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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 967

## Text

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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|
.
.
:

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

Pg fee ee ee ee Oe ee oe ee eee oe a

Le a FERRO ORNS a) ee eee OPS EE Ee Ne a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1354%3A1. Public record. Not legal advice.