KEVIN OSBORNE V. CHARLES ANTHONY PAYNE AND THE ROMAN CATHOLIC DIOCESE OF OWENSBORO, KY. AND CHARLES ANTHONY PAYNE V. KEVIN OSBORNE AND THE ROMAN CATHOLIC DIOCESE OF OWENSBORO, KY.
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1999-SC-0616-DG
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KEVIN OSBORNE
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1997-CA-1818-MR
DAVIESS CIRCUIT COURT NO. 96-Cl-00583
CHARLES ANTHONY PAYNE AND THE ROMAN
CATHOLIC DIOCESE OF OWENSBORO, KY.
APPELLEES
AND
1999-SC-0621
-DG
CHARLES ANTHONY PAYNE
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1997-CA-1818-MR
DAVIESS CIRCUIT COURT NO. 96-Cl-00583
KEVIN OSBORNE AND THE ROMAN
CATHOLIC DIOCESE OF OWENSBORO, KY.
APPELLEES
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING
This appeal is from an opinion of the Court of Appeals which affirmed in part,
reversed in part and remanded a judgment of the circuit court which had summarily
dismissed the complaint of the husband against a former priest and the Roman Catholic
Diocese of Owensboro.
The questions presented are whether the Court of Appeals was in error when it
determined that Osborne was not acting within the scope of his employment as a priest
when he engaged in an adulterous sexual relationship with the wife; whether the
catholic diocese should be held vicariously liable for his actions and whether the
husband abandoned his claim that the diocese was negligent. The broader issue is
whether the action for intentional infliction of emotional distress or outrage may be
brought against a clergyman when the clergyman was sought out for marital counseling
but the result was an interference with the marriage
because of an illicit sexual
relationship.
Payne and his wife were experiencing marital difficulties and went to Osborne,
their parish priest, for counseling. Ultimately, Payne and his wife were divorced
following his discovery of a 45-day adulterous relationship between his wife and
Osborne. Apparently, the relationship did not continue and Osborne left the priesthood.
Payne sued the former priest for the tort of outrageous conduct and the Diocese of
Owensboro under a vicarious liability theory for its alleged negligent training, screening
and supervision of Osborne.
The circuit court gave summary judgment to both defendants on the grounds that
adultery can never reach the stage of outrageous conduct and that the claim of outrage
was actually a claim for interference with marital relations or alienation of spousal
affection which had previously been abolished by this Court in Hove v. Hoye, Ky., 824
S.W.2d 422 (1992). The Court of Appeals affirmed the dismissal of the diocese but
reversed the summary judgment in favor of Osborne because there was a special
relationship which distinguished the conduct of the former priest from that of a
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traditional adulterer, and that a jury question was presented as to whether his behavior
was outrageous conduct- This Court accepted discretionary review.
I. Osborne
During the summary judgment proceedings, the depositions of both Charles
Payne and Kevin Osborne were taken. Payne testified that as a result of discovering
the adulterous affair, he suffered a nervous breakdown, lost his religion, lost his house
and lost his job as well as his wife. Osborne testified that after the sexual affair, he had
resigned from the ministry and was no longer employed as a priest and had moved to
Tennessee.
Craft v. Rice, Ky., 671 S.W.2d 247 (1984), is the seminal case involving the tort
of intentional infliction of emotional distress or outrageous conduct in Kentucky. In order
to establish such a claim, the plaintiff must prove the following elements: The
wrongdoer’s conduct must be intentional or reckless; the conduct must be outrageous
and intolerable in that it offends against the generally accepted standards of decency
and morality; there must be a causal connection between the wrongdoer’s conduct and
the emotional distress and the distress suffered must be severe. As noted in Kroger
Comeanv v. Willaruber, Ky., 920 S.W.2d 61 (1996) the tort is not available for “petty
insults, unkind words and minor indignities.” Nor is it to compensate for behavior that is
“cold, callous and lacking sensitivity.” Humana of Ky., Inc. v. Seitz, Ky., 796 S.W.2d 1
(1990). Rather, it is intended to redress behavior that is truly outrageous, intolerable
and which results in bringing one to his knees. Willaruber, supra.
The circuit court summarily dismissed the claim against the former priest for
failure to allege misconduct that was sufficient to satisfy the outrageous element of the
tort, relying on Whittinaton v. Whittinaton, Ky.App., 766 S.W.2d 73 (1989). In that case,
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the claim of the wife was dismissed under CR 12.02 for failure to state a claim upon
which relief can be granted; the circuit court concluded that ordinary fraud and adultery
can never reach the status of outrageous conduct.
Here, the most important element of the complaint by Payne, as demonstrated by
his deposition testimony, is that he was injured as a result of the misconduct of Osborne
while in a special relationship as priest and counselor. Moreover, the alleged
exploitation of that relationship occurred in a situation when the former priest was aware
that the marriage partners were most vulnerable.
This Court in Seitz, supra, indicated that the special relationship of patient to
nurse had not been violated, but left for “another day” a decision as to whether such
special relationships are part of the tort of outrageous conduct. In this case, as
distinguished from Seitz, Payne has presented sufficient evidence from which a jury
could conclude that he had a special relationship with his priest or marriage counselor
and that this special relationship was violated in an outrageous fashion so as to cause
him severe emotional distress. It is the concept of special relationship that distinguishes
this factual situation from Whittinaton. The establishment of the existence of a special
relationship between the parties can make conduct outrageous. The use of a
confidential relationship between Payne and his priest counselor is the heart of his
lawsuit. The relationship itself cannot be used to give rise to a presumption of
outrageousness, rather the relationship between the parties, is an aid in determining
whether the conduct itself is outrageous.
For the purpose of summary judgment, it is evident that the former priest used
his relationship with the husband and the wife to obtain a sexual affair with the wife.
Conduct and relationship can form the basis for outrageous conduct. It must be
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remembered that pursuant to CR 56.03 the grounds for summary judgment are: 1) there
is no genuine issue as to any material fact, and 2) the moving party is entitled to
judgment as a matter of law. This Court has repeatedly announced that summary
judgments are to be cautiously applied and not to be used as a substitute for trial. A
movant must convince the court, based upon evidence in the record, of the
nonexistence of a material fact issue, and a motion will not be granted unless the right
to summary judgment is shown with such clarity that there is no room let? for
controversy. Osborne has not satisfied that requirement and cannot seek refuge in
summary dismissal. Reliance on Whittinaton does not solve the issue as to whether the
conduct of Osborne was sufficiently outrageous to allow the matter to proceed to a jury
verdict.
The mere fact that in recent years there has been apparently an increasing
number of claims against clergy for sexual misconduct does not make the behavior any
less outrageous or disgraceful or otherwise actionable. Some jurisdictions have denied
relief under a theory of intentional infliction of emotional distress after concluding that
the claims were merely an attempt to bring amatory actions which were no longer
viable. See Strock v. Pressnell, 527 N.E.2d 1235 (Ohio 1988). However, we are
persuaded by the reasoning used in the cases noted by the Court of Appeals including
DeStefano v. Grabrian, 763 P.2d 275, 285 (Colo. 1988) in which it was stated that: a
plaintiff will not be able to mask one of the abolished actions . . . 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. See also
Fiaueiredo-Torres v. Nickel, 584 A.2d 69 (Md. 1991).
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We note that this Court abolished the action for breach of promise to marry in
Gilbert v. Barkes, Ky., 987 S.W.2d 772 (1999), but stated that it in no way prohibited
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. It should be
emphasized that these claims must be approached on a case-by-case basis, and there
is no blanket or automatic imposition of a cause of action in the clergy/counselor
relationship.
II. The Diocese
Payne next argues that Osborne, as a priest, was engaging in an activity
sanctioned by the church and ordinarily performed by a priest, that is, marriage
counseling. He argues that it was because Osborne was a priest that he was called
upon by them; that his help was sought and that he was invited into the home. Payne
reasons that the diocese should be vicariously liable for the actions of Osborne. We
cannot agree. To accept such a theory would in effect require the diocese to become
an absolute insurer for the behavior of anyone who was in the priesthood and would
result in strict liability on the part of the diocese for any actionable wrong involving a
parishioner. We must conclude that such an argument is absurd. Certainly, the scope
of employment of a priest could include marriage counseling, but it clearly does not
include adultery.
The critical analysis is whether the employee or agent was acting within the
scope of his employment at the time of his tortious act. Wood v. Southeastern
Grevhound Lines, 302 Ky. 110, 194 S.W.2d 81 (1946) provides that for it to be within
the scope of its employment, the conduct must be of the same general nature as that
authorized or incidental to the conduct authorized. A principal is not liable under the
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doctrine of respondeat superior unless the intentional wrongs of the agent 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 Co.. Inc., Ky., 349
S.W.2d 680 (1961). In this situation, it is the abuse by the priest of his position that
exceeds the scope of his employment. It is beyond question that Osborne was not
advancing any cause of the diocese or engaging in behavior appropriate to the normal
scope of his employment. There are a variety of cases from other jurisdictions that
comport with our conclusion in this matter. See Amato v. Greenquist, 679 N.E.2d 455
(Ill. App. Ct. 1997); L.L.N v. Clauder, 552 N.W.2d 879 (Wis. Ct. App. 1995) (reversed
on other grounds in L.L.N. v. Clauder, 563 N.W.2d 434 (Wis. 1995) H.R.B. v. J.L.G.,
913 S.W.2d 92 (MO. Ct.App. 1995); Gibson v. Brewer, 952 S.W.2d 239 (MO. 1997).
Here, Payne has failed to present any evidence in the record that Osborne had a
history of sexual misconduct involving parishioners or that the diocese had any
knowledge that Osborne might conceivably engage in such misconduct. Consequently,
we must conclude that the summary judgment granted by the circuit court and affirmed
by the Court of Appeals as to the diocese was correct. There was no basis to support a
claim of independent negligence by the diocese so as to support a rejection of the
motion for a summary judgment. We recognize that independent negligence can be a
valid claim under the proper circumstances as found in Roman Catholic Diocese of
Covinaton v. Setter, Ky.App., 966 S.W.2d 286 (1998).
We must also note that Payne has failed to preserve properly his claim against
the diocese. Civil Rule 76.03(8), provides that a party shall be limited on appeal to the
issues in the prehearing statement before the Court of Appeals. Here, the civil appeal
prehearing statement contained no issue regarding the diocese. The argument sections
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of the brief of Payne in the Court of Appeals referred only to the ruling of the circuit court
regarding the conduct of Osborne. The failure to argue before the Court of Appeals that
summary judgment was improper as to the diocese is tantamount to a waiver. Cf. u
v. Kolb, Ky., 374 S.W.2d 854 (1964). Any part of a judgment appealed from that is not
briefed is affirmed as being confessed. Cf. Stansbury v. Smith, Ky., 424 S.W.2d 571
(1968).
We conclude that members of the clergy can be liable for damages resulting for
their intentional tortious conduct, commonly called the tort of outrage, when it
constitutes the intentional infliction of emotional distress. It is a combination of
relationship and conduct that distinguishes this kind of behavior from adultery which has
been effectively abolished as a tort claim in Kentucky. Thus, Payne is allowed to
proceed with his claim in circuit court against Osborne. However, there is nothing to
support a claim of vicarious liability for the conduct of the former priest against the
diocese, and it cannot be held vicariously liable in this matter.
The judgment of the Court of Appeals is affirmed and this matter is remanded for
proceedings consistent with this opinion.
Lambert, C.J., Cooper, Johnstone, Stumbo and Wintersheimer, JJ., concur.
Graves, J., concurs in result only. Keller, J., concurs but believes the issue as to the
diocese was preserved.
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COUNSEL FOR APPELLANT/APPELLEE
CHARLES ANTHONY PAYNE:
Albert William Barber III
225 St. Ann Street
Owensboro, KY 42303
COUNSEL FOR APPELLANTIAPPELLEE
KEVIN OSBORNE:
Stephen B. Lee
227 St. Ann Street, Suite 308
Owensboro, KY 42303
COUNSEL FOR APPELLEE
ROMAN CATHOLIC DIOCESE OF OWENSBORO:
Marvin P. Nunley
McCarroll Nunley & Hartz
P.O. box 925
111 East Third Street
Owensboro, KY 42302-0925
Charles J. Kamuf
Kamuf, Yewell, Pace & Condon
221 West Second Street
Owensboro, KY 42302
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