Opinion
X10CV176034898S
10-24-2018
Stephen HORNER v. The HARTFORD ROMAN CATHOLIC DIOCESAN CORPORATION
UNPUBLISHED OPINION
OPINION
LINDA K. LAGER, JUDGE
Stephen Horner (Horner or plaintiff) brought this action against the Hartford Roman Catholic Diocesan Corporation (diocese or defendant) alleging that the diocese breached its fiduciary duty to him and was negligent and reckless by, among other things, failing to exercise its duty of reasonable care to prevent a diocesan priest, Daniel McSheffery (McSheffery), from regularly sexually abusing him between the years 1977 and 1982 when he was ages nine through fifteen. It is not disputed that suit was filed more than thirty years after Horner turned eighteen implicating the provisions of General Statutes § 52-577d.
The defendant has moved for summary judgment claiming that this action is barred by § 52-577d, as asserted in its first special defense (entry # 167), and not tolled by fraudulent concealment under General Statutes § 52-595. It has also moved for summary judgment on the first count of the operative complaint (entry # 166) alleging breach of fiduciary duty. In opposition, the plaintiff asserts that summary judgment cannot be granted because there are genuine issues of material fact concerning fraudulent concealment and the existence of a fiduciary relationship. Familiarity with the law governing summary judgment motions is presumed. See Stuart v. Freiburg, 316 Conn. 809, 820-25, 116 A.3d 1195 (2015); Teodoro v. Bristol, 184 Conn.App. 363, 372-74 (2018).
I. Undisputed Facts
The following facts are undisputed: Horner was born on August 16, 1967 and baptized into the Catholic Church shortly after his birth. His family moved to Guilford, Connecticut in 1976 and began attending St. George Catholic Church (St. George). Horner and his brother were raised as Catholics and regularly attended church. His father converted to Catholicism at St. George.
St. George was a Roman Catholic Church in the Archdiocese of Hartford (Archdiocese) located in Guilford. From approximately 1974 to 1986, McSheffery, who had been ordained into the Archdiocese as a priest in 1956, served as a priest at St. George, a post to which he was assigned by order of the Archbishop. John F. Whealon was the Archbishop and Chief Executive Officer for the Archdiocese of Hartford and had the authority, responsibility and power to determine whether or not a priest could serve within the Archdiocese of Hartford as well as the authority, responsibility and power to assign priests to particular churches. Archbishop Whealon also had the authority, responsibility and power to investigate complaints against Archdiocese of Hartford priests and, where necessary and appropriate, remove such priests from their priestly duties within the Archdiocese of Hartford. In 1970, Archbishop Whealon received a report that McSheffery had engaged in sexual misconduct with a minor (1970 report). The 1970 report was kept under lock and key in a special personnel file that could only be accessed by the Archbishop and the Chancellor of the Archdiocese. The Archdiocese remains in possession of the documentation it received in 1970 regarding McSheffery’s reported sexual misconduct with a minor as well as documentation received through 1982 regarding any supervision, treatment or follow-up with respect to the misconduct.
From 1977 through 1980, when he was in the fourth through sixth grades, Horner attended religious instruction, known as catechism or CCD, at St. George. Beginning in the spring of 1977, when he was nine years old, and continuing until the fall of 1982, when he was fifteen years old, Horner was an altar server at St. George. The diocese admits it was aware that altar boys, such as Horner, would interact with priests during training, mass and religious ceremonies and that it encouraged relationships between minor parishioners and priests with regard to religious and spiritual matters. On a few occasions, Archbishop Whealon was on the altar at St. George when Horner and others were altar servers but Horner does not recall being introduced to him.
Horner primarily served as an altar boy at masses when McSheffery, who was the pastor of St. George at the time, officiated. Beginning in July 1977, shortly after Horner became an altar server, and continuing until the fall of 1982, McSheffery regularly sexually abused Horner in the church rectory and elsewhere. Horner did not alert officials of the Archdiocese about this abuse and does not have any knowledge that the Archbishop or any diocesan officials ever came to know about it. No one from the Archdiocese told him about any complaints of sexual misconduct by McSheffery although the Archdiocese had the ability to warn its parishioners about the 1970 report. Since some time in 1977, Horner has known and recalled that what McSheffery did to him was wrongful. By the early 2000s, Horner was aware that others who were sexually victimized by priests as children had sued the diocese in which the abusive priest had served. Horner went to a lawyer in 2016 and in May 2016 he learned about the 1970 report. This lawsuit was commenced on February 8, 2017. Horner’s 48th birthday was on August 16, 2015.
II. Fiduciary Relationship
The court will consider the defendant’s claim that it is entitled to judgment as a matter of law on the first count alleging breach of fiduciary duty before addressing the issue of fraudulent concealment because in this case the allegations of a fiduciary relationship are intertwined with the fraudulent concealment claim. It is beyond argument that Connecticut law provides for a broad and flexible approach when determining "the existence of a fiduciary duty, which allows the law to adapt to evolving situations wherein recognizing a fiduciary duty might be appropriate." Iacurci v. Sax, 313 Conn. 786, 800, 99 A.3d 1145 (2014). While a diocese may not have a fiduciary relationship with all of its parishioners, it may have a fiduciary relationship with a particular parishioner. Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 429 (2nd Cir. 1999); Ahern v. Kappalumakkel, 97 Conn.App. 189, 197-98, 903 A.2d 266 (2006). When parties are "engaged in a relationship of special trust and confidence" and one party is "in a dominant position ... creating a relationship of dependency," Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38-39, 761 A.2d 1268 (2000), a fiduciary relationship may arise.
This court has already determined, in denying the defendant’s motion to strike the first count, that the complaint is replete with allegations "that directly or inferentially could support a finding that, as a minor child unable to protect his own interests, Horner had a close relationship with the diocese and that the diocese sponsored, encouraged or influenced Horner’s ties to McSheffery," and that these allegations sufficed to allege the existence of a fiduciary relationship between the diocese and the plaintiff (entry # 119). In seeking summary judgment on the first count, the defendant was obligated to produce evidence to negate all these allegations but it has not done so. Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 594, 113 A.3d 932 (2015) (burden is on moving defendant to negate each claim as framed by the complaint). Further, although the plaintiff was not obliged to provide opposing evidence he has done so.
The defendant submitted the following exhibits in support of its motion for summary judgment: A. Excerpts from Horner’s 2017 deposition testimony (33 pages out of 383 pages); B. a two-page affidavit of Reverend Ryan Lerner, the Chancellor of the Archdiocese of Hartford; and C. Corporate records from the secretary of the state.
The plaintiff submitted the following exhibits in opposition to the motion for summary judgment: A. Complaint and answer in UWY-CV-1660322145; B. Affidavit of Eugene O’Leary; C. Affidavit of Gail O’Leary; D. Affidavit of John Spadaccine; E. Affidavit of Stephen Horner; F. Excerpts from Horner’s deposition testimony (76 pages) and exhibits; G. Affidavit of Thomas Doyle; H. Defendant’s Responses to Plaintiff’s Requests for Admission; I. Testimony of Monsignor John McCarthy; J. Affidavit of Duane Michael Gray.
Although the defendant maintains that "on the undisputed facts [it] did not stand in a fiduciary relationship with the plaintiff," the court cannot ignore the plaintiff’s opposing evidence, in particular, Horner’s deposition testimony, his affidavit and the defendant’s responses to certain requests for admission. There is evidence that the Horner family regularly attended mass at St. George, that Horner’s mother was particularly devout, and that his father was converted to Catholicism when the family attended St. George at a mass celebrated by McSheffery and Archbishop Whealon. Horner was baptized, raised Catholic and received the sacraments of the Roman Catholic Church. He attended catechism classes from second through sixth grades and was taught to place his trust in the Catholic Church, McSheffery, and the Archbishop for his moral and spiritual welfare. Horner served as an altar boy from 1977 to 1982, primarily with McSheffery. The diocese admits it was aware that altar boys, such as Horner, would interact with priests during training, mass and religious ceremonies and that it encouraged relationships between minor parishioners and priests with regard to religious and spiritual matters. Horner’s mother had a close personal and religious relationship with McSheffery and she encouraged her son’s relationship with the priest. Horner spent considerable time with McSheffery with his parents’ knowledge and approval and had a close personal relationship with him that led him to seek McSheffery’s instruction on spiritual matters and advice on secular matters. The defendant has admitted that the Archdiocese of Hartford encouraged Roman Catholic parents to trust the Archbishop of Hartford and the Archdiocese of Hartford with regard to religious and spiritual matters and it encouraged relationships of trust and confidence between minor parishioners and the priests of the Archdiocese with regard to religious and spiritual matters. It is undisputed that Archbishop Whealon and the Archdiocese had the authority, responsibility and power to determine whether or not a priest could serve within the Archdiocese of Hartford as well as the authority, responsibility and power to assign priests to particular churches. Archbishop Whealon also had the authority, responsibility and power to investigate complaints against Archdiocese of Hartford priests and, where necessary and appropriate, remove such priests from their priestly duties within the Archdiocese of Hartford. In 1970, before assigning McSheffery to St. George and before the time that McSheffery sexually assaulted Horner, Archbishop Whealon received a report that McSheffery had engaged in sexual misconduct with a minor.
The plaintiff has met his burden of showing that there is admissible evidence available to him that could support a finding that Horner had a special and unique relationship with McSheffery and reposed his confidence and trust in the diocese in connection with that relationship which, under the factual circumstances of this case, could impose a fiduciary duty on the diocese to represent the interests of Horner, a vulnerable minor parishioner of a parish to which it had assigned a priest who had been reported as a child molester, in light of the fact that the diocese was in a dominant position with regard to the assignment, investigation and removal of priests and possessed superior knowledge about McSheffery. The many factual and legal questions attendant to the determination of whether the diocese owed the plaintiff a fiduciary duty must be resolved at the time of trial.
III. General Statutes § § 52-577d and 52-595
General Statutes § 52-577d expands the three-year statute of limitations for tort liability for personal injury to minors caused by sexual abuse, sexual exploitation or sexual assault to thirty years from the date the person "attains the age of majority." Initially, the court must address the diocese’s argument that once those thirty years expire, a plaintiff is precluded from relying on the tolling doctrine of fraudulent concealment provided in General Statutes § 52-595 This argument was rejected by the Second Circuit in Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 419, where the court found that § 52-595 "applies to claims governed by § 52-577d," relying on language in Connell v. Cowell, 214 Conn. 242, 246, n.4, 571 A.2d 116 (1990), and that the fraudulent concealment exception "constitutes a clear and unambiguous general exception to any statute of limitations that does not specifically preclude its application." Likewise, the District Court ruling in Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F.Supp. 110, 114 (D.Conn. 1997), concluded that Connell controls, that § 52-577d does not specifically preclude the application of § 52-595 and "it does not appear that such an argument could be made." Following the publication of these decisions, the Connecticut legislature amended § 52-577d, see note 3, supra, and did not specifically preclude the application of § 52-595 to it. See Dairyland Insurance Co. v. Mitchell, 320 Conn. 205, 214-15, 128 A.3d 931 (2016) (discussing the presumption of legislative awareness of relevant published decisions). The tolling provisions of § 52-595 apply in this case.
General Statutes § 52-577d provides: "Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority." When § 52-577d was originally enacted, P.A. 86-401, it limited the time to bring claims to two years from the date of attaining majority and "no more than seven years from the date of the act complained of," the quoted language was removed in 1991 when the legislature expanded the limitation period to seventeen years. P.A. 91-240. In 2002, the legislature expanded the limitation period once again to thirty years. P.A. 02-138.
To establish fraudulent concealment pursuant to § 52-595, a plaintiff must prove three elements by clear and convincing evidence: that the defendant "(1) had actual awareness, rather than imputed knowledge of the facts necessary to establish the plaintiffs’ cause of action; (2) intentionally concealed these facts from the plaintiffs; and (3) concealed the facts for the purpose of obtaining delay on the plaintiffs’ part in filing a complaint" against it. Falls Church Group, Ltd v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007); Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995) (the three elements are sometimes referred to as "the Bartone factors"). Additionally, the plaintiff must establish that he was ignorant that he had a cause of action against the diocese within the limitation period of § 52-577d. Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 420.
General Statutes § 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue first discovers its existence."
Evidence to establish fraudulent concealment "can be direct or circumstantial. Proof by circumstantial evidence is sufficient where rational minds could reasonably and logically draw the necessary inference ... Each inferential fact need not be proven by the quantum of proof required to find the ultimate fact ..." (Citations omitted). Falls Church Group, Ltd v. Tyler, Cooper and Alcorn, LLP, supra, 281 Conn. 110. The "cumulative effect" of proven facts can establish fraudulent concealment to the requisite standard. Id. In the context of this motion for summary judgment, the court’s role is to determine whether there are viable issues of material fact with regard to the essential elements of fraudulent concealment which must be left to a jury to resolve.
"The court’s task in reviewing the parties’ submissions [in support and opposition to a motion for summary judgment] is not to decide any factual issues they raise, but only to decide if, in fact, they raise any such factual issues, as by demonstrating a potential inconsistency or conflict in the admissible evidence concerning one or more facts upon which the movant’s right to judgment depends. In the event the court determines that there is such a genuine issue of material fact, it must deny the motion for summary judgment and leave resolution to the trier of fact at trial, who will hear and evaluate the evidence on both sides of that issue firsthand before deciding it." (Emphasis in original.) Teodoro v. Bristol, 184 Conn.App. 363, 374 (2018).
A. Ignorance of the Cause of Action
The defendant maintains that there is no genuine issue of material fact that the plaintiff timely knew or should have known that he had a potential cause of action against it and that he failed to make a reasonable effort to determine whether he had a potential claim. The diocese relies on Horner’s deposition testimony that, before August 16, 2015, he was not only aware that he was sexually abused by McSheffery and that he could have sued McSheffery for the harm resulting from that abuse but he was also aware that McSheffery was a diocesan priest subject to the authority of the Archbishop and "that an employer could be sued for the acts of an employee." However, Horner has testified that notwithstanding this awareness, he did not think he "had any kind of recourse" against the diocese, specifically that he had "no idea that the Archdiocese would be responsible for actions such as these by McSheffery" (exhibit A to # 164, pp. 306-07). Horner avers that he was unaware of the possibility of holding the diocese responsible for the sexual abuse due to its failure to warn him or take other steps to prevent McSheffery from harming him until he was told about the 1970 report in May 2016 and realized that the diocese knew that McSheffery was a child molester before McSheffery abused him (ex. E to entry # 168). This averral bears on whether Horner exercised "reasonable diligence to discover the cause of action under the circumstances." OBG Technical Services, Inc. v. Northrop Grumann Space & Mission Systems Corp., 503 F.Supp.2d 490, 507 (D.Conn. 2007), and suffices to raise a genuine issue of material fact to be resolved at trial since Horner’s credibility cannot be weighed on a motion for summary judgment. See Doe v. West Hartford, 328 Conn. 172, 196-97, 177 A.3d 172 (2018).
Notably, the diocese has not admitted the plaintiff’s allegations that McSheffery was its employee (¶ 2) or agent (¶ 9), leaving the plaintiff to his proof, and has denied that McSheffery was under the direct supervision, employ, authority and control of the Archdiocese (¶ 3). Defendant’s answer at entry # 167. However, in another pending action, UWY-CV-166032214, O’Leary v. The Hartford Roman Catholic Diocesan Corp., the diocese has admitted that McSheffery was its agent and remained under its supervision, authority and control during the relevant time period of that action, 1972-1982, see Exhibit A to Plaintiff’s Memorandum in Opposition at entry # 168, and the plaintiff relies on that answer as an evidentiary admission. This raises another material factual dispute.
In an affidavit dated July 18, 2018, Horner avers that it did not occur to him that the Archbishop "would have known about McSheffery sexually abusing someone and still keep him at my church as a priest. It was so against my reverence for the Archdiocese that it did not enter my mind ... This is why I broke down on May 19, 2016 after reading ... about the 1970 report of McSheffery abusing a minor child and that the Archbishop did nothing to ensure that me and others were protected ... It was then I became aware that the Archdiocese and Archbishop Whealon were to blame for not protecting me from McSheffery, and it was only at that moment that I knew I had facts to support a lawsuit against the Archdiocese of Hartford. Until then I could not have conceived of suing the Archdiocese." (Entry # 168, ex. E, ¶¶ 35, 36.)
B. Bartone Factors
The first element of fraudulent concealment is that the defendant had actual knowledge "of the facts necessary to establish the plaintiff’s cause of action." Bartone v. Robert L. Day Co., supra, 232 Conn. 533. "The first Bartone factor reflects a policy judgment by the Supreme Court of Connecticut that a defendant should not be subjected to the tolling provisions of § 52-595 unless it had actual knowledge of significant facts that it concealed from the plaintiff ..." Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 424. The diocese asserts that the plaintiff cannot establish the first element because the diocese did not have any records about Horner or that he was abused by McSheffery before being served with this lawsuit. (Affidavit of Reverend Lerner, ex. B to entry # 164.) However, the diocese had records that McSheffery had sexually abused a minor in 1970. In light of the existence of the 1970 report, kept under lock and key and only accessible by the Archbishop and the Chancellor of the Archdiocese, Bartone does not require proof that the diocese had specific knowledge that Horner was the victim of McSheffery’s abuse. The diocese admits that it had a duty to use reasonable care to prevent McSheffery from sexually abusing minor children including Horner. (Entry # 167, answer to ¶ 48.)
"[K]nowledge of the actual identity of an assaulted child was not required for it to realize that there was likely to be an actionable claim, or for it to seek to conceal from such a plaintiff the facts underlying the claim." Id., 426. The diocese had actual knowledge that McSheffery had sexually abused another minor before he sexually abused Horner. Actual knowledge of a third party’s criminal propensities can support a finding that a defendant breached a duty to a plaintiff for "failing to anticipate the criminal misconduct of a third party, whether the third party is the defendant’s employee or someone else." Doe v. Saint Francis Hospital and Medical Center, 309 Conn. 146, 173, 72 A.3d 929 (2013). Further, a finding that there was a fiduciary relationship between the diocese and Horner, see § II, supra, could bear on the first Bartone factor. Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 426.
Likewise, the existence of a fiduciary relationship may be relevant to the second Bartone factor of intentional concealment. It remains an open question whether the Connecticut Supreme Court will adopt "the federal approach of allowing fiduciary nondisclosure to substitute for the second element of a fraudulent concealment claim," Iacurci v. Sax, supra, 313 Conn. 792, n.8, but the Court has not foreclosed doing so in a case in which a fiduciary relationship is established. Id., 794, n.9. Here, the diocese’s affirmative decision to allow McSheffery to continue in ministry as a parish priest viewed in the light of the circumstances surrounding the 1970 report could support a reasonable inference of intentional concealment.
The diocese argues in its reply memorandum that this is an unreasonable inference and that the only reasonable inference that can be drawn is that it "did not credit the [1970] report or for some other reason did not consider McSheffery to constitute an on-going threat." (Entry # 171, p. 6.) Common sense and common knowledge suggest that this is not the only reasonable inference that can be drawn from its decision to allow McSheffery to continue in ministry notwithstanding the 1970 report. If the diocese has evidence to support its argument that it had reasons not to consider McSheffery to pose a danger of sexually assaulting minor parishioners, it will be able to offer it at trial.
The third Bartone factor, requiring proof that the defendant intentionally concealed significant facts for the purpose of delaying or preventing legal action, may be established by circumstantial or inferential evidence. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 89 Conn.App. 459, 481, 874 A.2d 266 (2005), aff’d, 281 Conn. 84 (2007). The diocese admits that it had a duty to use reasonable care to prevent McSheffery from sexually abusing minor children including Horner. The diocese had to be aware that it could be held legally liable for violating that duty. At a minimum, in relation to the plaintiff’s claims in the second and third counts of the operative complaint (entry # 166) of negligent or reckless supervision in ¶ 59(b), failing to remove McSheffery in ¶ 59(c), continuing to retain McSheffery in ¶ 59(e), and failing to warn or advise parishioners, including Horner’s parents, of the threat that McSheffery posed to children in ¶ 59(k), there is admissible evidence from which an inference could be drawn that the diocese intentionally concealed the 1970 report to prevent legal action by the plaintiff, as well as by other minor children who McSheffery victimized. Finally, if a fiduciary relationship between the diocese and Horner is proven at trial it may be appropriate to shift the burden of proof on this or the other Bartone factors to the diocese and require the diocese "to show that it has not abused its position of trust, knowledge and influence by concealing the claim from the would-be plaintiff." Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 422; see DiTeresi v. Stamford Hospital Health System, Inc., 142 Conn.App. 72, 96, 63 A.3d 1011 (2013) (citing Martinelli).
IV
For the foregoing reasons, the motion for summary judgment is denied.