

employment. With respect to direct liability for negligence and breach of fiduciary

duty, the court ruled that the Diocese owed no duty to the students. The court

reasoned that the Diocese did not exercise the extent of control over the other

defendants necessary to establish an agency relationship that imposed a duty to the

students. Because these substantive issues are dispositive, we do not address the

numerous other rulings that have been raised by appeal and notice of review.

Decision

[¶7.] We review the circuit court’s grant of summary judgment to

“determine whether the moving party has demonstrated the absence of any genuine

issue of material fact and showed entitlement to judgment on the merits as a

matter of law.” Dykstra v. Page Holding Co., 2009 S.D. 38, ¶ 23, 766 N.W.2d 491,

496. We view the evidence most favorably to the students and resolve reasonable

doubts against the Diocese. See id. The students, however, “must present specific

facts showing that a genuine, material issue for trial exists.” See id. “Entry of

summary judgment is mandated against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and

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#25974 - #25983

on which that party will bear the burden of proof at trial.” One Star v. Sisters of St.

Francis, 2008 S.D. 55, ¶ 9, 752 N.W.2d 668, 674.

Respondeat Superior

[¶8.] Respondeat superior is “a legal fiction designed to bypass impecunious

individual tortfeasors for the deep pocket of a vicarious tortfeasor.” Bass v. Happy

Rest, Inc., 507 N.W.2d 317, 320 (S.D. 1993). Under the doctrine of respondeat

superior, an employer or principal may be held liable for “the employee’s or agent’s

wrongful acts committed within the scope of the employment or agency.” Hass v.

Wentzlaff, 2012 S.D. 50, ¶ 20, 816 N.W.2d 96, 102-03.

[¶9.] In determining whether an intentional tort is within the scope of

employment, this Court uses a two-prong test: whether the purpose of the act was

to serve the principal and whether the act was foreseeable. Id. ¶ 21. Under the

first prong, a “principal may be liable for an agent’s acts where the agent’s ‘purpose,

however misguided, is wholly or in part to further the [principal’s] business[.]’” Id.

¶ 23 (quoting Kirlin v. Halverson, 2008 S.D. 107, ¶ 22, 758 N.W.2d 436, 447). An

act furthers the principal’s business if it carries out the objectives of the

employment.

“[W]ithin the scope of employment” has been called vague but
flexible, referring to “those acts which are so closely connected
with what the servant is employed to do, and so fairly and
reasonably incidental to it, that they may be regarded as
methods, even though quite improper ones, of carrying out the
objectives of the employment.”

Kirlin, 2008 S.D. 107, ¶ 12, 758 N.W.2d at 444 (quoting Deuchar v. Foland Ranch,

Inc., 410 N.W.2d 177, 180 (S.D. 1987) (quoting Prosser and Keeton on the Law of

Torts § 70, at 502 (5th ed. W. Page Keeton 1984))). “But if [the agent] acts from

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#25974 - #25983

purely personal motives . . . he is considered in the ordinary case to have departed

from his employment and the [principal] is not liable.” Hass, 2012 S.D. 50, ¶ 23,

816 N.W.2d at 103 (alterations in original). Therefore, it must first be determined

whether the act was wholly motivated by the agent’s personal interests. If the

agent acted with intent to serve solely his own interest, the act is not within the

scope of employment and the principal is not liable. Liability does, however, attach

if “the act had a dual purpose, that is, to serve the [principal] and to further

personal interests.” Id. ¶ 21.

[¶10.] The students argue that the perpetrators were acting in furtherance of

the Diocese’s business by acting as teachers and caregivers in performing boarding

school duties. Relying on Fearing v. Bucher, 977 P.2d 1163 (Or. 1999), the students

contend that the alleged sexual acts were within the scope of employment because

the acts were performed by the alleged perpetrators “as a result of their positions”

as priests, nuns, and teachers at the school. The students contend that under

Fearing, the Diocese may be vicariously liable because, as a result of the

perpetrators’ positions of trust and confidence, they obtained the opportunity to be

alone with the students and abuse them.

[¶11.] We disagree with the Fearing court’s view of respondeat superior

liability in these types of sexual abuse cases. In Fearing, a youth pastor, who was

an employee of the archdiocese, committed a series of sexual assaults on a minor.

Id. at 1165. The court considered the sufficiency of the complaint to withstand a

motion to dismiss. The court concluded that although “sexual assaults . . . clearly

[are] outside the scope of . . . employment,” the vicarious liability inquiry does not

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#25974 - #25983

end with that determination. Id. at 1166. The court applied an Oregon exception to

the general rule of nonliability for acts committed outside the scope of employment.

The Fearing court stated that the principal “still could be found vicariously liable, if

acts that were within [employee’s] scope of employment ‘resulted in the acts which

led to injury to [the] plaintiff.’” Id. (quoting Chesterman v. Barmon, 753 P.2d 404,

406 (Or. 1988) (en banc)). The court noted the complaint alleged that the pastor

“used his position as youth pastor,” and by virtue of that relationship, the pastor

“gained the opportunity” to sexually assault the child. Id. The court concluded that

“a jury could infer that the sexual assaults were the culmination of a progressive

series of actions that began with and continued to involve [the pastor’s]

performance of the ordinary and authorized duties of a priest.” Id. at 1167.

[¶12.] Most courts do not, however, follow Oregon’s exception to the general

rule of nonliability in cases involving an ecclesiastical officer’s sexual abuse. Doe v.

Catholic Bishop for Diocese of Memphis, 306 S.W.3d 712, 729 (Tenn. Ct. App. 2008).

Diocese of Memphis acknowledged the Fearing exception when the tortfeasor-

employee “use[s] his employment to commit the tort.” Id. But Diocese of Memphis

observed that “[n]otwithstanding the fact that allegations of a cleric’s sexual

misconduct often include situations where the cleric used his or her position in the

Church to gain the trust of and access to a victim, most courts have been unwilling

to apply this exception to clergy sexual abuse cases.” Id. (quoting Jana Satz

Nugent, Note, A Higher Authority: the Viability of Third Party Tort Actions Against

a Religious Institution Grounded on Sexual Misconduct by a Member of the Clergy,

30 Fla. St. U. L. Rev. 957, 968 (2003)). See also Tichenor v. Roman Catholic Church

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of the Archdiocese of New Orleans, 32 F.3d 953, 959 (5th Cir. 1994) (rejecting the

argument that the sexual acts were sufficiently “connected in time, place, and

causation to [the perpetrator’s] duties as a Catholic priest as to warrant the

imposition of vicarious liability”). “It would be hard to imagine a more difficult

argument than that [a priest’s] illicit sexual pursuits were somehow related to his

duties as a priest or that they in any way furthered the interests of . . . his

employer.” Tichenor, 32 F.3d at 960.

[¶13.] Generally, it is a question of fact for the jury whether an intentional

tort is within the scope of employment. Kirlin, 2008 S.D. 107, ¶ 16, 758 N.W.2d at

445. “But there are occasional cases where [an agent’s] digression from duty is so

clear-cut that the disposition of the case becomes a matter of law.” Doe v. Norwich

Roman Catholic Diocesan Corp., 268 F. Supp. 2d 139, 142 (D. Conn. 2003) (quoting

A-G Foods Inc. v. Pepperidge Farm, Inc., 579 A.2d 69, 73 (Conn. 1990)). And in

most cases, courts conclude that sexual abuse by priests represents such a far

deviation from furthering a church or diocese’s business, and is such a clear-cut

digression from an employee’s duty, that it is, as a matter of law, outside the scope

of employment. Id. Indeed, “the majority of jurisdictions considering the issue of

sexual contact between an ecclesiastic officer and a parishioner have held that the

act is outside the scope of employment as a matter of law.” N.H. v. Presbyterian

Church (U.S.A.), 998 P.2d 592, 599 (Okla. 1999). Simply stated, a priest’s sexual

relation with a parishioner is a substantial departure from the priest’s duties and

not within the church’s business.

Ministers should not molest children. When they do, it is not a
part of the minister’s duty nor customary within the business of

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the congregation. . . . No reasonable person would conclude that
[a minister’s] sexual misconduct was within the scope of
employment or in furtherance of the [church’s] business.

Id. See also Tichenor, 32 F.3d at 960 (“[G]iven [the perpetrator-priest’s] vow of

celibacy and the Catholic Church’s unbending stand condemning homosexual

relations, [the priest’s illicit sexual] acts represent the paradigmatic pursuit of

‘some purpose unrelated to his master’s business.’”); Moses v. Diocese of Colorado,

863 P.2d 310, 330 (Colo. 1993) (“Such [sexual] conduct is contrary to the principles

of Catholicism and is not incidental to the tasks assigned a priest by a diocese.”);

Destefano v. Grabrian, 763 P.2d 275, 287 (Colo. 1988) (“A priest’s violation of his

vow of celibacy is contrary to the instructions and doctrines of the Catholic church.

When a priest has sexual intercourse with a parishioner it is not part of the priest’s

duties nor customary within the business of the church.”); A.L.M. v. Diocese of

Allentown, 68 Pa. D. & C.4th 111, 124-25 (Pa. Ct. Com. Pl.) (concluding that under

Pennsylvania law, the offending priest’s sexual abuse would have been deemed

outside the scope of employment). 8

[¶14.] We conclude that the alleged acts of sexual abuse in this case were

solely in the perpetrators’ own interests and were not in furtherance of the pursuit

of any Diocesan business. This ends our inquiry and we need not consider whether

the abuse was foreseeable. Because the alleged acts were not within the

8. The students identify one type of act by Father Francis Suttmiller—abuse in
“disciplining” children—that they argue was in furtherance of school
business. However, Father Francis was a member of Blue Cloud Abbey. As
we later explain, infra ¶¶ 17-19, the students failed to establish that Father
Francis or Blue Cloud Abbey were in an agency relationship with the Diocese
to operate this school for the Diocese. Therefore, there was no agency or
employment relationship upon which vicarious liability could attach.

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perpetrators’ scope of agency or employment, the circuit court did not err in

granting summary judgment in favor of the Diocese on the students’ respondeat

superior claims.

Negligence and Breach of Fiduciary Duty

[¶15.] “In order to prevail in a suit based on negligence, a plaintiff must

prove duty, breach of that duty, proximate and factual causation, and actual

injury.” Highmark Fed. Credit Union v. Hunter, 2012 S.D. 37, ¶ 9, 814 N.W.2d 413,

415. The duty required is the “duty on the part of the defendant to protect a

plaintiff from injury.” Clausen v. Aberdeen Grain Inspection, 1999 S.D. 66, ¶ 11,

594 N.W.2d 718, 721.

[¶16.] Generally, there is no duty to “control the conduct of a third person as

to prevent him from causing physical harm to another unless (a) a special relation

exists between the actor and the third person which imposes a duty upon the actor

to control the third person’s conduct, or (b) a special relation exists between the

actor and the other which gives the other a right to protection.” Kirlin, 2008 S.D.

107, ¶ 33, 758 N.W.2d at 449. Therefore, to prove negligence, the students must

have established that the Diocese had a special relationship with the alleged

perpetrators that imposed a duty to control the perpetrators’ actions while working

at the school. Alternatively, the students must have established that the Diocese

had a special relationship with the students that imposed a duty of protection. The

existence of a duty is a question of law we review de novo. First Am. Bank & Trust,

N.A. v. Farmers State Bank of Canton, 2008 S.D. 83, ¶ 13, 756 N.W.2d 19, 26.

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[¶17.] The students argue that the requisite special relationship existed

between the Diocese and the perpetrators. The students’ argument is based on

agency. They contend that an agency relationship arose because the Diocese

exercised significant control over the school, the other entities, and the alleged

perpetrators. The students contend that the school could not have opened or

remained in operation without the permission of the Bishop, and no Blue Cloud

Abbey monk could function as a priest within the Diocese’s geographic boundaries

without the permission of the Diocese’s Bishop. The students also contend that the

Bishop is the immediate ecclesiastical superior of the Sisters, and the Sisters

obtained “permission” from the Diocese to proceed with the formation and operation

of the school in the 1920s and 1930s. The students contend that at the very least,

there is a disputed issue of material fact about the matter. They rely on the

affidavit of Father Thomas Doyle, an expert on Canon Law and sex abuse cases,

who opined on the relationship among entities, orders, and missions in the Catholic

Church. Father Doyle further opined on a bishop’s “authority” and “control” over

“pastoral and ministerial activities” of Catholic entities, which included schools

operating in a diocese.

[¶18.] To establish an agency relationship there must be a “(1) manifestation

by the principal that the agent shall act for him, (2) the agent’s acceptance of the

undertaking, and (3) the understanding of the parties that the principal is to be in

control of the undertaking.” A.P. & Sons Constr. v. Johnson, 2003 S.D. 13, ¶ 23, 657

N.W.2d 292, 297. In this case, even if we were to consider Father Doyle’s opinions

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on the Canon Law regarding the authority and control of a bishop in a diocese, 9 the

students did not identify evidence establishing the three secular requirements of an

agency relationship. The students did not show a manifestation by the Diocese that

the perpetrators, Blue Cloud Abbey, the Oblate Sisters, or the Sisters of the Blessed

Sacrament were to operate this school for the Diocese. Further, the students

presented no evidence that the defendants accepted a Diocesan offer to operate the

school for the Diocese. And even if the first two elements could be inferred, the

students identified no evidence of an understanding among the defendants that the

Diocese was to be controlling the operation of this school.

[¶19.] Instead, the undisputed evidence reflects that the school was founded

in 1922 as a mission of St. Meinrad Archabbey and the Sisters of the Blessed

Sacrament. Later, it became the mission of Blue Cloud Abbey and the Oblate

Sisters of the Blessed Sacrament. Further, the school was incorporated by Blue

Cloud Abbey prior to any alleged act of abuse, and only Abbey members were

members and officers of the corporation. Ultimately, there is no evidence of any

manifestations by the Diocese or the other defendants that this school was to be

operated by the entity defendants for the Diocese and that the Diocese would be in

control of the undertaking. Concededly, the Diocese had ecclesiastical authority

and control over matters such as liturgy, removing a priest, granting “faculties,”

performing canonical visitations, and disallowing the transfer of a nun. But simply

9. The Diocese contends, and the circuit court concluded, that Father Doyle’s
opinions may not be considered by courts because the opinions relate to
ecclesiastical matters that would, under the First Amendment, impermissibly
entangle this Court in church doctrine. In light of our analysis, we need not
decide that question.

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possessing such ecclesiastical authority and control is not a manifestation of an

agency agreement. Notwithstanding Diocesan ecclesiastical authority and control

over Catholic religious orders and their members, the students failed to establish an

actual agency relationship between this Diocese and these defendants to undertake

the operation of this school for the Diocese. 10 Therefore, the students failed to

establish their alleged agency relationship between the Diocese and the other

defendants that imposed a Diocesan duty to control the employees and volunteers

who worked for St. Paul's Indian Mission Corporation.

[¶20.] The students alternatively argue that the Diocese had a special

relationship with the students that created a duty of protection. They contend that

the Diocese acted in loco parentis and that such a relationship gave rise to the duty

of protection. See E.H. v. M.H., 512 N.W.2d 148, 149 n.* (S.D. 1994) (“The phrase

‘in loco parentis’ refers to a person who has put himself or herself in the situation of

a lawful parent by assuming the obligations incident to the parental relationship

10. The students also argue that there was a genuine issue of material fact
whether ostensible agency was established. The students contend that the
Diocese “clearly acted as the principal to the other entity defendants,” and
the Diocese “allowed the perpetuation of the belief that all Catholic
institutions are connected to the Diocese.” The students refer us to a recent
Diocese website that lists Blue Cloud Abbey as a religious community in the
Diocese.

“Agency is ostensible when by conduct or want of ordinary care the principal
causes a third person to believe another, who is not actually appointed, to be
his agent.” SDCL 59-1-5. The students’ reference to the Diocese’s current
website does not establish ostensible agency. That reference fails to identify
the Diocesan conduct or omissions, at or before the time of the alleged abuse,
that caused the students (or their parents or guardians) to believe that the
other defendants were operating the school under an agency arrangement
with the Diocese. Furthermore, ostensible agency is not established merely
by having a “connection to the Diocese.”

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without going through the formalities necessary to legal adoption.”); Restatement

(Second) of Torts § 314A (“One who is required by law to take or who voluntarily

takes the custody of another under circumstances such as to deprive the other of his

normal opportunities for protection is under a similar duty to the other.”)

[¶21.] Similarly, the students argue that the Diocese’s relationship with the

students created a fiduciary duty of protection. To establish a fiduciary duty, a

plaintiff must show “that the defendant was acting as plaintiff’s fiduciary.” Chem-

Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 38, 652 N.W.2d 756, 772. This requires

proof of “three things: (1) plaintiffs reposed ‘faith, confidence and trust’ in [the

defendant], (2) plaintiffs were in a position of ‘inequality, dependence, weakness, or

lack of knowledge’ and, (3) [defendant] exercised ‘dominion, control or influence’

over plaintiffs’ affairs.” Id. (quoting Garrett v. BankWest Inc., 459 N.W.2d 833, 838

(S.D. 1990)).

[¶22.] The students did not identify facts sufficient to overcome summary

judgment on their in loco parentis or fiduciary duty claims. Although there is no

dispute that St. Paul’s Indian Mission Corporation was acting in a custodial,

parental role while the students were attending its school, the Diocese did not

undertake a similar role. The students identified no facts indicating that the

Diocese—as opposed to the priests, monks, nuns, entity defendants, and the

school— was acting as the custodian or parent of the students while they attended

school. Moreover, the students identified no facts indicating that, in placing the

students at the school, the students (or the students’ parents or guardians) reposed

faith, confidence or trust in the Diocese—as opposed to the priests, monks, nuns,

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entity defendants, and the school who were caring for the students. Therefore, the

students failed to establish the existence of an in loco parentis or fiduciary

relationship that imposed a Diocesan duty of protection while the students were in

the custody and control of the entities that were operating this school. 11

11. The students raise an additional argument in their reply brief. They argue
that a fiduciary relationship existed between the Diocese and the students
because the Diocese “acted as agents or representatives of God” and the
students “were taught to put their trust and faith in the members of the
Diocese, and were encouraged to do so by the Diocese.” They also argue that
the students “were children (weakness of age), removed from their native
environments, entirely dependent on those who housed, clothed, fed and
provided for their spiritual well-being.” Thus, they argue that “the Diocese,
its Bishop, and the religious and spiritual doctrine it espoused, had
extraordinary influence and superiority of the children of the Diocese, which
included the students and all children attending St. Paul’s School.” Based on
these arguments, the students contend that “the Diocese had a supervisory
duty to warn and protect the students from the acts of sexual abuse by the
individual priests, monks and nuns, for the reason that such abuse was
known or should have been known by the Diocese.”

Neither party raised these arguments in their opening briefs. Although the
students raised the arguments in their reply brief, the “reply brief must be
confined to new matter raised in the brief of the appellee . . . .” SDCL 15-
26A-62. We do not consider these arguments because they are first raised in
the students’ reply brief. Cf. Agee v. Agee, 1996 S.D. 85, ¶ 21 n.4, 551 N.W.2d
804, 807 n.4 (“A party may not raise an issue for the first time on appeal,
especially in a reply brief when the other party does not have the opportunity
to answer.”). Moreover, the students’ assertions appear to be mere argument
based on language taken from other cases. The students have failed to
provide citations to facts in this record from which we can determine whether
these students, their parents, or their guardians put trust and faith in the
Diocese (as opposed to the other defendants) before the alleged abuse. “This
Court’s appellate procedure regarding the appellant’s brief requires that
‘[e]ach statement of a material fact shall be accompanied by a reference to the
record where such fact appears.’” Dakota Indus., Inc. v. Cabela’s.com, Inc.,
2009 S.D. 39, ¶ 18 n.4, 766 N.W.2d 510, 515 n.4 (alteration in original)
(quoting SDCL 15-26A-60(5)). “[T]he ultimate responsibility for presenting
an adequate record on appeal falls on the appellant.” Id.

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[¶23.] In sum, there was no Diocesan respondeat superior liability. Further,

the students failed to establish a Diocesan duty based on negligence or breach of

fiduciary duty during the time the students were in the custody and control of St.

Paul’s Indian Mission Corporation and the other defendants who were operating the

school. The circuit court’s summary judgment on the students’ claims against the

Diocese is affirmed.

[¶24.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.

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