Petition for Writ of Certiorari — Roman Catholic Diocese of Brooklyn v. Kenneth R. ex rel. Diana R.

No. 9% «405 SEP - 2 1997

OFFICE OF THE CLERK

In The

Supreme Court of the United States

a

October Term, 1996

THE ROMAN CATHOLIC DIOCESE OF BROOKLYN,

Petitioner,

VS.

KENNETH R., by his mother and natural guardian, DIANA

R., KEVIN R., by his mother and natural guardian, DIANA R.,

BERNARD R., by his mother and natural guardian, LOURDES

R., DIANA R. and LOURDES R. (anonymous),

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of New York,

Appellate Division, Second Department

PETITION FOR A WRIT OF CERTIORARI

JOSEPH H. FARRELL

Counsel of Record

JONATHAN UVEJIO

CONWAY, FARRELL,

CURTIN & KELLY, P.C.

Attorneys for Petitioner

63 Wall Street, 14th Floor

New York, New York 10005

(212) 785-2929

71923 . putz

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 AP ellate

Services, inc.

QUESTIONS PRESENTED

An employer is liable for negligently supervising it’s

employee if it knows or should know the employee poses a

danger to third parties and it fails to exercise that degree of

supervision which a reasonable employer would under the

circumstances. Do negligent supervision claims require an

individualized assessment of the degree of supervision exercised

So as to require an exemption for religious supervision of ciergy?

In negligent supervision claims, the parties are generally

entitled to offer evidence that the employer complied with or

violated its internal rules and regulations, that the employer’s

degree of supervision was similar to or varied from that of other

employers in the industry, as well as the process by which

information about the employee was evaluated. Do claims for

negligent supervision of clergy require courts to pass upon

matters of religious doctrine and governance?

ll

LIST OF PARTIES

The names of all parties to the proceedings in the Court

whose order is sought to be reviewed here appear in the caption

of the case except defendant Enrique Diaz Jimenez. Father Diaz

has never appeared in the action and Respondents have entered

a default judgment against him. There is no parent or subsidiary

company of any party listed.

ili

TABLE OF CONTENTS

Page

Questions Presented ............................ i

NE 66 yo ws sc <n oacvacsnvececesecec, ; i

i cr ili

i iv

a l

Statement of Jurisdiction ........................ ]

Constitutional Provision Involved ................. l

Statement of the Case ........................... l

Statement of Facts ................ccccccecccee., 2

cs 3

Reasons for Granting the Writ .................... 4

I. Plaintiffs’ Negligent Supervision Claim Is Neither

Neutral Nor Generally Applicable. .......... 7

II. Plaintiffs’ Negligent Supervision Claims Will

Require A Jury To Decide Whether The Church

Complied With Its Procedures. ............. 9

SE 12

iv

Contents

TABLE OF CITATIONS

Cases Cited:

Byrd v. Faber, 565 N.E. 2d 584 (Ohio 1991) .........

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

Se Sia I CUED Give ao 065 600 kad ee ewe he eee

Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988) ....

Employment Div. v. Smith, 494 U.S. 872 (1990) ......

Gonzalez v. Roman Catholic Archbishop of Manila, 280

Ree 8 CRE ka sckh hie an enw desi eneeeeeaa eas

Guinn v. The Church of Christ of Collinsville, 775 P.2d

Bo, Be err ere err rare

L.L.N. v. Clauder, 563 N.W. 2d 434 (Wis. 1997) ......

Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993),

cert. denied, __ U.S. __, 114 S. Ct. 2153 (1994) ...

Pritzlaff v. Archdiocese of Milwaukee, 533 N.W. 2d 780

(Wis. 1995), cert. denied, _ U.S. __, 116 S. Ct. 920

| en ee eA oe ee ee ewe pacer er

Roman Catholic Bishop of San Diego v. Superior Court,

42 Cal. App. 4th 1556, 50 Cal. Rptr. 399 (Ct. App.

| ee re er erry Ser re aetna

Page

Vv

Contents

Page

Serbian Eastern Orthodox Diocese v. Milovojevich, 426

Sees COND 620 4c Dede eae oka eee 9

Statutes Cited:

Be she & UROVOD 055s ak vc dik oda dckacdadewenk l

United States Constitution Cited:

First Amendment ................00. i, 1, 2, 3, 4, 6, 10, 12

APPENDIX

Appendix A — Decision of the Supreme Court of the State

of New York, Appellate Division, Second Judicial

Department Dated March 3, 1997 ............... la

Appendix B — Order of the Supreme Court of the State

of New York, County of Kings Dated December 11,

ROWE 0:0 5HKO Seis n ee dR ARERR eee 12a

Appendix C — Decision and Order of the Supreme Court

of the State of New York Appellate Division, Second

Judicial Department Dated June 4, 1997 ........... 17a

l

Petitioner, The Roman Catholic Diocese of Brooklyn,

respectfully petitions for a writ of certiorari to review the order

of the Supreme Court of the State of New York, Appellate

Division, Second Department.

OPINIONS BELOW

The opinion of the Appellate Division, Second Department,

is reported at 229 A.D. 2d 159, 654 N.Y.S. 2d 791 and is

reproduced in Appendix A filed herewith at p. 1a. The unreported

decisions of the Supreme Court and the Appellate Division are

reproduced in Appendices B and C respectively, filed herewith

at pp. 12a and 17a.

STATEMENT OF JURISDICTION

The Appellate Division, Second Department denied

Petitioner leave to appeal to the Court of Appeals on June 4,

1997. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment of the Constitution provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; ....

STATEMENT OF THE CASE

A claim for negligent supervision requires the trier of fact

to decide whether the employer knew or reasonably should have

known that it’s employee posed a danger to third parties, whether

the employer failed to exercise adequate supervision of it’s

2

employee given this knowledge, and whether the plaintiff was

injured as a result of the danger posed. In the case at bar, Respondents

would have to show that the church had, or should have

discovered, information from which a reasonable person would

conclude Father Diaz was likely to sexually abuse third parties,

that the church failed to adequately supervise Father Diaz in

light of this knowledge, and that Respondents were sexually

abused by Father Diaz. The Diocese respectfully submits that

only the third question can be decided by a secular court without

violating the First Amendment of the Constitution. Therefore,

this Court should find that claims for negligence in the

supervision of clergy are unconstitutional.

STATEMENT OF FACTS

In the present action, Respondents seek damages for injuries

the infant Respondents suffered as a result of alleged sexual

abuse at the hands of defendant Enrique Diaz Jimenez. Father

Diaz was a Venezuelan priest who sought a position in the

Diocese while he was attending St. John’s University in Queens,

New York. At the request of Monsignor Barretta of St. Leo’s

Church, Father Diaz was given a position in that parish beginning

in October 1983. Father Diaz served as a parish priest at St.

Leo’s ministering to the Spanish speaking parishioners until

October 1984, and again from October 1985 to October 1986.

Respondents claim that Father Diaz sexually molested the infant

Respondents at various times starting in July 1983, before Father

Diaz’s employment in October 1983, and ending in August 1989,

long after his last employment in 1986.

Respondents claim that the Diocese is liable for their

injuries because it was, inter alia, negligent in supervising Father

Diaz while he was employed as a priest. In their bill of

particulars, Respondents alleged that the Diocese was negligent

in failing to have “proper and effective procedures for preventing

—E—E

3

further acts [of sexual abuse] in the event that any do occur,”

and in continuing to employ Father Diaz after “it knew or should

have known that he had in fact engaged in sexual acts with

minors ...” (R 122). Respondents alleged that actual and

constructive notice of Father Diaz’s sexual abuse “was given to

the defendant DIOCESE through statements made by the infant

Respondents to priests at St. Leo’s Church and at Our Lady of

Sorrows Church both in Queens, N.Y.” and “through the

defendant JIMENEZ as agent and employee of the church.”

(R 128-129). Respondents admit, however, that no one other

than Father Diaz and the infant Respondents were ever present

when any alleged abuse took place. (R 121).

PRIOR PROCEEDINGS

The Diocese moved to dismiss Respondents’ complaint on

the grounds that the claims against the Diocese violated the First

Amendment of the Constitution in that they would infringe upon

the Diocese’s right to practice its religion, would require the

trier of fact to decide matters of religious doctrine and

governance, and would excessively entangle the court in matters

of religion. The trial court sustained Respondents’ claims for

negligent hiring and supervision, finding that the tortious acts

of Father Diaz were not protected by the First Amendment and

concluding that therefore, “claims based upon the alleged

negligent hiring, testing, supervision, and evaluation of” Father

Diaz were constitutional. (15a).

On appeal, the Appellate Division sustained the legal

sufficiency of Respondents’ fourth and ninth causes of action.'

(11a). The fourth cause of action alleged that the Diocese’s actual

or constructive knowledge that Father Diaz was “a sexual deviant

who was attracted to and who engaged in sexual acts with

1. The Appellate Division dismissed Respondents’ negligent hiring

claim and the supreme court had already dismissed Respondents’ other claims.

4

minors” gave rise to legal duty to protect Respondents from

Father Diaz. (R 24). The ninth cause of action alleged that the

Diocese “negligently retained and failed to properly supervise

and monitor the activities of” Father Diaz. (R 25). The Appellate

Division denied the Diocese’s motion for leave to appeal to the

Court of Appeals by order dated June 4, 1997. (17a-18a).

REASONS FOR GRANTING THE WRIT

This Court should grant the writ to resolve a split among

federal and state courts nationwide on the important question

of whether, consistent with the First Amendment, a secular court

can find a religious entity liable for negligently supervising its

clergy. Resolving this important constitutional issue will turn

upon whether common law rules of negligence are “neutral laws

of general applicability” and whether decisions concerning the

supervision of clergy can be fairly decided without passing upon

matter of religious doctrine and governance.

The issues presented in this case are important to every

religious entity which has clergy. If churches can be held liable

for failing to exercise reasonable care in supervising their clergy,

they will be forced to apply not only the religious rules called

for by religious doctrine, but also secular criteria necessary to

avoid liability. By definition, this infringes upon a church’s

practice of it’s religion since it compels the church to interact

with clergy in ways not required by religious doctrine.

Moreover, whenever the application of religious criteria and

rules produces a different result than the application of

“reasonable care”, the individual clergy’s right to practice

religion may be abridged. Requiring churches and synagogues

to apply secular criteria in retaining and supervising clergy will

also give rise to an entirely new class of litigation — wrongful

discharge of clergy. Finally, assuming these claims violate the

constitutional rights of religious entities, they have no adequate

5

remedy for such violations. Therefore, the writ should be

granted.

There are now a number of state appellate court cases,

including decisions from the highest courts of Colorado,” Ohio,?

Oklahoma,‘ and Wisconsin,* which have reached conflicting

decisions on whether, and under what circumstances, a church

can be liable for negligently hiring or supervising its clergy.

Those courts that have found negligent hiring or supervision

claims constitutional have concluded that such claims can be

decided upon “neutral principles of law”. Those courts that

have found negligent hiring or supervision claims

unconstitutional have concluded that such claims require courts

to pass upon questions of religious governance and doctrine.

None of them have decided or discussed whether common law

negligence rules are neutral laws of general applicability.

The Appellate Division’s decision in the present case

contributes yet another twist to the issue. Unlike the motion

2. See Destefano v. Grabrian, 763 P.2d 275, 287-288 (Colo.

1988)(diocese may be liable for failure to supervise priest who engaged in

sexual relations with parishioner during marital counseling); Moses v. Diocese

of Colorado, 863 P.2d 310, 320-321 (Colo. 1993), cert. denied, U.S. _,

114 S. Ct. 2153 (1994)(sustaining negligent hiring claim relying upon

DeStefano)

3. See Byrd v. Faber, 565 N.E. 2d 584 (Ohio 1991)(church may be liable

for negligent hiring).

4. See Guinn v. The Church of Christ of Collinsville, 775 P.2d 766,

783-785 (Okla. 1989)(upholding jury verdict against church for publication

of private facts about former member by church’s elders).

5. See L.L.N. v. Clauder, 563 N.W. 2d 434 (Wis. 1997); Pritzlaff v.

Archdiocese of Milwaukee, 533 N.W. 2d 780, 789-791 (Wis. 1995), cert.

denied, __ U.S. __, 116 S. Ct. 920 (1996).

6

court and Colorado’s courts, the Appellate Division correctly

ruled that the acts of the Diocese, not Father Diaz’s acts were in

issue. Yet, although it acknowledged that “(o}rdination to the

priesthood confers a religious, not legal status, and may be

characterized as a ‘quintessentially religious’ matter,” it

nevertheless rejected the notion that “requiring increased

supervision of Jimenez or the termination of his employment

by the [Diocese] would violate any religious doctrine or inhibit

any religious practice”. (6a, 9a)

Moreover, the Appellate Division erred in refusing to apply

the compelling interest test since common law negligence claims

require an individualized assessment of the reasons for the

conduct undertaken. Indeed, instead of analyzing the Diocese’s

arguments that negligence claims are neither neutral nor

generally applicable, the court simply deemed that common law

rules of negligence are neutral and generally applicable. (9a)

Finally, if a claim that a church negligently supervised its

clergy is an unconstitutional infringement upon the church’s First

Amendment rights, the church suffers a continuing violation of

its rights whenever it is sued for such claims. The Diocese

respectfully submits that churches have no adequate remedy for

such violations of their constitutional rights. Therefore, a writ

should be granted to resolve the issue.

7

I.

PLAINTIFFS’ NEGLIGENT SUPERVISION CLAIM

IS NEITHER NEUTRAL NOR GENERALLY

APPLICABLE.

This Court has held that facially neutral laws of general

applicability do not violate the free exercise clause.® In Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah,’ however,

this Court reasoned that where the law requires “ ‘individualized

governmental assessment of the reasons for the relevant

conduct,’ ” the absence of a religious exemption must be justified

by a compelling state interest. The Diocese respectfully submits

that common law negligence rules are not neutral generally

applicable laws because they require an individualized

assessment of the facts and circumstances to determine whether

supervision was reasonable.

As this Court noted in Smith, the compelling interest test

“was developed in a context that lent itself to individualized

governmental assessment of the reasons for the relevant

conduct.”* Whether an employer exercised reasonable care in

supervising an employee requires an analogous particularized

assessment of the employer’s reasons for the degree of

supervision it exercised.

In the course of such an assessment, the employer is

generally permitted to show the process by which it assessed

the nature and extent of any danger posed by the employee,

6. See Employment Div. v. Smith, 494 U.S. 872, 878 (1990).

7. 508 U.S. 520 (1993).

8. 494 U.S. at 884.

8

including assessments of the employee’s character and

reputation. In the case of clergy, however, such an assessment

would necessarily be colored by religious belief because the

religious nature of the calling.

A religion’s doctrines and beliefs will necessarily be woven

into a religion’s practices and procedures for supervising clergy

because clergy serve a purely religious function. Thus, unless

the trier of fact assumes the-validity of the beliefs upon which

the practice is based, no fair assessment of the reasonableness

of the conduct can be reached.

Priests, for instance, take vows of celibacy. If a jury is

permitted to pass upon whether the church was reasonable in

relying upon this vow in assessing the danger posed by a priest,

it must pass upon the power of that vow. If the jury is not

permitted to consider the church’s reliance on the vow, the church

is deprived of relevant and material evidence in support of the

reasonableness of its supervision. In either case, a fair

assessment is constitutionally impossible.

Similarly, the redemptive power of prayer and of confession

and absolution are articles of faith in the Roman Catholic

Church. If one believes in the power of confession, it might be

reasonable to believe that because a priest has confessed to past

sexual abuse and renewed his vow of celibacy, no further action

is necessary. If one does not so believe, the mere suggestion

might be conclusive proof of negligence. The Diocese

respectfully submits that because negligent supervision claims

require an individualized assessment of its reasons for

supervising a priest in a particular manner, such claims violate

it’s constitutional right to practice religion.

9

Il.

PLAINTIFFS’ NEGLIGENT SUPERVISION CLAIMS

WILL REQUIRE A JURY TO DECIDE WHETHER THE

CHURCH COMPLIED WITH ITS PROCEDURES.

In the case at bar, plaintiffs’ pleadings allege that the

Diocese was negligent in failing comply with Canon Law in

supervising Father Diaz. More generally, whether an employer

violated its own internal rules regarding supervision or whether

the employer’s degree of supervision varied from the supervision

exercised by other employers in the industry, is admissible

evidence in negligent supervision claims. When the employer

is a church, however, this evidentiary rule violates constitutional

rights.

A civil court may not decide the propriety of a church’s

religious determinations, nor may it decide whether a church

employed proper religious practices and procedures in reaching

its determinations.® In Serbian Eastern Orthodox Diocese v.

Milovojevich, the courts of Illinois resolved a dispute over church

property by purporting to resolve a religious dispute over

whether a Bishop had been properly defrocked.'° This Court

reversed, reasoning that courts may not adjudicate matters of

“church polity and church administration,” since to do so would

violate the First Amendment’s prohibition against resolving

questions of religious doctrine.'' This Court ruled that courts

may not inquire into the validity of church proceedings, since

9. See Serbian Eastern Orthodox Diocese v. Milovojevich, 426 U.S.

696 (1976); Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. |

(1929).

10. 426 U.S. at 708.

11. Jd. at 710.

10

“an inquiry whether the decisions of the highest ecclesiastical

tribunal of a hierarchical church complied with church laws and

regulations,” is an unconstitutional intrusion upon the church’s

First Amendment rights."

Plaintiffs’ main theory of liability is rooted in religious

doctrine and governance. Plaintiffs contend that since every

priest is endowed with “powers and authority,” by virtue of his

office, the Diocese has a corresponding duty to exercise

reasonable care in its supervision and hiring of clergy. In order

to assess the “powers and authority” which flow from the status

of being a priest, however, the court and the jury would have to

interpret a religion’s doctrine and principles of governance in

violation of the First Amendment rights of the church.

More generally, evidence that would be material and

relevant to any negligent supervision claim would also violate a

church’s constitutional rights. Plaintiffs could not prove

negligence by showing that a church failed to abide by its own

internal rules and procedures. Nor could there be proof that the

rules and procedures of a church were similar to or different

from the rules and procedures of other churches.

Moreover, any duty to exercise reasonable care in hiring

and supervising clergy based upon their trusted status impinges

upon the privacy and free exercise rights of clergy.'® In Bishop

of San Diego, plaintiff claimed she had been molested by a priest

and that the diocese was liable because it had a duty to inquire

about any prospective priest’s sexual history. Plaintiff also

contended that the church had a duty to supervise priests

“because it places them in a unique position of trust and

12. Id. at 713.

13. See Roman Catholic Bishop of San Diego v. Superior Court, 42

Cal. App. 4th 1556, __, 50 Cal. Rptr. 399, __ (Ct. App. 1996).

Abb AR Fibs. Sain nik bight hi. ree ne ee

1]

confidence” and argued that the duty to supervise extends to

sexual conduct because priests take a vow of celibacy.'* The

California Court of Appeals dismissed plaintiff’s complaint

against the church.

The Court noted that the vow of celibacy, which plaintiff

claimed lulled her into a false sense of security, was a religious

belief which “does not create a civil duty.” The Court reasoned

that recognizing plaintiff’s supervision claim would, in effect,

“compel affirmation of a religious belief” in violation of a

priest’s free exercise rights.'° The Court also reasoned that

plaintiff’s hiring claim should not be recognized since to do so

would require the church to engage in inquiries which might

violate a priest’s right to privacy.'”

14. 42 Cal. App. 4th at __, 50 Cal. Rptr. at__.

15. 42 Cal. App. 4th at__, 50 Cal. Rptr. at __.

16. 42 Cal. App. 4th at__, 50 Cal. Rptr. at _.

17. 42 Cal. App. 4th at ___, 50 Cal. Rptr. at__.

12

CONCLUSION

Plaintiffs’ claims in this cases infringe upon the Diocese’s

First Amendment rights by imposing liability for violating

church procedure and practice and by requiring the Diocese to

adopt secular employment practices for purely religious

personnel. Because these claims present important constitutional

issues upon which the courts of several states have disagreed,

the Diocese respectfully requests that the writ be granted.

Respectfully submitted,

JOSEPH H. FARRELL

Counsel of Record

JONATHAN UEJIO

CONWAY FARRELL, CURTIN

& KELLY, P.C.

Attorneys for Petitioner

63 Wall Street, 14th FI.

New York, New York 10005

(212) 785-2929

la

APPENDIX A — DECISION OF THE SUPREME COURT

OF THE STATE OF NEW YORK, APPELLATE DIVISION,

SECOND JUDICIAL DEPARTMENT

DATED MARCH 3, 1997

[654 N.Y.S.2d 791]

KENNETH R. et al., Respondents, v ROMAN CATHOLIC

DIOCESE OF BROOKLYN, Appellant, et al., Defendant.

Second Department, March 3, 1997

SUMMARY

APPEAL from so much of an order of the Supreme Court

(James H. Shaw, J.), entered December 11, 1995 in Kings

County, as, in an action to recover damages, inter alia, for the

negligent hiring, supervision, and retention of a priest who was

employed by defendant Catholic Diocese, denied those branches

of defendant’s cross motion pursuant to CPLR 3211(a)(7) to

dismiss the fourth, fifth, sixth, seventh, eighth, ninth, and

eleventh causes of action of the amended complaint sounding,

inter alia, in negligent hiring, negligent retention, and negligent

supervision.

HEADNOTES

Negligence — Negligent Hiring — Liability of Catholic

Diocese for Acts of Sexual Abuse Committed by Priest —

Freedom of Religion

1. Defendant Roman Catholic Diocese may not be held

vicariously liable under the theory of negligent hiring for the

acts of sexual abuse committed against the infant plaintiffs by a

priest who was ordained in Venezuela in 1977 and came to the

Diocese in 1983 with a letter of reference. Under these

2a

Appendix A

circumstances, defendant was not responsible for the

codefendant priest’s ordination and, irrespective of whether

liability could ever be imposed for ordination to the priesthood

without violating the constitutional or Statutory guarantees of

free exercise of religion and separation of church and State, the

causes of action alleging that defendant failed to screen or

determine the codefendant’s fitness for the priesthood must be

dismissed. Similarly, the cause of action alleging that defendant

Should have initiated some investigations of the codefendant

priest before hiring him to work in a church under its control

must also be dismissed. The documentary evidence in the record

establishes that defendant did not and could not have known of

the codefendant’s propensities to sexually abuse children when

he arrived from Venezuela with a letter of reference. Since

defendant had no reason to believe that there was any problem,

it cannot be charged with negligence for failing to investigate

further. Moreover, imposing a special duty to inquire as to

backgrounds of priests as a class has no legal basis, and carries

with it discriminatory overtones against individuals merely

because they have been ordained to the priesthood.

Negligence — Negligent Supervision and Retention —

Liability of Catholic Diocese for Acts of Sexual Abuse

Committed by Priest — Freedom of Religion

2. Although defendant Roman Catholic Diocese may not

be held vicariously liable under the theory of negligent hiring

for the acts of sexual abuse committed by one of its ordained

priests, it may, however, be held liable for negligent retention

and supervision if it acquired actual or constructive knowledge

of the codefendant priest’s propensity to sexually abuse children.

Imposition of liability under such circumstances would not

violate constitutional or statutory guarantees of free exercise of

3a

Appendix A

religion and separation of church and State. There is no

indication that requiring increased supervision of the

codefendant priest or the termination of his employment based

upon his conduct would violate any religious doctrine or inhibit

any religious practice. Furthermore, the Religious Freedom

Restoration Act of 1993, which provides that if a law of general

applicability substantially burdens the free exercise of religion,

such application must be in furtherance of a compelling State

interest and must constitute “The least restrictive means of

furthering that compelling governmental interest” (42 USC

§ 2000bb-1 [b] [2], is inapplicable since there is no indication

that the level of supervision exercised over the codefendant

priest, or his retention in the Diocese’s employ, was dictated by

any religious doctrine. Moreover, while the First Amendment

to the United States Constitution prohibits regulation of religious

beliefs, conduct by a religious entity remains subject to

regulation for the protection of society. Religious entities have

some duty to prevent injuries inflicted by persons in their employ

whom they have reason to believe will engage in injurious

conduct. Accordingly, plaintiffs’ causes of action sounding in

negligent supervision and retention are sufficient to withstand a

motion to dismiss the complaint.

* * *

APPEARANCES OF COUNSEL

Conway, Farrell, Curtin & Kelly, P.C., New York City

(Jonathan Uejio of counsel), for appellant.

Kenneth Litwack, Bayside (Robert Litwack of counsel), for

respondents.

4a

Appendix A

OPINION OF THE COURT

GOLDSTEIN, J.

At issue here is whether the plaintiffs have stated causes of

action against the appellant Roman Catholic Diocese of

Brooklyn sounding in negligent hiring, negligent retention, and

negligent supervision. We find that their allegations with respect

to negligent retention and negligent supervision are sufficient

to withstand the appellant’s cross motion to dismiss the

complaint pursuant to CPLR 3211(a)(7), but that they do not

have a cause of action to recover damages for negligent hiring.

The plaintiffs’ amended complaint alleges that, “on or about

or between July 13, 1983, and August 31, 1989”, the appellant’s

codefendant, Enrique Diaz Jimenez, an ordained Roman

Catholic priest, sexually abused the infant plaintiffs. Enrique

Diaz Jiminez pleaded guilty to sexual abuse in the third degree

based upon this conduct. However, as noted by the Supreme

Court, that conduct did not fall within the scope of his

employment and therefore the appellant is not-vicariously liable

for his conduct under the theory of respondeat superior (see,

Cornell v State of New York, 46 NY2d 1032; Mercer v State of

New York. 125 AD2d 376). Consequently, the Supreme Court

granted those branches of the appellant’s cross motion which

were to dismiss the first and second causes of action insofar as

asserted against it. The Supreme Court also dismissed the

plaintiffs’ third cause of action sounding in clergy malpractice,

and their tenth cause of action alleging that the appellant created

a “climate and custom” of indifference to sexual abuse. Those

rulings are not before us on this appeal.

In instances where an employer cannot be held vicariously

Sa

Appendix A

liable for its employee’s torts, the employer can still be held

liable under theories of negligent hiring, negligent retention,

and negligent supervision (see, Hall v Smathers, 240 NY 486;

Restatement [Second] of Torts § 317. However, a necessary

element of such causes of action is that the employer knew or

should have known of the employee’s propensity for the conduct

which caused the injury (see, e.g., Park v New York Cent. &

Hudson Riv. R. R. Co., 155 NY 215; Gallo v Dugan, 228 AD2d

376; Mataxas v North Shore Univ. Hosp., 211 AD2d 762; Detone

v Bullit Courier Serv., 140 AD2d 278; Di Cosala v Kay, 91 NJ

159, 450 A2d 508; Restatement [Second] of Agency § 213,

comment d).

When considering an application to dismiss a cause of action

pursuant to CPLR 3211(a)(7), “the criterion is whether the

proponent of the pleading has a cause of action, not whether he

has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275;

see, Leon v Martinez, 84 NY2d 83; Rovello v Orofino Realty

Co., 40 NY2d 633, 636). Generally, such a determination can

be made from the factual allegations in the four corners of the

complaint (see, Guggenheimer v Ginzburg, supra, at 275; Foley

v D’Agostino, 21 AD2d 60, 64-65. Evidentiary material may be

considered to “remedy defects in the complaint” (Rovello v

Orofino Realty Co., supra, at 636), “and, unless it has been

shown that a material fact as claimed by the pleader to be on is

not a fact at all and unless it can be said that no significant

dispute exists regarding it”, dismissal may not be predicated on

such evidentiary material (Guggenheimer v Ginzburg, supra, at

275).

There is no statutory requirement that causes of action

sounding in negligent hiring, negligent retention, or negligent

supervision be pleaded with specificity (see, Jones v Trane, 153

_——— ae

6a

Appendix A

Misc 2d 822, 831; cf, CPLR 3016; Byrd v Faber, 57 Ohio St 3d

56, 61, 565 NE2d 584, 589). However, a complaint which

contains bare legal conclusions and/or factual claims which are

“flatly contradicted by documentary evidence” should be

dismissed pursuant to CPLR 321 1(a)(7) (Corporate Natl. Realty

v Philson Ltd., _. AD2d __, __, 1996 NY Slip OP 09496 [2d

Dept, Oct. 21, 1996]; see, e.g., Doria v Masucci, 230 AD2d __,

1996 NY Slip Op 07469 [2d Dept, Aug. 12, 1996]; Lovisa Constr.

Co. v Metropolitan Transp. Auth., 198 AD2d 333).

The plaintiffs’ amended complaint alleges that the appellant

“had prior knowledge or should have known that the defendant

Jimenez was a sexual deviant” and therefore was negligent in

hiring, supervising, and retaining him. The plaintiffs further

contend that the appellant failed to “establish proper guidelines

and procedures”, failed to “properly screen and hire applicants

to the priesthood”, and “failed to have Defendant Jimenez

examined psychiatrically and/or psychologically to determine

his fitness for serving in the capacity as a Roman Catholic

priest”.

Certain undisputed facts emerge from the documentary

evidence in the record. The codefendant Jimenez was ordained

a Roman Catholic priest in 1977, in Venezuela. He came to

Roman Catholic Diocese of Brooklyn in 1983, with a letter of

reference from the Archbishop of Merida, Venezuela, and was

assigned to work in St. Leo’s Church.

Ordination to the priesthood confers a religious, not legal

status, and may be characterized as a “quintessentiall; religious”

matter (Serbian Orthodox Diocese v Milivojevich, 426 US 696,

720). Imposing liability for conferring that status would create

serious concerns of excessive entanglement in religious affairs,

7a

Appendix A

in violation of the First Amendment of the United States

Constitution (see, Pritzlaff v Archdiocese of Milwaukee, 194 Wis

2d 302, 327, 533 NW2d 780, 790, cert denied__ US __, 116 S.

Ct. 920; see also, Rayburn v General Conference of Seventh-

day Adventists, 772 F2d 1164, cert denied 478 US 1020; Downs

v Roman Catholic Archbishop of Baltimore, 111 Md App 616,

683 A2d 808).

However, the question of whether liability could ever be

imposed for ordination to the priesthood need not be determined

here since the only entity of the Roman Catholic Church sued

by the plaintiffs is the appellant Roman Catholic Diocese of

Brooklyn which the amended complaint alleges “is a corporation

duly licensed to do business in the State of New York”. Thus,

pursuant to the allegations in the amended complaint, the

appellant is a separate entity (see generally, Heenan v Roman

Catholic Diocese, 158 AD2d 587). The plaintiffs assert no facts

from which one could infer that the appellant was responsible

for Jimenez’s status as a Roman Catholic priest, since he was

ordained in Venezuela by officials of the diocese there.

Accordingly, the fifth and eighth causes of action, alleging that

the appellant failed to screen or determine Jimenez’s fitness for

the priesthood, must be dismissed.

With respect to negligent hiring, the documentary evidence

in the record establishes that the appellant did not and could not

have known of Jimenez’s propensities when he arrived here from

Venezuela with a letter of reference. The plaintiffs allege that

the appellant should have initiated some investigations of

Jimenez before hiring him to work in a church under its control.

The question of whether there is such a common-law duty is a

question of law for the courts (see, D’Amico v Christie, 71 NY2d

76; Eiseman v State of New York, 70 NY2d 175, 199).

a

8a

Appendix A

There is no common-law duty to institute specific

procedures for hiring employees unless the employer knows of

facts that would lead a reasonably prudent person to investigate

the prospective employee (see, Ford v Gildin, 200 AD2d 224,

226-227; Stevens v Lankard, 31 AD2d 602, affd 25 NY2d 640;

Amendolara v Macy’s N.Y., 19 AD2d 702; cf., Rhames v

Supermarkets Gen. Corp., 230 AD2d __, 1996 NY Slip Op

07515 [2d Dept, Aug. 12, 1996]). Since Jimenez came to the

appellant with a letter of reference from his Archbishop, which

gave the appellant no reason to believe there was any problem,

the appellant cannot be charged with negligence for failing to

investigate further (see, Lopez v Burns Intl. Detective Agency,

48 AD2d 645; Roman Catholic Bishop of San Diego v Superior

Ct., 42 Cal App 4th 1556, 50 Cal Rptr 2d 399; Kennedy v Roman

Catholic Diocese, 921 F. Supp 231).* Accordingly, the plaintiffs’

sixth cause of action, alleging “failure to establish proper

guidelines and procedures”, and the plaintiffs’ seventh cause of

action, alleging that the appellant “was negligent in hiring

Jimenez”, must be dismissed.

In their bill of particulars, the plaintiffs allege that the

appellant acquired actual or constructive notice of the

codefendant Jimenez’s propensity to sexually abuse children

from “statements made by the infant plaintiffs to priests at St.

Leo’s Church and Our Lady of Sorrows Church”, and from the

codefendant Jimenez himself. Allegations in a “bill of particulars

* The plaintiffs allege in their bill of particulars that certain unspecified

“studies” have been published “showing the existence of ongoing problems

in the priesthood relating to sexual activity with children thereby raising a

duty to inquire”. However, imposing a special duty to inquire as to

backgrounds of priests as a class has no legal basis, and carries with it

discriminatory overtones against individuals merely because they have been

ordained to the priesthood (see generally, McDaniel v. Paty, 435 US 618).

EO —

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.

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9a

Appendix A

are to be taken into account in considering the sufficiency of

the challenged causes of action” (Moore v Johnson, 147 AD2d

621; see, Nader v General Motors Corp., 25 NY2d 560, 565).

If, as the plaintiffs allege in their bill of particulars, the infant

plaintiffs and/or Jiminez himself made statements to other priests

at St. Leo’s Church or Our Lady of Sorrows Church giving them

notice of Jimenez’s conduct, the plaintiffs may have causes of

action sounding in negligent retention and negligent supervision.

Pursuant to prevailing case law, as a general rule, imposition of

such liability would not vioiate constitutional and statutory

guarantees of free exercise of religion and separation of church

and State.

It is well settled that generally, “a law that is neutral and of

general applicability need not be justified by a compelling

governmental interest even if the law has the incidental effect

of burdening a particular religious practice” (Church of Lukumi

Babalu Aye v City of Hialeah, 508 US 520, 531; see, Employment

Div. v Smith, 494 US 872). Some cases have indicated that the

First Amendment to the United States Constitution may be

asserted as a defense if the defendant’s conduct that caused the

plaintiff’s injury finds its basis in religious beliefs and practices

(see, Wisconsin v Yoder, 406 US 205, 215-216; Konkle v Henson,

672 NE2d 450 [Ind App]; Destefano v Gabrian, 763 P2d 275,

283 [Colo]). Here, however, there is no indication that requiring

increased supervision of Jimenez or the termination of his

employment by the appellant based upon Jimenez’s conduct

would violate any religious doctrine or inhibit any religious

practice (see, Swaggart Ministries v Board of Equalization, 493

US 378; L.L. N. v Clauder, 203 Wis 2d 570, 552 NW2d 879).

The enactment of the Religious Freedom Restoration Act

of 1993 (42 USC § 2000bb et seq.) does not alter this analysis.

10a

Appendix A

That statute provides that if a law of general applicability

substantially burdens the exercise of religion, such application

must be in furtherance of a compelling State interest and must

constitute “the least restrictive means of furthering that

compelling governmental interest” (42 USC § 2000bb-1 [b] [2]).

However, that statute only applies if the free exercise of religion

is “ ‘substantially’ burdened” (Geisindky v Village of Kings Point,

226 AD2d 340, 341) because the activities in question are

motivated by religious beliefs (see, Mack v O’Leary, 80 F3d

1175, 1178; Bryant v Gomez, 46 F3d 948, 949: Matter of

Salahuddin v Coughlin, 222 AD2d 950, cert denied = oa

117 S Ct 317). As previously noted, there is no indication that

the level of supervision exercised over Jimenez, or his retention

in the appellant’s employ, was dictated by any religious doctrine.

Indeed, it appears from the record that Jimenez’s employment

relationship with the appellant was ultimately terminated, and

his requests for additional employment were denied (cf., Schmidt

v Bishop, 779 F Supp 321, 331).

Moreover, while the First Amendment to the United States

Constitution prohibits regulation of religious beliefs, conduct

by a religious entity “remains subject to regulation for the

protection of society” (Cantwell v Connecticut, 310 US 296,

304; see, Employment Div. v Smith, 494 US 872, supra;

Destefano v Grabrian, 763 P2d 275, 283, supra). The First

Amendment does not grant religious organizations absolute

immunity from tort liability (see, Konkle v Henson, 672 NE2d

450, 456; supra; Moses v Diocese of Colo., 863 P2d 310, 319

[Colo]). Therefore, religious entities must be held accountable

for their actions, “even if that conduct is carried out as part of

the church’s religious practices” (Meroni v Holy Spirit Assn.

for Unification of World Christianity, 119 AD2d 200, 203).

Religious entities have some duty to prevent injuries inflicted

lla

Appendix A

by persons in their employ whom they have reason to believe

will engage in injurious conduct (see, Konkle v Henson, supra,

at 456; L.L.N. v Clauder, 203 Wis 2d 570, 552 NW2d 879, supra;

Erickson v Christenson, 99 Ore App 104, 109, 781 P2d 383,

386-387; Gallas v Greek Orthodox Archdiocese, 154 Misc 2d

494, 499-500; Jones v Trane, 153 Misc 2d 822, 830-831, supra).

Therefore, the plaintiffs’ fourth and ninth causes of action,

sounding in negligent supervision and retention, and the eleventh

cause of action, asserting a derivative claim, are sufficient to

withstand a motion to dismiss the complaint pursuant to CPLR

3211.

Accordingly, the order should be modified, on the law, by

deleting the provisions thereof which denied those branches of

the appellant’s cross motion which were to dismiss the fifth,

sixth, seventh, and eighth causes of action, and substituting

therefor provisions granting those branches of the cross motion.

MILLER, J.P., JOY and ALTMAN, JJ., concur.

Ordered that the order is modified, on the law, by deleting

the provisions thereof which denied those branches of the

appellant’s cross motion which were to dismiss the fifth, sixth,

seventh, and eighth causes of action, and substituting therefor

provisions granting those branches of the cross motion; as so

modified, the order is affirmed, insofar as appealed from, without

costs or disbursements.

12a

APPENDIX B — ORDER OF THE SUPREME COURT OF

THE STATE OF NEW YORK, COUNTY OF KINGS

DATED DECEMBER 11, 1995

At an IAS Term, Part 12 of the

Supreme Court of the State of New

York, held in and for the County of

Kings, at the Courthouse, at Civic

Center, Brooklyn, New York, on the

11th day of December, 1995

PRESENT:

HON. JAMES H. SHAW, JR.

Justice.

Index No. 20178/90

KENNETH ROSA, by his mother and natural guardian DIANA

ROSA, KEVIN ROSA, by his mother and natural guardian

DIANA ROSA, BERNARD ROSA, by his mother and natural

guardian, LOURDES ROSA, DIANA ROSA, and LOURDES

ROSA,

Plaintiffs,

-against-

THE ROMAN CATHOLIC DIOCESE OF BROOKLYN and

ENRIQUE DIAZ JIMENEZ,

Defendants.

The following papers numbered 1 to 10 read on this motion:

13a

Appendix B

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed ................s0000e 1,2,3,4

Opposing Affidavits (Affirmations) ...............++ 5,6,7,10

Reply Affidavits (Affirmations).............sscesseee 8,9

* * *

Upon the foregoing papers, the motion by plaintiffs for an

order “to deem issues resolved” (essentially, for an order of

preclusion), the motion by plaintiffs for an order imposing

sanctions upon the attorneys for defendant Roman Catholic

Diocese of Brooklyn (“Diocese”), the cross motion by said

defendant for an order imposing sanctions against plaintiffs’

attorney, and the cross motion by said defendant for an order

dismissing plaintiffs’ complaint, pursuant to CPLR 3211(a)(7),

are consolidated for decision herein and, upon consolidation,

the motions and cross motions are denied, except to the extent

of dismissing the first, second, third, and tenth causes of action.

Plaintiffs, as parents and natural guardians of several

children, allege that a priest assaulted three of them. As a result

of such misconduct, plaintiffs assert eleven causes of action,

including claims for assault, intentional infliction of emotional

distress, clergy malpractice, and negligence.

In its cross motion seeking dismissal of the complaint,

defendant Diocese contends that all of plaintiffs’ claims against

it must be dismissed either because liability may not be imposed

14a

Appendix B

under the doctrine of respondeat superior or because such claims

would require a definition of a standard of care for the clergy

which would run afoul of the prohibition against excessive

entanglement in religion inherent in the First Amendment of

the United States Constitution.

An employer may be liable for the acts of an employee,

whether negligent or intentional, if the acts complained of are

within the scope of employment and in furtherance of the

employer’s business (Noto v. St. Vincent’s Hosp. & Med. Ctr.,

160. 02d 656, 656-57, lv denied 76 NY2d 714). In this case,

however, the alleged assault was not within the scope of

employment and cannot be said to have been in furtherance of

the employer’s business (see, Joshua S. v. Casey, 206 AD2d 839).

Accordingly, the first and second causes of action — alleging

liability under the doctrine of respondeat superior — must be

dismissed. Further, the court is unaware of any authority

supporting the proposition advanced by plaintiffs that sexual

abuse by a member of the clergy is cognizable as “clergy

malpractice.” Therefore, plaintiffs’ third cause of action must

also be dismissed (see, Joshua S. v. Casey, supra).

In plaintiffs’ tenth cause of action they allege that the

Diocese “was indifferent to a known pattern of sexual

misconduct by certain priests under its control” and that such

indifference created “a climate” which proximately caused the

assaults herein. A claim predicate upon “indifference”

(especially to the alleged conduct of individuals other than

defendant Enrique Diaz Jimenez) does not strike this court as

viable. It is likewise dismissed.

With respect to the remaining causes of action, as the court

noted in Jones v. Trane (153 Misc 2d 822), there is obviously

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15a

Appendix B

no suggestion that the misconduct alleged is a part of the tenets

and practices of the Roman Catholic Church or that restraint on

it by the imposition of civil liability would in any way intrude

on the free exercise of religion to an extent protected by the

First Amendment. In view of the allegations of both actual and

constructive notice that are set out in the complaint, it would be

inappropriate at this juncture to dismiss plaintiffs’ claims based

upon the alleged negligent hiring, testing, supervision, and

evaluation of Enrique Diaz Jimenez. Consequently, with respect

to the remaining causes of action, the cross motion by defendant

Diocese is denied.

In their motion and cross motion seeking various sanctions

because of the Diocese’s alleged failure to respond to discovery

demands, plaintiffs argue that said defendant’s attorneys have

“engaged in a pattern of deception, delay and harassment” to

thwart legitimate inquiry into the background of a wayward

priest. In opposition to the motion and in its own cross motion

seeking sanctions, defendant’s attorneys contend that the

Diocese has provided whatever documents are in its possession

and that plaintiffs’ attorney has cavalierly defamed them and

their client.

Plaintiffs suggest that records may have been destroyed or

may exist in Venezuela or may be maintained by two local

parishes in Brooklyn. Firstly, there is no indication that records

were destroyed and, in fact, canonical law cited by plaintiffs

provides for destruction of certain records only after ten years

has passed, which has not been the case. Secondly, even if

relevant records exist in Venezuela (and there is no reference in

the documents produced to any written memorandum), defendant

obviously has no control over them. Lastly, while the local

parishes may possess records to which plaintiffs would be

l6a

Appendix B

entitled (and which the Diocese may not, for some reason, have),

the court notes that those parishes have been named as

defendants in a related action and may themselves (within the

context of that action) be required to produce them. The court

also notes that many of the discovery requests by plaintiffs

involve communications which may have been made subsequent

to the filing of criminal charges and, therefore, they may not be

discoverable.

After the passage of time that these motions and cross

motions have unfortunately been pending, it is difficult to discern

what pre-trial proceedings have transpired. Accordingly, this

order is not meant to foreclose additional discovery demands,

as long as they are material and relevant to the issues herein.

Defendant Diocese has provided both the court and plaintiffs

with a lengthy compilation of all of the documents it possesses

regarding defendant Enrique Diaz Jimenez. Such documents,

which are incorporated in a “Response to Court Order of August

26, 1993” and an “Enrique Diaz Jimenez File For In Camera

Review,” include an affidavit by the Chancellor of the Diocese

to the effect that “there are no other documents of any nature,

relating to Father Diaz, maintained by the Diocese of Brooklyn

which have not been produced.” In the face of such a statement

and the documents which have been proffered, the motions by

plaintiffs must be denied.

Given the frustration encountered by plaintiffs in dealing

with criminal charges, civil procedure, and ecclesiastical law,

sanctions against them (or their attorney) are likewise

unwarranted.

ENTER,

s/ James H. Shaw, Jr.

ja,

17a

APPENDIX C — DECISION AND ORDER OF THE

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION, SECOND JUDICIAL

DEPARTMENT DATED JUNE 4, 1997

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION:

SECOND JUDICIAL DEPARTMENT

SONDRA MILLER, J.P.

DANIEL W. JOY

MYRIAM J. ALTMAN

GLORIA GOLDSTEIN, JJ.

96-00474

Kenneth R. (anonymous), et al.,

respondents,

Vv

Roman Catholic Diocese of Brooklyn, appellant, et al.,

defendant.

DECISION & ORDER ON MOTION

Motion by the appellant for reargument of an appeal from

stated portions of an order of the Supreme Court, Kings County,

dated December 11, 1995, which was determined by opinion

and order of this court dated March 3, 1997, or, for leave to

appeal to the Court of Appeals from the opinion and order of

this court.

18a

Appendix C

Upon the papers filed in support of the motion and the papers

filed in opposition thereto, it is

ORDERED that the motion is denied, with $100 costs.

MILLER, J.P., JOY, ALTMAN and GOLDSTEIN, JJ., concur.

ENTER

Martin H. Brownstein

Clerk

June 4, 1997