Doe v. Newbury Bible Church

Doe v. The Newbury Bible Church (2006-186)

2007 VT 72

[Filed 20-Jul-2007]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2007 VT 72

No. 2006-186

John Doe Supreme Court

Original Jurisdiction
v.

The Newbury Bible Church, The Newbury December Term, 2006
Christian School, The Newbury
Bible Church and School and
Joseph Rinaldi

Eric R. Gardner, Keene, New Hampshire, for Plaintiff-Appellant.

Gregory M. Eaton of Aten Clayton & Eaton PLLC, Littleton, New Hampshire,
for Defendants-Appellees.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. SKOGLUND, J. In this federal diversity action, plaintiff
John Doe seeks to hold the Newbury Bible Church vicariously liable for
criminal and tortious conduct committed by its pastor. We have accepted
the following certified question from the United States Court of Appeals
for the Second Circuit pursuant to Vermont Rule of Appellate Procedure 14:

Under Vermont law, as expressed in Doe v. Forrest, 2004 VT 37,
[176 Vt. 476,] 853 A.2d 48, is a church subject to vicarious
liability for the tortious acts of its pastor under the
Restatement (Second) of Agency § 219(2)(d) if the pastor was
allegedly 'aided in accomplishing the tort by the existence of the
agency relation' with the church?

We answer the certified question in the negative.

¶ 2. The material facts are undisputed. Joseph Rinaldi was the
pastor of the Newbury Bible Church from the early 1970s until December
2001. The Newbury Christian School is a ministry of the Newbury Bible
Church; it is not a separate entity. The church is a private non-profit
corporation. Doe attended the school from third grade until the beginning
of ninth grade. Doe's father and stepmother attended the church and were
friends with Rinaldi and his wife. The Rinaldis sometimes babysat Doe and
his sister, and they drove Doe home from school or soccer practice.

¶ 3. On at least four occasions, Rinaldi fondled Doe
inappropriately. The first instance happened in Rinaldi's office at the
church. The second instance took place in Rinaldi's car as he drove Doe
home from soccer practice. The third and fourth instances occurred at the
parsonage, a house owned by the church, where Rinaldi and his family lived.
Doe did not tell any adults at the church or the school, and there was no
evidence that Rinaldi had a prior criminal record or a background of sexual
abuse of children.

¶ 4. After moving away from the area, Doe disclosed Rinaldi's
conduct to a counselor who notified the Vermont State Police. Upon
learning of the allegations against Rinaldi, the church barred Rinaldi from
the grounds of the school and the church, and eventually it revoked his
ordination. Rinaldi pleaded guilty to three counts of lewd and lascivious
conduct with a minor.

¶ 5. Plaintiff brought suit in the United States District Court
for the District of Vermont against Rinaldi, the church, and the school.
Rinaldi did not appear. Plaintiff alleged both direct and vicarious
liability on the part of the church and school, pursuing theories of
respondeat superior, breach of fiduciary duty, negligent supervision,
negligent hiring and retention, and seeking punitive damages. The church
and the school moved for summary judgment on all claims, and following the
magistrate's report and recommendations, the district court granted the
motion. The court reasoned that Doe v. Forrest had applied the Restatement
(Second) of Agency § 219(2)(d) only to certain instances of police
misconduct, and therefore, the church could not be held vicariously liable
under that section. Plaintiff appealed to the United States Court of
Appeals for the Second Circuit, arguing, in relevant part, that the
district court erred in construing Forrest so narrowly. The circuit court
found no merit to plaintiff's direct liability claims and certified the
vicarious liability question to this Court.

¶ 6. The certified question focuses on one narrow exception to the
general rules regarding vicarious liability. In general, an employer may
be held vicariously liable for the torts of an employee only when the
tortious acts are "committed during, or incidental to, the scope of
employment." Brueckner v. Norwich Univ., 169 Vt. 118, 122-23, 730 A.2d
1086, 1090-91 (1999). For conduct to fall within the scope of employment,
it must be "the same general nature as, or incident to, the authorized
conduct." Id. at 123, 730 A.2d at 1091; see also Restatement (Second) of
Agency § 229(1) (1958). "Conduct of a servant is not within the scope of
employment if it is different in kind from that authorized, far beyond the
authorized time or space limits, or too little actuated by a purpose to
serve the master." Restatement (Second) of Agency § 228 (2). Under the
Restatement, a master is not subject to liability for the torts of a
servant acting outside the scope of employment unless "the servant
purported to act or 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 relationship." Id. § 219(2)(d).

¶ 7. This Court, in Doe v. Forrest, expressly adopted § 219(2)(d)
"as applicable in assessing whether an employer has vicarious liability for
the tortious conduct of an employee when that conduct falls outside the
scope of his or her employment." 2004 VT 37, ¶ 22, 176 Vt. 476, 853 A.2d
48. We applied the relevant portion of § 219(2)(d) and reversed a grant of
summary judgment in the defendant's favor. We held that § 219(2)(d)
allowed claims of vicarious liability against a county sheriff's department
for sexual misconduct by a police officer, where the plaintiff argued that
the officer was aided by the agency relationship in committing the tort.
Id. ¶ 25. We determined that the United States Supreme Court's
application of § 219(2)(d) in the Title VII context militated in favor of
its application in the context of non-workplace sexual assault. Id. ¶¶
28-29 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). However, in applying
§ 219(2)(d) in Forrest, we sought to "narrow any rule" created and noted
that "[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." 2004 VT 37, ¶ 34. We expressly declined to
limit the holding in Forrest to law enforcement officers but acknowledged
"that principled distinctions can be drawn between law enforcement officers
and others in positions of authority." Id. ¶ 47 n.6.

¶ 8. Today, we must decide whether § 219(2)(d) applies to a
situation involving tortious acts by a pastor, and we conclude that under
Vermont law, it does not. In examining decisions from other courts in
which police departments had been held liable for the torts of their
officers, the Court in Forrest noted that those decisions relied on the
extraordinary power over, as well as the unique access to citizenry
provided by virtue of the officer's position and the fact that the citizens
are particularly vulnerable and defenseless when an officer is the
tortfeasor. Id. ¶¶ 34-39; see also Mary M. v. City of Los Angeles, 814
P.2d 1341, 1349-52 (Cal. 1991); Applewhite v. City of Baton Rouge, 380 So.
2d 119, 121 (La. Ct. App. 1979). In Forrest, we stressed that, "because
the community derives substantial benefits from the lawful exercise of
police power," the community should bear the costs of police misconduct.
Forrest, 2004 VT 37, ¶ 39. These policy considerations loom large when a
law enforcement officer commits an intentional sexual tort because the
victim is someone that the officer has sworn to protect as part of his or
her community-policing function.

¶ 9. The circumstances of the tort in this case distinguish it from
Forrest in several crucial ways. First, a pastor is not a public actor,
and therefore, the policy reasons for extending the cost of police
misconduct to the general public are not present. As a society, we give
police officers power beyond that of all other citizens so that they may
better protect us. Id. ¶¶ 34-35, 37. A pastor, by contrast, is vested
with no more power than any other person who takes a leadership role in an
organization. Although a pastor's leadership serves the needs of his
church, holding the church responsible for his abuse of that power does
nothing to deter future abuses: in this case the church removed Rinaldi
from his position before the lawsuit against it was filed. Vicarious
liability merely penalizes innocent church members for conduct in which
they took no part, of which they had no knowledge, and from which they
gained no benefit.

¶ 10. Second, although a pastor's position within the church gives
him some authority or power over parishioners, especially children who
attend a church school, that power is simply not the same as police power.
A pastor's influence over a child is little different from the authority
exerted by other adult figures in a child's life. See John R. v. Oakland
Unified Sch. Dist., 769 P.2d 948, 956-957 (Cal. 1989) (teacher's influence
over a student does not compare to that of law enforcement); Jeffrey E. v.
Cent. Baptist Church, 243 Cal. Rptr. 128, 131 (Ct. App. 1988) (declining to
extend § 219(2)(d) to church for misconduct of Sunday school teacher).

¶ 11. Finally, in Forrest we relied upon the unique access, as well
as the special power, that police officers have over citizens. 2004 VT 37,
¶¶ 34-39. Importantly, when a pastor or other person in a position of
authority commits a criminal and tortious act, the victim can turn to the
police for help, but when a law enforcement officer is the perpetrator, the
victim is uniquely isolated from the protections of the rule of law.

¶ 12. In Forrest, we refused to make broad pronouncements about
future cases. Instead, we limited our application of § 219(2)(d) to the
facts before us at that time. Id. ¶ 47 (declining to "venture beyond what
is necessary to decide the case," Ellerth, 524 U.S. at 763, and citing John
R., 769 P.2d at 957-958 as an example of how other courts handled other
situations). Today, we once again limit our holding to the facts before
us. We continue to rely on California's guidance in this area because it
is one of the few states that has developed a body of case law applying §
219(2)(d). [FN1] In John R., the California Supreme Court declined to hold
a school district vicariously liable for a teacher's molestation of a
student while participating in a school-sponsored extracurricular program.
In its decision, the court noted the significant distinction between law
enforcement officers and teachers:

It suffices here to note that the authority of a police officer
over a motorist - bolstered most immediately by his uniform, badge
and firearm, and only slightly less so by the prospect of criminal
sanctions for disobedience - plainly surpasses that of a teacher
over a student. The teacher's authority is different in both
degree and kind, and it is simply not great enough to persuade us
that vicarious liability should attach here for the teacher's
tort. Furthermore, invoking respondeat superior here would raise
an entirely different specter of untoward consequences, or
interference with the purposes for which the authority was
conferred in the first place, than might result from the
imposition of vicarious liability in the limited context of a
police officer's abuse of authority. We doubt that police
departments would deprive their officers of weapons or preclude
them from enforcing the laws, but we see a significant and
unacceptable risk that school districts would be dissuaded from
permitting teachers to interact with their students on any but the
most formal and supervised basis.

John R., 769 P.2d at 956-57. The court emphasized that school districts
would still be liable for their own negligence in hiring or supervising a
teacher who molests students. Id. at 956.

¶ 13. Principled distinctions can be drawn between law enforcement
officers and others in positions of authority. Holding a small church and
school vicariously liable for the acts of its pastor - without any regard
to fault - would in no way further the policy considerations set forth in
Forrest or the Title VII cases relied upon therein.

For these reasons, we answer the certified question in the negative.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. Other courts dealing with clergy sexual abuse have not relied on §
219(2)(d), so those cases have little relevance here. Most courts simply
decline to impose vicarious liability using the traditional "scope of
employment" analysis of Restatement(Second) of Agency § 228. See, e.g.,
C.B. ex. rel. L.B. v. Evangelical Lutheran Church in Am., 726 N.W. 2d 127,
135 (Minn. Ct. App. 2007).