# Strock v. Pressnell > Ohio Supreme Court · August 24, 1988 · 38 Ohio St. 3d 207 URL: https://www.frixlaw.com/law-library/cases/6760604 ## Case - **Full name:** Strock, and Cross-Appellee v. Pressnell, and Cross-Appellant Shepherd of the Ridge Lutheran Church - **Court:** Ohio Supreme Court - **Decided:** August 24, 1988 - **Citations:** 38 Ohio St. 3d 207; 527 N.E.2d 1235; 75 A.L.R. 4th 729; 1988 Ohio LEXIS 280 - **Precedential status:** Published - **Opinion:** Dissent by Sweeney - **Judges:** Brown, Douglas, Holmes, Locher, Moyer, Sweeney, Syllabus, Wright - **Cited by:** 280 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6760604 ## How later opinions describe it (automated extraction) - holding that the First Amendment was not available as a defense in action against minister who had sexual relations with plaintiff's wife while counseling the couple regarding their marital difficulties - holding that R.C. 2305.29’s elimination of common-law amatory actions was constitutional because there was “ ‘no property or vested right in any of the rules of the common law, as guides of conduct’ ” - declining to consider an intentional infliction of emotional distress action, in which the plaintiff sought damages for “anguish, shock, nervousness, and depression,” because the abolition of claims for alienation of affections was intended to preclude these allegations ## Opinion text Sweeney, J., dissenting. Inasmuch as the majority opinion misrepresents the prayer for relief urged by appellant and misinterprets the law governing this case I must respectfully dissent. While I agree with the resolution of the “threshold question” by the majority, I must part company with its further disposition of the case because such disposition is as internally inconsistent as it is legally indefensible. The majority opinion begins the discussion by observing quite correctly that the conduct at issue in the case sub judice enjoys no First Amendment protection. It is self-evident that the tortious behavior alleged herein bears no relationship to the practice of legitimate religious beliefs. The conclusion that sexual relations between a counselor and his client do not constitute an accepted form of marital counseling is both conceded by appellees and acknowledged by the majority. Nevertheless, the majority eschews the imposition of a duty to refrain from such conduct because, it is alleged, to do so may “clash with the religious beliefs of some faiths and thus violate the Free Exercise Clause of the First Amendment to the United States Constitution.” Given that such conduct is unprivileged under the Constitution, it matters not whether it is practiced by a clergyman or a- secular counselor. The *218 gravamen of the complaint is failure of the practitioner to measure up to the standards of the profession. Thus, to the question posed by the majority regarding whether “the cleric [should] be held to the same duty of care as secular counselors,” I would respond in the affirmative. This result is compelled by focusing on the behavior of the practitioner and not his religious or secular status. The method by which each would be qualified to perform his respective functions is wholly immaterial under the facts of this case since, in either situation, sexual relations have never been an accepted mode of treatment. Thus, I feel compelled to remind the majority that its repeated reference to the “facts of this case” undermines its incessant hypothesizing about situations where religious and secular methods of marriage counseling may diverge. “Under the facts of this case,” either regimen would reject sexual relations as a viable treatment technique. In order to give credence to this false distinction, the majority has apparently decided to indulge in the assumption that formal certification of a profession is a condition precedent to the institution of a suit for malpractice. This view is devoid of merit. An action for malpractice is wholly separate from any disciplinary proceeding instituted against a member of a profession. Moreover, the notion advanced by the majority that malpractice is a species of legal recourse conceptually different from common-law negligence would doubtless be a startling discovery to the bench and bar. While professionals of all types are held to the standards of their respective professions, the liability rules governing their behavior do not diverge significantly from those imposed upon laymen. In short, malpractice is nothing more than professional negligence and it matters not whether formal standards have been established for the profession by regulatory agencies or professional societies. 9 It is therefore not altogether clear what the majority is attempting to convey by its observation that “[a] tortfeasor may be liable for acts of ordinary negligence or for intentional torts, regardless of the ‘professional’ color of his conduct.” If, by this statement, the majority wishes to observe that a professional will be held liable for negligence separate from any negligence arising from the exercise of his professional skills, the observation is nothing more than a non sequitur. Obviously, the counselor-client relationship is the basis of the cause of action. It is because of this special relationship that liability results. The standard of care applicable to the relationship exists irrespective of any liability resulting from the negligent performance of acts arising in a context unrelated to the fulfillment of professional responsibilities. I would therefore hold that a marriage counselor who engages in sexual relations with the spouse of a client seeking professional guidance may be answerable in damages for malpractice. 10 *219 I likewise disagree with the majority’s rejection of the cause of action asserted by appellant that is founded upon intentional infliction of emotional distress.. The disposition of this issue is flawed in numerous respects. As an initial matter it is necessary to respond to the consideration of the constitutionality of R.C. 2305.29. While the majority is correct in observing that the constitutionality of R.C. 2305.29 has not been previously addressed by this court, it is grossly in error when it chooses, sua sponte, to pass upon the issue today. The reason for this conclusion is simple. Nowhere in the complaint filed by appellant or in his arguments before this court has the constitutionality of R.C. 2305.29 been challenged. The rationale behind this omission is likewise simple. The present action is not predicated upon the theories of recovery abolished by R.C. 2305.29. Consequently, the reliance by the majority upon R.C. 2305.29 is wholly without foundation. 11 Nevertheless, the opinion blithely re-writes the complaint, converts it into a prayer for relief founded upon claims abolished by R.C. 2305.29 and then rejects the reconstituted claims as statutorily barred. In point of fact, this action is not “in truth and effect” an action for alienation of affections. Rather, it is a cause of action founded upon intentional infliction of emotional distress as recognized by Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369 , 6 OBR 421, 453 N.E. 2d 666 . The majority seeks to distinguish Yeager by stating that it did not involve facts which would have given rise to a cause of action in alienation of-affections at common law. This analysis, however, ignores the observation contained in Yeager that decisions predating that case had recognized the existence of a cause of action for intentional infliction of emotional distress where a special relationship existed between the plaintiff and defendant. 12 In fact, the special relationship existing between Pressnell and appellant in the instant action is what distinguishes this case from a common amatory action. As noted in Prosser & Keeton on Torts (5 Ed. 1984) 64-65, Section 12: “In the great majority of the cases allowing recovery the mental distress has been inflicted intentionally, the defendant either desiring to cause it or knowing that it was substantially certain to follow from the conduct. There are, however, a few cases which indicate that liability for extreme outrage is broader and extends to situations in which there is no certainty, but merely a high degree of probability that the mental distress will follow, and the defendant goes ahead in conscious disregard of it. * * * [T]he category of extreme outrage is to be extended to include conduct not intended to cause mental disturbance, but wilful, wanton or reckless in its deliberate disregard of a known high degree of risk of it.” This is precisely the situation presented by the case at bar. Appellant *220 and his wife sought counseling from Pressnell in order to overcome their marital problems. Not only was Pressnell aware that such problems existed, but he was consulted for those very problems. Armed with this knowledge and cognizant of the great emotional strain and vulnerability experienced by his clients at that time, it is alleged that Pressnell sought not to remedy the situation but rather to exploit his position in order to obtain sexual gratification. Given Pressnell’s knowledge and experience, there exists a jury question as to whether he intentionally sought to inflict emotional harm upon appellant or consciously disregarded a known risk that such harm would result. The aforementioned special relationship between appellant and Pressnell is also what gives rise to a cause of action for breach of fiduciary duty. The majority, although inadvertently, sets forth the appropriate standard in ascertaining the duties of a fiduciary. It was correctly stated that a fiduciary is “ ‘a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking’ [quoting Haluka v. Baker (1941), 66 Ohio App. 308, 312 , 20 O.O. 136, 138 , 34 N.E. 2d 68, 70 ].” (Emphasis added.) This is precisely the situation in the case át bar. Pressnell enjoyed a position of trust “created by his undertaking” (i.e., his position as a marriage counselor). But for Pressnell’s professional status, appellant and his wife would not have sought his guidance. As eloquently stated by Judge Cacioppo of the court of appeals in her concurrence and dissent below: “* * * [T]his case does not resemble your garden variety seduction scenario. The wife did not get involved with the milkman, the mailman or the guy next door. Here, the couple’s minister, under guise of offering pastoral counseling services, abused the trust placed in him. This trust was the raison d’etre of the relationship. It is also what distinguishes this case from those which the legislature intended to abolish when it did away with amatory actions. This distinction also applies to Strock’s claim of misrepresentation — this was not your average lover’s ruse.” In its zeal to foreclose a remedy for the harm suffered by appellant, the majority apparently oscillates between alternative and conflicting descriptions of the actions of Pressnell so as to achieve pre-ordained results. In rejecting claims founded upon malpractice and breach of fiduciary duty, the majority contends that these bases of recovery sound in professional misconduct and negligence, 13 respectively, while the “amatory” behavior at issue in the case at bar constitutes purposeful conduct. Yet the majority also concludes that the cause of action founded upon intentional infliction of emotional distress is foreclosed by the abolishment of amatory actions contained in R.C. 2305.29. This disposition is reached despite the majority’s reliance upon Prosser & Keeton, supra, at 929, Section 124, wherein it was stated that “such torts [as are encompassed within amatory actions] seldom are committed with deliberate plan [, i.e., are intentional in nature].” Thus, Pressnell’s acts are deemed to be intentional when considering a cause of action sounding in negligence and misconduct but nevertheless do *221 not give rise to an action for intentional infliction of emotional distress because, it is alleged, they are encompassed within amatory actions which the majority appears to concede are based in negligence. Such is the inevitable result of the majority’s futile attempt to pigeonhole causes of action at the pleading stage. Recovery under any of the causes of action alleged by appellant are largely dependent upon the facts adduced at trial. The breach of fiduciary duty may be the result of either a negligent or intentional act. Such acts may constitute behavior below the standard of care associated with a particular profession such as to give rise to a cause of action in malpractice. Such acts, when committed with intent to harm or with knowledge that such harm is substantially certain to occur, may give rise to a cause of action for intentional infliction of emotional distress. Whether any or all of these theories of recovery are supported by the facts necessarily requires a trial on the merits — an opportunity foreclosed to appellant by today’s decision. At least since the advent of the Civil Rules, a litigant was not obligated to confine his pleadings to a single theory of recovery. 14 Regrettably, the result of today’s decision is to countenance the type of behavior alleged by appellant to have occurred and to foreclose the availability of a legal remedy therefor under any theory of recovery. Douglas, J., concurs in the foregoing dissenting opinion. In this regard, see Prosser & Keeton on Torts (5 Ed. 1984) 185, Section 32, wherein it was observed that an action in malpractice may be pursued against “milk haulers, hockey coaches, expert skiers, [and] construction inspectors.” It is therefore evident that persons need not be members of a licensed “profession” in order to be held liable for professional negligence. Clergy malpractice, therefore, is a misnomer. The standard of behavior below which such actions fall does not vary be *219 tween religious and secular counselors. In either case, where damages foreseeably result from and are proximately caused by such negligence, liability for such damages may be recovered by the injured party. See Rowe v. Bennett (Me. 1986), 514 A. 2d 802 . The identity of the challengers to the constitutionality of R.C. 2305.29 remains a mystery. It can be stated with certainty that these phantom advocates are not parties to the present litigation. See Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369, 373 , 6 OBR 421, 425, 453 N.E. 2d 666, 670, fn. 2 . It is interesting to discover that the majority apparently views the conscious act of a trustee in appropriating trust funds for his own use such as to give rise to a claim for breach of fiduciary duty to be negligent rather than intentional in nature. See Civ. R. 2. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6760604. Public record. Not legal advice.