Opinion
1581CV03980
03-05-2018
Paul ANDREWS et al.[1] v. Most Reverend Daniel A. CRONIN
OPINION
Maynard M. Kirpalani, Justice of the Superior Court
This case concerns the alleged abuse of the plaintiffs, Paul Andrews (" Andrews" ) and Daniel Sherwood (" Sherwood" ), in the 1970s and 1980s by their parish priest, Monsignor Maurice Souza (" Souza" ), who has since passed away. The plaintiffs bring this action now against the Most Reverend Daniel A. Cronin (" Cronin" ), who was the bishop of the diocese when and where the alleged abuse occurred. The matter is presently before this court on Cronin’s motion for summary judgment. After a hearing and careful consideration of the materials submitted, the motion is ALLOWED in part, and DENIED, in part.
BACKGROUND
The following facts are taken from the summary judgment record. From 1970 until 1992, Cronin served as the bishop of the Fall River diocese of the Catholic Church. As bishop, Cronin governed the diocese, and had the authority and right to manage it. In 1977, Cronin appointed Souza to be the pastor of St. Anthony’s church in East Falmouth. Souza remained at St. Anthony’s until his retirement in 1986. He passed away in 1996.
Sherwood was an altar server at St. Anthony’s from 1977, when he was about nine years old, until approximately 1985. Andrews began as an altar server at St. Anthony’s in 1978 or 1979, when he was nine or ten years old, until 1986. While they were altar servers, Souza took the plaintiffs on numerous trips, primarily to see sporting events, in Boston and around the country. The out-of-state trips included yearly two-week trips to Florida, yearly trips to New Hampshire, an extended trip to the west coast, and trips to Canada, Wisconsin, New York, Kansas City, and Hartford. Souza and the plaintiffs would stay at hotels overnight. As a matter of routine each morning during these trips, Souza would sexually molest the plaintiffs.
Cronin neither admits nor denies the sexual abuse alleged.
During this period, the plaintiffs also spent a significant amount of time at the rectory where Souza and an associate pastor, John Ozug (" Ozug" ), resided. Even though church rules prohibited laypersons, such as the plaintiffs, from " residing" in the rectory without the bishop’s permission, the plaintiffs would often go there to watch sporting events on television. Sherwood also would stay overnight when he and Souza had a trip planned for the next morning. Andrews also recalls staying overnight at the rectory on one occasion. The abuse occurred at the rectory in the same manner as at the hotels. Ozug never witnessed any abuse, but saw the plaintiffs there, and knew that Sherwood had stayed overnight. Ozug never reported those occurrences to Cronin.
Cronin, as well as two other priests who had assisted him while he was bishop of the Fall River diocese, John Harrington (" Harrington" ) and John Oliveira (" Oliveira" ), each testified at their depositions that they had never received notice that Souza was taking extended overnight trips with the plaintiffs or other young boys, despite a church rule in effect during the relevant period providing that " [a] priest’s annual vacation is three weeks; he is also to have a day to himself weekly and an overnight every other week." Neither, according to these priests, did they know that the plaintiffs had been staying at the rectory, or that Souza had been, or had a history of molesting boys. They, accordingly, never investigated Souza, or inquired about what had been going on at St. Anthony’s. Cronin avers, however, that had he known about Souza’s sexual misconduct, he would have removed him from active ministry.
At their depositions, Cronin, Harrington, and Oliveira were presented with two letters concerning Souza’s interactions with parishioners regarding the cemetery at St. Anthony’s. The letters, sent to Cronin in September and October 1979, inform him of Souza’s " inept" handling of a cemetery expansion, such that the recently-laid graves of their loved ones were plowed over without their knowledge. In one of the letters, Mrs. Lawrence D. Farias (" Farias" ), writes that Souza " yelled and screamed at me in an uncontrollable rage" when she approached him about it, and asked her " what’s this got to do with me?" She concluded that " [i]n [her] estimation, after seeing Father Souza act and talk the way he did, he is incompetent to be a pastor of any parish." Souza also wrote to Cronin about the matter, denying that he had treated anyone insensitively, and informing him, as to the subject of the other letter, that " Mrs. Rose died at precisely the wrong time for our cemetery expansion" and " Mr. Rose found another opportunity to clobber the church and priest once again." While Cronin has no present recollection of the letters, a note indicates that " Bishop telephoned Msgr. Souza from Chancery on Sept. 17th and placed him at ease." A letter from Oliveira informs Farias that the matter " will be looked into." None of the priests deposed recall whether or how the matter was resolved.
Cronin, Harrington, and Oliveira also were shown records from Souza’s time at the seminary. The records indicate that Souza abruptly took a leave of absence because he was in a " melancholy state of mind" before returning to complete his education. None of these priests recollect ever having seen these records, or having reviewed them during Souza’s tenure at St. Anthony’s. Cronin, Harrington, and Ozug all testified that they had a good opinion of Souza at the time the abuse is alleged to have occurred.
In addition to testimonial and documentary evidence, the summary judgment record also includes the report of Thomas Doyle (" Doyle" ), a priest familiar with the laws and practices of the Catholic Church and with clergy sex abuse cases. Doyle opines that the " excessive amount of time [Souza] took as time off in order to travel around with the plaintiffs and other boys" is " highly unusual" and " should have triggered inquiries from [Cronin]." Doyle also opines that the two letters, which describe violations of gravesites, something " highly irregular and insensitive," also should have triggered inquiry.
The plaintiffs commenced this action on June 5, 2015. The complaint states claims for: negligent hiring, retention, direction, and supervision (Counts 1 and 3) and breach of fiduciary duty (Counts 2 and 4). Cronin moves for summary judgment on all counts. Further facts will be set forth as necessary.
DISCUSSION
To prevail on a motion for summary judgment, the moving party bears the burden of " show[ing] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" based on the undisputed facts. Mass.R.Civ.P. 56(c). See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In considering a motion for summary judgment, the court views the evidence and draws all reasonable inferences in the light most favorable to the nonmoving party. Currier v. National Bd. of Med. Exam’rs, 462 Mass. 1, 11 (2012). " Ordinarily, summary judgment is not an appropriate means to resolve claims of negligence because the question is usually one of fact ... However, a judge may decide the issue as a matter of law when no rational view of the evidence permits a finding of negligence." Petrell v. Shaw, 453 Mass. 377, 381 (2009), citing Mullins v. Pine Manor Coll., 389 Mass. 47, 56 (1983).
1. Negligent Hiring, Supervision, and Retention
In their complaint, the plaintiffs allege that Cronin negligently hired, supervised, and retained Souza as priest of St. Anthony’s. " A plaintiff seeking to hold a defendant liable in negligence must establish that the defendant owed the plaintiff a legal duty, and that a breach of that duty proximately caused injury to the plaintiff." Petrell, 453 Mass. at 385. Cronin argues that the plaintiffs cannot prove proximate causation on the facts presented.
As concerns negligent hiring, the court agrees, where no evidence has been presented that Cronin knew or should have known about Souza’s propensity to molest children at the time he appointed Souza to be St. Anthony’s pastor in 1977. See id. at 386 (summary judgment affirmed on claim of negligent hiring where background check of priest revealed no information to suggest future risk of sexual misconduct).
The negligent supervision/retention claim is a much closer call. " Negligent retention [and/or supervision] occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge or reassignment." Foster v. Loft, Inc., 26 Mass.App.Ct. 289, 291 (1988), quoting from Garcia v. Duffy, 492 So.2d 435, 438-39 (Fla.Dist.Ct.App. 1986). In evaluating a claim for negligent hiring, retention or supervision, the Court must examine the totality of the circumstances in determining whether it was reasonably foreseeable that an employee would cause harm to a plaintiff. Coughlin v. Titus & Bean Graphics, Inc., 54 Mass.App.Ct. 633, 639 (2002). Lack of notice of a perpetrator’s prior acts or potential to cause harm is not an automatic bar to recovery. See Doe v. Boston Med. Ctr. Corp., 88 Mass.App.Ct. 289, 291-92 (2015) (jury question whether hospital was liable for interpreter’s acts molesting patient despite hospital having no notice of his prior conduct).
Applying these principles to the circumstances present here, the critical inquiry is thus whether Cronin, as governing bishop, in the absence of notice, " should have known" about Souza’s activities, and, if armed with that knowledge, would have reasonably foreseen that Souza would cause harm to a plaintiff. Coughlin, 54 Mass.App.Ct. at 639; Foster, 26 Mass.App.Ct. at 291. Viewing the facts in the light most favorable to the plaintiffs, and given the deferential standard in negligence cases, see Christopher v. Father’s Huddle Café, Inc., 57 Mass.App.Ct. 217, 226 (2003), and cases cited, the court answers that question in the affirmative.
The record establishes that Cronin was the hiring authority who managed and governed the diocese, including Souza, in both a spiritual sense and a temporal, physical sense. Cronin knew that as a parish priest, Souza spent significant time with the public, including the parish’s youth members. Contrast Coughlin, 54 Mass.App.Ct. at 640-41 (injury not reasonably foreseeable where employee " was not expected to have regular contact with the public in the normal course of business" ). Although no specific sexual misconduct procedures were in place, and it is undisputed that Cronin had no notice of the misconduct, church rules limited Souza’s vacation to a certain duration each year, and prohibited laypersons, including altar servers, from staying in the rectory. Evidence presented suggests that both of those rules were violated, and, at least as to the vacation taken, Souza’s actions should have triggered inquiry. As for the cemetery issue, the plaintiffs, citing Doyle’s opinion, overstate their case by arguing that the cemetery letters should have led Cronin down a path resulting in Souza’s psychological evaluation. Nonetheless, Cronin’s testimony does suggest that he deferred to Souza over the parishioners, at least on this issue. Records show he placed Souza at ease, but indicate no further investigation occurred. Cronin avers, however, that, had he received information that Souza was abusing children, he would have removed him from the ministry immediately.
At the hearing, the parties discussed the intersection of the freedom of religion with the law of negligence. Cronin’s memorandum in support of his motion, however, does not argue or rely on constitutional principles. Regardless whether the issue was raised, the court need not broach that ground where the rules cited, supra, are administrative policies facially unrelated to spiritual belief or the religious doctrines of the Catholic Church. See, generally, Leary v. Geoghan, 2000 WL 1473579 (Mass.Super. 2000).
While the case is certainly slim, genuine issues of material fact do remain. In particular, an issue remains about whether Cronin, who was in charge of the diocese and had the power to remove Souza, should have known that one of his priests spent significant time away from the parish, including being gone for weeks at a time throughout the year on extended road-trips with adolescent boys. If, as Doyle plausibly suggests, Cronin should have known about those absences, a genuine issue also exists about whether sexual misconduct would have been reasonably foreseeable so as to trigger some inquiry or investigation. Relevant in that analysis is how Cronin governed the diocese, what his administrative duties in relation to parish priests were, and his professional relationship with Souza. In sum, viewing the circumstances as a whole, it is for a jury to decide whether Cronin’s alleged omissions in relation to Souza could foreseeably harm a plaintiff. See, e.g., Fund v. Hotel Lenox of Boston, Inc., 418 Mass. 191, 195 (1994) (whether risk of harm was enhanced by hotel’s negligent omissions was question for jury). Where genuine issues of material fact remain, summary judgment is not appropriate. Accordingly, Cronin’s motion for summary judgment on Counts 1 and 3 is DENIED .
Cronin strenuously argues that summary judgment is appropriate here because the harm to the plaintiffs was not reasonably foreseeable, as Cronin knew absolutely nothing about Souza’s propensity for sexual misconduct. The argument mistakenly assumes that Cronin did not have the obligations of a reasonable supervisor in his position. The relevant inquiry is whether if Cronin had known about the time Souza was spending with the plaintiffs, further investigation would have been appropriate given the reasonable foreseeability of sexual misconduct under those circumstances. While Cronin denies awareness of the other priest abuse cases at the time the alleged abuse occurred here, Doyle’s report notes that priest abuse was a known problem in the Catholic Church, even in the 1970s. The issue is one for the jury to decide.
Negligent supervision has arisen in the context of clergy misconduct in only one reported case in the Commonwealth. That case, Petrell v. Shaw, 453 Mass. 1377 (2009), which affirmed the allowance of summary judgment in favor of the defendants, is factually distinguishable from the circumstances present here. Petrell involved an adult who had a sexual relationship with an Episcopalian priest. The Episcopalian parish involved was governed by laypersons, managed its own affairs, and hired the priest who committed the abuse. Id. at 378. The defendant diocese and bishops, on the other hand, provided " pastoral and spiritual support to the parishes, but neither the members of the vestry nor any of its representatives [who managed the church were] diocesan employees." Id. Further, the diocese in Petrell had a written sexual misconduct policy that was followed. Given that set of facts, the court, assuming without deciding that the diocese had a duty of supervision, held that: " where the diocese adhered to its articulated policy; where there is no claim that its policy was unreasonable; where the plaintiff was an adult; and where she argues only that the sexual conduct in which she and [the priest] engaged was proscribed by ecclesiastical law, we conclude that the plaintiff has not met her burden to show a genuine issue of material fact that the diocese and the bishops negligently supervised or retained [the priest]." Id. at 387-88. Again, because the facts here are markedly different, Petrell does not control the decision reached.
2. Fiduciary Duty
In Counts 2 and 4, the plaintiffs also claim Cronin breached his fiduciary duty to them. A fiduciary duty arises out of a unique or intimate one-to-one relationship, where the person owing the duty has reason to know that another is relying on his guidance and/or advice. Van Brode Group, Inc. v. Bowditch & Dewy, 36 Mass.App.Ct. 509, 516 (1994). In the context of a hierarchical religious organization, the court in Petrell held that no fiduciary duty existed where " any alleged relationship between the plaintiff and [the diocese bishops] was based on no more than their shared religious affiliation and her role as a parishioner in a parish within the diocese." 453 Mass. at 383, citing Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 249 (2007) (no fiduciary relationship between parishioner and priest where plaintiff contended legal duty flowed only from shared religious affiliation).
While a sensitive situation involving children and sexual abuse, the record here discloses no knowing, special, personal, or intimate relationship of confidence or trust between Cronin and the plaintiffs, despite the plaintiffs’ status as altar servers. Van Brode, 36 Mass.App.Ct. at 516. Rather, like Petrell and Maffei, the only relationship that existed was in a shared, religious affiliation, rooted in religious doctrine inappropriate for the court’s scrutiny. Maffei, 449 Mass. at 243. Accordingly, the motion for summary judgment on Counts 2 and 4 is ALLOWED .
Petrell concerned the liability of an Episcopal diocese and its bishops. 453 Mass, at 378. Comparing the record here with that of Petrell, it is apparent that the Catholic diocese here exerted more control over its parishes, as it was the body that hired and managed the priests of the parishes. Contrast id. (diocese did not hire priest). While that fact is relevant in the context of negligent supervision, see note 4, supra, it does not create a fiduciary relationship in the absence of evidence of an intimate or trusting relationship between the plaintiffs and Cronin.
ORDER
For the foregoing reasons, Cronin’s motion for summary judgment is DENIED on Counts 1 and 3 of the plaintiffs’ complaint, and ALLOWED on Counts 2 and 4 of the complaint.
SO ORDERED.