ANALYSIS OF APRIL 29, 2021 SUPREME COURT OPINION
(Posted April 29, 2021) The Supreme Court announces one published ruling today. In Doe v. Baker, the court takes up claims arising from alleged sexual misconduct of a retired church pastor.
The plaintiff was a minor in 2016 when, she alleges, the retired pastor committed acts of sexual battery upon her. The pastor had remained with the Waynesboro church after his 2011 retirement; the complaint alleged that he stayed on as a spiritual advisor to congregants.
The plaintiff alleged that the pastor had a history of inappropriate conduct before and during his active tenure at the church. She claimed that the church and its Overseers – members of its governing body – knew about the pastor’s history but hired and retained him anyway.
A circuit court dismissed the complaint on demurrer – sort of. Today’s opinion notes that the trial court effectively treated a motion for summary judgment as a demurrer. That means that the justices take the same approach.
Today’s ruling represents a mixed result. The appellees win most of the battles, as the Supreme Court affirms the dismissal of most of the counts. But it reverses and remands on three claims. First, it holds that the complaint fails to state a claim for negligent hiring at the time of the pastor’s original hiring in 1996. But to the extent that the complaint alleges negligent hiring or retention after 2011, that claim can go forward. By that point, numerous reports had reached the church to put it on notice of the danger of keeping the pastor on.
Second, the court agrees that the plaintiff stated a claim for vicarious liability. When you read today’s ruling, you’ll read plain skepticism between the lines of Justice McCullough’s opinion for a unanimous court. The court feels constrained by precedent to allow the vicarious-liability claim to go forward. Today’s opinion repeats the musing from the 2019 decision in Our Lady of Peace v. Morgan that it’s hard to see how an employer can be vicariously liable for conduct like rape, because that’s plainly outside the bounds of any reasonable delegation of authority to an employee or agent.
Third, the court sends a claim of negligent infliction of emotional distress back for trial. The court affirms the dismissal of a host of other claims: “willful and wanton negligence, intentional infliction of emotional distress, fraud, and for failure to warn and failure to protect.” It importantly also affirms the dismissal of all claims against individual defendants, ruling that the proper defendant is the church.
Of these claims, the idea of a fraud count struck me as unusual. The plaintiff alleged that the defendants breached a duty to warn congregants, including the plaintiff, about what the defendants knew of the pastor’s misconduct. The basis for this claim is that the plaintiff relied on the church’s silence to her detriment. The justices reject this claim for two reasons. First, there’s nothing in the complaint alleging that the individual defendants intentionally withheld the information. It accordingly can’t be actual fraud.
The second reason will raise some eyebrows: “the defendants did not owe a duty to warn Jane or the other congregants about the complaints against King, so their silence cannot constitute concealment.” For this holding, the court cites a Fourth Circuit decision from 1999 in a breach-of-contract case between two banks. There, the Fourth had held that “Silence does not constitute concealment in the absence of a duty to disclose.”
Applying this ruling in the context of sexual molestation of a juvenile is enough to cause me to squirm just a bit. The Supreme Court today holds that church defendants who know about a pastor’s propensity to commit acts of sexual misconduct owe no duty of disclosure to persons who may be endangered by the pastor. My best guess is that John Q. and Jane Q. Citizen would be surprised by this, even if lawyers understand that there’s judicial precedent for the holding. Those laymen will likely regard this ruling as a way to protect sexual predators.