The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LARRY POLIZZI CIVIL ACTION
V. 22-227-SDD-RLB
SALESIANS OF DON BOSCO
(a/k/a SALESIANS OF DON
BOSCO, CANADA AND EASTERN
USA) (a/k/a SALESIANS OF DON
BOSCO, PROVINCE OF ST.
PHILIP THE APOSTLE) (d/b/a
SALESIAN SOCIETY, INC.);
SCHOOL SISTERS OF NOTRE
DAME CENTRAL PACIFIC
PROVINCE, INC. (f/k/a SCHOOL
SISTERS OF NOTRE DAME OF
THE SOUTH CENTRAL
PROVINCE); ABC INSURANCE
COMPANY & XYZ INSURANCE
COMPANY
RULING
This matter is before the Court on a Motion to Dismiss or Alternative Motion for a
More Definite Statement1 filed by Defendant School Sisters of Notre Dame Central Pacific
Province, Inc. (“School Sisters”) and a Motion to Dismiss or Alternative Motion for a More
Definite Statement2 filed by Defendant Salesian Society, Inc. (“Salesian Society”).
Plaintiff, Larry Polizzi (“Plaintiff”), filed an Omnibus Opposition3 to the Motions of Sisters
and Salesian Society (collectively, “Defendants”). For the following reasons, the Court will
DENY the Defendants’ Motions.
1 Rec. Doc. 5.
2 Rec. Doc. 6.
3 Rec. Doc. 13.
I. BACKGROUND
Plaintiff filed this suit alleging that he was sexually abused as a child by clergy
members who were employed by and/or under the supervision of Defendants.4 The
alleged abuse occurred over several months in 1976 while Plaintiff was residing at Hope
Haven, a residential facility for orphans and troubled teens located in Marrero, Louisiana.5
Plaintiff names Father Sean Leo Rooney, S.D.B. (“Fr. Rooney”) and Sister Alvin Marie
Hagan, SSND (“Sr. Hagan”) as his abusers.6 He claims Fr. Rooney and Sr. Hagan were
provided access to the then-minor by virtue of their respective positions with Defendants,
Salesian Society and School Sisters.
As religious orders of the Roman Catholic Church, the Defendants were allegedly
responsible for assigning priests and nuns to operate Hope Haven and the adjoining
residential facility, Madonna Manor.7 Plaintiff claims that Defendants knew or should have
known that Fr. Rooney and Sr. Hagan were serial sexual abusers yet failed to protect
Plaintiff or other children at Hope Haven from such abuse.8 In his Complaint, Plaintiff
separately asserts claims of negligence and vicarious liability against each Defendant.9
Defendants move for Rule 12(b)(6) dismissal of Plaintiff’s claims arguing that Hope
Haven was neither owned nor operated by the Salesian Society or the School Sisters at
the times referenced in the Complaint.10 They further claim the Complaint consists of
unfounded conclusions to which they cannot meaningfully respond; thus, they
4 Rec. Doc. 1-2, p. 3.
5 Id. at pp. 2-3.
6 Id. at p. 3.
7 Id. at p. 2.
8 Id. at pp. 11, 14.
9 See Rec. Doc. 1-2.
10 Rec. Doc. 5-1; Rec. Doc. 6-1.
alternatively move for a more definite statement under Rule 12(e).11 Plaintiff opposes the
Motions.12
II. LAW & ANALYSIS
A. Motions to Dismiss
1. Rule 12(b)(6) Standard
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts “all well-
pleaded facts as true, viewing them in the light most favorable to the plaintiff.”’”13 The
Court may consider “the complaint, its proper attachments, ‘documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.’”14 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”15
In Twombly, the United States Supreme Court set forth the basic criteria necessary
for a complaint to survive a Rule 12(b)(6) motion to dismiss. “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.”16 A complaint is also insufficient if it merely “tenders ‘naked assertion[s]’ devoid
of ‘further factual enhancement.’”17 However, “[a] claim has facial plausibility when the
plaintiff pleads the factual content that allows the court to draw the reasonable inference
11 Id.
12 Rec. Doc. 13.
13 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co.
v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
14 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
15 In re Katrina Canal Breaches Litig., 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007)).
16 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted).
17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
that the defendant is liable for the misconduct alleged.”18 In order to satisfy the plausibility
standard, the plaintiff must show “more than a sheer possibility that the defendant has
acted unlawfully.”19 “Furthermore, while the court must accept well-pleaded facts as true,
it will not ‘strain to find inferences favorable to the plaintiff.’”20 On a motion to dismiss,
courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.”21
Defendants move for dismissal under Rule 12(b)(6) for Plaintiff’s alleged failure to
state a claim upon which relief may be granted. Salesian Society joins School Sisters in
arguing that Plaintiff’s Complaint consists of sweeping legal conclusions that are
unsupported by factual allegations. They claim that Plaintiff confuses separate religious
orders, facilities, and individuals and fails to allege how Defendants are responsible for
abuse that occurred at a facility they neither owned nor staffed. Per School Sisters, the
residential facility identified in the Complaint was owned by the Archdiocese of New
Orleans, operated by Catholic Charities, and staffed by the Salesian religious Order.22
Per the Salesian Society, the facility was owned and staffed by the Archdiocese of New
Orleans and operated by Catholic Charities.23
Plaintiff relegates Defendants’ arguments as mischaracterizing the allegations in
the Complaint. The determination of ownership and staffing of Hope Haven would require
the Court to look outside the Complaint and supporting documents, which is an improper
18 Id.
19 Id.
20 Taha v. William Marsh Rice Univ., No. H-11-2060, 2012 WL 1576099, at *2 (S.D. Tex. May 3, 2012)
(quoting Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
21 Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
22 Rec. Doc. 5-1, p. 5.
23 Rec. Doc. 6-1, p. 4.
consideration on a Rule 12(b)(6) motion. Moreover, the theories of liability in the
Complaint are not based exclusively on the ownership of Hope Haven as Defendants
indicate. Plaintiff alleges that a master-servant relationship existed between the Salesian
Society and Fr. Rooney and between the School Sisters and Sr. Hagan.24 From there, he
asserts negligence and vicarious liability claims against each Defendant separately.
2. Negligence claims
The elements of a Louisiana negligence claim are: (1) duty; (2) breach of duty; (3)
cause-in-fact; (4) scope of liability or scope of protection; and (5) damages.25 “When an
employer hires an employee who in the performance of his duties will have a unique
opportunity to commit a tort against a third party, he has a duty to exercise reasonable
care in the selection of that employee.”26 “The primary focus is whether the ‘the
employment gave the tortious/criminal employees “unique opportunities” to commit their
wrongdoing.’”27
The facts of the Complaint allege that: Fr. Rooney and Sr. Hagan were employed
and empowered by the Salesian Society and School Sisters, respectively, at the time of
the alleged abuse; Fr. Rooney’s position as a Roman Catholic Priest and Sr. Hagan’s
position as a nun made them authority figures and provided them with access to the
orphans and troubled youth living at Hope Haven and entrusted to the care of the Salesian
Society and School Sisters; Plaintiff was living at Hope Haven, a facility adjacent to
Madonna Manor, at the time of the abuse; and Plaintiff was entrusted to the care of
24 Rec. Doc. No. 1-2, pp. 10, 13.
25 Gomez v. Galman, 18 F.4th 769, 780 (5th Cir. 2021).
26 Kelley v. Dyson, 08-1202, p. 7 (La. App. 5 Cir. 3/24/09), 10 So.3d 283, 287; see Gomez, 18 F.4th 769 at
780.
27 Gomez, 18 F.4th at 780 (quoting Kelley, 10 So.3d at 287-88).
Salesian Society and School Sisters at the time he was abused by their employees.28 The
Court finds that Plaintiff has alleged sufficient facts that the Defendants’ employees were
given the unique opportunity to access and exercise power/authority over children such
as Plaintiff.
Additionally, the Complaint includes allegations regarding Fr. Rooney’s and Sr.
Hagan’s history of abusing children.29 It details how the Salesian Society has recognized
Fr. Rooney’s past misconduct while serving as a priest and further explains that prior to
the abuse of Plaintiff, the Defendants maintained a written policy of concealing cases of
sexual abuse involving their clergymen.30 When taken together, these factual allegations
result in a reasonable inference that Defendants had actual or constructive knowledge of
their employees’ or agents’ propensity to harm children yet failed to take reasonable
measures to prevent such harm. Accordingly, Plaintiff’s negligence claims cannot be
dismissed on the grounds that Defendants owed no responsibility or duty to protect
Plaintiff from the harm alleged.
3. Vicarious liability claims
Under Louisiana law, an employer is liable for the acts of its employee committed
in the course and scope of his employment.31 These two terms are not synonymous.
Rather, the course of employment refers to the time and place of the conduct; the scope
of employment refers to the employment-related risk of injury.32 “[A]n employee's conduct
is within the course and scope of employment if the conduct is of the kind that the
28 See Rec. Doc. 1-2.
29 Rec. Doc. 1-2, pp. 4-7.
30 Id. at pp. 4-9.
31 LeBrane v. Lewis, 292 So.2d 216, 217–18 (La. 1974).
32 Benoit v. Capitol Mfg. Co., 617 So.2d 477, 479 (La. 1993).
employee is employed to perform, occurs substantially within the authorized limits of time
and space, and is activated at least in part by a purpose to serve the employer.”33 When
determining whether an employer could be vicariously liable for an intentional tort
committed by its employee, courts look to whether: (1) the tortious act was primarily
employment rooted, (2) reasonably incidental to the performance of the employee's
duties, (3) occurred on the employer's premises, and (4) occurred during the hours of
employment.34 However, this is not an exclusive list of factors.35 The Louisiana Supreme
Court has stated, “The particular facts of each case must be analyzed to determine
whether the employee's tortious conduct was within the course and scope of his
employment.”36 Essentially, once it is established that the employee acted within the
course of his employment, the employer's vicarious liability hinges on whether the
“purpose of serving the employer's business actuated the employee to any appreciable
extent.”37
Here, Plaintiff alleges that the sexual abuse by Fr. Rooney and Sr. Hagan occurred
on premises under the control of Salesian Society and School Sisters employees during
the hours of Fr. Rooney’s and Sr. Hagan’s employment.38 The alleged misconduct of Fr.
Rooney and Sr. Hagan can therefore be considered to have occurred within the course
of their employment with the Defendants. However, the question remains whether the
alleged actions fall within the scope of such employment—whether “the employee [was]
33 Crawford v. Wal-Mart Stores, Inc., No. 10-805-M2, 2011 WL 3206196, at *2 (M.D. La. July 26, 2011).
34 Id.
35 Miller v. Keating, 349 So.2d 265, 268 (La. 1977).
36 Baumeister v. Plunkett, 95-2270, p. 4. (La. 5/21/96), 673 So. 2d 994, 997.
37 Crawford, 2011 WL 3206196, at *2 (citing Johnson v. Littleton, 45,323 (La. App. 2 Cir. 5/19/10) 37 So.
3d 452).
38 Rec. Doc. No. 1-2, pp. 16-17.
acting within the ambit of his assigned duties and also in furtherance of his employer's
objective.”39
Plaintiff alleges that the sexual abuse by Fr. Rooney was reasonably incidental to
the performance of his duties as a Salesians’ employee.40 He asserts the same claim
against the School Sisters for Sr. Hagan’s conduct.41 He claims Fr. Rooney and Sr.
Hagan’s alleged sexual abuse of Plaintiff was primarily and directly rooted in their
employment and could not have occurred without the authority, freedom, and trust
respectively granted to them by the Salesian Society and School Sisters.42 The Court
considers these allegations to be conclusory in nature. However, the Complaint contains
further factual enhancement, and Plaintiff directs the Court to a line of factually similar
cases where employers were vicariously liable for child abuse committed by employees
who could access and have authority over children.43
For instance, Booth v. Orleans Parish School Board involved vicarious liability
claims against a school board for a janitor’s alleged sexual assault of a child on school
property.44 In determining whether the tortious conduct was reasonably incidental to the
performance of the janitor’s employment duties, the court considered testimony
establishing that the janitor possessed keys to premises and was allowed free access to
the school grounds and buildings. His status as a janitor was said to have provided him
39Baumeister v. Plunkett, 95-2270, p. 3. (La. 5/21/96), 673 So. 2d 994, 996.
40 Rec. Doc. No. 1-2, p. 16.
41 Id. at p. 17.
42 Id. at pp. 16-17.
43 Booth v. Orleans Par. Sch. Bd., 2009-1505 (La. App. 4 Cir. 9/22/10), 49 So. 3d 919, 922; Applewhite v.
City of Baton Rouge, 380 So.2d 119 (La. App. 1 Cir. 1979); Samuels v. Southern Baptist Hosp., 594 So.2d
571, 573 (La. App. 4 Cir.1992); Dismuke v. Quaynor, 91 Ed. Law Rep. 1247 (La. App. 2 Cir. 4/5/94), 637
So.2d 555; Doe v. ABC Sch., 2019-0983 (La. App. 1 Cir. 12/17/20), 316 So. 3d 1086, 1095; see also,
Lamkin v. Brooks 498 So.2d 1068, 1071 (La. 1986).
44 Booth, 49 So.3d at 922.
access to the young children who attended the school and, “[g]iven his prominent
presence on the school's campus and the fact that he was an adult, it is natural that an
eight year old child would view him as an authority figure” and not question his
directives.45 The court held that the school board could be found vicariously liable for the
janitor’s misconduct, and summary dismissal was improper.46 Similarly, in Applewhite v.
City of Baton Rouge, the City was found to be vicariously liable for the sexual assault of
a teenager by police officers who used their positions of trust and authority to separate
the victim from her friends before assaulting her.47 Vicarious liability was also attributed
to an employer in Samuels v. Southern Baptist Hospital for the rape of a patient by a
hospital employee, because “[t]he scope of risks attributable to an employer increases
with the amount of authority and freedom of action granted to the servant in performing
his assigned tasks.”48
Here, Plaintiff’s Complaint states that Fr. Rooney and Sr. Hagan were “granted
significant freedom” to perform their duties as a priest and nun and to exercise their
authority over children by way of their employment with Defendants.49 This was true
specifically in relation to Plaintiff, who was ordered by a judge to reside at Hope Haven.50
Echoing the sentiments in Booth v. Orleans Parish School Board, Plaintiff’s Complaint
notes that he was taught as a child to “revere and respect all religious authority figures,
including Catholic priests and nuns,” such as Fr. Rooney and Sr. Hagan.51 As a vulnerable
45 Id.
46 Id.
47 Applewhite v. City of Baton Rouge, 380 So.2d 119 (La. App. 1 Cir. 1979).
48 Samuels v. Southern Baptist Hosp., 594 So.2d 571, 573 (La. App. 4 Cir.1992) (citing Ermert v. Hartford
Inc. Co., 559 So.2d 467, 477 (La.1990)).
49 Rec. Doc. 1-2, pp. 10, 13.
50 Id. at p. 3.
51 See Booth, 49 So.3d at 922; Rec. Doc. 1-2, p. 3.
youth, Plaintiff trusted that Defendants’ priests and nuns “were benevolent and
trustworthy stewards of God who were fit for ministry and the care of children.”52 However,
he claims that Defendants’ employees used their “unfettered access to minor children” to
commit the wrongdoing.53
Based on the facts alleged, Fr. Rooney and Sr. Hagan’s purpose of serving
Defendants as least partly actuated their opportunity to sexually assault a child in
Plaintiff’s position.54 The Court cannot say that no inference could be drawn from the
allegations giving rise to a vicarious liability claim. Evidence may prove otherwise;
however, the Court does not consider evidence at this procedural posture but, rather,
takes Plaintiffs' well-pleaded allegations as true. After considering the allegations in
the Complaint and the applicable jurisprudence, the Court finds that Defendants are not
entitled to dismissal under Rule 12(b)(6).
B. Alternative Motions for a More Definite Statement
Having found that the Complaint, on its face, contains sufficient facts to reasonably
infer that Defendants could be liable for the harm alleged, the Court also finds the facts
are sufficient to require a response by Defendants. Contrary to Defendants’ assertions,
the allegations in the Complaint are not legal conclusions simply couched as factual
allegations. While the Court acknowledges that some of Plaintiff’s allegations could be
more concise, “[t]he notice pleading requirements of Federal Rule of Civil Procedure 8
and case law do not require an inordinate amount of detail or precision.”55 Moreover,
“Rule 12(e) is not intended to be used as a vehicle for discovery or to frustrate Rule
52 Rec. Doc. 1-2, p. 6.
53 Id. at p. 9.
54 See Doe v. ABC Sch., 316 So.3d at 1095.
55 McManus v. Fleetwood Enterprises, Inc., 320 F.3d 545, 551 (5th Cir. 2003).
8(a)(2)'s minimal pleading requirements by compelling plaintiff to amend [his] complaint
when it otherwise suffices to withstand a motion to dismiss.”°° Accordingly, the Court will
not grant Defendants’ Alternative Motions for a More Definite Statement.°’
Hl. CONCLUSION
For the reasons set forth above, the Motion to Dismiss or Alternative Motion for a
More Definite Statement®® filed by Defendant School Sisters of Notre Dame Central
Pacific Province, Inc. is hereby DENIED. The Motion to Dismiss or Alternative Motion for
a More Definite Statement? filed by Defendant Salesian Society, Inc. is hereby DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana the 22nd day of March, 2023.
CHIEF sUDoE SLL D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
58 Doe ex rel. Doe v. Harris, CIV.A. No. 14-0802, 2014 WL 4207599, at *4 (W.D. La. Aug. 25, 2014) (citing
Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959).
57 Rec. Doc. 5; Rec. Doc. 6.
58 Rec. Doc. 5.
59 Rec. Doc. 6.