CHARLES ANTHONY PAYNE v. KEVIN OSBORNE; AND ROMAN CATHOLIC DIOCESE OF OWENSBORO, KENTUCKY
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RENDERED:
June 4, 1999; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001818-MR
CHARLES ANTHONY PAYNE
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 96-CI-000583
KEVIN OSBORNE; AND
ROMAN CATHOLIC DIOCESE OF
OWENSBORO, KENTUCKY
APPELLEES
OPINION
AFFIRMING IN PART; REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, KNOPF AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Charles Anthony Payne (Payne) has appealed from
the judgment of the Daviess Circuit Court entered on July 1,
1997, which summarily dismissed his complaint against Kevin
Osborne (Osborne) and the Roman Catholic Diocese of Owensboro,
Kentucky (the Diocese).
We affirm the dismissal of the Diocese,
however, we reverse the judgment in favor of Osborne and remand
this matter for further proceedings.
In his complaint filed May 22, 1996, Payne alleged that
in May and June of 1995, he and his wife, Brenda Payne (Brenda),
were having marital difficulties, and sought and received
marriage counseling from Osborne, their parish priest.
Payne
further alleged that on or about June 16, 1995, he discovered
that Brenda and Osborne were having a sexual affair.
Payne
further claims that after he discovered the sexual affair,
Osborne and Brenda left the state together.
His complaint
further asserted as follows:
8. That the conduct of the Defendant,
Kevin Osborne . . . was extreme and
outrageous and a deviation from all
reasonable bounds of decency and was such
that would shock the conscious of ordinary
and reasonable people. Furthermore, the
Defendant, Kevin Osborne, occupied a special
relationship of trust with the Plaintiff and
his wife, Brenda Payne, as the Defendant was
a priest who had been counseling them for two
months.
9. The Defendant, Kevin Osborne, was
aware of the Plaintiff’s particular
vu[l]nerability and sensitivity and took
advantage of that sensitivity or condition
knowing that his conduct would cause the
Plaintiff emotional distress. Furthermore,
the Defendant, Kevin Osborne, knew or should
have known that Plaintiff would return to his
home and find him with the Plaintiff’s wife
and reasonably anticipated the severe
emotional distress such outrageous conduct
would cause the Plaintiff.
In his complaint, Payne also claimed that as Osborne’s
employer, the Diocese was vicariously liable for Osborne’s
actions under an agency theory or respondeat superior.
He also
alleged independent acts of negligence by the Diocese claiming
that it breached its “duty to adequately screen, train and
supervise its employees” and that “it failed to use ordinary care
to detect or prevent the conduct” of Osborne which the Diocese
“either knew or should have known was likely to result.”
The depositions of both Payne and Osborne were taken.
Payne testified that he and Brenda were married in 1983.
At the
time of Payne’s deposition, an action to dissolve his marriage to
Brenda was pending.
As far as the counseling from Osborne was
concerned, Payne testified as follows:
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Q. Have you ever been married other than to
Brenda?
A. No.
Q. Has Brenda ever been married other than
to you?
A. No.
Q. Now, are you of the Catholic faith?
A. I was.
Q. In your Complaint you make some
allegations with respect to Kevin [Osborne].
Particularly, I believe with respect to some
counseling you and Brenda may have got[ten]
from him. Is that correct, sir?
A. That sounds right.
Q. How many phases did you go to Kevin
Osborne for some counseling [sic]? . . .
Would it have been more than once?
A. Yes.
Q. Was it more than twice?
A. Sure.
Q. You personally went to see him more than
twice?
A. He was at my house all of the days and
the night.
Q. I am talking now with respect to
counseling.
A. He was always at my home.
Q. How many times were you there when he was
there?
A. Three or four times.
. . . .
Q. Tell me what [Osborne] did.
A. He took the position of a man of the
cloth and he belittled [sic]. He took
advantage of and he used the faith that
people put in him against me.
Payne further testified that as a result of discovering his
wife’s affair with their priest, he suffered a nervous breakdown.
Q. You mentioned several things that have
had an effect [sic] on you. You lost your
job. What other effects [sic] has it had on
you?
A. I lost my religion. I can’t step a foot
inside there. I can’t stand the sight of a
priest anymore, not after the way I was done
by him. Are you a Catholic?
Q. I am not here to answer questions. Now
the address that you live at now is not the
address where you lived at the time?
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A. No, I’ve lost my house; I’ve lost my
religion; I’ve lost my job; I’ve lost my
wife. I’ve got a son that hasn’t had it
decent since this. . . .
Osborne testified that after his sexual affair with
Brenda, he had “resigned from the ministry” and was no longer
employed as a priest.
At the time of the deposition, he was
working as a youth counselor at an afternoon school program at a
Catholic church in Memphis, Tennessee.
He stated that prior to
his relationship with the Paynes, he had counseled somewhere
between 100 and 500 couples for marital problems.
He
acknowledged that he began counseling the Paynes in “mid to late
February [1995]” and that he commenced a sexual relationship with
Brenda beginning in June of that year which lasted for a total of
45 days.
Osborne moved the trial court for summary judgment and
argued that Payne’s claim was essentially one for interference
with marital relations, a tort no longer actionable in Kentucky.
See Hoye v. Hoye, Ky., 824 S.W.2d 422 (1992).
The Diocese also
moved the trial court for summary judgment and argued that it
could not be held vicariously liable for Osborne’s actions since
Osborne’s sexual misconduct with Brenda was neither “a reasonably
contemplated act,” nor “calculated to advance the cause of” the
Diocese as required by Hennis v. B. F. Goodrich Company, Ky., 349
S.W.2d 680 (1961).
The trial court agreed with Osborne and
dismissed the complaint.
The standard for summary judgment in Kentucky is set
forth in Steelvest, Inc. v. Scansteel Service Center, Inc., Ky.,
807 S.W.2d 476 (1991).
It is settled that we are not permitted
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to sanction the summary dismissal of a case unless “as a matter
of law, it appears that it would be impossible for the respondent
to produce evidence at the trial warranting a judgment in his
favor and against the movant.”
Id. at 483, citing Paintsville
Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985).
Having
reviewed this record, we are convinced that the trial court
improvidently granted judgment in favor of Osborne and that Payne
should be allowed to proceed with his action against Osborne.
Kentucky first recognized the tort of intentional
infliction of emotional distress in Craft v. Rice, Ky., 671
S.W.2d 247 (1984).
To establish such a claim, the plaintiff must
prove the following elements: (1) the wrongdoer’s conduct must be
“intentional or reckless”; (2) the conduct must be “outrageous
and intolerable in that it offends against the generally accepted
standards of decency and morality”; (3) there must be a “causal
connection between the wrongdoer’s conduct and the emotional
distress”; and (4) the distress suffered by the plaintiff must be
“severe.”
Id. at 249.
These elements essentially echo those set
forth in the Restatement (Second) of Torts § 46 (1965).
Clearly,
the tort is not available to assuage “petty insults, unkind words
and minor indignities,” The Kroger Co. v. Willgruber, Ky., 920
S.W.2d 61, 65 (1996), or to compensate one for enduring behavior
that is “cold, callous, and lacking sensitivity,” Humana of
Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1, 4 (1990), but is
designed to redress behavior that is truly outrageous,
intolerable and which results in bringing one “to his knees.”
Willgruber, supra at 67.
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The trial court dismissed Payne’s claim for failing to
allege misconduct by Osborne that is sufficient to satisfy the
“outrageous” element of the tort.1
In so doing, it relied on
this Court’s holding in Whittington v. Whittington, Ky.App., 766
S.W.2d 73 (1989), a case involving a wife’s claim against her
estranged husband for the intentional infliction of emotional
distress predicated on the husband’s fraudulent behavior with
regard to marital assets and his adulterous relationship with
another woman.
Mrs. Whittington’s complaint was dismissed
pursuant to Kentucky Rules of Civil Procedure 12.02 for failure
to state a claim upon which relief can be granted.
In that case,
the trial court reasoned that “ordinary fraud and adultery can
never reach the status of outrageous conduct.”
Id. at 74.
In
affirming the dismissal in Whittington, this Court stated:
While we cannot condone or excuse Mr.
Whittington’s reprehensible actions, assuming
the allegations were true, we do not see them
as rising to the level of outrageousness
necessary for tortious liability. The
emotional and financial distress caused by a
spouse’s fraud and adultery may be very
painful and difficult but does not
necessarily implicate the tort of outrage.
Suitable relief is available under Kentucky’s
domestic relations laws.
Id. at 74-75.
In the case sub judice, the trial court concluded that
this Court’s holding in “Whittington applies with equal weight to
the partner of an adulterous spouse.”
However, in so
concluding, the trial court ignored a critical distinction
1
Osborne and the Diocese have not claimed that Payne has
failed to establish the existence of genuine issues of material
fact regarding the other three elements of the tort.
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between the allegations of wrongdoing by Mr. Whittington and the
allegations of wrongdoing by Osborne.
Osborne is alleged to have
abused a confidential, counseling relationship.
Osborne was not
“the milkman, the mailman, or the guy next door”; he was the
Paynes’ priest and marriage counselor.
Figueiredo-Torres v.
Nickel, 321 Md. 642, 654, 584 A.2d 69, 75 (1991), (“jury may find
extreme and outrageous conduct where a psychologist who is
retained to improve a marital relationship implements a course of
extreme conduct which is injurious to the patient and designed to
facilitate a romantic, sexual relationship between the therapist
and the patient’s spouse”).
Accordingly, we are convinced that
Whittington does not resolve the legal issue of whether or not
Osborne’s conduct was sufficiently outrageous to sustain Payne’s
action.
Claims alleging sexual improprieties committed by
therapists and counselors are not uncommon.
It is “generally
recognized” that “sexual intimacy with a patient, induced by a
marriage or other counselor, is a form of malpractice permitting
recovery of damages for emotional distress and other harm
resulting from the malpractice.”
Weaver v. Union Carbide
Corporation, 180 W.Va. 556, 378 S.E.2d 105, 106 (1989).
In
recent years, there have been increasing numbers of claims
against members of the clergy predicated on sexual misconduct in
the context of counseling and against their respective church
hierarchies for vicarious liability or actions for negligent
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hiring or supervision.2
However, unlike other professionals who
hold themselves out as counselors, members of the clergy are
usually not susceptible to suit for malpractice.
See Destefano
v. Grabrian, 763 P.2d 275, 285 (Colo.1988) (en banc) (claim for
“clergy malpractice” not “supported by precedent” and “raises
serious first amendment issues”).
To our knowledge, Kentucky has
never recognized a claim based on clergy malpractice.
Nevertheless, because members of the clergy are liable
for damages resulting from their intentional tortious conduct,
several plaintiffs similarly situated to Payne, have been
successful in bringing suits predicated on a theory that the
cleric’s conduct constituted the intentional infliction of
emotional distress.
Id. at 284 (couple who received counseling
from parish priest who engaged in sexual relationship with wife
allowed to proceed with claim of intentional infliction of
emotional distress as priest “had a duty, given the nature of the
counseling relationship, to engage in conduct designed to improve
the Destefanos’ marital relationship” and “was obligated not to
engage in conduct which might harm the Destefanos’
relationship”); see also Erickson v. Christenson, 99 Or.App. 104,
108, 781 P.2d 383, 386 (1989) (plaintiff, seduced by pastor in
2
See e.g., Randall K. Hanson, Clergy Malpractice: Suing
Ministers, Pastors, and Priests for Ungodly Counseling, 39 Drake
L.Rev. 597 (1989-90); David V. White, When the Wolf Tends the
Flock: Clergy Misconduct and Marital Counseling, 82 Ill.B.J. 194
(1994); Arthur Gross Schaefer and Darren Levine, No Sanctuary
from the Law: Legal Issues Facing Clergy, 30 Loy.L.A.L.Rev. 177
(1996); Janice D. Villiers, Clergy Malpractice Revisited:
Liability for Sexual Misconduct in the Counseling Relationship,
74 Denv.U.L.Rev. 1 (1996); Joseph B. Conder, Liability of Church
or Religious Society for Sexual Misconduct of Clergy, 5 A.L.R.
5th 530 (1992).
-8-
counseling relationship allowed to proceed against pastor for
intentional infliction of emotional distress because she “alleged
a confidential relationship” which would allow a jury to “infer
that [the pastor’s] actions exceeded the limits of social
toleration” and “were done with the knowledge that they would
cause her grave distress”); Amato v. Greenquist, 287 Ill.App.3d
921, 679 N.E.2d 446, 455, 223 Ill.Dec. 261, 270 (1997) (pastor
“acted in an extreme and outrageous manner” by counseling husband
while romantically involved with wife and “by counseling in a
manner designed to ’covertly undermine’ the couple’s marriage”).3
Some jurisdictions have denied plaintiffs relief under
a theory of intentional infliction of emotional distress after
concluding that claims brought under this theory were merely
attempts to bring amatory actions which were no longer viable
actions.4
This argument is relied upon heavily by Osborne in
3
The tort has been successfully utilized in actions against
counselors other than clerics. See Scamardo v. Dunaway, 650
So.2d 417, 421 (La.Ct.App. 1995) (husband, who sued doctor
treating couple for infertility for engaging in adulterous affair
with wife, allowed to amend complaint to assert a cause of action
for negligent or intentional infliction of emotional distress);
Figueriedo-Torres v. Nickel, supra (court upheld a claim for
intentional infliction of emotional distress by a plaintiff whose
psychologist was having sexual relations with plaintiff’s wife);
Spiess v. Johnson, 89 Or.App. 289, 748 P.2d 1020 (1988) (husband
allowed to pursue claim of outrage against psychiatrist who,
while treating wife for marital problems, had an affair with wife
and encouraged her to obtain divorce from plaintiff).
4
See Strock v. Pressnell, 38 Ohio St.3d 207, 527 N.E.2d 1235
(1988) (court ignored plaintiff’s allegation that his pastor took
advantage of trust relationship and held his injury resembled a
claim for alienation of affections or criminal conversation,
torts abolished in Ohio); Bladen v. First Presbyterian Church of
Sallisaw, 857 P.2d 789, 790 (Ok.1993) (husband’s claim alleging
intentional infliction of emotional distress against pastor who
“initiated and consummated an adulterous affair with the wife”
(continued...)
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this appeal.
However, we are persuaded by the reasoning in those
cases which rejected any superficial comparison of the causes of
action.
For example, in Destefano, supra, the Court reasoned:
[A] plaintiff will not be able to mask one of
the abolished actions [alienation of
affections, criminal conversation, seduction,
breach of contract to marry] behind a common
law label. However, if the essence of the
complaint is directed to a cause of action
other than one which has been abolished, that
claim is legally cognizable.
763 P.2d at 282.
As the Court noted in Figueiredo-Torres v.
Nickel, 321 Md. at 657, 584 A.2d at 77,
The gravamen of Torres’ claim for
intentional infliction of emotional distress
is not merely the sexual act or the
alienation of his wife’s affections. It is
the entire course of conduct engaged in by
his therapist, with whom he enjoyed a special
relationship. This conduct constitutes more
than the abolished amatory causes of action.
Similarly, in Erickson v. Christenson, supra, the Court in
addressing the pastor’s argument that the plaintiff’s claim was
essentially one for seduction which had been abolished, reasoned
as follows:
The tort of seduction provided recovery
for damage to character and reputation, as
well as for mental anguish and pecuniary
losses. By contrast, plaintiff’s claim
alleges that Christenson misused his position
as pastor and counselor to abuse her
sexually, causing her not only emotional
distress but also “loss of ability to trust
other adults, to trust authority, and * * *
in her ability to deal with religion and her
faith in God.” Accepting the allegations as
4
(...continued)
while providing counseling to the husband was based on conduct
which amounted to an alienation of affections suit and failed to
state a cognizable claim—wife’s claim was determined to comprise
one for seduction, an action abolished in Oklahoma).
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true, the harm to plaintiff stemmed from
Christenson’s misuse of his position of
trust, not from the seduction as such. . . .
In her second claim against Christenson,
plaintiff has claimed losses due to
intentionally inflicted severe emotional
distress, as opposed to losses related to
character or reputation. The mere fact that
sexual intimacy was the means of inflicting
that distress does not convert her claim into
one for seduction. Moreover, the character
of Christenson’s relationship with plaintiff
is relevant both to the degree of culpability
required to impose liability and to whether
his conduct was so offensive as to be
outrageous.
99 Or.App. at 107-108, 781 P.2d at 385-386 (citations omitted).
Recently our Supreme Court in Gilbert v. Barkes, Ky.,
____ S.W.2d ____ (March 25, 1999)(WL 163403), held that “the
action for Breach of Promise to Marry is no longer a valid cause
of action before the courts of the Commonwealth.”
The Court
noted specifically that by removing the cause of action for
breach of promise to marry from the common law of the
Commonwealth that “[t]his Court wishes to make clear that it in
no way prohibits other remedies, such as claims for breach of
contract and intentional infliction of emotional distress, should
a party be able to make such a case.”
Id.
Erickson also addresses Osborne’s argument that to
allow Payne to proceed “would create a blanket cause of action
against any clergyman who engages in an affair with a married
partner.”
“[P]laintiff’s claim for outrageous conduct is not
premised on the mere fact that Christenson is a pastor, but on
the fact that, because he was plaintiff’s pastor and counselor, a
special relationship of trust and confidence developed.”
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99
Or.App. at 108, 781 P.2d at 386.
Had Osborne not been providing
the Paynes with counseling, ostensibly with the purpose of
mending their marriage, we would agree that his sexual affair
with Brenda would not be actionable.
In analyzing Payne’s complaint and his deposition
testimony, it is clear that the “essence” of his complaint is
that he was injured as a result of the misuse of Osborne’s
special relationship as Payne’s priest and counselor and by
Osborne’s alleged exploitation of that relationship at a time the
priest was aware that Payne’s marriage was most vulnerable.
In
Seitz, supra, the plaintiff made a similar claim, that is that a
“special relation,” that of nurse/patient, elevated the nurse’s
insensitive conduct to the status of outrageous conduct.
Our
Supreme Court did not believe the “so-called special relationship
of patient-nurse was violated” and therefore left for “another
day” a decision as to whether “such ’special relationships’ are
part and parcel of the tort of outrageous conduct.”
796 S.W.2d
at 4.
As the cases from other jurisdictions that we have
discussed demonstrate, the existence of a special relationship
between the parties may make otherwise non-egregious conduct
outrageous.
It is precisely the betrayal or abuse of the
trusted, confidential relationship between Payne and his priest
that is the core of Payne’s action.
In this case, unlike Seitz,
Payne has clearly presented evidence from which a jury could
determine that he did have a special relationship with his
priest/marriage counselor and that this special relationship was
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outrageously violated causing him severe emotional distress.
It
is this special relationship aspect of Payne’s claim that removes
it from this Court’s holding in Whittington and which, we
conclude, allows him to proceed with his claim.
In its summary judgment, the trial court did not state
its reason for dismissing the Diocese.
However, having dismissed
the claim against Osborne, the vicarious liability claims against
the Diocese were moot.
The trial court did not address Payne’s
claim that the Diocese was independently negligent.
Since we
have determined that the summary disposition of Payne’s claim
against Osborne must be reversed, it is necessary for us to
address the propriety of the dismissal of the claims against the
Diocese.
Payne has not, in this appeal, addressed his claim that
the Diocese was independently negligent in hiring and/or
supervising Osborne.
While such a claim has been recognized in
Kentucky, see Roman Catholic Diocese of Covington v. Secter,
Ky.App., 966 S.W.2d 286 (1998), Payne’s abandonment of the claim,
coupled with the lack of any evidence in the record that Osborne
had any history of sexual misconduct involving parishioners, or
that the Diocese had any knowledge that Osborne might engage in
such misconduct, cause us to necessarily conclude that the trial
court’s summary dismissal for any claim of independent negligence
by the Diocese was appropriate.
Payne would, however, have this Court to hold that the
Diocese can be held vicariously liable for Osborne’s conduct.
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Certainly, employers can be held liable for the intentional torts
of their employees.
[U]nder modern theories of allocation of the
risk of the servant’s misbehavior, it has
been recognized . . . that even intentional
torts may be so reasonably connected with the
employment as to fall within the scope of it.
The present tendency is to extend the
employer’s responsibility for such conduct.
Frederick v. Collins, Ky., 378 S.W.2d 617, 619 (1964).
Nevertheless, it remains essential to determine whether the
employee “was acting within the scope of his employment at the
time of his tortious act.”
Wood v. Southeastern Greyhound Lines,
302 Ky. 110, 113, 194 S.W.2d 81, 82 (1946); see also Ellis v.
Jordan, Ky.App., 571 S.W.2d 635, 638 (1978).
“To be within the
scope of an employment, conduct must be of the same general
nature as that authorized or incidental to the conduct
authorized.”
Wood, 302 Ky. at 114, 194 S.W.2d at 83.
A
principal is not liable under the doctrine of respondeat superior
unless its agent’s intentional wrongs were “calculated to advance
the cause” of the principal, or were “appropriate to the normal
scope of the operator’s employment.”
Hennis v. B.F. Goodrich
Company, Inc., 349 S.W.2d at 682.
The Diocese argued before the trial court that the
nature of the alleged wrong, that is, the abuse of the priest’s
position and his exploitation of his special relationship with
his parishioners, is what takes it outside the scope of his
employment.
We agree and conclude that Osborne was not advancing
any “cause” of the Diocese, or engaging in behavior “appropriate
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to the normal scope” of his employment.
Again, the Court’s
observations in Destefano, supra, are pertinent:
An employee is acting within the scope of his
employment if he is engaged in the work which
has been assigned to him by his employer or
he is doing what is necessarily incidental to
the work which has been assigned to him or
which is customary within the business in
which the employee is engaged. A priest’s
violation of his vow of celibacy is contrary
to the instructions and doctrines of the
Catholic church. When a priest has sexual
intercourse with a parishioner it is not part
of the priest’s duties nor customary within
the business of the church. Such conduct is
contrary to the principles of Catholicism and
is not incidental to the tasks assigned a
priest by the diocese. Under the facts of
this case there is no basis for imputing
vicarious liability to the diocese for the
alleged conduct of Grabrian.
763 P.2d at 287 (citations omitted).5
Accordingly, the judgment of the Daviess Circuit Court
is affirmed in part, reversed in part, and this matter is
remanded for further proceedings consistent with this Opinion.
KNOPF, JUDGE, CONCURS.
5
Our research reveals this to be typical of the rulings on
the issue of a church’s liability under the doctrine of
respondeat superior or its cleric’s sexual misconduct. See Amato
v. Greenquist, 287 Ill.App.3d at 270, 679 N.E.2d at 455
(“complaint fails to allege that the Pastor’s actions in
deceiving and otherwise counseling the plaintiff were for
anything other than his own benefit”); L.L.N. v. Clauder, 203
Wis.2d 570, 589, 552 N.W.2d 879, 888 (1996) (reversed on other
grounds in L.L.N. v. Clauder, 209 Wis.2d 674, 563 N.W.2d 434
(1997) (priest/counselor who initiated sexual contact with
plaintiff was “acting outside the scope of his employment by the
Diocese” as a matter of law); H.R.B. v. J.L.G., 913 S.W.2d 92, 97
(Mo.App. 1995) (sexual abuse of child not within scope of
priest’s duties, nor “intended to further any religious or
educational interests of the Catholic Church”); Gibson v. Brewer,
952 S.W.2d 239, 246 (Mo. 1997) (“intentional sexual misconduct
and intentional infliction of emotional distress are not within
the scope of employment of a priest, and are in fact forbidden”).
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GUIDUGLI, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND
FURNISHES SEPARATE OPINION.
GUIDUGLI, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART.
I concur in part and dissent in part.
I agree with the
majority that based upon the facts of this case it may be time
for our Supreme Court to review whether “such ‘special
relationships’ are part and parcel of the tort of outrageous
conduct” as stated in Humana of Kentucky, Inc. v. Seitz, Ky., 796
S.W.2d 1, 4 (1990).
However, I do not agree that the trial
court’s summary dismissal of any claim of independent negligence
by the Diocese was appropriate.
The majority agreed with the
Diocese’s argument that “the abuse of the priest’s position and
his exploitation of his special relationship with his
parishioners, is what takes it (vicarious liability) outside the
scope of his employment.”
Based upon the foregoing the majority
concluded that “Osborne was not advancing any cause of the
Diocese, or engaging in behavior appropriate to the normal scope
of his employment.”
Of course, he was not when he engaged in a
sexual relationship with Brenda Payne.
However, the reason the
conduct may be outrageous and Osborne personally liable is
because of the “special relationship” of being a priest and
counselor.
It is because of his employment as a priest and all
that it represents and Payne’s education and training as a
Catholic that makes this a “special relationship” that may
transform Osborne’s conduct to the level of outrageousness.
The
Diocese created this “special relationship” by training Osborne
to be a priest and counselor and, as such, may be liable under
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the theory of respondeat superior.
Either there is a “special
relationship” created by being a priest and/or counselor or there
is not.
If there is a “special relationship” created herein,
then both Osborne and the Diocese may be liable.
If there is not
a “special relationship” created, then neither party is
responsible for Payne’s alleged injury.
In either case it is a
factual determination to be made by a jury.
As such, summary
judgment in favor of both Osborne and the Diocese was premature
and improper.
I would reverse and remand for further proceedings
against both parties.
I concur with the majority opinion on all other matters
addressed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, OSBORNE:
Hon. Albert W. Barber, III
Owensboro, KY
Hon. Stephen B. Lee
Owensboro, KY
BRIEF FOR APPELLEE, THE
DIOCESE:
Hon. Marvin P. Nunley
Hon. Charles J. Kamuf
Owensboro, KY
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