# Moses v. Diocese of Colorado

> Supreme Court of Colorado · November 15, 1993 · 17 Brief Times Rptr. 1764

URL: https://www.frixlaw.com/law-library/cases/9560382

## Case

- **Full name:** Mary E. MOSES, N/K/A Mary Elaine Tenantry, Plaintiff-Appellee and Cross-Appellant, v. the DIOCESE OF COLORADO, a Colorado Corporation, and Bishop William Frey, Defendants-Appellants and Cross-Appellees
- **Court:** Supreme Court of Colorado
- **Decided:** November 15, 1993
- **Citations:** 17 Brief Times Rptr. 1764; 863 P.2d 310; 1993 Colo. LEXIS 913; 1993 WL 467723
- **Precedential status:** Published
- **Opinion:** Concurring in part by Rovira
- **Judges:** Erickson, Rovira
- **Cited by:** 176 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/9560382

## How later opinions describe it (automated extraction)

- explaining that the fundamental difference between a cause of action for breach of fiduciary duty and a cause of action for clergy malpractice is “the former is a breach of trust and does not require a professional relationship or a professional standard of care, while the lat…
- holding that although courts must not become embroiled in interpreting or weighing church doctrine, a claim of negligent hiring of a minister is actionable because it does not require such interpretation or weighing of religious belief but instead is merely application of a se…
- holding that First Amendment did not bar claims of fiduciary duty or negligent hiring and supervision against clergy and their superiors; such claims “do not involve disputes within the church and are not based solely on ecclesiastical or disciplinary matters”
- stating that bishop assumed role of counselor to parishioner and had a duty to act with the utmost good faith for her benefit, but failed to assist counselee and, instead, used her trust in him to her detriment
- noting that a principal may be responsible for a tort committed by its agent, but typically not for an intentional tort of its agent

## Opinion text

Chief Justice ROVIRA
concurring in part and dissenting in part:
The majority holds that sufficient evidence was presented at trial to create a question for the jury regarding whether an employment or agency relationship existed between the Diocese of Colorado (diocese) and Father Paul Robinson and therefore, the diocese may be liable for the negligent hiring and supervision of Robinson. 1 For the reasons set forth below, I disagree and, accordingly, respectfully dissent.
I
Mary Moses (plaintiff) was a parishioner at St. Philip and St. James Episcopal Church. Father Vernon Meyers was the head priest and rector of that parish. Father Paul Robinson was employed as an assistant priest at St. Philip and St. James. The parish is one local body of the Episcopal Diocese of Colorado. Bishop William Frey was the head of the diocese. 2
II
The majority correctly observes that “a prerequisite to establishing [a claim of] negligent hiring is an employment or agency relationship.” Maj. op. at 324. Though not expressly stated by the majority, a finding of employment or agency, similarly, is a prerequisite to a claim of negligent supervision. See Restatement (Second) of Agency § 213 (1958). The question of agency is ordinarily a factual one, properly resolved by the trier of fact when conflicting evidence of agency is presented. Stortroen v. Beneficial Fin. Co., 736 P.2d 391, 395 (Colo.1987). A court may, however, properly decide whether an agency relation exists when the relevant facts are not in dispute. Id.
While the majority points to several facts in support of its conclusion that the evidence presented was sufficient to create a factual dispute respecting whether the relationship between the diocese and Father Robinson was one of either agency or employment, those facts do not create such a dispute because they have no bearing on the critical elements needed to establish the existence of either of these legal relationships. Because the evidence pertaining to *332 those decisive elements was undisputed and cannot, as a matter of law, support a finding of an agency or employment relationship, the Diocese of Colorado cannot be held liable for the negligent hiring and supervision of Father Robinson.
A
“Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Stortroen v. Beneficial Fin. Co., 736 P.2d 391, 395 (Colo.1987) (quoting Restatement (Second) of Agency § 1(1) (1957). See also Montano v. Land Title Guarantee Co., 778 P.2d 328, 331 (Colo.App.1989).
The agency relation results if, but only if, there is an understanding between the parties which, as interpreted by the court, creates a fiduciary relation in which the fiduciary is subject to the directions of the one on whose account he acts. It is the element of continuous subjection to the will of the principal which distinguishes the agent from other fiduciaries and the agency agreement from other agreements.
Restatement (Second) of Agency § 1 cmt. b (1958) (emphasis added); United States v. Young, 736 F.2d 565, 567-68 (10th Cir.1983) rev’d on other grounds, 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985) (holding that a showing of mere subordination to another is insufficient to establish agency or employment; the “right to control” must be shown under common law requirements); W. Edward Sell, Sell on Agency § 2 at 2 (1975) (“The agent differs from most other fiduciaries such as executors, trustees, etc., in that he remains under the continuous control of the principal as to matters relating to the object of his agency, throughout the entire period of his agency.”); 2A C.J.S. Agency § 6 (1972) (“The right to control ... is the primary or essential test of agency ... without which no agency exists_”). As this authority makes clear, the sine qua non of the agency relationship is the right of continuous control by the principal over the acts of the agent. Thus, I agree with the majority’s conclusion that “[t]he most important factor in determining whether a person is an agent is ‘the right to control, not the fact of control.’ ” Maj. op. at 324 (quoting Dana’s Housekeeping v. Butterfield, 807 P.2d 1218, 1220 (Colo.App.1990)).
The uncontradicted evidence presented at trial established that the diocese neither had the right of continuous control over Father Robinson nor exercised that “right.” Indeed, no evidence was presented which created even the inference that the diocese was vested with such power over Father Robinson. Canon 14(a) of the Episcopal Church provides that “[a]ll assistant Clergy ... shall be selected by the rector ... and shall serve under the authority and direction of the Rector.” Constitution & Canons for the Government of The Episcopal Church Title III, canon 14(a) at 80 (1988). Numerous witnesses testified that it was the rector at St. Philip and St. James Parish who gave Father Robinson his assignments and who instructed him as to how to carry out his day-to-day duties. Those same witnesses testified that those day-to-day activities would be supervised and controlled by the rector, and not the diocese or the bishop. Father Charles Farr, 3 Father Meyers, and Gary Schoener, 4 all were in complete agreement on these points. In short, the evidence established, as the majority concedes, that individual rectors are “independently responsible for their [assistant priests’] day-to-day activities.” Maj. op. at 325.
The fact that the individual rectors, and not the bishop or diocese, are charged with overseeing the day-to-day activities of assistant priests weighs heavily against a finding that an agency relation exists. See Restatement (Second) of Agency § 1 cmt. b (1958); maj. op. at 325. The power to *333 control and oversee Robinson’s day-to-day-activities is the method which, by definition, continuous control is exerted over him. Because it was the rector at St. Philip and St. James, and not the bishop or diocese, who exerted continuous control over Robinson, I would hold that no evidence was presented at trial to support the jury’s verdict that an agency relation existed between Robinson and the diocese and that, as a matter of law, no such relation was established here.
B
The majority additionally concludes that “the Diocese exercises an employment option in the hiring of its pastors.” Maj. op. at 325. Like continuous control in the context of agency, the power of continuous control is a critical element, or prerequisite, to finding an employer-employee relationship. Jacobson v. Doan, 136 Colo. 496, 503 , 319 P.2d 975, 978 (1957) (“The determination of whose servant an employee is in a given case depends on who has the right to control him.”); Magnuson v. Smith and Saetveit, P.C., 722 P.2d 1020, 1022 (Colo.App.1986) (“The central element in an employer-employee relationship is the right of the employer to control the details of performance of the employee’s duties.”); Miller v. Hirschbach Motor Lines, Inc., 714 S.W.2d 652, 658 (Mo.App.1986) (control over discharge of duties is a “preeminent characteristic” of employer-employee relationship). See also Restatement (Second) of Agency § 220 (1958). Other particularly probative indicators of an employment relationship include the power to hire and terminate, see e.g. King v. Southwestern Greyhound Lines, 169 F.2d 497, 499 (10th Cir.), cert. denied, 335 U.S. 891 , 69 S.Ct. 245 , 93 L.Ed. 428 (1948) (noting that numerous courts have held that the right to terminate a contract for services creates an employer-employee relationship as a matter of law); Hirschbach Motor Lines, Inc., 714 S.W.2d at 658 (“no single fact is more conclusive of the existence of the nature of the employment [relationship] than the right to discharge summarily”), and whether the purported employer pays the salary of or otherwise compensates the alleged employee. See Jacobson v. Doan, 136 Colo. 496 , 319 P.2d 975 (1957). In sum, the dispositive elements needed to show an employer-employee relationship are:
whether [the alleged employer] selected or employed [the employee]; whether wages or other consideration were to be paid; whether [the alleged employer] had the power or right to dismiss and the right to control [the alleged employee]. The central element is the right to control the details of performance.
CJI-Civ.3d 7:6 (1989).
As noted above, the undisputed evidence reveals that the diocese neither had nor exercised the right to control Father Robinson’s day-to-day activities. Similarly, the undisputed evidence established that the diocese did not have the power or authority to either hire or terminate Father Robinson. Canon 14(a) provides that “[a]ny assistant selected shall serve at the discretion of the Rector_” Constitution & Canons for the Government of The Episcopal Church Title III, canon 14(a) at 80 (1988). Father Farr testified that an assistant priest serves at the pleasure of the rector, and only the rector can terminate the priest. Father Farr also stated that a bishop’s approval is not needed prior to termination. Schoener testified that Bishop Frey did not have the authority to remove Father Robinson from his priestly duties. Rather, Schoener testified that “in that regard the church is the direct supervisor of that, that they have to make that decision.”
Marie Fortune, another expert who testified on behalf of plaintiff, acknowledged that it was Father Meyers who presented Father Robinson to the vestry with the recommendation that he be hired. Meyers also conceded that the diocese had no “vote” in that matter. Furthermore, Meyers agreed that an assistant priest serves at the pleasure of the rector, and it is he who is charged with determining the priest’s employment status.
Finally, it was undisputed that the parish, acting through its vestry, was the entity which compensated Robinson for his services, and not the diocese or Bishop Frey. *334 Again, Bishop Frey, Father Farr, and Father Meyers all confirmed this fact.
The diocese did not have the power to control Father Robinson’s day-to-day activities. Nor did it have the power or authority to initiate or terminate Robinson’s employment with the parish. 5 Finally, it was the parish of St. Philip and St. James that was responsible for compensating Robinson, not the diocese.
Thus, I am of the opinion that the uncon-tradicted evidence precludes, as a matter of law, a finding that the diocese and Father Robinson occupied an employer-employee relationship.
Ill
The majority, however, points to number of facts about the structure of the Episcopal Church and places primary reliance on the testimony of Schoener in support of the conclusion that sufficient evidence was presented to create a jury question as to whether Robinson was either an agent or employee of the diocese. In my opinion, none of those facts support the conclusion for which they are enlisted, because none of them relate to the critical elements needed to establish an agency or employment relationship. The facts presented by the majority fall into two broad categories, each of which will be addressed in turn.
A
The first category of facts on which the majority relies in reaching its conclusion concerns the relationship among a diocese, bishop, and rector or head priest of a parish. Maj. op. at 325-326. Standing alone, all of these facts are entirely irrelevant to determining the legal relationship between Robinson and the diocese because Robinson was an assistant priest, not a rector. As common sense would suggest, extensive and uncontroverted evidence was presented at trial to establish that an assistant priest is not a rector, and that the duties, responsibilities, and supervisory relationships of rectors and assistant priests differ.
The majority apparently cites these facts, not to show that assistant priests and rectors are one and the same, but to establish that the doctrine of subagency is applicable here and that therefore, Robinson’s conduct as a subagent of Meyers, who is an agent of the diocese, can be imputed to the diocese. Maj. op. at 325 n. 18.
The doctrine of subagency is set forth in the Restatement of Agency as follows: “A subagent is a person appointed by an agent empowered to do so, to perform functions undertaken by the agent for the principal, but for whose conduct the agent agrees with the principal to be primarily responsible for.” Restatement (Second) of Agency § 5(1) (1958). In order to establish a sub-agent relation, it must be shown that the agent of the principal had agreed to be primarily responsible for the conduct of the alleged subagent. See id.; Estate of Greenberg v. Skurski, 95 Nev. 736 , 602 P.2d 178, 179 (1979). In my opinion, while the doctrine of subagency could have been relied on here, the fact is, it was not.
The only instruction concerning the establishment of either an agency or employment relationship which the trial court tendered was Jury Instruction 23. That instruction provided:
The term principal and agent refers to the relationship which exists when one person, the principal, retains another, the agent, to do certain work. In determining whether the relationship exists you should consider whether the Diocese of Colorado and/or Bishop William Frey selected or retained Father Robinson; whether wages or other consideration were to be paid by them; whether the Diocese of Colorado and/or Bishop William Frey had the power or right to dismiss and the right to control Father *335 Robinson. The central element is the right to control the details of performance. It matters not whether the Diocese of Colorado and/or Bishop William Frey actually exercised any right to control Father Robinson.
This was the only instruction proffered to the jury regarding the question of how, and whether, an agency or employment relationship exists. Consequently, no other possible legal bases for finding such relationships under the facts of this case could have been considered by the jury in reaching its verdict. Because the jury could not have concluded that Robinson was a sub-agent of the diocese, evidence which tends to establish subagency cannot be used to establish that evidence was presented either to create a question for the jury or to support the jury’s verdict. Therefore, the majority’s reliance on this first category of evidence is, in my opinion, misplaced, and in no way supports the conclusion that sufficient evidence was presented to create a jury question.
B
The second category of evidence cited by the majority concerns the relationship among the diocese, bishop, and assistant priests, and is culled almost exclusively from the testimony of Gary Schoener. While I concede that the evidence cited by the majority establishes that a bishop can exert influence over assistant priests, such influence falls far short of establishing the requirements needed to prove an agency or employment relationship.
First, it is important to reiterate that the majority does not contend that either the bishop or diocese controlled the day-to-day activities of Father Robinson. Maj. op. at 325. Rather, the majority concedes that “individual priests and parishes may be independently responsible for [assistant priests’] day-to-day activities_” Id. 6 In spite of the fact that this critical element is lacking, the majority nevertheless concludes that the “Diocese exercises an employment option in the hiring of its priests.” Id.
The majority notes that “[t]he rector supervises an assistant priest’s counseling duties_” Maj. op. at 325. This is indicative of the fact that it is the rector, and not the bishop or diocese, that exerts continuous control over assistant priests. The fact that those counseling duties “are specifically prescribed by regulations promulgated by the Diocese,” id., in no way alters this conclusion for the simple reason that pastoral counseling is only one of myriad duties and activities in which an assistant priest engages. In addition, this fact has no bearing on the question of the power to hire, terminate, or compensate assistant priests.
Similarly, though a priest may look to the bishop for “pastoral care,” id., this fact is inapposite to the question of whether the bishop exerts continuous control over the conduct of the assistant priest. In fact, Schoener testified that an assistant priest would consult with a bishop only in exceptional circumstances. Likewise, even if the bishop has “independent responsibility” for the employment of assistant priests (including overseeing ordination, discipline, counseling, and maintenance of personal files), id., the sort of independent responsibility identified by the majority has no relevance to the question of whether the diocese exerts continuous control over the daily conduct of assistant priests, whether the diocese has the power to actually hire and terminate assistant priests, or whether the diocese compensates assistant priests. Finally, the fact that vestries rely on the bishop and diocese to prepare candidates and provide information about them is entirely irrelevant to the questions of control, employment decisions, and duty to compensate.
*336 In addition to the aforementioned facts, the majority quotes at length the testimony of Schoener as it related to his “description of the bishop’s role in the Diocese’s hiring process_” Maj. op. at 326, 326-327. Though I acknowledge that the Diocese does indeed play a role in the hiring of assistant priests — i.e., having “substantial input in the hiring decisions,” maj. op. at 327 — the majority fails to point to any evidence which established that the diocese is actually vested with the authority to hire or terminate assistant priests.
The closest the majority comes to pointing to such evidence is Schoener’s statement that “it is the bishop and the diocese that determines in effect who is available to be called by a congregation [i.e.,] to be considered to be hired. You can’t just submit your name because you finished a seminary and be available to be hired.” Maj. op. at 326. However, Schoener also acknowledged that a given diocese determines who is available to be called only if a parish looks to that diocese for hiring guidance. Schoener stated that a parish is not bound to look only to candidates who have been approved by that parish’s diocese. In fact, Schoener stated that in most states, local parishes look outside their own diocese for assistant priests. Furthermore, Schoener testified that St. Philip and St. James was in no way required or obligated to look only to the Diocese of Colorado for eligible candidates. Thus, a given diocese actually exerts much less influence in the hiring process than one could otherwise be led to assume. The majority, however, apparently misconstrues the extent to which a given parish is dependent on its diocese in the hiring of assistant priests, by concluding that the Diocese of Colorado exercises an employment “option,” maj. op. at 326, with respect to the hiring of assistant priests at the diocese’s parishes.
The majority also paraphrases Schoener’s testimony regarding the influence a bishop may exert over disciplinary decisions as follows: “the bishop could propose discipline and because of his ‘considerable influence,’ the vestry would comply with his recommendation_” Maj. op. at 327. Schoener did indeed testify as to the influence a bishop could exert in such matters, however he stated only that the likelihood of a vestry ignoring a bishop’s advice was “very, very slim.” Nevertheless, he acknowledged not only that sometimes parishes do not follow the advice of a bishop quickly enough but specifically recognized that vestries and churches do not always follow the advice of a Bishop: “If you talk to bishops,” Schoener stated, “you will learn about that.” Regardless of the precise scope of a bishop’s influence in matters of discipline, nowhere was it ever suggested that such influence rises to the level of continuous control or that such influence extends to the actual hiring, termination, or duty to compensate assistant priests.
Finally, the fact that an assistant “priest’s compensation is affected by the bishop,” has nothing to do with the critical elements needed to establish an agency or employment relationship. The ability to affect the rate of compensation certainly cannot be equated with the power to actually hire or terminate employment. Nor is this ability to “affect” tantamount to a duty of compensation. The jury was specifically instructed that they should consider “whether wages or other consideration were to be paid by them [i.e., Bishop Frey or the diocese],” in determining whether an employment relation existed between Robinson and the diocese. See supra p. 334-335 (quoting Jury Instruction 23). The jury was not instructed to consider whether the diocese could “affect” the rate at which Robinson was compensated and therefore, the fact of such an ability cannot create a dispute properly resolved by the jury. Furthermore, it was undisputed that the bishop and diocese did not compensate Robinson, but that the parish, acting through its vestry, did.
C
Thus, the considerable number of facts and lengthy testimony cited by the majority do not support the conclusion that the diocese was either the principal or employer of Father Robinson, because none of those facts establish that the diocese had continuous control over Robinson, was *337 vested with the power to terminate his employment with the parish, or had the duty to compensate him for his services. 7 Though these facts do establish that Bishop Frey and the diocese were capable of exerting influence over the conduct of an assistant priest, such an ability cannot establish either an agency or employment relationship nor can it create a factual dispute as to whether such relationships exist.
The jury was properly instructed that in order to find an employment relation between the diocese and Robinson, they should consider whether: (1) the diocese selected or retained Robinson; (2) wages or other consideration were to be paid by them; (3) the diocese or bishop had the power to terminate Robinson; and (4) the diocese or Bishop Frey had the right to control Robinson. See supra p. 334-335 (quoting Jury Instruction 23). The majority concedes that the fourth, and “critical,” element of control is wanting here because it is the rector who controls an assistant priest’s day-to-day activities. Furthermore, the majority nowhere states or concludes that the diocese hired Robinson, had the duty to compensate Robinson, or had the actual ability to terminate Robinson’s employment with the parish.
In short, the majority never contends that any of the elements that the jury was instructed to consider in determining whether an employment relation existed between the diocese and Robinson have been met here. Rather, all of the evidence cited establishes only that the bishop and diocese can. exert influence over an assistant priest. The jury was not, however, instructed that “influence” alone could either support a finding of an employment relation or that such a fact should even be considered by them. Thus, the fact that such influence exists cannot support the conclusion that sufficient evidence was presented to either create a question for the jury or to support the jury’s verdict.
Consequently, I would hold that the trial court erred in denying defendant’s directed verdict motion dismissing plaintiff’s claim for negligent hiring and supervision. Accordingly, I concur in the result in Part III, concur in Part V, and dissent from Part IV of the majority opinion.
. It is unclear whether the majority concludes that the evidence supports a finding of either agency or employment, or both. Because the requirements for finding an employer-employee relation differ from those needed to find an agency relation — but either finding could support a claim for negligent hiring and supervision — I address each issue separately.
. Other relevant facts and information are detailed in the majority opinion, repetition of which is unnecessary here.
. Father Farr, who testified on behalf of plaintiff, was the rector at the Church of the Epiphany, another Episcopal Church located in Denver.
. Schoener, who was qualified as an expert in the area of pastoral counseling and the care and treatment of offending priests, also testified on behalf of plaintiff.
. In my opinion, it strains credulity to conclude that one who lacks the power either to hire or terminate an "employee" can nevertheless occupy the position of employer with respect to hiring that employee. I for one am unable to see how the diocese could have been negligent in hiring Father Robinson when the undisputed evidence established not only that the diocese could not, but, in fact did not, hire Robinson.
. While the majority acknowledges this fact, it nevertheless concludes that "Bishop Frey had and exercised the right of control over the manner of work performed by a priest as well as the hiring, compensation, and counseling performed by the priest and discipline." Maj. op. at 325. Irrespective of whatever inconsistency there may be in maintaining both of these propositions simultaneously, for the reasons that follow, I disagree that Bishop Frey had or exercised the right of control as described by the majority.
. This conclusion is supported by recognition that, standing alone, many of the facts cited by the majority occur in contexts which could in no way be regarded as agency or employment relations. For example, to the extent that the bishop oversees ordination, discipline, and the maintenance of personal files on prospective assistant priests, he is not unlike this court, which is vested with the power and obligation to oversee the admittance, discipline, and maintenance of personal files on members of the Colorado Bar. Similarly, to the extent that vestries rely on the diocese to prepare and educate candidates, they are not unlike government agencies and law firms who rely on law schools to properly train and educate prospective attorneys. In this sense, this court and law schools are similarly vested with "independent responsibility” for the employment of lawyers. This fact does not of course, nor could it, support a conclusion that either the supreme court or law schools occupy an agency or employment relation with respect to all attorneys practicing in Colorado.
Likewise, while a bishop can "affect" an assistant priest’s compensation, many people and organizations similarly affect the compensation paid to others while not occupying an employment relationship with them. For example, a labor union can affect the rate of compensation and nature of benefits paid to its members. Similarly, state and federal governments can affect the compensation of others by mandating minimum wage requirements or payment of disability or unemployment benefits. It could not, however, be argued that simply because such organizations and institutions affect the compensation paid to others in these ways, that they are therefore the employers of those affected.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9560382. Public record. Not legal advice.