Langford v Roman Catholic Diocese of Brooklyn
LANGFORD v. ROMAN CATHOLIC DIOCESE OF BROOKLYN,
JUSTICE MILLER’S DISSENT
LANGFORD v ROMAN CATHOLIC DIOCESE OF BROOKLYN
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION :
SECOND JUDICIAL DEPARTMENT 0920B
S/jv AD2d Argued – June 17, 1999
FRED T. SANTUCCI, J.P.
THOMAS R. SULLIVAN
SONDRA MILLER
ANITA R. FLORIO, JJ.
1998-07167
I cannot concur in so much of the majority’s decision as holds that the
plaintiff may not recover damages under a theory of breach of fiduciary
duty. In my opinion, the plaintiff’s allegations and the evidence in
the record fully support such a theory – one that is gaining
recognition throughout the country as a result of the disturbingly
frequent incidence of sexual predation by clergymen against vulnerable
members of their flocks.
I disagree with the majority’s conclusion that the plaintiff’s cause of
action to recover damages for breach of fiduciary duty is equivalent to
a cause of action for clergy malpractice. These two causes of action
are markedly distinct, as will be demonstrated below.
I disagree most significantly with the majority’s holding that any
attempt to define the duty of care owed by a member of the clergy to a
parishioner fosters “excessive entanglement with religion.” That
holding will establish appellate precedent shielding from civil
judicial examination even the most flagrant clerical misconduct
perpetrated upon vulnerable parishioners, children as well as adults.
The injured will be deprived of any recourse short of criminal
prosecution. The miscreant clergy, unsanctioned, will remain free to
continue undeterred. Such a holding flies in the face of precedent
firmly established in this State (see, First Presbyt. Church of
Schenectady v United Presbyt. Church in United States of Am., 62 NY2d
110, 119-121, cert denied 469 US 1037; Avitzur v Avitzur, 58 NY2d 10 8,
cert denied 464 US 817). Moreover, the First Amendment to the United
States Constitution was not intended to protect the misconduct of
clergy where examination of their conduct does not require any inquiry
into church doctrine (see, Wisconsin v Yoder, 406 US 205, 215;
Employment Div., Dept. of Human Resources of Oregon v Smith, 494 US
872, 879-890; First Presbyt. Church of Schenectady v United Presbyt.
Church in United States of Am., supra; Avitzur v Avitzur, supra; Moses
v Diocese of Colorado, 863 P2d 310, 319-321 [Colo], cert denied 511 US
1137). Clearly no examination of church doctrine is required in order
for the plaintiff’s claims against her priest to be heard.
For purposes of this appeal, the following facts have been alleged and
not expressly controverted. In February 1988, the plaintiff, Susan
Langford, began suffering from vision problems that were diagnosed as
symptoms of optic neuritis and she was told that this condition was a
common precursor to multiple sclerosis. In January 1989, Langford was
diagnosed as suffering from multiple sclerosis. Feeling fearful,
hopeless, and suicidal, Langford turned to her parish church, the
defendant Our Lady of Hope, for direction and counseling regarding the
effects of her disease. In February 1989 she first spoke with the
defendant, Monsignor Nicholas Sivillo.
Sivillo visited Langford’s home where she confided in him her fears,
anxieties, and sense of hopelessness. He consoled her with assurances
that he would beseech the Lord to fill her with peace. Shortly
thereafter, Langford saw a psychiatrist who recommended that Langford
not be left alone because of her suicidal tendencies. Sivillo visited
Langford’s home three to four times per week and counseled Langford
regarding her life, her personal problems, her depression, her
marriage, and her future, while also continuing to assure her that God
would not forsake her and that he (Sivillo) was her “lifeline.” Several
months later, the multiple sclerosis went into remission and Sivillo
told Langford that it was his prayers that “made her better.” He
continued to counsel her regularly.
One day in May 1990 Sivillo visited Langford and told her that he loved
her. At this juncture he transformed their relationship from
priest/counsellor and parishioner to sexual predator and victim.
Although he acknowledged that he had taken a vow of celibacy, he told
Langford that celibacy prevented only sexual intercourse, and that any
relations besides intercourse were condoned by the church as part of
the “human condition”. Langford began to cry and declared that their
relationship must end because of his advances, after which Sivillo
grabbed and hugged Langford, telling her that only his prayers were
keeping her well and preventing her illness from recurring. On the
following day Sivillo explained that Langford needed him to continue
her recovery. Convinced that Sivillo was indeed her “lifeline” without
whose counseling her physical condition would certainly regress,
Langford succumbed to his advances and began to have sexual intercourse
with him. The sexual relationship continued from 1990 through 1993,
during which time Sivillo even met with Langford’s husband and advised
him “to move on with his life” because their marriage was not
salvageable. When Langford and Sivillo met, he supplied tranquilizers
to calm Langford’s anxiety.
Despite pressures exerted by Sivillo to induce Langford to keep their
relationship a secret, in 1992 Langford began seeing a secular
therapist to help her resolve her anxiety and inner conflicts. With the
aid of her therapist, Langford slowly realized that Sivillo had
manipulated her, and she began seeing him less frequently. She saw
Sivillo only four times in 1994, but he continued to remind her of the
agony she would face, alone, as a cripple, and that he was her only
hope of avoiding a wretched future. In November of 1994, Langford was
finally capable of severing all ties with Sivillo.
Langford commenced the instant action in June 1995 against the Roman
Catholic Diocese of Brooklyn, Our Lady of Hope, three other clergymen
(collectively referred to herein as the Diocese), and Sivillo.
Asserting claims, among others, of negligence, breach of fiduciary
duty, infliction of emotional distress, and battery, Langford claimed
that the defendants’ conduct forced her to incur expenses for medicine
and medical care, and to experience severe stress, anxiety, guilt,
fear, humiliation, and shame, and that her faith was shattered.
The Diocese was awarded summary judgment dismissing the complaint upon
Langford’s default in opposing the motion. Langford moved to vacate her
default, and Sivillo moved for summary judgment dismissing the
complaint insofar as asserted against him. The court granted Sivillo’s
motion, although its order did not address Langford’s motion to vacate
her default.
On this appeal by Langford, the majority has affirmed the dismissal of
the complaint as against Sivillo. I agree that Langford’s motion to
vacate her default in opposing the motion of the Diocese was not
decided in the order on appeal and thus the issues she raises regarding
that motion are not before us (see, Katz v Katz, 68 AD2d 536). I
further agree that the Supreme Court correctly awarded Sivillo summary
judgment dismissing Langford’s causes of action, other than the one
alleging breach of fiduciary duty, on the ground, among others, of the
Statute of Limitations. I do not concur with my colleagues in the
majority, however, insofar as the court awarded Sivillo summary
judgment dismissing Langford’s cause of action based on breach of
fiduciary duty. I would reinstate that cause of action and to this
extent I must dissent.
Initially, I am not persuaded by Sivillo’s contentions, raised for the
first time on appeal, that Langford’s breach of fiduciary duty claims
are time-barred by the one-year Statute of Limitations applicable to
intentional torts (see, CPLR 215[3]). Sivillo did not raise this
argument in his motion papers with regard to Langford’s cause of action
based on breach of fiduciary duty and thus, this defense has been
waived (see, CPLR 3211[e]). In any event, the Statute of Limitations
for a cause of action based on breach of fiduciary duty is either three
or six years, depending on the remedy sought (see, Loengard v Santa Fe
Indus., Inc., 70 NY2d 262; Yatter v Williams Morris Agency, Inc., 256
AD2d 260). Here, under either Statute of Limitation, Sivillo has not
proven, as a matter of law, that Langford’s claims are untimely.
Moreover, I disagree with the majority’s conclusion that the
plaintiff’s causes of action based on breach of fiduciary duty actually
allege intentional torts subject to a one-year Statute of Limitations.
The instant case is easily distinguishable from those cases cited by
the majority in support of the assertion that all instances of
unwelcome sexual conduct constitute intentional torts subject to a one
year period of limitations.
Tserotas v Greek Orthodox Archdiocese of North and South America (251
AD2d 323) involved a single instance when the defendant priest
allegedly physically forced a parishioner into an act of sexual
intercourse; in effect, a rape by forcible compulsion. Although this
assault occurred in the context of a counseling relationship, the
shocking suddenness of this sexual attack is much more reasonably
categorized as an intentional sexual assault than was the more subtle,
calculated, manipulative conduct alleged of Sivillo. Sivillo did not
rape the plaintiff by forcible compulsion. Rather, he took unfair
advantage of his claimed status as the savior of the plaintiff’s
health, and violating the trust he earned thereby, led her into an
ostensibly consensual, ongoing relationship. Yes, his reprehensible
conduct was intentional, but I do not agree that the gravaman of the
plaintiff’s cause of action based on breach of fiduciary duty is based
on an intentional sexual assault as in Tserotas.
Sharon B. v Reverend S. (244 AD2d 878) does not support the majority’s
conclusion herein as the published decision and order of the Appellate
Division, Fourth Department, in that case does not recite any salient
facts as to the nature of the sexual abuse; how often it occurred and
under what circumstances, nor does the decision reveal whether the
plaintiff therein even asserted a cause of action based on breach of
fiduciary duty. Thus, Sharon B. is inapplicable to the facts of the
instant case.
Finally, Jones v Trane (153 Misc 2d 822), is also distinguishable on
its facts since it involved alleged homosexual abuse of an 11-year-old
boy by a priest. It is also noteworthy that the court in Jones v Trane
declined to dismiss the infant plaintiff’s third and fifth causes of
action based upon breach of trust, because the court perceived no
excessive entanglement with religion since no church doctrine justified
the defendant priest’s alleged sexual misconduct. Accordingly, not only
do I disagree that the plaintiff’s cause of action based on breach of
fiduciary duty is time-barred, but as I shall demonstrate, infra,
consideration thereof does not run afoul of the First Amendment.
The First Amendment states in pertinent part that “Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof” (US Const, 1st Amend). The proper judicial
interpretation of the latter clause, “the free exercise clause”, has
been the subject of much controversy in cases pitting parties’ rights
to engage in conduct that is sincerely rooted in religious belief
against State governments advancing compelling interests that may
override any such rights (see, e.g., Ware v Valley Stream High School
Dist., 75 NY2d 114, modg 150 AD2d 14). But at the outset of any First
Amendment analysis, a court must bear in mind that “to have the
protection of the Religion Clauses, the claims must be rooted in
religious belief” (Wisconsin v Yoder, 406 US 20 5, 215). Finding that
the First Amendment has never been applied so as to confer a right to
anyone to threaten the public safety, regardless of any religious
motivation (see, Employment Div., Dept. of Human Resources of Oregon v
Smith, 494 US 872, 879-890), the Supreme Court later stated that “[w]e
have never held that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the
State is free to regulate” (Employment Div., Dept. of Human Resources
of Oregon v Smith, supra, 878-879).
Monsignor Sivillo’s robes should not shield him from liability for
egregious acts not sanctioned by his church or the secular community.
He makes no claim to this court that his alleged conduct is supported
or even tolerated by his parish, by the doctrine of the Catholic or any
other church, or by the doctrine of any religion at all. Nor does he
claim that his alleged conduct was motivated by his personal
interpretation of any religion, or that his conduct was rooted in
religious belief. Sivillo only invokes the First Amendment for a much
more specific purpose, to defend against Langford’s claims of clergy
malpractice and breach of fiduciary duty.
The First Amendment has never been invoked to shield clerical
misconduct from criminal prosecution, nor has it been invoked to shield
clerical misconduct from liability for intentional tortious conduct.
Langford’s allegations of Sivillo’s gross betrayal of trust and abuse
of power on threats of illness or death are no less alien to the
teachings of the church than criminal or intentional tortious conduct.
While a claim of clergy malpractice may require a court to examine
ecclesiastical doctrine, a claim of breach of fiduciary duty raises
secular issues, which can be adjudicated using neutral principles of
law (see, First Presbyt. Church of Schenectady v United Presbyt. Church
in United States of Am., 62 NY2d 110, 119 [explicitly adopting “neutral
principles of law” mode of analysis in New York, and finding that
disputes involving religious entities can be adjudicated by courts when
no inquiry into church doctrine is required]; see also, Avitzur v
Avitzur, 58 NY2d 108 [reversing an order dismissing complaint to
enforce term of a religious document governing marriage, and holding
that when doctrinal issues need not be examined, secular obligations
entered into in religious document are enforceable when neutral
principles of law can be applied]; Jones v Trane, 153 Misc 2d 822,
supra, at 828-829 [First Amendment did not prevent breach of trust
claim against priest who allegedly sexually abused plaintiff, and
expressly refusing to dismiss clergy malpractice claim as
unconstitutional]; Lightman v Flaum, 179 Misc 2d 1007, 1014-1015 [using
neutral principles of law to sustain a claim for breach of fiduciary
duty by a congregant against rabbis]; F. G. v MacDonell, 150 NJ 550,
559 [parishioner may maintain a cause of action for breach of fiduciary
duty against her rector for initiating and sustaining sexual
relationship in context of pastoral counseling relationship]; Moses v
Diocese of Colorado, 863 P2d 310, 319-321 [Colo] [using neutral
principles of law to uphold findings of liability against diocese and
bishop for breach of fiduciary duty based on sexual relationship
between assistant priest and parishioner in counseling setting]; cf.,
Sanders v Casa View Baptist Church, 134 F3d 331, 336-337, cert denied
525 US 868 [ecclesiastical inquiries unnecessary to uphold finding of
breach of fiduciary duty against minister for sexual relations in the
counseling setting, as he held himself out to possess qualifications of
professional marital counselor, and stating “the constitutional
guarantee of religious freedom cannot be construed to protect secular
beliefs and behavior, even when they comprise part of an otherwise
religious relationship between a minister and a member of his or her
congregation. To hold otherwise would impermissibly place a religious
leader in a preferred position in our society”]).
In F.G. v MacDonell (150 NJ 550, supra ), the Supreme Court of New
Jersey upheld a cause of action to recover damages for breach of
fiduciary duty and explained the difference between that cause of
action and one based on clergy malpractice, where a priest engaged in a
sexual relationship with a parishioner-counselee:
“[u]unlike an action for clergy malpractice, an action for breach of
fiduciary duty does not require establishing a standard of care and its
breach. Establishing a fiduciary duty essentially requires proof that a
parishioner trusted and sought counseling from the pastor. A violation
of that trust constitutes a breach of the duty” (F.G. v MacDonell,
supra, at 565 [emphasis added]; see also, Erickson v Christenson, 99
Or App 104, 108 [noting distinction between two causes of action, and
reinstating a cause of action based on breach of a confidential
relationship against pastor who allegedly sexually abused plaintiff
within counseling relationship]).
In Moses v Diocese of Colorado (863 P2d 310, supra), the Supreme Court
of Colorado referred to its earlier opinion in DeStefano v Grabrian
(763 P2d 275 [Colo]) which upheld a cause of action based on breach of
fiduciary duty against a priest who allegedly had sexual relations with
a parishioner -counselee, and explained:
“DeStefano held that a cause of action for breach of fiduciary duty was
separate and distinct from a claim of clergy malpractice. The
fundamental difference between the two causes of action is the former
is a breach of trust and does not require a professional relationship
or a professional standard of care, while the latter is an action for
negligence based on a professional relationship and a professional
standard of care. In DeStefano, we held the defendant owed a fiduciary
duty to the plaintiff that ‘was created by his undertaking to counsel
[the plaintiff].’ DeStefano v Grabrian 763 P2d 275, 284). The position
of trust occupied by the defendant, when coupled with his positive act
of counseling the plaintiff, resulted in a duty to the plaintiff. The
relevant common facts in DeStefano and [this] case are not the
profession of the defendants; the relevant facts are that the
defendants in both cases occupied a position of superiority, assumed a
duty to act in good faith, and then breached their duty. In Colorado,
breach of fiduciary duty is actionable, clergy malpractice is not (Id.,
at 284-286)” (Moses v Diocese of Colorado, supra, at 321 n 13 [
emphasis added]).
In upholding a jury’s finding that a diocese had breached its fiduciary
duty where a priest had sexually abused a plaintiff-parishioner,
another court distinguished the two causes of action in a different
manner:
“This Court perceives error in a per se analogy of a fiduciary duty
claim to one of clergy malpractice, in that while the clergy
malpractice claim may require the development of a “reasonable clergy”
standard, the fiduciary duty claim does not necessarily require such an
inquiry inasmuch as the standard to which a fiduciary is held is not
that of a ‘reasonable clergy person,’ * * * but rather that of a
‘fiduciary.’ In other words, rather than being restricted to
consideration of a standard of care to be followed by clergy persons or
other religious entities, a court or jury can, in some circumstances
measure a religious organization’s or official’s conduct by
pre-existing secular standards of care to which all fiduciaries are
held” (Martinelli v Bridgeport Roman Catholic Diocesan Corp., 10 F Supp
2d 138, 146).
The court in Schmidt v Bishop (779 F Supp 321, 324), cited by the
majority, simply did not consider the distinctions which the
above-cited authorities found persuasive and with which I emphatically
agree.
Of course, for purposes of determining liability, the question of
whether a relationship is a fiduciary one is a question of fact for the
jury (see, Penato v George, 52 AD2d 939, 942). I conclude that the
Supreme Court erred by misapplying the “neutral principles of law”
doctrine when it held that no jury could find a fiduciary relationship
here without having to consider religious facts. The issue of whether a
fiduciary duty exists demands an examination of the facts of a case
from a secular vantage point, and without reliance on religious
precepts (see, First Presbyt. Church of Schenectady v United Presbyt.
Church in United States of Am., 62 NY2d 110, supra, at 122), but does
not ask a finder of fact to strip a litigant’s narrative of all
religious nuance. Here, a jury need not consider such issues as the
legitimacy of Langford’s beliefs and the nature of the healing powers
of the church, as the conduct complained of is not related to any
doctrine of the Catholic faith, nor does Sivillo claim that it is at
all related to any religious entity’s doctrine or that the conduct
interferes with his free exercise of religion. Using neutral principles
of law, premised upon neutral facts, a court can allow a jury to
determine that Sivillo acquired influence over Langford by virtue of
his role as an established religious leader, that he abused his
influence and her trust by demanding a sexual relationship while
warning her that only he prevented her physical condition from severely
deteriorating. These findings would require no inquiry into the
doctrine of the Catholic Church and would thus not violate the First
Amendment. It has not been, and cannot be claimed that a religious
entity is immunized by the First Amendment from liability resulting
from tortious conduct (see, Kenneth R. v Roman Catholic Diocese of
Brooklyn, 229 AD2d 159, cert denied 522 US 967).
The relationship between priest and parishioner is as clearly fiduciary
as any relationship between two individuals in our society. To hold
otherwise would deny the morality and the purpose of religious
institutions. Indeed, the definition of fiduciary relationship
enunciated by this court in Penato v George (52 AD2d 939, supra), can
only be read to include relationships between clergy and parishioner.
There we defined a fiduciary relationship as:
“one founded upon trust or confidence reposed by one person in the
integrity and fidelity of another. It is said that the relationship
exists in all cases in which influence has been acquired and abused, in
which confidence has been reposed and betrayed. The rule embraces both
technical fiduciary relations and those informal relations which exist
whenever one man trusts in, and relies upon, another. Such a
relationship might be found to exist, in appropriate circumstances,
between close friends or even where confidence is based upon prior
business dealings” (Penato v George, supra, at 943).
The hallmark of fiduciary duty – an imbalance of power between the
parties, is especially manifest in the relationship between priest and
parishioner, here Sivillo and Langford. Not only did Sivillo hold the
position of respect and influence as Langford’s priest, her “lifeline
to God”, but she was extraordinarily vulnerable, weakened by physical
illness, facing the onset of blindness and loss of mobility, depressed
and anxious to the point of considering suicide, lonely and without
other resources. The power of his promises to save her, her dependence
on his companionship and solicitude, and her fear of his threats if
she failed to comply were irresistible. She was an exceptionally easy
victim (see, Cooper-White, Soul-Stealing: Power Relations in Pastoral
Sexual Abuse, Christian Century, Vol 108, No. 6, Feb. 20, 1991, at
197, [“The clergy role carries a great deal of power in and of itself,
and one of the most insidious aspects of that power is the role of ‘man
of God'”]).
This case concerns far more than Langford’s claim against Sivillo. It
presents this court with the opportunity to establish a deterrent to
conduct that inflicts immeasurable harm upon victims who are deceived
and abused by the religious leaders that they are taught to trust and
depend upon from early childhood. Clearly Langford’s claim is not
unique. That sexual abuse of religious adherents is committed by
religious leaders across the globe, and in faiths ranging from
Christianity to Judaism to Buddhism has been well documented (see,
Villiers, Clergy Malpractice Revisited: Liability for Sexual Misconduct
in the Counseling Relationship, 74 Denv. U. L. Rev. 1, 15 n 89).
“Surveys of 300 clergy from four U.S. Christian denominations
(Assemblies of God, Episcopal Church U.S.A., Presbyterian Church
U.S.A., and United Methodist), reported that 38% admitted to some form
of sexual contact with a member of their congregation * * * An
astonishing 76% said they knew of another clergy member who had engaged
in sexual intercourse with a congregant” (Villiers, Clergy Malpractice
Revisited: Liability for Sexual Misconduct in the Counseling
Relationship, supra, at 64 n 87). “A policy report of the Presbyterian
Church (U.S.A.) reported that ‘between 10 and 23 percent of clergy
nationwide have engaged in sexualized behavior or sexual contact with
parishioners, clients or employees * * * within a professional
relationship'” (Villiers, Clergy Malpractice Revisited : Liability for
Sexual Misconduct in the Counseling Relationship, supra, quoting
Presbyterians Adopt Guidelines to Curb Sex Misconduct by Clergy, N.Y.
Times, June 12, 1991, see also, O’Reilly and Strasser, Clergy Sexual
Misconduct: Confronting the Difficult Constitutional and Institutional
Liability Issues, 7 St. Thomas L. Rev. 31, 33-34). Moreover, as with
all incidents of sexual abuse, many victims undoubtedly fear to come
forward due to a misguided sense of guilt, fear of ostracism by the
community, or retaliation by the clergy member.
In recognizing Langford’s cause of action to recover damages for breach
of fiduciary duty, it would, for the first time, pose a deterrent to
other predatory members of the clergy who presently have too little
reason to fear personal retribution for their conduct causing grave
injury to their victims.
For the above stated reasons, I would modify and permit Langford to
pursue her cause of action against Sivillo based on breach of fiduciary
duty.
ENTER:
James Edward Pelzer
Clerk