dissenting.
I respectfully dissent. The majority decision concludes that a person cannot claim he is wronged by actions of another to *726which he consented. This is correct logic and law by itself. However, the proposition overlooks the question of how such consent was achieved.
Should consent bar a claim where such consent may have been achieved by the actions of a fiduciary which constitute overreaching by such fiduciary? That is a question which cannot be answered as a matter of law. The answer is best left to a jury after consideration of all of the facts. The only ground' listed in the demurrers which is applicable to our consideration of this matter is failure to state a cause of action. The petition states a cause of action in three respects.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiff’s amended petition states that plaintiff began counseling with Lange and that during the course of counseling, “Lange made numerous sexual advances on Plaintiff which lasted for approximately a three-year period.” During this time, plaintiff alleged, she was “vulnerable because of prior emotional problems.” Plaintiff also alleged that in 1982, Lange succeeded in “seducing” the plaintiff. The majority determined that these allegations are insufficient to state a cause of action for intentional infliction of emotional distress. This decision is based on a determination that “[w]hat is involved in this case is conduct between consenting adults.”
The petition alleges, however, that plaintiff was not a fully “consenting adult.” Plaintiff alleges she was vulnerable and that she was seduced by a pastoral counselor whom she trusted. In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Gallion v. Woytassek, ante p. 15, 504 N.W.2d 76 (1993); Hamilton v. City of Omaha, 243 Neb. 253, 498 N.W.2d 555 (1993). Assuming, as we must, that plaintiff’s allegations are true, that she was vulnerable and that she was so seduced, it cannot fairly be said as a matter of law that she was a *727“consenting adult” so as to bar a claim against one who would ordinarily be classified as a fiduciary.
Plaintiff cited two cases, Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988), and Erickson v. Christenson, 99 Or. App. 104, 781 P.2d 383 (1989), in which claims against members of the clergy for intentional infliction of emotional distress were upheld. The majority, however, concludes that these cases are factually distinct.
The defendant in Destefano was alleged to have held himself out as being trained and capable of conducting marital counseling, which is not alleged in this case. Alleging that the defendant held himself out as a trained professional marital counselor may be necessary to establish one type of a fiduciary relationship to establish a breach of a fiduciary’s duties. There is no need to establish such a relationship to establish a cause of action for intentional infliction of emotional distress. The outrageousness of Lange’s conduct should not depend upon whether or not he held himself out as one type of professional. It may be one of many factors which should be considered when determining the degree of culpability.
Likewise, the fact that the plaintiff in Erickson was only 13 years old when the conduct at issue began is just one factor to consider when determining whether the conduct in question is outrageous. Certainly, the fact that the plaintiff here is an adult does not mean that Lange’s conduct could not be outrageous.
To state a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts that would show (1) there has been intentional or reckless conduct, (2) the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) the conduct caused emotional distress so severe that no reasonable person should be expected to endure it. Nichols v. Basse, 243 Neb. 811, 503 N.W.2d 173 (1993); Gall v. Great Western Sugar Co., 219 Neb. 354, 363 N.W.2d 373 (1985).
The petition alleges facts which, if viewed as true, establish that Lange’s conduct was intentional. The petition further alleges that “the conduct of the Defendants, and each of them, was outrageous and extreme in nature and intended to cause *728and did cause severe emotional distress upon Plaintiff.” In her petition, plaintiff alleges that “by virtue of the conduct hereinbefore set forth, that the conduct of the Defendants . . . was outrageous and extreme in nature ...” The petition set forth the following conduct:
Starting in 1979, Plaintiff began counseling with Lange, concerning family matters having full confidence that he was her parish priest and spiritual leader. During this time, Plaintiff was vulnerable because of prior emotional problems. Commencing in about 1979, while the plaintiff was vulnerable, and during the course of pastoral counseling, Lange made numerous sexual advances on Plaintiff which lasted for approximately a three-year period. In 1982, Lange succeeded in seducing the Plaintiff, and a sexual relationship developed between Lange and Plaintiff that lasted until approximately June of 1989.
... At all times herein, Defendants, and each of them, were charged with the obligation to administer pastoral and spiritual advice and care to the Plaintiff and her family, and as such, held a position of trust and responsibility to Plaintiff and her family.
Plaintiff alleges she “incurred severe and permanent emotional injury and was damaged as follows: A. Plaintiff incurred medical expenses of $2,500.00 and will incur medical expenses in the future. B. Plaintiff has lost her faith in the Catholic Church and God and incurred emotional pain, suffering and mental anguish, past and future.”
The petition alleges sufficient facts to state a cause of action against defendant Lange for intentional infliction of emotional distress. The issue of consent would be an affirmative defense.
NEGLIGENCE
Plaintiff’s petition also states a cause of action against the Archdiocese for negligence.
Nebraska has recognized that an employer is subject to liability for harm to third persons resulting from the employer’s negligent selection of an improper employee. Greening v. School Dist. of Millard, 223 Neb. 729, 393 N.W.2d 51 (1986). To state a cause of action for negligence, one must plead facts *729from which.it can be inferred that the defendant owed a duty to protect the plaintiff from injury, that the defendant failed to discharge that duty, and that damage proximately resulted from such failure. Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501 N.W.2d 281 (1993).
In Destefano v. Grabrian, 763 P.2d 275, 288 (Colo. 1988), the following allegations were held to state a viable claim for negligent supervision:
“Defendant Diocese of Colorado Springs knew or should have known that Defendant Grabrian was engaging in conduct which was outrageous, negligent, and a breach of his fiduciary duty, and Defendant Diocese owed a duty of supervision of said Defendant Grabrian to the public and breached said duty, causing the injuries and damages set forth above.”
With respect to this cause of action, plaintiff alleged the following:
A. Defendant Archdiocese was negligent as follows:
(1) Hiring Defendant Lange in the position of parish priest in Plaintiff’s parish.
(2) Failing to properly investigate Defendant Lange’s background by inquiring into his relations with other women while he was acting as a parish priest in other parishes when they [sic] knew, or should have known, that he had been actively involved with relationships with women in violation of his vows of celibacy on more than one occasion.
(3) Failing to train Lange to avoid sexual contact with parishioners.
(4) Failing to supervise Lange in connection with his pastoral duties with respect to his relations with female parishioners when they [sic] knew, or should have known, that he had sexual affairs in the past.
(5) Failing to remove Lange from a position of pastoral responsibility when the Defendant knew, or should have known, of Lange’s sexual involvement with the Plaintiff.
From these allegations it can reasonably be inferred that the. Archdiocese owed a duty to plaintiff, that it failed to discharge that duty, and that plaintiff’s severe emotional distress *730proximately resulted from that failure. Plaintiff’s petition therefore states a cause of action for negligence against the Archdiocese. The demurrer, therefore, should have been overruled in this respect also.
BREACH OF FIDUCIARY DUTY
The majority also rejected the third cause of action claimed by plaintiff, breach of fiduciary duty. In Destefano v. Grabrian, supra, the Supreme Court of Colorado held a cause of action for breach of fiduciary duty was stated where a woman alleged a member of the clergy had sexual intercourse with her while he was providing her with marriage counseling. The fiduciary duty, the court said, was created by his undertaking to counsel the woman. It was not created by the fact that he was a clergy member. The court stated:
If the alleged conduct of Grabrian [the clergy member] was dictated by his sincerely held religious beliefs or was consistent with the practice of his religion, we would have to resolve a difficult first amendment issue. This, however, is not the case. It has not been asserted that Grabrian’s conduct falls within the practices or beliefs of the Catholic church.
763 P.2d at 284. Likewise, here there has been no assertion that Lange’s conduct falls within the practices or beliefs of the Catholic Church. Thus, there is no difficult First Amendment issue to confront.
Lange’s duty to plaintiff, given the nature of the counseling relationship, was to help her with family matters. See Destefano v. Grabrian, supra. Seduction of plaintiff, if proved, would be an obvious breach of that duty. A person standing in a fiduciary relationship with another is subject to liability for harm resulting from a breach of the duty imposed by the relationship. Restatement (Second) of Torts § 874 (1979). Lange could, if the allegations contained in the petition are proven, be subject to liability for any harm he caused.
For the reasons cited, I would reverse the judgment of the district court.
Shanahan, J., joins in this dissent.