In the Missouri Court of Appeals
JOHN DOE AP,
ROMAN CATHOLIC ARCHDIOCESE
OF ST. LOUIS, ET AL.,
Appeal from the Circuit Court
of the City of St. Louis
Hon. Donald L. McCullin
July 5, 2011
John Doe AP (“John Doe”) appeals from the trial court’s grant of summary
judgment in favor of the Roman Catholic Archdiocese of St. Louis (“the Archdiocese”),
Father Thomas Cooper (“Cooper”), and Archbishop Raymond Burke 1 (“Archbishop
Burke”). John Doe contends the trial court erred in granting summary judgment in favor
of the Archdiocese on his claim for intentional failure to supervise clergy because the
trial court interpreted Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997) incorrectly:
(1) by including a premises requirement for the acts of sexual abuse, and (2) by finding
the sexual abuse did not occur on premises. John Doe also argues the trial court erred in
granting the Archdiocese’s motion to dismiss his claims for negligent failure to supervise
children because the trial court interpreted Gibson, incorrectly: (1) in finding negligence
in the supervision of a child requires an examination of the standard of care of a priest,
Archbishop Burke was sued only in his representative capacity as Archbishop of the Archdiocese.
and (2) in finding the First Amendment barred judicial consideration of whether the
Archdiocese complied with generally applicable tort rules that apply to all employers.
John Doe was born on September 24, 1957. John Doe was a parishioner at a
Catholic Church in St. Louis, Missouri, where Cooper was a Catholic priest. While John
Doe attended the church, Cooper worked with, mentored, and counseled him. From
approximately 1970 to 1971, when John Doe was still a minor, Cooper sexually abused
him on two separate occasions. The acts of sexual abuse, which included oral sex and
attempted anal sex, all occurred at Cooper’s clubhouse on the Big River.
The abuse caused John Doe to experience depression and emotional problems.
However, John Doe never told anyone of his experience until he revealed it to his
psychologist in 2002, at the age of 45.
John Doe filed his petition on June 22, 2005, which included the following
counts: (I) child sexual abuse and/or battery against all Defendants; (II) breach of
fiduciary duty against all Defendants; (III) fiduciary fraud and conspiracy to commit
fiduciary fraud against all Defendants; (IV) fraud and conspiracy to commit fraud against
all Defendants; (V) intentional infliction of emotional distress against the Archdiocese
and Archbishop Burke; (VI) intentional infliction of emotional distress against Cooper;
(VII) negligence against all Defendants; (VIII) vicarious liability (respondeat superior)
against the Archdiocese and Archbishop Burke; (IX) negligent supervision, retention, and
failure to warn against the Archdiocese and Archbishop Burke; and (X) intentional failure
to supervise clergy against the Archdiocese and Archbishop Burke.
The Archdiocese filed an answer and asserted Count X failed to state a claim
upon which relief could be granted and was barred by the statute of limitations and
laches. The Archdiocese also filed a motion to dismiss counts I, II, III, IV, V, VII, VIII,
IX for failure to state a claim upon which relief can be granted. The trial court granted
the Archdiocese’s motion and dismissed counts I, II, III, IV, V, VII, VIII, and IX.
Defendant Cooper died on December 24, 2003, and John Doe dismissed without
prejudice his claims against Defendant Cooper, which included counts I, II, III, IV, VI,
The Archdiocese also filed a motion for summary judgment on count X, John
Doe’s sole remaining claim of intentional failure to supervise clergy, arguing John Doe
could not prove the alleged acts of sexual abuse occurred on property owned or
controlled by the Archdiocese or while Cooper was using the Archdiocese’s chattel. The
Archdiocese also contended it was entitled to summary judgment because John Doe’s
claim was time-barred by the statute of limitations. John Doe filed a response, arguing
the abuse included “seduction and grooming,” which took place on church property prior
to the sex acts themselves and that the statute of limitations was tolled until May of 2002
when John Doe’s repressed memories of the abuse returned to him. John Doe contends
as a result the Archdiocese was not entitled to summary judgment.
The trial court granted the Archdiocese’ motion for summary judgment, finding
John Doe could not prove the Archdiocese possessed the premises on which he was
allegedly sexually abused by its priest. However, the trial court did not grant summary
judgment on the basis of the statute of limitations, finding that different conclusions
could be drawn from the evidence, and thus, it was a question for a jury. This appeal
The propriety of summary judgment is purely an issue of law. Meramec Valley
R-III School Dist. v. City of Eureka, 281 S.W.3d 827, 835 (Mo. App. E.D. 2009).
Accordingly, the standard of review on appeal regarding summary judgment is no
different from that which should be employed by the trial court to determine the propriety
of sustaining the motion initially. Id. Summary judgment is designed to permit the trial
court to enter judgment, without delay, where the moving party has demonstrated its right
to judgment as a matter of law. Id.
Our review of the grant of summary judgment is de novo.
judgment is upheld on appeal if the movant is entitled to judgment as a matter of law and
no genuine issues of material fact exist. Id. The record is reviewed in the light most
favorable to the party against whom judgment was entered, according that party all
reasonable inferences that may be drawn from the record. Meramec Valley R-III School
Dist., 281 S.W.3d at 835. Facts contained in affidavits or otherwise in support of a
party's motion are accepted as true unless contradicted by the non-moving party's
response to the summary judgment motion. Id. A defending party may establish a right
to judgment as a matter of law by showing any one of the following: (1) facts that negate
any one of the elements of the claimant's cause of action; (2) the non-movant, after an
adequate period of discovery, has not and will not be able to produce evidence sufficient
to allow the trier of fact to find the existence of any one of the claimant's elements; or (3)
there is no genuine dispute as to the existence of each of the facts necessary to support
the movant's properly-pleaded affirmative defense. Id. Once the movant has established
a right to judgment as a matter of law, the non-movant must demonstrate that one or more
of the material facts asserted by the movant as not in dispute is, in fact, genuinely
disputed. Id. The non-moving party may not rely on mere allegations and denials of the
pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions
on file to demonstrate the existence of a genuine issue for trial. Id.
Because John Doe’s first two points concern the premises requirement of a claim
for intentional failure to supervise clergy, we will address them together. In his first
point, John Doe argues the trial court erred in granting summary judgment on his claim
for intentional failure to supervise clergy because the trial court interpreted Gibson v.
Brewer, 952 S.W.2d 239 (Mo. banc 1997) incorrectly by including a premises
requirement for the acts of sexual abuse. John Doe contends an intentional failure to
supervise clergy concerns the individual priest, not the premises. In his second point,
John Doe argues the trial court erred in granting summary judgment on his claim for
intentional failure to supervise clergy because the trial court interpreted Gibson
incorrectly in finding the sexual abuse did not occur on premises in that the predicate acts
of grooming took place on church property and were a pattern of the abuse and should
not have been separately considered. We disagree.
In Gibson, the Supreme Court held a cause of action for intentional failure to
supervise clergy is stated if (1) a supervisor exists (2) the supervisor knew that harm was
certain or substantially certain to result, (3) the supervisor disregarded this known risk,
(4) the supervisor's inaction caused damage, and (5) the other requirements of the
Restatement (Second) of Torts, section 317 are met. Gibson, 952 S.W.2d at 248. Section
317 of the Restatement (Second) of Torts provides:
A master is under a duty to exercise reasonable care so to control his
servant while acting outside the scope of his employment as to prevent
him from intentionally harming others or from so conducting himself as to
create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the
servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his
(ii) knows or should know of the necessity and opportunity for exercising
The failure to meet one of these five elements is fatal to John Doe’s claim for intentional
failure to supervise.
The Archdiocese cites the fifth factor, which consists of a number of factors in
Section 317 of the Restatement (Second) of Torts. In particular, Section 317 requires that
the servant be upon the premises in possession of the master or upon which the servant is
privileged to enter only as his servant, or is using a chattel of the master. In this case, the
Archdiocese contends Cooper, the servant, was not on the premises of the Archdiocese
and was not using its chattel when the abuse occurred.
John Doe maintains that allowing Cooper to take children off the Archdiocese’s
premises alone in the face of its knowledge that he had in the past engaged in sexual
abuse with children is sufficient for liability to attach.
John Doe contends the
Archdiocese could have prevented Cooper from taking children on outings and trips, but
it failed to do so and this failure to supervise occurred on its premises.
However, the elements of a claim for intentional failure to supervise are spelled
out in Gibson as noted above and they include the incorporation of Section 317
Restatement (Second) of Torts. Thus, the Archdiocese was only under a duty to control
Cooper when he was on its premises or when he was using its chattel. There is no
evidence Cooper met either of these conditions when the abused occurred.
In Weaver v. African Methodist Episcopal Church, Inc., 54 S.W.3d 575, 578 (Mo.
App. W.D. 2001), a minister filed a claim for, among other things, intentional failure to
supervise clergy against the African Methodist Episcopal Church (“AMEC”) after she
was sexually harassed and groped by three church elders in the lobby of the church.
AMEC contended it did not own the church where the groping occurred, but the court
found AMEC clearly “possessed” the church and further that the elder in question was
privileged to enter the property only as the servant of AMEC, the master. Id. at 583.
Thus, the court found the plaintiff sufficiently satisfied the premises elements of Section
The court in Weaver also noted a master's duty under Section 317 is applicable
only when the servant is acting outside the course and scope of his employment. Id. at
582. This may be because the servant is not performing the work of his employer at the
time of the act or at the time he commits an intentional tort which, by definition, is not
done in his role as the master's agent but rather solely for his own purposes. Id. The
limitations expressed in Section 317(a)(i) are intended to restrict the master's liability for
a servant's intentional acts outside the course and scope of employment to situations
where either the master has some degree of control of the premises where the act
occurred or where the master, because of the employment relationship, has placed the
servant in a position to obtain access to some premises that are not controlled by the
master. Weaver, 54 S.W.3d at 582. Such limitations serve to restrict the master's
liability for a servant's purely personal conduct which has no relationship to the servant's
employment and the master's ability to control the servant's conduct or prevent harm. Id.
Further, comment b to Section 317 notes:
the master as such is under no peculiar duty to control the conduct of his
servant while he is outside of the master's premises, unless the servant is at
the time using a chattel entrusted to him as servant. Thus, a factory owner
is required to exercise his authority as master to prevent his servants,
while in the factory yard during the lunch hour, from indulging in games
involving an unreasonable risk of harm to persons outside the factory
premises. He is not required, however, to exercise any control over the
actions of his employees while on the public streets or in a neighboring
restaurant during the lunch interval, even though the fact that they are his
servants may give him the power to control their actions by threatening to
dismiss them from his employment if they persist.
Restatement (Second) Torts, Section 317, comment b.
In a case from Pennsylvania somewhat similar to the instant case, a church was
held liable for sexual assault under § 317 where the priest gained access to the teen-age
parishioner's hotel room for the purpose of providing counseling. Hutchison v. Luddy,
742 A.2d 1052, 1062 (1999).
Thus, the fifth element of a claim for intentional failure to supervise under Gibson
requires John Doe to show the Archdiocese owned, controlled, had a right to occupy or
control the location where the abuse occurred, or had some right to control the activity
which occurs thereon.
In this case, all of the sexual abuse occurred at Cooper’s
clubhouse. John Doe even states in his brief that oral sex, masturbation, and attempted
anal sex occurred “off church property.” John Doe also testified nothing ever happened
to him sexually at the parish school, in the church, in the rectory or the priest’s living
room, and that the only two instances of sexual abuse occurred at the clubhouse. John
Doe also testified his trips to the clubhouse were not sponsored by the parish and that
unlike in Hutchison, when he was at the clubhouse he did not seek or receive religious
training, mentoring, or counseling. Thus, John Doe admits the oral sex, masturbation,
and attempted anal sex were not committed on premises possessed by the Archdiocese.
We also note there is no evidence in the record showing the Archdiocese owned,
controlled, had a right to occupy or control the clubhouse or anything that happened
there. 2 As a result, John Doe fails to state an adequate claim for intentional failure to
However, John Doe argues Cooper, while on church property, engaged in
“grooming” to set up a situation where the sexual abuse could happen. We note there is
no evidence in the record that any sexual abuse occurred on church premises. The socalled “grooming” cited by John Doe does not qualify as sexual abuse, and, as such, does
not satisfy the fifth requirement of a claim for intentional failure to supervise, which
requires the sexual abuse to occur on property possessed by the church. John Doe
contends the sexual abuse is inseparable from the grooming. We note first that the record
is silent regarding specific acts of “grooming,” as differentiated from mere friendly
behavior, that may have occurred on church property, but, in any case, it is undisputed
that the sexualization of the relationship and the acts of abuse only occurred at the
We note John Doe asserts “[t]he Archdiocese expects its priests to be on duty 24/7.” However, in finding
the Archdiocese’s insurance policy did not provide coverage for injuries a police officer sustained while
trying to remove a priest from a protest at an abortion clinic, the court noted the fact that the priest was a
priest 24 hours a day does not make the Archdiocese responsible for all his activities, and does not make
any and all of the activities and actions of the priest within the scope of his respective duties. Maryland
Cas. Co. v. Huger, 728 S.W.2d 574, 582 (Mo. App. E.D. 1987)
clubhouse. Further, we can find no authority that conflates so-called “grooming” with
sexual abuse. Thus, we find the alleged “grooming” in this case does not suffice to meet
the premises requirement of a claim for intentional failure to supervise.
John Doe also argues the Archdiocese has a general duty to avoid creating an
unreasonable and foreseeable risk of harm to its children. In support of his theory, John
Doe relies on Snowbarger v. Tri-County Electric Cooperative, 793 S.W.2d 348, 350 (Mo.
banc 1990), which involved an appeal by an employee's widow for benefits under the
Workers Compensation Act where an employee, after working 86 hours in a 100.5 hour
time period during an emergency created by an ice storm, fell asleep while driving and
crashed into another vehicle, killing the employee. The Supreme Court held that the facts
before it satisfied an exception to the requirement of Section 287.020.5 that workers be
“engaged in or about the premises where their duties are being performed or where their
services require their presence as a part of such service,” but did not address whether the
employer had any duty to the woman injured when the employee collided with her after
falling asleep. Id. Thus, we do not find the case to be helpful to John Doe here.
John Doe also relies on Berga v. Archway Kitchen and Bath, Inc., 926 S.W.2d
476, 477 (Mo. App. E.D. 1996), which involved a negligence claim brought against an
employer, where its employee was driving home after being exposed to noxious fumes at
work and collided with plaintiff’s son’s car. In that case, the court found after analyzing
Restatement (Second) of Torts Section 317 and Snowbarger, that the law did not support
imposing a duty on employer. Id. at 482. Thus, the Berga case is not supportive of John
Doe’s argument here. In addition, it is distinguishable because it involved a negligent
supervision case as opposed to an intentional failure to supervise claim. We can find no
Missouri case supporting the imposition of a general duty to avoid creating an
unreasonable and foreseeable risk of harm in an action for intentional failure to
Therefore, we find the trial court did not err in granting summary judgment on
John Doe’s claim for intentional failure to supervise clergy. Point denied.
Because John Doe’s third and fourth points both involve claims that are based on
a theory of negligence, we will address them together. In his third point, John Doe
argues the trial court erred in granting the Archdiocese’s motion to dismiss his claims for
negligent failure to supervise children because the trial court interpreted Gibson
incorrectly in finding negligence in the supervision of a child requires an examination of
the standard of care of a priest in that Smith v. Archbishop of St. Louis, 632 S.W.2d 516
(Mo. App. 1982) and its progeny establish the Archdiocese owed a duty of care to John
Doe commensurate with the foreseeable risks to which he was exposed. In his fourth
point, John Doe argues the trial court erred in dismissing his negligence claims based on
Gibson because neither the Free Exercise Clause nor the Establishment Clause of the
First Amendment bars judicial consideration of whether the Archdiocese complied with
generally applicable tort rules that apply to all employers. We disagree.
Appellate review of a trial court's grant of a motion to dismiss is de novo.
Stahlman v. Mayberry, 297 S.W.3d 113, 115 (Mo. App. E.D. 2009). We accept as true
all of the plaintiff's averments and view the allegations in the light most favorable to the
The cases John Doe relies on from other jurisdictions, namely Robertson v. LeMaster, 171 W.Va. 607
(1983), Faverty v. McDonald’s Restauraunts of Oregon, Inc., 133 Or.App. 514 (1995), and Fazzolari v.
Portland School Dist. No. 1J, 734 P.2d 1326 (1987), all rely on a theory of negligent supervision. In
Gibson, the court found applying a negligence standard to the actions of a Diocese in dealing with its
parishioners offended the First Amendment. 952 S.W.2d at 248. Thus, we cannot impose a duty under a
theory of negligence here, and we can find no case involving an intentional failure to supervise that has
relied on the imposition of a general duty to avoid creating an unreasonable and foreseeable risk of harm.
plaintiff. Id. We review the petition in an almost academic manner to determine if the
facts alleged meet the elements of a recognized cause of action or of a cause that might
be adopted in that case. Id.
John Doe filed two negligence claims: Count VII for general negligence and
Count IX for negligent supervision, retention, and failure to warn. The latter claim
involved only a negligent failure to supervise Cooper, not a negligent failure to supervise
children, which is John Doe’s claim in his third point. Therefore, because John Doe did
not plead negligent failure to supervise children in Count IX, his argument with respect to
Count IX is meritless.
In addition, while John Doe attempts to phrase his claim as a negligent failure to
supervise children, his claim for general negligence in Count VII still involves the
Archdiocese’s negligence in failing to supervise Cooper.
The Supreme Court has held
questions of hiring, ordaining, and retaining clergy, necessarily involve interpretation of
religious doctrine, policy, and administration, and such excessive entanglement between
church and state has the effect of inhibiting religion, in violation of the First Amendment.
Gibson v. Brewer, 952 S.W.2d 239, 46-47 (Mo. banc 1997). Further, adjudicating the
reasonableness of a church's supervision of a cleric--what the church “should know”-requires inquiry into religious doctrine. Id. at 247. Thus, Missouri courts have declined
to recognize a cause of action for negligent failure to supervise clergy. 4 Id.
John Doe relies on Smith, By and Through Smith v. Archbishop of St. Louis on behalf of Archdiocese of
St. Louis, (Mo.App. E.D. 1982). While that case involved negligent supervision, it did not involve
negligent supervision of a member of the clergy, and thus, it did not involve any First Amendment
entanglement. The current case is distinguishable because the negligent supervision claim involves the
Archdiocese’s supervision of one of its priests, which implicates the First Amendment as discussed above.
Although some federal courts 5 diverge on the issue of whether the religion
clauses in the First Amendment bar plaintiffs from asserting certain negligence claims
against religious institutions, those decisions do not authoritatively compel us to revisit a
First Amendment analysis already conducted by the Supreme Court of Missouri in
Gibson. Doe v. Roman Catholic Diocese of St. Louis, 311 S.W.3d 818, 824 (Mo. App.
Such decisions merely inform us that other courts disagree as to the
application of First Amendment law to the facts at bar. Id.
The holding in Gibson, which was that the First Amendment barred the assertion
of tort claims against a religious institution based on its alleged negligence in supervising,
retaining, or hiring sexually abusive clerics, has recently been reaffirmed as the
controlling law in Missouri. See Nicholson v. Roman Catholic Archdiocese of St. Louis,
311 S.W.3d 825, 827 (Mo. App. E.D. 2010) and Doe, 311 S.W.3d at 824. Until the
Missouri Supreme Court or the United States Supreme Court declares differently, Gibson
constitutes controlling law in Missouri, law which we are bound to apply. Doe, 311
S.W.3d at 824.
Therefore, the trial court did not err in granting the Archdiocese’s motion to
dismiss John Doe’s claims for negligent failure to supervise. Point denied.
The judgment of the trial court is affirmed.
ROBERT G. DOWD, JR., Judge
Roy L. Richter, P.J. and
Lucy D. Rauch, Sp.J., concur.
See Mary Doe SD v. The Salvation Army, 2007 WL 2757119 (E.D. Mo. 2007) and Perry v. Johnston,
2011 WL 2272142 (8th Cir. 2001).