This appeal is concerned solely with the liability of the appellants, the Ohio Conference of Seventh-day Adventists et al. The claims against Faber are still pending in the trial court, and consequently, are not before us at this time. However, as the appellants’ liability is in several respects dependent upon the liability of their employee, Faber, it is necessary for us to discuss certain aspects of the appellees’ case against Faber. Initially, we must determine whether it is possible for the appellees to bring a claim against Faber for clergy malpractice. If such a cause of action is viable, then it is conceivable that recovery might also be available against the appellants through application of the doctrine of respondeat superior.
In their complaint, appellees allege that Faber “did not exercise the degree of care and skill ordinarily exercised by others of his profession * * *.” This allegation is advanced as a claim separate and distinct from their claims of fraud, intentional infliction of emotional distress, and nonconsensual sexual conduct. In its opinion, the court of appeals assumed that through this allegation, the appellees had stated a valid claim for clergy malpractice. However, our holding in Strock v. Pressnell (1988),
As we noted in Strock, supra, the doctrine of charitable immunity no longer protects religious institutions and other nonprofit organizations from tort liability. Albritton v. Neighborhood Centers Assn. (1984),
However, there is considerable disagreement regarding the potential liability of a member of the clergy for “clergy malpractice.” “Clergy malpractice” has been defined as the failure to exercise the degree of care and skill normally exercised by members of the clergy in carrying out their professional duties. In Strock v. Pressnell, supra, we held that in order to generate a cause of action for “clergy malpractice,” the cleric’s behavior must “fall outside the scope of other recognized torts.” Id. at 212,
The appellees’ claim for clergy malpractice does not address any aspect of the clergy-communicant relationship not already actionable. The gravamen of their complaint is that Faber forced Garnet Byrd to engage in sexual conduct with him. For this activity, Faber may be found liable not only for nonconsensual sexual conduct, i.e., battery, but also for fraud and intentional infliction of emotional distress. In essence, through the creative use of tort law, appellees may recover several times for the same injury. To then allow recovery for clergy malpractice on the basis of this same conduct would be to grant a redundant remedy. Appellees have not named any activity engaged in by Faber for which recovery in tort is not available. Hence, under Strock, supra, there is no basis for recognizing their claim for clergy malpractice, either against Faber, or, through application of the doctrine of respondeat superior, against the appellants.
We move now to the appellees’ claims for nonconsensual sexual conduct, fraud, and intentional infliction of emotional distress. If the appellees are able to prove any of these claims as against Faber, then they may be able to recover against the appellants through application of the doctrine of respondeat superior. This case differs from Strock, supra, where the plaintiff was unable to recover from the employer because he had no underlying claim against the employee. As we stated in Strock, “[i]t is axiomatic that for the doctrine of respondeat superior to apply, an employee must be liable for a tort committed in the scope of his employment.” Id. at 217,
However, close examination of the appellees’ complaint and of the principles of respondeat superior liability reveals that the appellees have failed to state a viable claim against the appellants. As noted above, the gravamen of the appellees’ complaint is that Faber engaged in nonconsen-sual sexual conduct with Garnet Byrd. Without this allegation, the appellees would have no basis for claiming that Faber engaged in fraud or the intentional infliction of emotional distress; without it, their complaint would have no factual basis. Consequently, in order to determine whether the appellants may be liable for the alleged wrongs of Faber, we must decide whether a church may be held liable under the doctrine of respondeat superior for nonconsensual sexual conduct between a pastor and a parishioner.
It is well-established that in order for an employer to be liable under the doctrine of respondeat superior, the tort of the employee must be committed within the scope of employment. Moreover, where the tort is intentional, as in the case at bar, the behavior giving rise to the tort must be “calculated to facilitate or promote the business for which the servant was employed * * Little Miami RR. Co. v. Wetmore (1869),
However, the employer would not be liable if an employee physically assaulted a patron without provocation. As we held in Vrabel v. Acri (1952),
These general principles have been specifically applied when analyzing the liability of religious organizations for the activities of individual clerics whom they employ. In Milla v. Tamayo (1986),
“It would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church. * * * Similarly, appellant has not pointed out any fact which could lead this court to the conclusion that the Archbishop ‘ratified’ the concupiscent acts of the priests.” Id. at 1461,
Another district of the California Court of Appeals reached a similar conclusion in Scott v. Central Baptist Church (1988),
The doctrine of respondeat superior is similarly inapplicable in the case at bar. The Seventh-day Adventist organization in no way promotes or advocates nonconsensual sexual con
The appellees have similarly failed to state a claim for negligent hiring on the part of the appellants. Count Five of their complaint states in pertinent part: “The Defendant employees [sic] knew, or should have known of the inclination for Defendant Faber to commit such actions and was reckless or negligent in allowing said Defendant to assume the position of pastor in Knox County, Ohio* * *.” The trial court held that this language failed to state a claim against the appellants. The court of appeals reversed, but did not engage in a separate discussion of the negligent hiring claim, choosing instead to conflate this issue with the issue of respondeat superior liability.
Under Ohio law, when a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988),
In Mitchell, supra, the plaintiff filed an intentional tort claim against an employer after an employee was fatally shot while working alone in the employer’s store at night. The plaintiff claimed that the employer knew or should have known that its employees were subject to armed robberies and other violent acts and that the employer had wilfully and intentionally failed to provide protection. Although the plaintiff advanced this allegation in his complaint, he included no facts to support it. In granting the defendant’s Civ. R. 12(B)(6) motion to dismiss, this court stated, “[unsupported conclusions that appellant committed an intentional tort are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion.” (Emphasis sic.) Id. at 193,
A heightened standard of pleading is also required when a plaintiff brings a claim for fraud. Civ. R. 9(B) states that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” The chief purpose of this rule is to protect defendants from unfounded charges of wrongdoing which may injure their reputations. See In re Commonwealth Oil/Tesoro Petroleum Corp. Securities Litigation (W.D. Tex. 1979),
We hold today that as with fraud claims and intentional tort claims against employers, greater specificity in pleading is required when a claim is brought against a religious institution for negligent hiring due to the myriad First Amendment problems which accompany such a claim. In order to survive a Civ. R. 12(B)(6) motion to dismiss, a plaintiff bringing a negligent hiring claim against a religious institution must plead operative facts with particularity. See Mitchell, supra, at 194,
As with fraud claims and intentional tort claims against employers, an important principle underlies our decision to require that the plaintiff plead operative facts with particularity. In order to determine whether a religious organization has exercised due care in hiring, it is necessary to examine its employment policies and practices. In all probability, these policies will be infused with the religious tenets of the particular sect involved. If the state becomes involved in assessing the adequacy of these standards, serious entanglement problems may arise under the First Amendment. See, e.g., Lemon v. Kurtzman (1971),
Applying this standard to the case at bar, we hold that the trial court was correct in dismissing the appellees’ complaint for failure to state a claim. The appellees alleged no fact indicating that Faber had a past history of criminal or tortious conduct about which the appellants knew or should have known. In fact, beyond discussing Faber’s conduct toward Mrs. Byrd, the appellees do not discuss any of his activities either before or after he was hired. They do not refer to any fact within the knowledge of the appellants which should have prevented them from employing Faber. Appellees’ complaint merely recites the elements of a negligent hiring claim and then seeks recovery. As the appellees have alleged no fact suggesting that the appellants were negligent in hiring Faber, the trial court was correct in dismissing their complaint as to the appellants for failure to state a claim.
For reason of the foregoing, the judgment of the court of appeals is reversed.
Judgment reversed.
Notes
Specifically, we held in Mitchell, supra, in the syllabus, that “a claim of intentional tort against an employer will be dismissed as failing to establish that the pleader is entitled to relief unless the complaint alleges facts showing that the employer: (1) specifically desired to injure the employee; or (2) knew that injury to an employee was certain or substantially certain to result from the employer’s act and despite this knowledge, still proceeded. * *