Opinion
No. X10-UWY-CV-08-5008855-S
February 24, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#110)
Introduction
In this action the Plaintiff claims that he was sexually abused by a Roman Catholic priest who was the agent, servant and/or employee of the Defendant, the Hartford Roman Catholic Diocesan Corporation, a/k/a the Roman Catholic Archdiocese of Hartford (the "Archdiocese of Hartford"). In the First Count of his complaint, the Plaintiff claims that his injuries and damages were due to the negligence and carelessness of the Defendant in a number of ways. In the Second Count, the Plaintiff claims his injuries and damages were the result of the Defendant's reckless and wanton conduct.
The Defendant has now moved to strike several individual allegations of negligence, claiming that those allegations would involve a constitutionally impermissible involvement in matters of internal church governance and clergy employment decisions which it claims are protected from government intrusion by the religion clauses of the United States and Connecticut Constitutions and are therefore not justiciable. In addition, as to the claims of a failure to report, the Defendant argues that one child does not have a cause of action based on the failure to report suspected abuse of another child.
The Defendant does not dispute that: "To the extent the complaint alleges that the Diocesan Corporation, though its supervisory personnel, knew that Father Paturzo had a proclivity or predisposition to engage in sexual misconduct with minors and failed to act appropriately in light of that knowledge . . . such causes of action can be adjudicated based on neutral principles of tort law without excessive entanglement in matters of religion . . ." Memorandum of Law in Support of Motion to Strike, p. 8.
The allegations, to which the motion to strike are addressed, are subparagraphs of paragraph 14 of the First Count, which delineates the Plaintiff's claims that his injuries and damages were due to the negligence and carelessness of the Archdiocese of Hartford in one or more particulars. Those claims are repeated in that same paragraph of the Second Count. They are:
. . .
(c) it failed to investigate and report suspicious conduct of Louis Paturzo to others in authority;
(d) it continued to retain Louis Paturzo when through the exercise of reasonable care, should have known that Louis Paturzo would be a danger to young boys;
(e) it failed to adequately evaluate the mental fitness of Louis Paturzo to serve in the capacity of a Catholic priest, with its related responsibilities to parishioners, Catholic faithful, and other minors with whom he would have contact, including the plaintiff;
(f) it failed to properly evaluate the mental fitness of Louis Paturzo to continue to serve in his capacity as a Catholic priest, which involved contact with minor children;
(g) it failed to report to the appropriate authorities in accordance with law, reasonable suspicions that Louis Paturzo was engaging or had engaged in abuse of minors, in accordance with Connecticut General Statutes § 17-38a, et seq., the Connecticut reporting statute in effect at the time, which would have likely prevented Louis Paturzo from having further contact with the plaintiff, thereby preventing some or all of the sexual abuse;
. . .
(i) it failed to provide training and/or educational programs to Louis Patruzo to inform Louis Paturzo of proper conduct toward parishioners, especially minors with whom he would have contact;
(j) it failed to immediately remove Louis Paturzo from any position within the Archdiocese of Hartford when it knew or had reason to know that he was a danger to minors;
(k) it induced the Catholic faithful to entrust their children's moral and spiritual well being and safety to its priests and then failed to protect these same children, such as the plaintiff, from sexual abuse, sexual exploitation and sexual assault by agents, servants or employees of the Archdiocese of Hartford, including Louis Paturzo;
(l) it failed to establish, maintain and enforce a policy of reporting, investigating and pursuing members of its clergy engaged in sexual misconduct, including failing to develop and adhere to a policy encouraging the dissemination of information regarding reports of sexual misconduct of priests with children, but rather adhering to a policy of failing to disseminate such information;
(m) it failed to develop a policy of reporting sexual misconduct by its priests to the Archbishop or other officials of the Archdiocese of Hartford by other priests who might be aware of misconduct of a priest with a minor child;
. . .
(q) it chose not to address the sexually abusive conduct of its priests, including Louis Paturzo, which allowed Louis Paturzo to sexually assault the plaintiff and others over a period of years.
(r) it failed to promulgate or enforce rules and policies prohibiting clergy from having children alone in their private quarters in church rectories or taking children on unchaperoned trips;
(s) it failed to report complaints about Louis Paturzo sexually abusing at least one other minor to the proper authorities when they had a duty to do so.
In its Motion to Strike the Defendant also attacked subparagraphs 14(a) and (b) but at oral argument on its motion its counsel withdrew its objection to those allegations as well as its claim that the Second Count should be stricken to the extent it fails to allege reckless or wanton misconduct.
Discussion
The motion to strike is brought pursuant to the provisions of Practice Book § 10-39 to strike certain causes of action contained in the Plaintiff's complaint for the failure to state claims on which relief may be granted. The Defendant argues that nonjusticiable claims, those that would require unconstitutional involvement of government in religion, should be stricken.
Practice Book § 10-39 provides: "a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof."
"Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense . . . Prior to the 1978 Practice Book revision, a motion to strike . . . individual portions or paragraphs of a count did not lie if the count as a whole stated a cause of action . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action . . ." (Citations and internal quotation marks omitted.) Wright v. 860 Main, LLC, Superior Court, Judicial District of Hartford at Hartford, Docket No. CV 06-5007079 (Tanzer, J., May 21, 2007). Arguably, each separate claim of negligent conduct can be construed as stating a separate cause of action since only one act of negligent conduct, which is alleged to have legally caused injury, is sufficient to support a cause of action. In any event, Practice Book § 10-8 provides that our rules of practice should "be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." Here, if the constitution prohibits the court from requiring the Defendant to be subjected to court sanctioned scrutiny pursuant to the mechanics of discovery or trial, as to certain claims, then certainly the rules should be interpreted to delete those claims from the complaint, at this stage of the case, in order to avoid such unconstitutional entanglement. This is what Judge Shapiro did in Noll v. The Hartford Roman Catholic Diocesan Corporation, Superior Court, Judicial District of Hartford, Complex Litigation Docket at Hartford, Docket No. HHD X04 CV-02-4034702 S (Oct. 20, 2008). In that case the plaintiff's claims stemmed from his allegations that he had been subjected as a child to sexual abuse by a Catholic priest. The defendant moved to dismiss the action, contending that portions of the plaintiff's claims would require the court, in adjudicating the claims, to delve into matters of church governance and clergy employment decisions. The defendant argued that such matters are protected from government involvement by the religion clauses of the United States and Connecticut Constitutions, and General Statutes § 52-571b, and were therefore not within the subject matter jurisdiction of the court. The court concluded that: "the bulk of the plaintiff's claims have nothing to do with scripture or religious teachings . . . These allegations concern child sex abuse by a Catholic priest, and whether the Diocesan Corporation knew or should have known of the same, about which there would be no need for the court to evaluate the proprieties of scripture or religious teachings. As is the case with Connecticut tort law, there is no doubt that the Catholic Church views the sexual abuse of children as wrongful." The court adopted the reasoning of the federal court in Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66 (D.Conn. 1995), as has other Superior Courts. Quoting Nutt, the Noll court stated: "it is difficult to see how the plaintiff's claims against the defendants would foster excessive entanglement with religion. The common law doctrine of negligence does not intrude upon the free exercise of religion, as it does not discriminate against [a] religious belief or regulate or prohibit conduct because it is undertaken for religious reasons . . . The court's determination of an action against the defendants based upon their alleged negligent supervision of [a priest] would not prejudice or impose upon any of the religious tenets or practices of Catholicism. Rather, such a determination would involve an examination of the defendants' possible role in allowing one of its employees to engage in conduct which they, as employers, as well as society in general, expressly prohibit. Since the Supreme Court has consistently failed to allow the Free Exercise Clause to relieve [an] individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs, the defendants [cannot] appropriately implicate the First Amendment as a defense to their alleged negligent conduct." (Citation and internal quotation marks omitted.) The Noll court also cited Hayes v. Norwich, Superior Court, Judicial District of Middlesex at Middletown, Docket No. CV 020100267 (Silbert, J., Mar. 5, 2004) [36 Conn. L. Rptr. 676]. There the court stated: "When a defendant raises the free exercise clause of the first amendment as a defense, the threshold question is whether the conduct of the defendants is religious. The claim of negligent hiring, retention and supervision is brought only after an employee, in this case a priest, has harmed a third party. This involves a factual inquiry and requires no interpretation or weighing of a religious belief but is merely the application of a secular standard, regardless of what aspect of tortious misconduct is before the court. Courts may review an injured third party's claim that a religious institution negligently hired, supervised or failed to discharge one of its employees without implicating or running afoul of the first amendment."
Judge Shapiro in Noll did grant the motion to dismiss, in part, concluding that: "Consideration of certain of the plaintiff's allegations in the complaint apparently would inexorably entangle the court in doctrinal matters. In paragraph 10(m) of the first count and paragraphs 10(e) and (p) of the second count, the plaintiff's claims expressly refer to alleged religion-based obligations, with phrases such as 'induced the Catholic faithful,' 'moral and spiritual well being,' and 'representatives of God.' The motion to dismiss is granted as to these portions of the plaintiff's claims, since they are so entwined with religion that the court lacks subject matter jurisdiction over them."
Utilizing the same analysis as set forth by Judge Shapiro in Noll, the bulk of the allegations attacked by the Defendant here can be subject to neutral tort standards without delving into church doctrine or religious practices. However some would require such an impermissible intrusion. They are subparagraphs 14(e), (f) and (k). Those allegations involve Paturzo's fitness to be a priest as well as his and the Defendant's relationship with the "Catholic faithful." "The constitutional guarantee of the free exercise of religious authority requires secular institutions to defer to the decisions of religious institutions in their employment relations with their religious employees." (Footnote omitted.) Rweyemamu v. Commission on Human Rights and Opportunities, 98 Conn.App. 646, 654 (2006).
As to the claims related to a failure to report set forth in subparagraphs 14(c), (g) and (s), the Defendant argues that pursuant to the decision in Ward v. Greene, 267 Conn. 539 (2004), only the child concerning whom a mandated reporter had knowledge of abuse, but failed to report, has a cause of action based upon the duty under the reporting statute, General Statutes § 17-38a (now § 17a-101). In Ward the Court held "that the class of persons protected by § 17a-101 is limited to those children who have been abused or neglected and are, or should have been, the subject of a mandated report." Id., p. 560. None of the cited allegations of the Plaintiff's complaint refer to the failure to report abuse of the Plaintiff, therefore they fail to state a cause of action based on the statute. Although the Plaintiff claims that his allegation regarding the Defendant's failure to report suspicions of Paturzo's abuse of minors could include suspicions of the Plaintiff's abuse by the priest, that is not how the claim is framed. That allegation, subparagraph 14(g), goes on to allege that such failure to report "would have likely prevented Louis Paturzo from having further contact with the plaintiff, thereby preventing some or all of the sexual abuse." Pursuant to Ward, such a broad claim is legally insufficient. There the Court held that: "we cannot say that a mandated reporter owes a legally enforceable duty to children unknown to the reporter who might stand the remote chance of benefiting from a report of abuse or neglect, where the benefit would depend entirely on the intervening acts of administrative agencies [charged with investigating the report of abuse.]" Id., p. 557.
General Statutes § 17a-101a provides that: "Any mandated reporter, as defined in section 17a-101, who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected, as defined in section 46b-120, (2) has had nonaccidental physical injury, or injury which is at variance with the history given of such injury, inflicted upon such child, or (3) is placed at imminent risk of serious harm, shall report or cause a report to be made in accordance with the provisions of sections 17a-101b to 17a-101d, inclusive." General Statutes § 17a-101 includes as mandated reporters a "member of the clergy."
Conclusion
The Motion to Strike is granted as to subparagraphs 14(c), (e), (f), (g), (k) and (s) and denied as to subparagraphs 14(d), (i), (j), (l), (m), (q) and (r).