Mullen v. Horton , 46 Conn. App. 759 ( 1997 )

Opinion

HEIMAN, J.

The plaintiff appeals from the trial court’s rendering of summary judgment in favor of the defendants. On appeal, the plaintiff claims that the trial court improperly determined that no genuine issue of material fact exists as to whether the defendants, Missionary Oblates of Mary Immaculate, Inc., of New Hampshire and Franco-American Oblate Fathers, Inc., (Oblate institutional defendants) are vicariously liable for the defendant priest’s actions under (1) the doctrine of respondeat superior or (2) the doctrine of apparent authority.¹ We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. The defendant, Joseph A. Horton, was a practicing Roman Catholic priest, ordained by and an agent of the Oblate institutional defendants. Horton was also a practicing psychologist. He maintained an office at the defendant Center for Individual and Group Therapy, P.C., in Vernon (therapy center). Given Horton’s vow of poverty, he gave all of the profits he derived from his psychology practice to the Oblate institutional defendants.

In 1988, Horton was assigned weekly priestly duties at Saint Matthew’s Church in Tolland, where the plaintiff was a parishioner. In August, 1988, the plaintiff sought the professional care and treatment of Horton for psychological, emotional and marital problems. Specifically, she sought counseling from Horton because of his joint status as a psychologist and a Roman Catholic priest associated with her parish.

Horton provided the plaintiff with a combination of pastoral, spiritual and psychological counseling, including psychological discussions, spiritual advice and prayer. The plaintiff received counseling from Horton both at his office at the therapy center, and at his office at the Immaculata Retreat House in Willimantic, a house owned and operated by the Oblate institutional defendants. Beginning in February, 1989, Horton and the plaintiff began a sexual relationship, with sexual contact taking place during the counseling sessions. Horton continued to bill the plaintiff and her insurance company for these counseling sessions in which sexual contact occurred. Sexual contact between Horton and the plaintiff also occurred at church retreats, sponsored and run by the Oblate institutional defendants, where Horton was serving as retreat faculty. Horton and the plaintiffs sexual relations continued for approximately two and one-half years, terminating in February, 1992.

About December 16, 1993, the plaintiff filed a seven count complaint against the defendants. On October 31, 1994, the Oblate institutional defendants filed a motion for summary judgment, arguing that there was no genuine issue of material fact as to whether the Oblate institutional defendants were vicariously liable for Horton’s alleged misconduct under either the doctrine of respondeat superior or the doctrine of apparent authority. Attached to their motion for summary judgment were three sworn affidavits of Oblate priests, and a portion of the plaintiffs deposition. In opposition to the motion for summary judgment, the plaintiff filed her sworn affidavit, a portion of her deposition, and an affidavit of Anne C. Pratt, a licensed Connecticut psychologist. On October 18, 1995, the trial court granted the Oblate institutional defendants’ motion for summary judgment. This appeal followed.

I

The plaintiff first argues that the trial court improperly determined that no genuine issue of material fact exists as to whether the Oblate institutional defendants are vicariously liable for Horton’s actions under the doctrine of respondeat superior. In response, the Oblate institutional defendants argue that because the laws of the Roman Catholic Church and the rules of the Oblate Order expressly prohibit priests from engaging in sexual activity, Horton’s alleged sexual exploitation of the plaintiff could not be within Horton’s scope of employment, nor could it be viewed as a furtherance of the Oblate institutional defendants’ business. We agree with the plaintiff.

“We initially note the standard of review of a trial court decision granting a motion for summary judgment. Practice Book § 384 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to ajudgmentasamatteroflaw . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Budris v. Allstate Ins. Co., 44 Conn. App. 53, 56-57, 686 A.2d 533 (1996). “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995).

Thus, in order to prevail on her challenge to the summary judgment, the plaintiff must provide an evi-dentiary foundation to demonstrate the existence of a genuine issue of material fact as to whether the Oblate institutional defendants are vicariously liable for Horton’s actions, under the doctrine of respondeat superior. “Under the doctrine of respondeat superior, [a] master is liable for the wilful torts of his servant committed within the scope of the servant’s employment and in furtherance of his master’s business. ... A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment. . . . While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master’s business, or was engaged in an abandonment of the master’s business .... Unless [the employee] was actuated at least in part by a purpose to serve aprincipal, the principal is not liable.” (Citation omitted; internal quotation marks omitted.) Glucksman v. Walters, 38 Conn. App. 140, 144, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995).

“When the servant is doing or attempting to do the very thing which he was directed to do, the master is hable, though the servant’s method of doing it be wholly unauthorized or forbidden. If the servant’s disobedience of instructions will exonerate the master, the proof, easily made, virtually does away with the maxim of respondeat superior. . . . That the servant disobeyed the orders of the master is never a sufficient defense. It must be shown further that he ceased to act for the master and in the course of his employment.” (Citation omitted; internal quotation marks omitted.) Son v. Hartford Ice Cream Co., 102 Conn. 696, 700-701, 129 A. 778 (1925).

“Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further the master’s business. . . . But there are occasional cases where a servant’s digression from duty is so clear-cut that the disposition of the case becomes a matter of law.” (Citation omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990).

Viewing the evidence before it in the light most favorable to the plaintiff, the trial court could have reasonably found the following. The Oblate institutional defendants employed Horton to give pastoral counseling to paiishioners, in conjunction with his other priestly duties. The Oblate institutional defendants also employed Horton as a staff psychologist for the annulment tribunal and at a number of religious retreats sponsored by the Oblate institutional defendants. The Oblate institutional defendants enabled Horton to counsel both church personnel and the public at large, by giving him an office in their retreat house. The Oblate institutional defendants benefited from Horton’s pastoral and psychological counseling of their parishioners and clerical personnel. They also benefited monetarily from his clinical psychology practice, because all profits derived from his practice were given to the Oblate institutional defendants pursuant to his vow of poverty. Thus, a trier of fact could reasonably find that Horton’s pastoral and psychological counseling of the plaintiff was well within the scope of his employment for the Oblate institutional defendants and was in furtherance of the Oblate institutional defendants’ business.

Horton’s alleged sexual exploitation of the plaintiff occurred during his church sanctioned pastoral-psychological counseling sessions and while he staffed church retreats. Thus, a trier of fact could reasonably determine that Horton’s sexual relationship with the plaintiff was a misguided attempt at pastoral-psychological counseling, or even an unauthorized, unethical, tortious method of pastoral counseling, but not an abandonment of church business.

Furthermore, a trier of fact could reasonably find that the sexual relations between Horton and the plaintiff directly grew out of, and were the immediate and proximate results of, the church sanctioned counseling sessions. According to the affidavit of the clinical psychologist, Anne Pratt, sexual relations often mistakenly arise out of an emotional therapeutic relationship. This is known as the transference-countertransference phenomenon. Pratt further opined in her affidavit that a transference-countertransference phenomenon arose between the plaintiff and Horton, with the emotional nature of the therapeutic relationship causing the parties to displace feelings and confuse the therapeutic relationship with an intimate sexual relationship.

The present case is similar to Glucksman v. Walters, supra, 38 Conn. App. 140, and Pelletier v. Bilbiles, 154 Conn. 544, 227 A.2d 251 (1967). In Glucksman v. Walters, supra, 142-43, a part-time Young Men’s Christian Association (YMCA) employee responded to a foul in a YMCA basketball game by severely assaulting the man who had fouled him. We concluded that a jury could have reasonably characterized this assault as “a misguided effort” at maintaining order on the YMCA basketball court and, accordingly, we reversed a directed verdict holding the YMCA not vicariously liable for the assault on the basis of respondeat superior. Id., 145-48.

In Pelletier v. Bilbiles, supra, 154 Conn. 544, an employee of a confectionery store, charged with keeping order in the store, assaulted a customer who had thrown a wrapper on the floor. Our Supreme Court held that “[t]he beating of an unruly customer ... is an extremely forceful, although misguided, method of discouraging patrons of the [store] . . . from causing disturbances on the premises in the future. The fact that the specific method a servant employs to accomplish his master’s orders is not authorized does not relieve the master from liability. . . . Also, the fact that the battery . . . may have been motivated by personal animosity . . . does not exonerate the defendant. ... A master does not escape liability merely because his servant loses his temper while he is conducting the master’s business.” (Citations omitted.) Id., 548.

Here, as in Glucksman and Pelletier, the trier of fact could reasonably have found that Horton’s sexual relations with the plaintiff during their pastoral-psychological counseling sessions, were a “misguided effort” at psychologically and spiritually counseling the plaintiff, rather than an abandonment of the counseling. Just as the YMCA employee’s assault on the basketball court in Glucksman, and the employee’s assault on the customer who had littered in Pelletier represented extreme and clearly unauthorized methods of maintaining order and thereby furthering their employers’ business, Horton’s engaging in sexual contact with the plaintiff during counseling sessions also could represent an extreme and clearly unauthorized method of spiritually and emotionally counseling the plaintiff and thereby furthering the church’s business. “The fact that the specific method a servant employs to accomplish his master’s orders is not authorized does not relieve the master from liability.” Id., 548.

The Oblate institutional defendants argue that this case is governed by Gutierrez v. Thorne, 13 Conn. App. 493, 537 A.2d 527 (1988), Brown v. Housing Authority, 23 Conn. App. 624, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991), A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 200, and Nutt v. Norwich Roman Catholic Diocese, 921 F. Sup. 66 (D. Conn. 1995). We are unpersuaded, however, and conclude that the present case is distinguishable from these cases.

In Gutierrez v. Thorne, supra, 13 Conn. App. 496-97, an employee of the commissioner of mental retardation was hired to help retarded persons living in the supervised apartment program with keeping up their apartments, grocery shopping, expense budgeting and performing other aspects of daily living. The employee entered the retarded plaintiffs apartment and repeatedly sexually assaulted her. Id. We affirmed a summary judgment in favor of the employer, the commissioner of mental retardation, holding that “it is clear that [the employee] . . . was engaging in criminal conduct which had no connection to the defendant’s business of providing supervision and training to mentally retarded persons regarding daily living skills. Since there were no facts before the court from which it could conclude that [the employee] was furthering the defendant’s interests, the defendant’s nonliability under a respondeat superior theory was properly determined as a matter of law.” Id., 499.

In Gutierrez, unlike here, a trier of fact could not reasonably have determined that the employee’s brutal rape of the retarded plaintiff in her shower was merely a negligent or misguided attempt at supervising her shopping, cleaning, budgeting and daily living. A trier of fact could not reasonably have determined that the employee’s rape of the retarded plaintiff constituted merely an extreme, unauthorized and disobedient method of supervising her daily living. Rather, the employee’s brutal sexual assault of the plaintiff was clearly an abandonment of his supervising duties.

In Brown v. Housing Authority, supra, 23 Conn. App. 624, a mechanic was driving his employer’s van from one maintenance j ob to another when the plaintiff asked the employee to move his van, which was blocking traffic. The employee refused to move the van, and the plaintiff drove away. The employee then left his job route and followed the plaintiffs car. The employee found the plaintiff and rear-ended his car several times. The plaintiff got out of his vehicle, and the employee grabbed a hammer and struck the plaintiff in the chest. Id.

A trier of fact could not reasonably find that the Brown employee’s abandonment of his maintenance mechanic job responsibilities to pursue and assault the plaintiff was a negligent or misguided effort at maintaining machines, or even an extreme method of traveling from one maintenance mechanic job to another, because “the employee necessarily abandoned his employer’s business to pursue and attack the plaintiff.” Glucksman v. Walters, supra, 38 Conn. App. 148. The employee’s “intentional, criminal acts were in no way connected to the defendant’s business.” Brown v. Housing Authority, supra, 23 Conn. App. 628.

The defendants and the dissent rely on A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 200. In that case Pepperidge Farm entered into a consignment agreement with Anthony Spinelli, granting him an exclusive franchise to distribute Pepperidge Farm bakery products within a specified geographical area. Id., 204. Spinelli began defrauding certain independent grocery stores by charging the stores for goods he did not deliver. Id. Pepperidge Farm was unaware of Spinelli’s scheme and never received any money as a result of it. Id., 205. Spinelli argued that Pepperidge Farm benefited from his fraud because the fraud caused a larger portion of shelf space to be devoted to Pepperidge Farm bakery products, thereby stimulating demand and increasing the likelihood of sales. See id., 207-208. The Supreme Court concluded, however, that “any possible indirect benefit Pepperidge Farm might have received by the increased shelf space was so de minimis that, as a matter of law, it [did] not support a conclusion that Spinelli acted within the scope of his employment and in furtherance of Pepperidge Farm’s business.” Id., 209.

A-G Foods, Inc., is distinguishable from the present case. First, Peppeiidge Farm did not benefit monetarily or otherwise from Spinelli’s fraudulent scheme. Here, however, the Oblate institutional defendants did benefit monetarily from Horton’s misguided counseling of the plaintiff. Second, Spinelli’s intricate, complicated and well thought out fraud scheme could not reasonably be characterized as a misguided or negligent attempt at furthering the distribution of Pepperidge Farm products.

The dissent relies heavily on Nutt v. Norwich Roman Catholic Diocese, supra, 921 F. Sup. 66. First, while a federal District Court opinion is persuasive authority, it is not binding on this court. More importantly, however, Nutt is factually distinguishable from the present case. In Nutt, a parish priest showed pornographic movies to two twelve year old altar boys. Id., 69-70. Then, during various out-of-town trips, the priest repeatedly sexually molested the two minor boys, for a period of over six years. Id. The federal District Court granted the Roman Catholic institutional defendants’ motion for summary judgment, holding that they could not be held liable for the defendant priest’s actions under a doctrine of respondeat superior. Id., 70-71.

While a trier of fact could reasonably find that consensual sexual relations between two adults arising out of emotional, spiritual church sponsored counseling sessions represented a negligent and misguided effort at pastoral counseling, a trier of fact could not reasonably find that a priest’s showing pornographic films to young boys and then criminally sexually molesting them in out-of-town motel rooms merely represented a negligent and misguided effort at pastoral counseling. The facts of Nutt clearly represent a situation in which the priest wholly abandoned his pastoral duties. Thus, Nutt represents one of those exceptional cases in which the servant’s digression from duty is so clear cut that the disposition of the case is a matter of law. See A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 207.

Therefore, on close examination of the specific facts of this case in light of the relevant case law, we conclude that whether Horton’s actions constituted a negligent, disobedient and unfaithful conducting of church business or a complete abandonment of church business represents an issue about which reasonable minds could differ, and thus constitutes a genuine issue of material fact. Thus, we conclude that the trial court improperly granted the Oblate institutional defendants’ motion for summary judgment.

II

The plaintiff next argues that the trial court improperly found that no genuine issue of material fact exists as to whether the Oblate institutional defendants are vicariously liable for Horton’s actions under the doctrine of apparent authority. Specifically, the plaintiff argues that the Oblate institutional defendants held Horton out to the public as a trustworthy, ethical, respectable priest-clinical psychologist, and the plaintiff relied on this representation in choosing to go to Horton for counseling and in trusting and confiding in Horton during the counseling process. Thus, under the doctrine of apparent authority, the Oblate institutional defendants should be vicariously liable for Horton’s negligent, misguided and unethical behavior during his counseling sessions with the plaintiff.

In other states, the doctrine of apparent authority has been used to hold a principal, who represents that another is his servant or agent and thereby causes a third person to rely justifiably on the care or skill of such agent, vicariously liable for harm caused to the third person by the lack of care or skill of his servant or agent. See 1 Restatement (Second), Agency § 267, pp. 578-79 (1958); see also Mehlman v. Powell, 281 Md. 269, 272-75, 378 A.2d 1121 (1977); Sanders v. Rowan, 61 Md. App. 40, 50-58, 484 A.2d 1023 (1984); McClellan v. Health Maintenance, 413 Pa. Super. 128, 135-39, 604 A.2d 1053 (1992). In Connecticut, however, the doctrine of apparent authority has never been used in such a manner. Thus, because we are bound by Connecticut precedent; see Conway v. Wilton, 238 Conn. 653, 658-59, 680 A.2d 242 (1996); Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996); we conclude that the doctrine of apparent authority is inapplicable to this case.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment and for further proceedings in accordance with this opinion.

In this opinion O’CONNELL, C. J., concurred.

1 The plaintiff also argues that the trial court improperly rendered summary judgment on her Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and professional negligence claims. Both the CUTPA and professional negligence claims, however, are fundamentally based on the Oblate institutional defendants’ being held vicariously liable for the defendant priest’s actions. Thus, our resolution of the vicarious liability claim is dispositive of the CUTPA and professional negligence claims.