Opinion
Civil No. A3-01-22
December 3, 2001
MEMORANDUM AND ORDER
Before the Court are summary judgment motions filed by all defendants (docs. # 18, # 24, # 29). The plaintiffs, Jean E. Enderle and John D. Enderle resist these motions (doc. # 32, 38, 42). These motions came on for hearing on October 31, 2001, in Fargo, North Dakota. For the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART defendants' motions for summary judgment.
The Evangelical Lutheran Church in America and the Eastern North Dakota Synod of the Evangelical Lutheran Church in America filed a joint motion for summary judgement. The Evangelical Lutheran Church in America, however, has since been dismissed from this lawsuit (doc. # 46).
I. Facts
The main facts giving rise to this action are essentially undisputed. Defendant Dale Tratuman ("Trautman") served as a minister at defendant Olivet Lutheran Church ("Olivet"), in Fargo, North Dakota, from March of 1986 until he resigned in February 1995. Olivet is within the Eastern North Dakota Synod of the Evangelical Lutheran Church in America ("the Synod"), another defendant. The Synod is responsible for the pastoral care of Olivet Lutheran Church and its ministers (doc. # 26 at 5). The plaintiffs, Jean Enderle and John Enderle, were members of Olivet, beginning in 1984.
Beginning in 1985, Jean Enderle ("Enderle") served on Olivet's board of lay ministers. It was in this capacity that Enderle began to have meetings with Trautman. Enderle alleges that a relationship of trust developed between them and she subsequently began to seek counseling from him in both personal and church-related matters. Eventually, Enderle alleges that Trautman initiated a sexual relationship with her. Between November 1990 and September 1994, Enderle and Trautman engaged in sexual intercourse several times, and Enderle performed fellatio on Trautman several times. Their last act of sexual intercourse was on September 30, 1994.
Enderle alleges that she had sexual intercourse with Trautman between six and ten times.
Enderle alleges that she performed fellatio on Trautman between five and ten times.
Enderle then had no physical contact with Trautman until February 3, 1995. On this date, Enderle contacted Trautman seeking his advice on which church she and her family should attend after their planned move to Connecticut. She agreed to meet with him for lunch at a restaurant in Fargo. At the end of their meeting, Trautman grabbed and kissed Enderle. He then asked, "So you wouldn't go to a motel with me then?" She declined and had no further physical contact with Trautman.
Enderle also contends that Olivet and the Synod knew of Trautman's sexual relationships but failed to discipline Trautman appropriately. Previously, in July 1989, leaders of Olivet and the Synod had heard rumors of sexual relationships between Trautman and his parishioners. Assistant Bishop Larsen of the Synod, Olivet's Executive Director Bob Gowin, and Olivet's Assistant Executive Director Thomas Rasmussen confronted Trautman about these rumors. At this time, Trautman summarily denied these allegations. No further action was taken until February 1995, when Karen Eriksmoen, another Olivet parishoner, disclosed a long-term sexual relationship with Trautman. At this time, Trautman gave his resignation.
On January 30, 2001, the Enderles served defendants with a complaint containing the following claims:
1. Sexual exploitation against all defendants;
2. Negligence against Olivet and the Synod;
3. Breach of fiduciary duty against Trautman;
4. Loss of consortium against all defendants;
5. Respondeat superior against Olivet and the Synod.
As explained below, the Court GRANTS summary judgment on the sexual exploitation claims against all defendants and DENIES summary judgment on all remaining claims.
II. Analysis
A. Summary judgment standard
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is "material" if it might affect the outcome of a case, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Herring v. Canada Life Assurance Co., 207 F.3d 1026, 1028 (8th Cir. 2000). The "basic inquiry" for purposes of summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law." Kinserlow v. CMI Corp., 217 F.3d 1021, 1025 (8th Cir. 2000) (quoting Anderson, 477 U.S. at 251-52).
B. Sexual exploitation against all defendants
Count I of the complaint alleges that Trautman had sexual contact with Enderle while undertaking a counseling relationship, in violation of North Dakota's criminal sexual exploitation statute. Relevant portions of this statute are as follows:
Defendants contend that this claim is barred by the statute of limitations. However, since the court decides that the legislature never intended to create a private cause of action for sexual exploitation, it need not resolve the statute of limitations issue.
Any person who is or who holds oneself out to be a therapist and who intentionally has sexual contact, as defined in section 12.1-20-02, with a patient or client during any treatment, consultation, interview, or examination is guilty of a class C felony. . . .
. . . .
2. "Therapist" means a physician, psychologist, psychiatrist, social worker, nurse, chemical dependency counselor, member of the clergy, or other person, whether licensed or not by the state, who performs or purports to perform psychotherapy.
N.D Cent. Code. § 12.1-20-06.1 (emphasis added). All defendants contend that the Enderles have improperly brought a claim for sexual exploitation pursuant to section 12.1-20-06 because this statute provides only for criminal penalties and does not provide for a private cause of action. The Enderles concede that a private cause of action was not expressly created within the sexual exploitation statute, but they urge this Court to imply such an action.
The Enderles have the burden to establish that the North Dakota legislature intended to create such a remedy. Trade 'N Post, L.L.C. v. World Duty Free Americas, Inc., 628 N.W.2d 707, 712 (N.D. 2001). This burden is a heavy one; one federal court has noted that, "[i]n the absence of any guidance from state courts, federal courts are hesitant to imply private rights of action from state criminal statutes." Watson v. City of New York, 92 F.3d 31, 36 (2d Cir. 1996) (citation omitted).
North Dakota has adopted three of the four factors set forth by the Supreme Court in Cort v. Ash, 422 U.S. 66, 78 (1975), the seminal case for analyzing whether a private remedy is implicit in a statute not expressly providing such a remedy. Trade 'N Post, 628 N.W.2d at 711. These factors are: (1) whether the plaintiff is one of the class for whose benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply a remedy. Id.
All parties agree that Enderle is a member of the class meant to be protected. The North Dakota Supreme Court, however, has found that being a member of the benefitted class is "merely one factor in the equation." Id. at 712. Of paramount importance is whether the legislature intended to create such a remedy. Id. at 711. ("[T]he question [of] whether a statute creates a private right of action is ultimately one of legislative intent.").
Defendant Trautman contends that since North Dakota modeled its statute after Wisconson's sexual exploitation statute, and Wisconsin's statute explicitly contains a civil cause of action, then the North Dakota legislature purposefully decided not to create such a remedy. The Enderles use the same logic with a twist, contending that since North Dakota adopted the statute after the Wisconsin statute, and the Wisconsin statute creates a private cause of action, then it is only proper to create a private right of action in North Dakota. The Court finds that the defendants have the stronger argument. Since the state legislature modeled its statute after Wisconsin's statute, the Court can presume that the legislature was aware of its ability to a create a private cause of action and simply declined to implement such a private cause of action. Cf. Merrill Lynch v. Curran, 456 U.S. 353, 382 n. 66 (1982) ("Where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.").
Hearing before the Senate Comm. on Human Services and Veteran Affairs on HB 1509, 1987 Leg. Session (March 6, 1987) (prepared testimony of Rep. Opedahl); Wis. Stat. § 895.70(2) (enacted during 1985-86 Wisconsin Legislative Session).
The Enderles also contend that North Dakota, by not expressly excluding a private cause of action, "left the door open" for implying a private remedy. North Dakota, however, has adopted the opposite presumption: "The legislature's silence in failing to expressly provide a private right of action is a strong indication that it did not intend such a remedy." Trade 'N Post, 628 N.W.2d at 712. The Enderles failed to overcome this strong presumption.
Finally, the Enderles cite several cases in which courts have implied private rights of action. However, the Court notes that none of those involve instances of a federal court implying a state cause of action. To repeat, "[i]n the absence of any guidance from state courts, federal courts are hesitant to imply private rights of action from state criminal statutes." Watson, 92 F.3d at 36. Accordingly, this Court declines to imply a private right of action for North Dakota's criminal sexual exploitation statute.
B. Breach of fiduciary duty against Trautman
By way of their third Count, the Enderles allege that Trautman breached his fiduciary duty by exploiting and injuring Jean Enderle when she was in an emotionally vulnerable state. Defendants attack this claim on three grounds. First, defendants assert that this Court may not address this claim because it would violate the First Amendment. Second, defendants argue that the statute of limitations bars this Court's consideration of acts occurring before January 30, 1995. Finally, defendants contend that the fiduciary relationship ended on September 30, 1994, and thus the statute of limitations bars this claim.
1. Constitutionality of claim
The Court will begin by addressing whether the breach of fiduciary duty claim involves the Court in an unconstitutional entanglement with religion. At oral argument and in their briefs, defendants assert that the Enderles' breach of fiduciary duty claim is essentially a claim for clergy malpractice. The Court agrees with defendants and other courts which have declared that "the claim of clergy malpractice has been universally rejected by courts in the United States." Teadt v. Lutheran Church, Missouri Synod, 603 N.W.2d 816, 822 (Mich.Ct.App. 1999) (citing courts that have rejected claims for clergy malpractice). Courts which have rejected claims of clergy malpractice have noted that any analysis of such a claim would require the court to define the standard of care of a reasonable clergy person. See, e.g., Schmidt v. Bishop, 779 F. Supp. 321, 328 (S.D.N.Y. 1991). Courts usually agree that "defining such a standard would require courts to identify the beliefs and practices of the relevant religion and then determine whether the clergyman had acted in accordance with them." F.G. v. MacDonell, 696 A.2d 697, 703 (N.J. 1997). This evaluation would foster an excessive entanglement with religion. Schmidt, 779 F. Supp at 328.
Defendant Trautman argues that the Enderles basically allege a claim for clergy malpractice by the way they frame their claim for breach of fiduciary duty in Count III. The Court finds that Count III, while described merely as a breach of fiduciary duty, actually alleges both a breach of fiduciary duty claim and a clergy malpractice claim. Inasmuch as the Enderles refer to (1) Trautman's duty to act in accordance with "Lutheran ministers and pastors similarly situated in his community," (2) Trautman's duty to "instruct, advise, teach, and counsel and to interpret truthfully and faithfully the doctrines and tenants of the Evangelical Lutheran Church in America on matters of faith, morals, and religious doctrines," and (3) Trautman's duty to "instruct and advise Plaintiff . . . in matters of faith, morals, and religious doctrine established by Defendant church," the Court agrees with Trautman. These portions of Count III essentially allege a claim for clergy malpractice. As explained above, defining the duty of a reasonable Lutheran minister necessarily and unconstitutionally would entangle this Court in religion in violation of the First Amendment. Moreover, a determination of whether Trautman faithfully counseled Enderle on matters of religion would, without question, require this Court to delve into religious doctrine. This, the court cannot do. See Bladen v. First Presbyterian Church, 857 P.2d 789, 797 (Okla. 1993) (refusing to recognize a claim for bad advice received from minister during marital counseling, stating "[o]nce a court enters the realm of trying to define the nature of advice a minister should give a parishioner, serious First Amendment issues are implicated"). Accordingly, the Court finds that it may not adjudicate the portion of Count III which relates to the definition of Trautman's duty in accordance with other Lutheran ministers and Trautman's duty to instruct plaintiff in matters of faith. Specifically, the Court cannot hear plaintiff's claim with regard to paragraphs 20, 21, and 23.
The remainder of Count III, however, seems to be based on a breach of fiduciary duty claim. Courts have differed on whether a breach of fiduciary claim is ever cognizable. Some courts have held that a claim for breach of fiduciary duty is indistinguishable from a claim for clergy malpractice by finding that both claims require a definition of the standard of care; a definition of this standard would require a review of church practices and doctrine, thus impermissibly embroiling courts in religious practices. See, e.g., Teadt, 603 N.W.2d at 822; Doe v. Evans, 718 So.2d 286, 293 (Fla.Dist.Ct.App. 1998). The Court, however, agrees with other courts that have held that there is a distinction between a claim for clergy malpractice and a claim for breach of fiduciary duty:
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 (D.Conn. 1998), aff'd in part, vacated in part, 196 F.3d 409 (2d Cir. 1999) (affirming lower court's decision that Free Exercise Clause does not prohibit court's finding that a fiduciary relationship may exist between a priest and a parishioner).
Determining whether Trautman breached his fiduciary duty does not require that the Court peer into any particular religious practices, nor does it require it to determine whether Trautman acted in accordance with a reasonable pastor standard. Under North Dakota law, "[a] fiduciary relationship exists when one is under a duty to act or give advice for the benefit of another upon matters within the scope of the relationship." L.C. v. R.P., 563 N.W.2d 799, 802 (N.D. 1997) (citing Restatement (Second) of Torts § 874 cmt. a (1979)). This relationship "arises when there is an unequal relationship between the parties." Id. Although not expressly recognizing a breach of fiduciary claim in the clergy-parishioner context, the North Dakota Supreme Court has recognized the power imbalance between a clergy person and a parishioner:
The gravamen of this type of sexual exploitation case is the blatant abuse of authority and trust, and the accompanying severe emotional trauma to the person exploited. When Donna Martin faced serious medical problems and surgery, she turned to her pastor for spiritual and emotional guidance. He abused his position of trust and responded with grossly inappropriate sexual advances. He then engaged Donna in an extended sexual relationship. It is this egregious abuse of power and trust by one in a special relationship with the exploited person which underlies the seriousness of the misconduct.
D.E.M. v. Allickson, 555 N.W.2d 596, 604 (N.D. 1996) (affirming Miller-Shugart settlement agreement between a church and a parishioner involved in a sexual relationship with her pastor).
In North Dakota, because a fiduciary duty is defined generally as a relationship which arises when "one has a duty to act or give advice for the benefit of another upon matters within the scope of the relationship," L.C., 563 N.W.2d at 802, the duty is not necessarily imposed according to professional standards but is instead imposed by circumstances in which one party is under a duty to act for or to give advice for the benefit of another because of the unequal positions of the parties. Stated in another way, "whether a fiduciary relationship exists between a pastor and parishioner depends upon factual circumstances, not upon professional standards of conduct for the average reasonable member of the clergy." Doe v. Hartz, 52 F. Supp.2d 1027, 1061 (N.D.Iowa 1999). The Court acknowledges that Trautman's alleged fiduciary position is derived from his position as a pastor in his church. However, a jury need only inquire as to whether he acted in accordance with a reasonable fiduciary standard to resolve the breach of fiduciary claim. Therefore, the Court finds that this claim is not barred by an excessive entanglement with religion.
2. Continuing tort
Finding that breach of fiduciary duty is a constitutionally valid claim under these circumstances, the Court must consider whether it is barred by the statute of limitations. At the outset, the Court notes that North Dakota seems to adopt the presumption of maintaining an action rather than barring it when there is a dispute over the statute of limitations. See, e.g., Global Fin. Servs. v. Duttenhefner, 575 N.W.2d 667, 671 (N.D. 1998) (applying the longer statute of limitations when there is reasonable dispute over which statute applies); Burr v. Kulas, 564 N.W.2d 631, 635 (N.D. 1997) (same); In re Estate of Stirling, 537 N.W.2d 554, 558 (N.D. 1995) (same).
All parties seem to agree that the applicable statute of limitations with regard to this tort is six years, pursuant to section 28-01-16 of the North Dakota Century Code. Since the Enderles filed their Complaint on January 30, 2001, the applicable limitations period begins on January 30, 1995. The only conduct occurring after January 30, 1995, was the lunch meeting between Trautman and Enderle in February 1995 in which Enderle sought advice on which church to attend in Connecticut.
The Enderles argue, however, that Trautman's conduct was a continuing tort and the Court must therefore consider all of Trautman's acts, even those that occurred before January 30, 1995. In other words, the Enderles assert that because the lunch meeting occurred after January 30, 1995, they may tack on to this act all the previous acts that occurred outside the limitations period. Defendants, of course, contend that each of Trautman's acts constituted a separate tort and, as such, it is inappropriate to consider the acts occurring prior to January 30, 1995.
Courts have applied the continuing tort doctrine in a variety of contexts in which an entire course of conduct combines to produce an injury. As an example, in Page v. United States, 729 F.2d 818 (D.C. Cir. 1984), a veteran was treated with harmful drugs from 1961 to 1980 and subsequently sued the Veterans Administration for his resulting injuries. The Court of Appeals allowed consideration of all of the events between 1961 to 1980, holding that the commencement of "the cause of action [based on] continuous drug treatment did not accrue, and the statutory limitations did not come into play, until the allegedly tortious conduct came to a halt in 1980." Id. at 823.
Case law is scant in North Dakota on the continuing tort doctrine. North Dakota has provided, however, that separate and wholly dissimilar acts cannot constitute a continuing tort. Fox v. Higgens, 149 N.W.2d 369, 372 (1969). In Fox, the Court held that the plaintiff could not toll the statute of limitations by claiming that the acts of arson, assault, and battery committed over a period of twelve years, constituted a continuing tort. The plaintiff's claim failed because there was no "repeated or continuing wrongful act," and, as such, the statute of limitations began to run from the commission of each wrongful act. Id. at 371.
The facts of this case, however, are far different from the facts of Fox. The relationship between Trautman and Enderle, and the alleged abuse of that relationship, involved a series of acts which took place over a period of time. The alleged acts which give rise to plaintiffs' claims were perpetrated by the same actor, were repeated over some period of time, and were of the same nature. Moreover, courts have applied the continuing tort doctrine in factually similar instances. See, e.g., Bustamento v. Tucker, 607 So.2d 532, 542 (La. 1992) (finding that an action for intentional infliction of emotional distress resulting from sexual harassment was not time-barred when the acts giving rise to the tort occurred over a two-year period of time, were by the same person, and were of the same and a continuing nature). The Court thus finds that plaintiffs' claims prior to February 1995 may be considered since the alleged acts of plaintiff constituted a continuing course of conduct which culminated in February of 1995. Cf. Fox, 149 N.W.2d at 371-72 (disallowing a continuing tort claim that was not a repeated or continuing act).
3. Termination of fiduciary relationship
Finally, defendant Trautman contends that the statute of limitations bars this claim because any alleged fiduciary relationship between Enderle and Trautman ended on September 30, 1994, the date on which the parties participated in their last act of sexual intercourse. To support this argument, Trautman points to deposition testimony in which Enderle states that she was repulsed by this act and no longer trusted him. Trautman asserts that trust on the part of Enderle is essential to establishing a fiduciary relationship, and because Enderle testified that she did not trust Trautman after September 30, 1994, there was no fiduciary relationship.
As a general rule, whether a fiduciary relationship exists is a question of fact. L.C. v. R.P., 563 N.W.2d 799, 802 (N.D. 1997). When the question of whether the statute of limitations has run is dependant upon questions of fact, it is appropriate for a jury to decide such questions. See Biesterfeld v. Asbestos Corp. of America , 467 N.W.2d 730, 739 (N.D. 1989) (concluding that whether the statute of limitations had accrued was fact dependent and remanding for a jury determination of the issue). A question of fact becomes a question of law only when the facts are so one-sided that reasonable persons can draw a single conclusion from the evidence. Kinserlow, 217 F.3d at 1025 (quoting Anderson, 477 U.S. at 251-52).
Defendant Trautman argues, however, that this Court should decide, as a matter of law, that there was no fiduciary relationship on February 3, 1995. In other words, Trautman is arguing that no reasonable person could decide that the fiduciary relationship continued after September 30, 1994. See Kinserlow, 217 F.3d at 1025. Trautman bases this argument on Enderle's deposition testimony that after September 30, 1994, she no longer trusted Trautman and she was "on guard."
The Court agrees that an essential part of the fiduciary relationship is trust. However, the Court finds that a mere unilateral act on the part of the plaintiff to say that she no longer trusted Trautman does not necessarily extinguish the fiduciary relationship. The fact that at one time in her relationship that trust had dwindled does not necessarily destroy the fiduciary relationship. In fact, calling Trautman in February to ask him about an important matter, which church to attend in Connecticut, belies her own assertion that she no longer trusted him. The defendant's error is in assuming that the fiduciary relationship had a concrete and readily discernible ending and a beginning point. The relationship was built up over time and cannot be destroyed merely by one person's indication that she no longer trusted her fiduciary. In any event, whether the fiduciary relationship continued through February of 1995 is most appropriately decided by the jury because it involves questions of fact. Consequently, the Court will instruct the jury in this case that it first must decide that a fiduciary relationship existed in February of 1995 before it can proceed to the substantive questions of whether Trautman breached that fiduciary duty.
D. Negligence in supervision and retention against Olivet Lutheran Church and the Synod
1. Constitutionality of claim
The Enderles charge Olivet and the Synod with negligence in retention and supervision by way of their Second Count. As with the breach of fiduciary claim, whether a negligent supervision and retention claim may be imposed on religious institutions and governing bodies is an issue on which courts have differed. The disagreement centers on whether the resolution of such a claim would violate the First Amendment. The two positions were summarized in Doe v. Malicki, 771 So.2d 545, 547 (Fla.Dist.Ct.App. 1999):
The plaintiffs' complaint merely alleges "negligence" and does not specify which types of negligence plaintiffs are asserting. The court will construe plaintiffs' complaint as alleging negligent hiring and supervision since those are the types of negligence plaintiffs refer to in their motion opposing the Synod's motion for summary judgement.
The Synod claims that the statute of limitations has run with respect to the negligence in retention and supervision claims, asserting that its only involvement in supervision occurred in 1989 when one of its representatives met with Trautman. As such, the Synod claims that the statute of limitations should have started in 1989. The court has not found any North Dakota law addressing when the statute of limitations begins to run for negligent retention and supervision claims. However, the court finds the South Dakota Supreme Court's holding on this issue persuasive. The South Dakota Supreme Court has determined that the statute of limitation period for negligent hiring, supervision, and retention claims commences when the employment relationship ends. Rehm v. Lenz, 547 N.W.2d 560, 567 (S.D. 1996). The court finds that the North Dakota Supreme Court would likely follow the holding of the South Dakota Supreme Court and finds that the statute of limitations period began in February of 1995 when Trautman resigned. Thus, this claim is not barred by the statute of limitations since the Enderles' claim was filed prior to the expiration of the six-year period that started in February 1995.
Most of the courts which have rejected these types of claims have done so based on the belief that to determine liability they would be required to interpret church doctrine. See, e.g., Evans, 718 So.2d at 291 ("[A] court's determination regarding whether the church defendant was `reasonable' would necessarily entangle the court in issues of the church's religious law, practices and policies.") Those courts which have accepted the claims see their role as simply applying neutral principles of law to nonreligious conduct. See, e.g., Konkle, 672 N.E.2d at 456 ("[R]eview of [plaintiff's] claim does not require any inquiry into religious doctrine or practice. [Defendant's] actions were not religiously motivated. Instead, review only requires the court to determine if the Church Defendant knew of [defendant's] inappropriate conduct, yet failed to protect third parties from him.").
The Court finds the second view more convincing. The Court acknowledges that "First Amendment values are plainly jeopardized when . . . litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice." Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969). However, a determination of whether the defendants negligently supervised or retained Trautman can be made solely in accordance with well-established tort law principles, and several courts have acknowledged as much. See, e.g., Doe v. Hartz, 52 F. Supp.2d 1027, 1078-79 (N.D.Iowa 1999); Nutt v. Norwich Roman Catholic Diocese, 921 F. Supp. 66, 73-74 (D.Conn. 1995); Isely v. Capuchin Province, 880 F. Supp. 1138, 1151 (E.D.Mich. 1995); Moses v. Diocese of Colorado, 863 P.2d 310, 321 (Colo. 1993); Destefano v. Grabrian, 763 P.2d 275, 284 (Colo. 1988).
Moreover, the First Amendment does not grant religious organizations absolute immunity from tort liability. Nutt, 921 F. Supp. at 73 ("Although no Supreme Court decision has determined the applicability of the Free Exercise Clause of the First Amendment as a defense for a religious organization's negligent conduct, the Court has held that the First Amendment does not create blanket tort immunity for religious institutions or their clergy, thus allowing clergy and clerical institutions to be sued for the torts they commit.") (citing United States v. Ballard, 322 U.S. 78 (1944)). Courts have held that religious entities may be held accountable for their actions even if that conduct is carried out as part of the church's religious practices. See Sanders v. Casa View Baptist Church, 134 F.3d 331, 336 (5th Cir. 1998) ("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.") (emphasis in original), cert. denied, 525 U.S. 868 (1998).
The Eighth Circuit has articulated when a court may evaluate employment decisions made by a religious entity:
The First Amendment proscribes intervention by secular courts into many employment decisions made by religious organizations based on religious doctrine or beliefs. Personnel decisions are protected from civil court interference where review by civil courts would require the courts to interpret and apply religious doctrine or ecclesiastical law. The First Amendment does not shield employment decisions made by religious organizations from civil court review, however, where the employment decisions do not implicate religious beliefs, procedures, or law.
Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468, 471 (8th Cir. 1993). The Court finds that a determination of whether Olivet and the Synod knew of Trautman's alleged sexual improprieties and failed to respond adequately to allegations of sexual improprieties would not implicate any interpretation of ecclesiastical principles or doctrine. The Enderles' claim neither relies upon nor seeks to enforce the duties of the Church according to religious beliefs, nor does it require or involve a resolution of whether the Church's conduct was consistent with them. Thus, the Court finds that the negligent supervision and retention claims are constitutionally valid.
The Synod not only attacks this claim on constitutional grounds, but it also alleges that it lacked the authority to supervise or fire Trautman. The Synod contends that any negligent supervision/retention claim is predicated upon an employer-employee relationship and since it did not employ Trautman it cannot be responsible for his acts. The Court agrees that an employer-employee relationship is necessary for a finding of supervisory and retention liability. See Nelson v. Gillette, 571 N.W.2d 332, 340 (N.D. 1997) (explaining negligent supervision as failure on the part of the employer to exercise ordinary care in supervision of the employee). However, whether Trautman was an employee of the Synod is a question of fact properly resolved by a jury. See Center Mutual Ins. Co. v. Thompson, 618 N.W.2d 505, 511 (N.D. 2000) ("The existence of an employment relationship is ordinarily a question of fact.") (citation omitted).
To determine whether an employer-employee relationship existed, a jury will look at a variety of factors; the key factor is whether the alleged employer maintained actual control over the scope of work performed by the employee. Doan v. City of Bismarck, 632 N.W.2d 815, 821-22 (N.D. 2001). The facts as presented to this Court indicate that while it seems that Olivet Lutheran Church had primary control over Trautman's everyday duties, the Synod at least had the authority to initiate disciplinary proceedings if the pastor engages in conduct "incompatible with the ministerial office." In fact, the Synod arguably exercised its control by calling a meeting to determine whether Trautman was having affairs with members of his congregation in July of 1989. Thus, this issue should properly come before the jury to resolve whether or not the Synod can be considered an employer of Trautman.
The misuse of a counseling relationship for sexual favors constitutes conduct that is "incompatible with the ministerial office." Statement of Undisputed Material Facts of defendant Synod at 9 (doc. # 26).
E. Respondeat superior against Olivet and the Synod
The Enderles allege that Olivet and the Synod are liable for the alleged torts of Trautmann through the doctrine of respondeat superior, a method by which an employer may be vicariously liable for the "tortious acts of its employees committed while they are acting within the scope of employment." Nelson, 571 N.W.2d at 334. The Synod disputes the assertion of this claim, alleging that it was not an employer of Trautman, and thus cannot be held accountable for Trautman's acts. As discussed above, whether the Synod was an employer of Trautman is a fact question to be properly resolved by the jury.
Further, Olivet contends that Trautman's conduct can not be construed as within the scope of employment in part because "sex with parishoners [cannot] be construed as furthering the business of Olivet Church." Olivet finds support for its argument in the Restatement (Second) of Agency § 228, which provides:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Olivet argues that this definition requires the Court to find, as a matter of law, that Olivet may not be vicariously liable for Trautman's acts because his sexual acts were not motivated by a desire to serve his employer. The Court finds, however, that Olivet's contention is squarely rejected by the North Dakota Supreme Court's decision in Nelson v. Gillette, 571 N.W.2d 332 (N.D. 1997).
There, a developmentally disabled woman sued a county social services agency alleging sexual abuse by the county's social worker. The woman sought to hold the county vicariously liable for the acts of its social worker. The trial judge granted summary judgment, acknowledging that although the events took place during business hours and at business related locations, there was no evidence that the social worker was working to serve the purposes of the social services agency by his actions. On appeal to the North Dakota Supreme Court, the county argued that "sexual conduct is `inherently motivated by the selfish, prurient interests of the perpetrator' and so can never be within the scope of employment." Id. at 335. The court rejected both the trial court's conclusion and the county's argument.
In so doing, the court cited with approval the case of Doe v. Samaritan Counseling Center, 791 P.2d 344, 348 (Alaska 1990), in which the Alaska Supreme Court found that the Restatement's "motivation to serve the master" element could be satisfied if "the tortious conduct arises out of and is reasonably incidental to the employee's legitimate work activities." Relying in part on Doe, the North Dakota Supreme Court seemed to conclude that the "motivation to serve the master" factor need not be strictly construed, and that although this is a relevant element, it is not determinative in the respondeat superior analysis. Thus, the court concluded that there was a disputed question of fact about whether the social worker's actions were within the scope of employment since the abuse took place during business hours and at business locations. Nelson, 571 N.W.2d at 337. As it must, the Court will follow the lead of the North Dakota Supreme Court and find that summary judgment is inappropriate merely because Olivet alleges that Trautman was not motivated to serve his employer when he engaged in a sexual relationship with a parishioner.
Olivet additionally argues that Trautman's conduct was not within the scope of employment by alleging that the relationship between Enderle and Trautman occurred substantially outside of authorized space and time limits. Conceding that the sexual relationship was initiated on Olivet's premises, Olivet nonetheless asserts that the majority of the acts took place in the homes of either Enderle or Trautman and at non-business hours. The Court finds, however, that the Enderles have presented sufficient facts for a jury to reasonably conclude that tortious conduct occurred within authorized time and space limits. The Enderles have presented evidence that at least some of the acts occurred on the premises of Olivet and during "business hours" of the church. Whether the remaining acts occurring off the premises of Olivet occurred within authorized time and space limits raises a fact question for the jury to resolve. Therefore, the Court declines to grant summary judgment on the respondeat superior count.
F. Loss of consortium against all defendants
Finally, defendants contend that the Enderles' loss of consortium claim is derivative to all other claims and thus should be dismissed if the primary claims are dismissed. As discussed above, the Court declines to dismiss the breach of fiduciary duty claim and the negligent supervision and retention claims. Therefore, the Court finds that the loss of consortium claim will also survive summary judgment.
III. Conclusion
For the reasons explained herein, the Court GRANTS summary judgement with regard to the sexual exploitation claim and DENIES summary judgment with regard to the remaining claims (docs. # 18, # 24, # 29).
IT IS SO ORDERED.