Lead Opinion
The plaintiffs, Holly Berry and Heather Berry, appeal orders of the Superior Court (Groff, J.) dismissing their claims. We affirm.
I
The plaintiffs brought an action for damages against the defendants, Watchtower Bible & Tract Society of New York, Inc. (Watchtower); the Wilton Congregation of Jehovah’s Witnesses (Wilton Congregation); and their father, Paul Berry, for injuries from sexual and other abuse allegedly committed by Berry. Although it is unclear from the record whether Berry remains a defendant, he is not involved in this appeal.
The plaintiffs’ claims against Watchtower and Wilton Congregation are based upon allegations that their mother, Sara Poisson, informed certain elders of the Wilton Congregation about the purported abuse, and that they failed to report it to law enforcement authorities and improperly counseled Poisson about how she should handle the alleged abuse. Specifically, the plaintiffs alleged that Watchtower and Wilton Congregation were negligent in failing to report the suspected abuse (Count I); breached their fiduciary duties by failing to report it (Count II); breached their common law duties by failing to report the abuse as required by RSA 169-C:29 (2002) (Count III); and engaged in willful concealment of the abuse (Count IV).
Watchtower and Wilton Congregation moved for summary judgment on all claims, asserting, among other things, that: (1) the religious privilege identified in RSA 516:35 (1997) and New Hampshire Rule of Evidence 505 (Rule 505) precluded them from making disclosure of any confidential information obtained from the plaintiffs’ parents; (2) they had no common law or fiduciary duty to protect the plaintiffs from abuse; and (3) the reporting statute, RSA 169-C:29, did not create a private right of action.
Relying upon Marquay v. Eno,
In November 2008, the trial court ruled that all conduct complained of by the plaintiffs, whether sounding in common law negligence or deceit, fell under the heading of “clerical malpractice” and that it would be a violation of the Establishment Clause of the First Amendment for the court to “review and interpret church law, policies, or practices in the determination of the claims.” (Quotation omitted.) Accordingly, all remaining claims against Watchtower and Wilton Congregation were dismissed. This appeal followed.
II
The plaintiffs raise several issues, including: (1) whether the elders in the Wilton Congregation were required to report the alleged abuse pursuant to the child abuse reporting statute, RSA 169-C:29; (2) whether Jehovah’s Witness elders are “clergy” for purposes of the evidentiary religious privilege, see RSA 516:35; N.H.R. Ev. 505; (3) whether the religious privilege applies when the communication is a non-private communication made in the presence of third parties; (4) whether Watchtower and Wilton Congregation owe a common law duty to the plaintiffs to take remedial action to protect them; (5) whether the reporting statute supersedes the religious privilege; (6) whether an inquiry into the conduct of Watchtower and Wilton Congregation to discover those actions taken in relation to the plaintiffs’ alleged abuse violates the religious privilege; and (7) whether such an inquiry violates the Establishment Clause’s rule against judicial intervention in ecclesiastical disputes.
Some of the plaintiffs’ claims were disposed of by summary judgment and some were dismissed by the trial court. “In reviewing a grant of summary judgment, we look at the affidavits and other evidence, and all inferences properly drawn therefrom, in the light most favorable to the
Ill
Sara Poisson and Paul Berry were married in 1980 and moved to Greenville in 1984. Poisson’s daughter, Holly, was born of a prior marriage in 1978. Poisson and Berry’s daughter, Heather, was born in 1982. Both Poisson and her husband were practicing Jehovah’s Witnesses.
In the Jehovah’s Witness faith, elders are selected by the governing body of the local congregation to be the congregation’s spiritual leaders. Elders are lay people who do not have any formal religious training or education. They hold secular employment and are not compensated for their work as elders. As elders they are responsible for meeting with individual members of the congregation when requested to do so and working with them to identify problems and provide spiritual counsel. In the Wilton Congregation, at any given time, there were five to ten elders.
The plaintiffs allege that Poisson approached the elders seeking spiritual advice because she and her husband were having marital problems, which included verbal, mental and physical abuse. In response to her requests, the elders provided the couple with spiritual advice and assistance, which included joint prayers, Bible readings, and discussion of the Scriptures for application to their identified problems. According to Poisson, she reported to the elders on ten to twelve separate occasions that her husband was abusing their children. The plaintiffs further allege that “[i]n accord with directions to publishers, policies and practices of the organization of Jehovah’s Witnesses, the elders ... told the Plaintiffs’ mother she should keep the matter within the organization of Jehovah’s Witnesses.” In 2000, Berry was convicted of sexually assaulting Holly when she was a young child. State v. Berry,
The plaintiffs argue that the plain language of RSA 169-C:29 required elders of the Wilton Congregation to report the suspected child abuse to law enforcement authorities. Watchtower and Wilton Congx-egation argue that the plaintiffs presented no evidence that the elders had reason to suspect sexual abuse or physical injury and further that RSA 169-0:29 does not provide a civil remedy for their failure to report suspected abuse.
RSA 169-C:29 provides:
Any physician, surgeon, county medical examiner, psychiatrist, resident, intern, dentist, osteopath, optometrist, chiropractor, psychologist, therapist, registered nurse, hospital personnel..., Christian Science practitioner, teacher, school official, school nurse, school counselor, social worker, day care worker, any other child or foster care worker, law enforcement official, priest, minister, or rabbi or any other person having reason to suspect that a child has been abused or neglected shall report the same in accordance with this chapter.
An “abused child” includes children who have been sexually abused, or physically or psychologically injured. RSA 169-C:3 (2002). The trial court held that
to the extent the plaintiffs’ claims of negligence are premised on the duty of the defendants to report the allegations or admissions of child abuse, the plaintiffs’ action must be dismissed. The Elders were barred by the Religious Privilege from disclosing any of the allegations or admissions to anyone and thus no duty to report the allegations could have arisen.
We concur with the trial court that the child abuse reporting statute does not give rise to a civil remedy for its violation. Failure to comply with the statute is a crime and “[alnyone who knowingly violates any provision ... [is] guilty of a misdemeanor.” RSA 169-C:39. The reporting statute does not, however, support a private right of action for its violation. Marquay,
The plaintiffs further contend that Watchtower and Wilton Congregation had a common law duty to take remedial action to protect the plaintiffs due to a special relationship, a fiduciary relationship and/or the special circumstances of this case. While acknowledging that, in general, a person has no affirmative duty to aid others, the trial court analogized this case to the limited circumstances in which a person has a duty to prevent foreseeable harm to a third party and applied a balancing test to determine whether such a duty should be placed on Watchtower and Wilton Congregation. Under the facts of this case, the court declared that such a duty placed “little burden” upon them, requiring “only common sense advice to the church member and a reporting of the abuse to the authorities.” The trial court concluded that the social importance of protecting the plaintiffs from sexual abuse outweighed the importance of immunizing the defendants from extended liability.
Whether a duty exists in a particular setting is a question of law. Iannelli v. Burger King Corp.,
The plaintiffs argue that a special relationship existed between them and Watchtower and Wilton Congregation because “[they] and their family were members of the Wilton Congregation and relied to their detriment on elders of the congregation for moral, spiritual and practical guidance.” In addition, the plaintiffs argue that “knowing that [Jehovah’s Witness] adherents were admonished not to speak to secular authorities upon the pains of disfellowship, Defendants in this case facilitated ‘an especial temptation and opportunity for criminal misconduct’ by refusing to report the abuse themselves.”
Under the RESTATEMENT (SECOND) OF TORTS § 314A (1965), “special relationships” giving rise to a duty to aid or protect individuals from the criminal acts of others “are those of common earrier/passenger, innkeeper/guest, landowner/invitee and one who is required by law to take
In Marquay, a special relationship between students and certain school employees giving rise to a duty of care was recognized because of the compulsory character of school attendance, the expectation of parents and students for and reliance upon a safe school environment and the general importance to society of education. Marquay,
There are no factors present that establish any special relationship between the plaintiffs and Watchtower or Wilton Congregation. See Roman Catholic Bishop v. Superior Ct.,
We also disagree with the plaintiffs’ assertion that special circumstances exist in this case such that an especial temptation and opportunity for Berry’s criminal misconduct was created by Watchtower and Wilton Congregation. There is no allegation that the elders created
The special circumstances exception should never be triggered by the mere failure of a citizen to report actual or suspected criminal conduct to law enforcement authorities or by a citizen’s improper advice concerning an appropriate response to complaints of criminal activity. Otherwise, the general rule which imposes no duty on citizens to prevent the criminal acts of third parties will be swallowed up and civil liability unreasonably extended. The dissent suggests that if the elders had counseled Poisson to report the abuse to secular authorities they would have satisfied their common law duty to the plaintiffs, even if Poisson did not follow their advice. Apparently, knowledge by the elders of alleged criminal conduct and a failure to report it would not be sufficient to create civil liability but failure to dispense proper advice to the person disclosing the conduct would be. Poisson, however, had her own independent and overarching duty to protect her children from abuse perpetrated by her husband and had a common law obligation to intervene regardless of any advice she received. No special circumstances exist in this case to justify civil liability against Watchtower or Wilton Congregation.
In both Iannelli and Remsburg, on which the dissent relies, the defendants were engaged in commercial activity and were held to have a duty to prevent foreseeable criminal activity directed either to patrons on their premises or to individuals about whom they were selling otherwise private or hard-to-gather information. In both cases the defendants exercised control, either over commercial property or information they sold to third parties. Their activities and conduct created a condition or enhanced a foreseeable risk of criminal conduct which they could independently and affirmatively control. Ianelli,
In the case before us, the elders were not similarly situated. They, in their roles as church leaders, learned of alleged criminal activity happening on property Wilton Congregation did not own or control and occurring solely between family members. The elders did not create the risk of harm to the children nor control its cessation or continuation. Although their positions in the Wilton Congregation invested them with a strong moral obligation to do all reasonably possible to stop the abuse, it would be inappropriate to transform a moral obligation into a common law duty.
The common law narrowly defines those responsible civilly for failure to prevent criminal assaults by third parties. If mere knowledge of alleged criminal conduct or imprudent advice offered in response to a disclosure or discovery can create a “special circumstance,” then close friends, neighbors and extended family will find themselves at risk of civil liability for situations they did not create and over which they exercise no control. Without sufficient control that would give rise to a duty, a private citizen should be immune from civil liability for failure to prevent criminal acts of others.
RSA 169-C:29 requires certain persons to report suspected child abuse to law enforcement authorities. While we are not called upon here to determine the extent of that requirement, this is generally a sufficiently effective mechanism to protect victims and it would be unwise to expand the current limits of civil liability imposed upon private citizens to effect what the criminal law already requires.
Finally, the plaintiffs argue, in reliance on Marquay v. Eno, that Watchtower and Wilton Congregation owed them a fiduciary duty of care when the elders became aware of the purported abuse by their father. We do not agree that Marquay identified a fiduciary duty. Rather, we held that the school was liable for the criminal acts of certain of its employees because the school had breached a common law duty based upon the principle that “schools share a special relationship with students entrusted to their care.” Marquay,
Because we hold that Watchtower and Wilton Congregation have no common law duty to protect the plaintiffs and that the plaintiffs may not bring a private cause of action for the alleged failure of the elders to comply with RSA 169-C:29, we affirm the trial court’s dismissal of the plaintiffs’ action, albeit for different reasons. We need not, therefore, address the remaining arguments.
Affirmed.
Concurrence in Part
concurring in part and dissenting in part. While I agree with the majority that the reporting statute, RSA 169-C:29 (2002), does not give rise to a civil remedy for its violation, and that there was no fiduciary relationship between the plaintiffs and the defendants, I disagree with its conclusion that defendant Wilton Congregation of Jehovah’s Witnesses (Wilton Congregation) had no common law duty towards the plaintiffs. I, therefore, respectfully dissent from that part of the majority opinion.
In Walls v. Oxford Management Co.,
In Dupont v. Aavid Thermal Technologies,
The decision in Remsburg merges what once was the overriding foreseeability exception with the special circumstances exception, which includes situations where there is an especial temptation and opportunity for criminal misconduct brought about by the defendant. This exception follows from the rule that a party who realizes or should realize that his conduct has created a condition which involves an unreasonable risk of harm to another has a duty to exercise reasonable care to prevent that risk from occurring. “Where the defendant’s conduct has created an unreasonable risk of criminal misconduct, a duty is owed to those foreseeably endangered.” Id. (emphasis added).
The status of the overriding foreseeability exception in our case law is not clear. I note, however, that the foreseeability of harm has at least been incorporated into our liability analysis through the special circumstances exception. See Remsburg,
We review motions to dismiss to determine if the plaintiff’s allegations are reasonably susceptible of a construction that would permit recovery. We then engage in a threshold inquiry that tests the facts in the writ against the applicable law. In so doing, we assume the truth of all well-pleaded facts alleged by the plaintiff, construing all inferences in the light most favorable to the plaintiff. Dupont,
The plaintiffs allege the following facts. Holly Berry was born on December 13,1978; she was physically and sexually abused by Paul Berry from 1983 until 1989. Heather Berry was born on May 27, 1982; she was physically and sexually abused by Paul Berry between the ages of three and six.
The Jehovah’s Witness faith encourages its members to report problems among members of the congregation to elders within the organization, and not to secular authorities. During the period when the physical and sexual
Based upon these allegations, I believe that defendant Wilton Congregation had reason to anticipate Berry’s criminal conduct and that it created a situation facilitating Berry’s conduct. Accordingly, I find a duty based upon the special circumstances exception. As noted above, this exception includes when the opportunity for criminal misconduct is brought about by the actions or inactions of the defendant. Iannelli,
The majority notes: “There is no allegation that the elders acted in any way other than by providing spiritual guidance and scriptural advice, at the request of the plaintiffs’ mother.” The majority’s analysis of the special circumstances exception does not address the plaintiffs’ allegation that the elders of the Wilton Congregation instructed Poisson not to report the abuse to secular authorities. I find no meaningful difference, however, between the facts alleged in this case, and the facts of the special circumstances cases relied upon by the majority. See Remsburg,
In this case, the elders of defendant Wilton Congregation not only created an opportunity for Paul Berry to continue abusing the plaintiffs precisely because of their inaction, but actively facilitated the continuing abuse by their instruction to Poisson not to act. Further, the elders instructed Poisson not to report the abuse in the presence of the abuser himself. It is not unreasonable to infer that Berry continued abusing the
The elders of the Wilton Congregation were aware of Poisson’s understanding of the policy against seeking outside help. Yet, despite the numerous reports, made at different times to different elders of the Wilton Congregation, none of them advised her to seek help from secular authorities, and at least some of them instructed her not to seek such help, effectively allowing Paul Berry to continue his pattern of abuse. Because the harm done to the plaintiffs was foreseeable to the Wilton Congregation, and facilitated both by its action and inaction, the Wilton Congregation had a duty to protect the plaintiffs from it.
The majority fears heading down a slippery slope where friends and relatives will face tort liability for giving bad advice. This is an unusual case, however, and I would decide it based upon its facts alone. The facts creating the duty in this case were the elders’ awareness of Poisson’s religious beliefs, the fact that her husband was the one abusing the children, the elders’ knowledge of the abuse over the years, their continued failure to counsel her to seek help, their specific instruction to her not to seek help when she relied upon their guidance and the fact that they did so in Berry’s presence. These special circumstances created an opportunity for Berry to continue abusing the plaintiffs.
Children who are victims of physical and sexual abuse are limited in their ability to protect themselves, especially when their abuser is a parent. The legislature has recognized this fact, and has attached criminal liability to any person who fails to report suspected child abuse, no matter what their connection to the child, if any. See RSA 169-C:29. Recognizing a common law duty to protect children through counseling a parent to seek help, would accurately reflect our collective concern for the vulnerable class of child abuse victims.
The trial court found that, to the extent a common law duty may have existed, the religious privilege barred the defendants from disclosing the abuse. See N.H. R. Ev. 505. The trial court concluded, therefore, that any allegations that the defendants breached their duty by failing to report or disclose the abuse could not stand. The majority does not address whether the defendants were barred from disclosing the abuse by the religious privilege, and I decline to address it as well because I find that Wilton Congregation’s duty could have been satisfied simply by counseling Poisson to report the abuse to secular authorities.
The plaintiffs also claimed, in the aggregate, that the Wilton Congregation was negligent in failing to instruct Poisson to seek help and treatment for the plaintiffs outside the Congregation. The trial court classified these remaining claims as claims for negligent counseling. The
I disagree with the trial court’s characterization of this inquiry. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof____” U.S. Const, amend. I. It is applicable to the States through the Fourteenth Amendment. Cantwell v. Connecticut,
Courts around the country are split on whether civil suits against religious entities or their officials are permitted under the First Amendment. These suits have been brought under many theories, including breach of fiduciary duty, common law negligence, negligent supervision and hiring, and negligent counseling. See Malicki v. Doe,
The defendants make no arguments specific to the State Constitution, but rely upon the Federal Constitution alone. The United States Supreme Court’s cases concerning the Free Exercise Clause
establish the general proposition that 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____ Neutrality and general applicability are interrelated____A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.
Church of Lukumi Babalu Aye, Inc. v. Hialeah,
The Supreme Court has never held that “when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be- free from governmental regulation.” Employment Div., Ore. Dept. of Human Res. v. Smith,
“The Free Exercise Clause is violated only when laws actually conflict with a religion’s specific doctrines and therefore impose penalties either for engaging in religiously motivated conduct or for refusing to engage in religiously prohibited conduct.” Fortin v. Roman Catholic Bishop of Portland,
The defendants in this case have not identified a specific religious doctrine or practice that would be burdened by a recognition of a common law duty to protect the plaintiffs. The defendants have not alleged that they were forbidden from counseling Poisson to seek outside help, or even that the Jehovah’s Witness faith prohibits its members from seeking outside help. Therefore, I would hold that the Free Exercise Clause of the First Amendment does not bar the plaintiffs’ lawsuit, as no central tenet of the faith would be burdened by a finding of a common law duty.
Further, “[a] law, legislatively or judicially created, that would regulate or prevent religiously motivated conduct does not violate the First Amendment if the State’s interests in the law’s enforcement outweighs the burden that the law imposes on the free exercise of religion.” Alberts v. Devine,
State action does not violate the Establishment Clause if: (1) it has a secular purpose; (2) “its principal or primary effect [is] one that neither advances nor inhibits religion”; and (3) it does not “foster an excessive government entanglement with religion.” Lemon v. Kurtzman,
The defendants do not challenge the plaintiffs’ claim upon either of the first two parts of the Lemon test. The United States Supreme Court has recognized, however, that the third part of the test, the entanglement factor, is significant simply as an aspect of the inquiry into the effect of the government action, the second part of the test. Agostini v. Felton,
Nor do I find that it would create a cause of action for clergy malpractice. The definition of malpractice relies upon adherence to professional standards. See Black’s Law Dictionary 971 (7th ed. 1999). There is no need to rely upon any “professional” clerical standard here to discover the Wilton Congregation’s duty in this case. See Morrison,
In Malicki, the Florida Supreme Court rejected a First Amendment bar to tort liability for the negligent conduct of church officials that resulted in harm to the plaintiffs. In its opinion, the court quoted the reasoning of a lower Florida court, which had come to a slightly different conclusion, but whose reasoning I find persuasive: “[J]ust as the State may prevent a church from offering human sacrifices, it may protect its children against injuries caused by pedophiles by authorizing civil damages against a church that knowingly (including should know) creates a situation in which such injuries are likely to occur.” Malicki,
Finally, I would uphold the trial court’s decision that though the statute of limitations, RSA 508:4, I (1997) and RSA 508:8 (1997), had expired by the time that plaintiff Holly Berry filed suit, the discovery rule allowed her to bring suit within three years of the time she discovered, “or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.” RSA 508:4, I. Though the plaintiff was aware of the sexual abuse, she was not aware of