# Mullen v. Horton > Connecticut Appellate Court · September 23, 1997 · 46 Conn. App. 759 URL: https://www.frixlaw.com/law-library/cases/7857679 ## Case - **Full name:** ANNE MULLEN v. JOSEPH A. HORTON - **Court:** Connecticut Appellate Court - **Decided:** September 23, 1997 - **Citations:** 46 Conn. App. 759; 700 A.2d 1377; 1997 Conn. App. LEXIS 469 - **Precedential status:** Published - **Opinion:** Dissent by Schaller - **Judges:** Heiman, Schaller - **Cited by:** 63 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled in part by Cefaratti v. Aranow, 321 Conn. 593 (2016). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7857679 ## How later opinions describe it (automated extraction) - finding summary judgment inappropriate as to religious order’s respondeat superior liability for the actions of a priest/psychologist, where the priest's sexual relationship with plaintiff began during counseling sessions because “a trier of fact could reasonably determine tha… - holding that a respondeat superior claim against the institutional defendant for a tort committed by a defendant priest can be resolved under Connecticut law without resorting to ecclesiastical standards of church doctrine - holding that respondeat superior claim against institutional defendant for tort committed by defendant priest can be resolved under Connecticut law without resorting to ecclesiastical standards of church doctrine - finding summary judgment inappropriate on claim of vicarious liability for counselor’s sexual relationship with plaintiff as sexual relationship could be construed as misguided attempt at counseling or unauthorized counseling method but not abandonment of employer’s business - reversing grant of summary judgment for defendant religious orders on claim of vicarious liability for priest’s sexual misconduct without analysis or discussion of First Amendment ## Opinion text SCHALLER, J., dissenting. Although I agree with part II of the majority opinion, I disagree with the conclusion in part 1.1 would affirm the trial court’s determination that, as a matter of law, the Oblate institutional defendants are not liable under the doctrine of respondeat superior. When the facts presented by the parties’ affidavits are viewed in their proper context, it is clear that the defendant Joseph A. Horton’s “digression from duty is so clear-cut that the disposition of the case becomes a matter of law.” (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207 , 579 A.2d 69 (1990). The facts that the majority recites from the record present a partial image of the situation. There are, however, other facts and allegations by the plaintiff that are necessary to present a complete factual picture. Those allegations and facts were before the trial court for summary judgment purposes. In this regard, it is important to note that the plaintiff acknowledged the *773 complete incompatibility and inconsistency of Horton’s relationship with her vis-a-vis his role as a priest, by alleging in her complaint: “On several occasions . . . Horton told the plaintiff he was going to leave the priesthood in order to continue and further their intimate relationship.” In addition, the plaintiff testified at her deposition that starting about March, 1989, and continuing until early 1992, Horton and the plaintiff had discussions about their getting married and his having to make a decision to leave the priesthood in order to marry her. In his deposition, Horton confirmed that the plaintiff had suggested that they get married and never tell anybody about their being married while he remained a priest, but he said that he could not do it that way. On a number of occasions, the plaintiff acknowledged that she and Horton engaged in sexual intercourse on occasions when she invited him into her home. She acknowledged further her active role in their romantic relationship in testifying that she purchased and provided certain materials for him to use most of the time when they engaged in sexual intercourse. The plaintiff further admitted that during all of her relationship with Horton, she understood that it was clearly outside the scope of any Catholic priest’s employment to engage in sexual relations with anyone. The plaintiff admitted that Horton’s engaging in sexual relations with her was certainly not for the purpose of promoting any of the work of the Catholic Church. She further recognized that Horton, like every other Catholic priest, was under a vow to abstain from sexual activity and she had no reason to believe that he had ever been excused or relieved of that obligation to abstain from sexual activity. Additional relevant, undisputed facts were presented by the Oblate institutional defendants pertaining to Horton’s activities: (1) At all times, the laws and standards *774 of the Roman Catholic Church and the Rules of the Oblate Order, as well as each priest’s personal commitment to celibacy, have expressly prohibited each priest member of the Oblate Order from engaging in any sexual activity of any kind and from seeking or maintaining any personally intimate relationship or marital relationship with any woman; (2) At all times, any and all attempted or actual sexual activity or personally intimate relationship or marital relationship, which any priest member of the Oblate Order may have sought or maintained with any woman during that time frame, would have been clearly outside the scope of any employment which that person might possibly have held as a Catholic priest or as a member of the Oblate Order; (3) During the course of the plaintiffs relationship with Horton, Horton held nonecclesiastical employment as a clinical psychologist that was not related to any program sponsored or operated by the Oblate Order, and, during that time frame, he was also free personally to contract to render priestly services for and at local parish chinches, which priestly services were also not related to any program sponsored or operated by the Oblate Order. These additional facts and admissions by the plaintiff, when considered with the facts recited in the majority opinion, present a more complete factual picture of the situation and cast doubt on the majority’s characterization of the parties’ long-standing intimate relationship as merely “an extreme and clearly unauthorized method of spiritually and emotionally counselling the plaintiff and thereby furthering the church’s business.” Horton’s participation in this consensual relationship, which was even carried on in the plaintiffs home, and which involved proposals of marriage, with Horton • either concealing it and remaining in the church, or leaving the church entirely, could not reasonably be construed as simply an errant and misguided method *775 of carrying out his counseling mission. The full factual context represents a vivid picture of an unrelated, independent, intimate, romantic relationship that both parties recognized was far beyond the permissible scope of Horton’s priestly role. The fact that the parties may have met, and the relationship may have commenced, in the course of counseling is not sufficient to activate the doctrine of respondeat superior with respect to the Oblate institutions from which Horton concealed his impermissible relationship. Under these facts, Horton’s action in conducting this relationship with the plaintiff represented a complete departure from his responsibilities to the Oblate institutional defendants. His longstanding, independent relationship with the plaintiff in no way furthered the interests of his employers. Like the trial court, we should be extremely hard pressed under these facts to find that the business of the Oblate institutional defendants was furthered by the activities attributed to Horton. As the majority acknowledges, “[ojrdinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further his master’s business. . . . But there are occasional cases where a servant’s digression from duty is so clear-cut that the disposition of the case becomes a matter of law.” (Citation omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 207 . This case is controlled by our Supreme Court’s decision in A-G Foods, Inc. Specifically, in that case the Supreme Court upheld the trial court’s determination that “any possible indirect benefit Pepperidge Farm might have received by the increased shelf space [allocated to Pepperidge Farm because of Spinelli’s overstated sales] was so de minimis that, as a matter of law, it does not support a conclusion that Spinelli acted within the scope of his employment and in furtherance of Pepperidge Farm’s *776 business.” Id., 209 . Peppeiidge Farm benefited basically from Spinelli’s actual sales to A-G Foods, Inc. Similarly, even though the Oblate institutional defendants may have received some monetary benefit from Horton’s authorized counseling work, there is no factual showing that it benefited specifically from the activities associated with the intimate relationship that Horton carried on with the plaintiff during the same time period as the counseling activity was occurring. Furthermore, the Supreme Court in A-G Foods, Inc., determined that, even though the fraudulent transactions took place at the stores and during the hours when Spinelli was engaged in selling Pepperidge Farm merchandise, that is not sufficient to support the conclusion that he was acting within the scope of his employment. “Unless Spinelli was actuated at least in part by a purpose to serve a principal, the principal is not liable.” (Internal quotation marks omitted.) Id., 210 . Similarly, the facts in the present case indicate simply that Horton was motivated to serve his own interest, not that of the Oblate institutional defendants, whose most fundamental rules he violated by his conduct, and with full knowledge and acquiescence on the part of the plaintiff. The situation in A-G Foods, Inc., is directly analogous to the present situation. The speculation contained in the affidavit of one witness in this case that some sort of transference-countertransference may have occurred is no more significant a factor than the factor of the enhanced shelf space that may have resulted from Spi-nelli’s activities. The majority relies on Glucksman v. Walters, 38 Conn. App. 140, 144 , 659 A.2d 1217 , cert. denied, 235 Conn. 914 , 665 A.2d 608 (1995), and Pelletier v. Bilbiles, 154 Conn. 544, 547 , 227 A.2d 251 (1967), to support its inteipretation of Horton’s activities as merely misguided and unauthorized methods of counseling. Those cases are distinguishable. In both cases, the actions *777 complained of represented an inappropriate and enlarged version of what would have been appropriate activity to maintain order and prevent disturbances. Neither case is persuasive. Gutierrez v. Thorne, 13 Conn. App. 493, 498-99 , 537 A.2d 527 (1988), and Brown v. Housing Authority, 23 Conn. App. 624 , 583 A.2d 643 (1990), cert. denied, 217 Conn. 808 , 585 A.2d 1233 (1991), on the other hand, support the trial court’s decision in this case. In both cases, the improper activity represented a departure from an appropriate course of conduct. In the present case, Horton’s activity was as much a departure from appropriate counseling activity as Spinelli’s fraudulent sales activity was a departure in A-G Foods, Inc. Moreover, the decision in Nutt v. Norwich Roman Catholic Diocese, 921 F. Sup. 66 (D. Conn. 1995) is highly persuasive. Horton’s alleged actions in engaging in improper sexual activity no more furthered the interests of the Oblate institutional defendants than did that of the parish priest in Nutt. See also Tichenor v. Roman Catholic Church of Archdiocese of New Orleans, 32 F.3d 953, 960 (5th Cir. 1994) (“[i]t would be hard to imagine a more difficult argument than that [Horton’s] illicit sexual pursuits were somehow related to his duties as a priest or that they in any way furthered the interests of . . . his employer”). I would affirm the decision of the trial court granting summary judgment in this case. For the foregoing reasons, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7857679. Public record. Not legal advice.