The named defendant filed a renewed motion for summary judgment with respect to the negligence claims on November 6, 1997, arguing that thefirst amendment to the United States constitution prohibits the court from adjudicating the adequacy of the defendants' internal administrative and disciplinary policies. The plaintiffs have filed an objection, arguing that the first amendment does not bar the remaining negligence claims. The matter was heard by the court on May 4, 1998.
"The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause." Id., 543. Several courts have determined, however, that a claim of institutional negligence does not require any inquiry into religious doctrine or practice. ``Instead, review only requires the court to determine if the Church Defendants knew of [the minister's] inappropriate conduct, yet failed to protect third parties from him. The court is simply applying secular standards to secular conduct which is permissible under First Amendment standards." Konkle v. Henson, 672 N.E.2d 450, 456 (Ind.App. 1996). "The common law doctrine of negligence does not intrude upon the free exercise of religion, as it does not `discriminate against [a] religious belief or regulate or prohibit con duct because it is undertaken for religious reasons.'. . . The court's determination of an action against the defendants based upon their alleged negligent supervision of [Pcolka] would not prejudice or impose upon any of the religious tenets or practices of Catholicism. Rather, such a determination would involve an examination of the defendants' possible role in allowing one of its employees to engage in conduct which they, as employers, as well as society in general expressly prohibit." (Citation omitted.) Nutt v. Norwich Roman Catholic Diocese,921 F. Sup. 66, 74 (D.Conn. 1995). "Application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution. " *Page 401 Moses v. Diocese of Colorado, 863 P.2d 310, 320 (Colo. 1993), cert. denied, 511 U.S. 1137, 114 S. Ct. 2153, 128 L. Ed. 2d 880 (1994).5 See also Smith v. Privette, 495 S.E.2d 395, 398 (N.C.App. 1998) (claims against church not precluded by first amendment where issue is whether church knew or has reason to know of employee's propensity to engage in sexual misconduct, con duct that church does not claim is part of its tenets or practices).
It is apparent to the court, that in determining whether the defendants were negligent in the supervision of Pcolka, it would be able to apply neutral principles of tort law to determine whether the defendants failed to act when they knew or should have known of Pcolka's engaging in the alleged tortious conduct. "[T]here is no indication that, by taking the kind of preventative action required by tort law, the [institutional] defendants would have violated any `doctrine practice or law' of the Roman Catholic Church. In the absence of such a conflict, subjecting the [institutional] defendants to potential tort liability does not violate their right to the free exercise of their religion." Smith v. O'Connell,986 F. Sup. 73, 79 (D.R.I. 1997). Further, the court is confident that this would not prejudice or impose upon the religious beliefs or practices of the Catholic faith. *Page 402
In addition, the court will be able to apply neutral principles of tort law to conduct that is expressly prohibited by the laws of this state. "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting con duct that the State is free to regulate." Employment Division, Dept. of Human Resourcesof Oregon v. Smith, 494 U.S. 872, 878-79, 110 S. Ct. 1595,108 L. Ed. 2d 876, reh. denied, 496 U.S. 913, 110 S. Ct. 2605, 110 L. Ed. 2d 285 (1990). "The First Amendment does not provide an absolute freedom to act with regard to religious beliefs. . . . Instead, that freedom can be regulated for the protection of society. . . . The protection of society requires that religious organizations be held accountable for injuries they cause to third persons." (Citations omitted.) Konkle v. Henson, supra, 672 N.E.2d 456. "To hold otherwise would impermissibly place a religious leader in a preferred position in our society." Sanders v. Casa ViewBaptist Church, 134 F.3d 331, 336 (5th Cir. 1998). See also Kenneth R.v. Roman Catholic Diocese, 229 App.Div.2d 159, 165, 654 N.Y.S.2d 791 (1997) (religious entities have some duty to prevent injuries caused by persons in their employ whom they have reason to believe will engage in injurious conduct); Jones By Jones v. Trane, 153 Misc. 2d 822, 829, 591 N.Y.S.2d 927 (1992) (court would not dismiss negligence claims where misconduct charged is sexual abuse of infant). In dicta, a Florida appellate court stated that "the Academy of Florida Trial Lawyers makes a convincing case that the First Amendment does not protect the church when the acts of the clergy involve children and are criminal in nature. . . . [J]ust as the State may prevent a church from offering human sacrifices, it may protect its children against injuries caused by pedophiles by authorizing civil damages against a church that knowingly (including should know) creates a situation in which such injuries are *Page 403 likely to occur." Doe v. Dorsey, 683 So. 2d 614, 617 (Fla.Dist.Ct.App. 1996). "Since the Supreme Court has consistently failed to allow the Free Exercise Clause to relieve [an] individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs, the defendants can not appropriately implicate the First Amendment as a defense to their alleged negligent conduct." (Internal quotation marks omitted.) Nutt v. Norwich Roman Catholic Diocese, supra, 921 F. Sup. 74. "The Free Exercise Clause might well prohibit this court from interfering in the manner in which the Diocese supervised a priest's performance of Mass, or confession, but it certainly cannot prohibit this court from determining whether the Diocese should be liable for negligently allowing its employees to engage in criminal conduct." Reed v. Zizka, Superior Court, judicial district of Hartford-New Britain at Hart ford, Docket No. CV950555221S (March 5, 1998, Aurigemma, J.); see also Reynolds v.Zizka, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV950555222S (March 5, 1998, Aurigemma, J.) (motion to strike on first amendment grounds denied, relying on Nutt).
Curtis was bishop of the Bridgeport diocese from 1961 until 1988. While he was bishop, Curtis had a policy concerning accusations made against priests, by which he would refer any complaints to the director of personnel, Cusack, who would then handle the complaint. *Page 404 Cusack would then verbally report his findings to Curtis. Through the years Curtis was bishop of the Bridge port diocese, there was never an occasion when he issued a reprimand or admonishment to a priest in the diocese, as this function was performed by Cusack, whom the priests knew represented Curtis on these matters. When asked whether anyone had come to complain to him about priests in the diocese sexually abusing children, Curtis responded that he could not answer. Curtis specifically could not recall any complaints made to the diocese concerning sexual abuse allegations against Pcolka. Curtis also did not remember whether he took any action concerning a letter sent to the diocese dated June 30, 1983 regarding a complaint concerning Pcolka, or whether a complaint had been made. Curtis also testified that it was possible that he may never have seen the June 30, 1983 letter, and that he would only have seen such a letter if it was brought to his attention by Cusack. When asked how many claims of sexual abuse the diocese had settled while he was bishop of the Bridgeport diocese, Curtis could not recall any. Curtis also testified that it was Cusack who met with families of alleged victims when complaints of improper conduct were made. Curtis did not remember discussing with Cusack a meeting Cusack had with the victim who mailed the 1993 letter.
Cusack testified that, in 1972, he was appointed director of the ministry for clergy, which included acting as director of vocations, director of continuing education and director of personnel and vicar of religious by Cur tis. Cusack recalled a complaint filed against Pcolka in 1983, which Cusack recalled as being the first complaint filed against Pcolka. The complaint stemmed from an incident which occurred approximately ten years earlier. Cusack met with the alleged victim, who claimed to have been fondled by Pcolka as a young woman, and her counselor. The affidavit of Martin Starr, who purports to have been the victim's counselor in 1983, *Page 405 has also been submitted. The victim's accusations were denied by Pcolka. After Pcolka was examined at a retreat house, a meeting was held between Curtis, Cusack and the person who examined Pcolka, during which the examiner stated his opinion that there was every reason to believe Pcolka's denial. Pcolka was allowed to continue in the ministry, as it was decided there was no validity to the 1983 allegation. Cusack was unaware that there were other alleged incidents, which plaintiffs' counsel characterized as being over nineteen in number, of improper conduct before and since the alleged incident in 1983. He testified that the 1983 complaint was the one and only complaint he dealt with concerning Pcolka. Cusack also testified that a copy of the June 30, 1983 letter was sent on to Curtis. Cusack consulted with Curtis on all matters, even rumors, concerning improper behavior, and when a situation of misconduct arose, Curtis' separate files would be checked to determine what subsequent steps to take in investigating the allegations.6
In See v. Bridgeport Roman Catholic Diocese Corp. , supra,20 Conn.L.Rptr. 275, the court, Thim, J., when examining the validity of the negligence claims on the previous motion for summary judgment, held that the plaintiffs in See and Rosado had to show that the defendants had knowledge of Pcolka's improper conduct. Noting affidavits filed by plaintiffs in the cases, the court held that it could not "find as a matter of law that the defendants did not owe a duty of care to the plaintiffs in the Sharon See and George Rosado cases. Whether the defendants owed a duty to the plaintiffs in the Sharon See and George Rosado cases must be decided in the factual content of a full trial." Id., 276.
The decision in See was not a final judgment, as the defendants' motion for summary judgment was granted as to the plaintiffs' claims based on vicarious liability and civil conspiracy, but was denied on the present negligence counts. The court, therefore, may consider the previous treatment of the plaintiffs' negligence claims as the law of the case.
In addition, the court finds that there are material issues of fact concerning whether or when diocese officials knew or should have known about Pcolka's alleged improper behavior, an issue best left for resolution by the trier of fact.
Accordingly, the named defendant's renewed motion for summary judgment dated November 6, 1997, is denied.