A State Supreme Court Opinion Allows a Clergy Child Sex Abuse Case to Go Forward, But Makes a Mess of Tort Law in the Process
By ANTHONY J. SEBOK
Monday, Jan. 24, 2005
Last week, the Supreme Court of Tennessee reinstated a clergy child sex abuse lawsuit against the Roman Catholic Diocese of Nashville. In the lawsuit, the plaintiffs claim that the Diocese should be held liable for injuries caused by a former priest, even though who was not in the employ of the church when he molested two young boys.
The suit - entitled John Doe 1 ex. rel., Jane Doe 1, et. al. v. Roman Catholic Diocese of Nashville, et al. - will now go forward in state trial court unless, of course, a settlement is reached.
Given the facts of the case, it is easy to see what the court wanted to give the plaintiffs a chance to go before a jury. The Tennessee Supreme Court's decision might have been motivated by sympathy, but along the way it made a mess of the tort law.
The Allegations: Abuse by McKeown After He Was No Longer a Priest
The cases arise from the actions of Edward McKeown. McKeown served as a priest in the Diocese from 1970 to 1989. The two plaintiffs, however, met McKeown in the 1990s -- after he had returned to life as a layperson. (The mother of one of the boys - who are known only as John Does 1 and 2 -- is also a plaintiff.)
McKeown came into contact with both boys while he lived in a mobile home community and had various non-religious jobs. He began abusing one boy in 1994, and the other in 1995. Currently, McKeown is serving time in prison for numerous count of child sexual abuse.
The plaintiffs allege that McKeown abused an unknown number of minors -- not including themselves -- while he was in the service of the Catholic Church in Nashville, and that the Diocese knew about these activities. Apparently, the Diocese tried to help McKeown but ultimately expelled him from the priesthood because of his criminal activities.
The Theories the Plaintiffs, Legally, Could Not Have Invoked
Plainly, those boys who were allegedly abused while McKeown was a priest at the Diocese, may have a civil case against the Diocese. Similar cases are the basis of the current litigation against the Catholic Church around the country. But what about the plaintiffs - who were abused by McKeown after he left the diocese? Might they also have a civil suit against the Diocese?
The plaintiffs alleged that the Diocese's actions had hurt them. For instance, they alleged, among other things, that the Diocese had protected McKeown for many years; had not alerted the authorities about his crimes; and had known that McKeown was using his previous connections with the Church to get access to young boys. They have suggested, then, that if the Diocese had behaved as it should have, McKeown would never have had the chance to abuse them. Do they then have a case?
To begin, they probably do not have a negligence suit - and did not bring one. A negligence suit, in the context, would require a special relationship, giving rise to a duty to warn. But the Diocese had no special relationship with the plaintiffs. And there is no general duty, except under very special circumstances, to act reasonably to protect the public from a third party - here, McKeown. (Perhaps the Diocese breached a duty to the public if it, indeed, as alleged, took affirmative steps to help McKeown escape detection. But, in any event, the plaintiffs did not bring a negligence claim.)
Nor could the plaintiffs succeed in a suit based on the Diocese's past status as McKeown's employer. Again, McKeown was not an employee or agent of the Diocese when he abused the plaintiffs. Employees are not, as a principle, liable for the future acts of their former employees.
The theory of the plaintiffs' suit, however, was different. They argued that the Diocese should be held liable for the tort of "intentional infliction of emotional distress," or IIED.
The Tort of Intentional Infliction of Emotional Distress
IIED is a relatively young tort. It evolved through a series of decisions in the various state courts during the 1950's and 1960's. Under IIED, a defendant can be held liable if she intentionally or recklessly causes severe emotional distress to the plaintiff through "extreme and outrageous conduct."
The tort of IIED is an intentional tort, and that means that if the tort is proven, plaintiffs may usually ask for punitive damages. (Compensatory damages are based on proof of specific injuries to the plaintiff; punitive damages - as their name suggests -- are meant to punish bad behavior, and deter future bad behavior. Punitive damages, famously, can run into the millions in egregious cases)
A suit for IIED is often difficult to win because the plaintiff must overcome a number of high hurdles. She must persuade a factfinder that she suffered severe emotional distress as a result of the defendant's actions. And she must prove that the defendant's action were "extreme and outrageous."
(A recent, infamous IIED suit that was ultimately dismissed by a federal trial judge was Paula Jones' suit against Bill Clinton for allegedly making sexual advances and exposing himself to her in a hotel room. Of course, that suit was dismissed only after the infamous deposition had been taken which formed the basis of the impeachment proceedings against Clinton.)
The Diocese's Motion to Dismiss: Arguing the Intention Requirement Was Not Met
The Diocese moved to dismiss the case. It maintained that even assuming - for purposes of argument, that it had, in fact, acted outrageously, plaintiffs still would not have a case.
It argued that it did not direct its outrageous conduct towards the plaintiffs - and that this is necessary for an IIED claim. To be liable for an intentional tort, it argued, a defendant had to intend to harm the plaintiff in particular.
Was the Diocese's argument correct?
To begin, it's certainly true that almost all intentional torts require that the plaintiff prove that the defendant desired the consequences of her acts or was substantially certain that those consequences would occur.
One good example is the tort of conversion of another's property to one's own use - the conversion must be desired, or at least foreseen. Another is the tort of battery - which occurs when a physical touching, done without the consent of the person touched, causes harm.
So, for example, suppose the plaintiffs had sued McKeown for battery--which they could have done. They could easily have shown that McKeown, at a minimum was substantially certain that a harmful or offensive contact would result from his desire to have sexual contact with them. (McKeown could have denied it, but his denial doubtless would not have been deemed credible by the jury).
But the Diocese was not in the same position as McKeown. Unlike McKeown, the Diocese could plausibly claim that it did not desire the consequences of its alleged acts - that is, the emotional distress suffered by the plaintiffs, nor was it substantially certain that these consequences would occur. After all, the Church points out, it didn't even know the plaintiffs' names. How could it have desired - or been substantially certain - that anything would happen to them as the result of its alleged acts?
Agreeing with the Diocese, the trial judge dismissed the case. The court of appeals, in a very well-reasoned opinion, upheld the dismissal.
So why did the Tennessee Supreme Court reverse the dismissal, and reinstate the case?
The Basis for the Tennessee Supreme Court's Decision: Why It's Unpersuasive
The Tennessee Supreme Court pointed out a simple fact of IIED law: Defendants can be liable not only for intentional, but also for reckless conduct. And it pointed out that in Tennessee (as elsewhere) recklessness means "consciously disregard[ing] a substantial and unjustifiable risk."
Accordingly, it held that the Diocese acted recklessly when it allowed McKeown out into the world, knowing that he was a serial child abuser, and failed to take any steps to limit his ability to meet and assault children. To do this, the Court held, was to exhibit the kind of conscious disregard of risk that amounts to recklessness.
There is a serious problem with this logic, however. Under the Restatement of Torts section addressing IIED, the disregard at issue plainly has to be "directed at" the plaintiff, in particular. And this rule has been universally accepted by every court that has ever reviewed it.
The Restatement does allow a few exceptions, but they don't apply here. For instance. If the disregard is not directed at the plaintiff, but the plaintiff is present for the defendant's outrageous conduct, the plaintiff still can sue. Here, however, the plaintiffs were not present when the Diocese made the grave error of failing to protect society and its children from McKeown.
This is a rule that is harsh in its application. For instance, suppose a given defendant intentionally hurts a child. Doubtless, he ought to know the child's parents will suffer emotional distress when they learn of this, and consciously disregards that risk. Yet the law makes clear that there is still no IIED claim unless the parent is actually present when the child is hurt.
The "directed at" requirement means that not every person who suffers - or even every person who will foreseeably suffer -- emotional distress, can bring an IIED claim. And that is because emotional distress, under the law, has never been viewed an injury independent of the relationship between the victim and the wrongdoer.
Here, there was never any relationship between the Diocese and the plaintiffs. That's why, under the law, the plaintiffs have no claim against the Diocese.
The "disregard" required for an IIED claim based on recklessness has to be directed at the plaintiff. It cannot simply be directed out towards the world in general.
If the Plaintiffs' Allegations are Right, There Are Other Ways to Address Them
If the plaintiffs' allegations are accurate, the Diocese of Nashville acted abominably towards the people of Nashville. The proper response to this might be a negligence suit, or perhaps even a suit by the proper state authorities. However, the use of intentional tort to respond to the Diocese's wrongful conduct does a disservice to the law, and, in the long run, to the cause of justice.
In sum, the Tennessee Supreme Court's decision was plainly in error, and other state Supreme Courts should not follow Tennessee's lead.