No. WD 59922Missouri Court of Appeals, Western District.
December 31, 2002
Appeal from the Circuit Court of Jackson County, The Honorable Thomas C. Clark, Judge.
Ray Sousley, Kansas City, for Appellant.
James P. Tierney, Kansas City, for Respondent.
John Michael Waldeck, Kansas City, for Defendants.
Before Paul M. Spinden, Presiding Judge, Patricia A. Breckenridge, Judge, and Thomas H. Newton, Judge.
PER CURIAM.
This case involves the sexual assault of A.B. by the youth minister at the church that she attended. She and her parents, M.B. and R.B., sued the church, Liberty United Methodist Church, and others. The jury returned a verdict in favor of the Bs against the church on the ground that it intentionally failed to supervise the youth minister, Kyle Godsey. The circuit court entered judgment for the church notwithstanding the verdict. We affirm the circuit court’s judgment.
On December 15, 1996, several individuals who attended the church found A.B. and Godsey hiding together under the church chancel. They were playing hide-and-seek. The next day, Godsey submitted a letter of resignation to the church’s senior pastor, Glen Wiggs, in which he said:
I am having some problems of an extremely personal nature. I believe they are interfering with my job and my emotional state. I do not wish to discuss it with you right now, nothing against you, I just don’t know how to address it. I haven’t done anything wrong, but I find myself wanting to and that’s bad enough. I’ve never had this struggle before, but for some reason it’s come upon me and I must deal with it before I hurt someone. I can’t risk that. I think I already have caused some tension among the youth and a few parents. I desperately need to take some counseling or other treatment to solve these issues.
Due to the nature of my troubles, I believe it’s time for me to take a break from my job here at LUMC. I love you and I love the people of the church. Because I love and care about you folks so much I have to go. This is not going to be easy for any of us, but it needs to happen. I’m scared, really scared.
Please consider this my two weeks notice. I would like to leave quietly and without fanfare. I’ll call you next week to discuss how we can handle this peacefully.
On December 17, 1996, the day after receiving the letter, Godsey met with Wiggs and Spencer Fields, the head of the church’s staff and parish relations committee. Godsey informed them that this was the second time that he had been found hiding under the chancel with A.B., but assured them that nothing sexually inappropriate had happened. Neither Wiggs nor Fields believed that Godsey posed a threat to the church’s youth.
Wiggs and Fields did not accept Godsey’s resignation. After discussion, Godsey decided to withdraw his resignation and to continue his service as youth minister. Wiggs and Fields imposed several conditions on his continuing as youth minister, including an apology to A.B. and others aware of the chancel incident, stopping the play of hide-and-seek, and undergoing professional counseling to be arranged by Wiggs.
After Wiggs made arrangements for it, Godsey agreed to consult John Larsen, a licensed psychologist with the Midwest Christian Counseling Center. He consented to Larsen’s divulging to Wiggs and Fields information regarding their sessions and his treatment. Godsey attended an evaluation session with Larsen on December 31, 1996, but he did not return the following week for his scheduled appointment. He feared that Larsen was more concerned about whether his hide-and-seek experience with A.B. was an incident that Larsen was obligated to report to authorities than with his treatment. Godsey requested that he be allowed to undergo treatment with a psychologist and psychiatrist of his own choosing. Wiggs and Fields consented. Neither, however, ever obtained the names of whom Godsey was consulting or obtained reports concerning his treatment. Wiggs met regularly with Godsey and obtained his assurances that he was continuing to be seen by his doctors. Fields likewise asked Godsey how he was progressing but less regularly than Wiggs did.
In the meantime, on multiple occasions during January and February 1997, Godsey sexually assaulted A.B. at the church and at a youth retreat center when he was supervising the youth in a weekend trip. The assaults continued until February 23, 1997. The following day, Godsey learned that A.B.’s mother, R.B., had spoken with Wiggs and Fields to express concern over a number of lengthy telephone conversations between Godsey and A.B. Godsey attempted suicide, was placed on administrative leave, and did not return to the church as youth minister.
The Bs sued several individuals on various grounds. By the time of trial, their only claims were negligent failure to warn against Larsen and Midwest Christian Counseling Center and intentional failure to supervise against Liberty United Methodist Church. The jury rendered its verdict for Larsen and Midwest Christian Counseling Center but against the church in the amount of $620,000. The Bs and the church filed motions for new trial, which the circuit court denied. The church, however, also filed a motion for judgment notwithstanding the verdict, and the circuit court granted it.
On appeal,[1] the Bs argue that the circuit court erred in entering judgment notwithstanding the verdict because they made a submissible case as to each element of intentional failure to supervise. They argue that neither the First Amendment to the United States Constitution nor existing case law mandated the circuit court’s setting aside of the verdict.
A defendant is entitled to a judgment notwithstanding the verdict only when the plaintiff fails to present a submissible case. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo.banc 1996). A plaintiff makes a submissible case by presenting substantial evidence as to each element of a claim. Kinetic Energy Development Corporation v. Trigen Energy Corporation, 22 S.W.3d 691, 697 (Mo.App. 1999). In determining whether a submissible case has been made, we review the evidence in a way that most favors the plaintiff. Jungerman, 925 S.W.2d at 204. A judgment notwithstanding the verdict is a “drastic action” and “extreme measure,”Kinetic Energy, 22 S.W.3d at 69 , and should, therefore, be granted only when reasonable minds cannot differ as to the disposition of the case Altenhofen v. Fabricor, Inc., 81 S.W.3d 578, 584 (Mo.App. 2002).
Because the issue of submissibility presents a question of law, our review is de novo. Environmental Protection, Inspection, and Consulting, Inc. v. City of Kansas City, 37 S.W.3d 360, 369 (Mo.App. 2000). We will affirm the circuit court’s grant of a judgment notwithstanding the verdict only if we determine that the plaintiff failed to make a submissible case. Id.
The First Amendment provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof[.]” U.S. Const. amend. I. In Gibson v. Brewer, 952 S.W.2d 239
(Mo.banc 1997), the Supreme Court addressed the protection that the First
Amendment affords an ecclesiastical body from a tort action accusing it of failure to supervise one of its clergy accused of sexual misconduct. The court ruled that holding an ecclesiastical body liable for negligence would necessarily require the court to resolve questions of church doctrine, polity, and practice. This, the court said, violated the ecclesiastical body’s freedom under the First Amendment from undue governmental entanglement by passing judgment on the reasonableness of its religious practices. The court, however, drew a line for intentional torts and held that everyone, including an ecclesiastical body, can be held liable for their intentional torts without implicating First Amendment issues. Gibson, 952 S.W.2d at 246-50. “Religious conduct intended or certain to cause harm need not be tolerated under the First Amendment,” the Gibson court concluded. Id. at 248.
The Bs assert that we need not even concern ourselves with the First Amendment and fear of entanglement because Godsey was not an ordained minister or considered by the church to be a member of the clergy. The Bs’ argument is misfocused. While the perpetrator in Gibson was a clergyman, his status as a clergyman was not what implicated the First Amendment. It was the nature of the dispute.
The First Amendment stands as a limitation on the exercise by government, including the judiciary, to assume jurisdiction over disputes that are “sufficiently intertwined with church polity as to constitute a threat of entanglement with religious doctrine or practice.” State ex rel. Gaydos v. Blaeuer, 81 S.W.3d 186, 192 (Mo.App. 2002).
Moreover, the Bs contend for a much too narrow interpretation of “clergy.” The term includes those “authorized to conduct religious services and attend to other religious duties.” Webster’s Third New International Dictionary of the English Language Unabridged 421 (1971). The Bs’ suggestion that Godsey was not a clergyman is simply wrong. Liberty United Methodist assigned him the duties of youth minister, which included conducting Sunday and Wednesday evening youth services, leading worship and Bible study, sharing the children’s story in Sunday morning worship services, and occasionally giving a sermon or homily to the entire congregation.
The Bs argue secondarily that they made a submissible case as to each element of the cause of action. A cause of action for the tort of an ecclesiastical body’s intentional failure to supervise are that (1) a supervisor (or supervisors) exists; (2) the supervisor (or supervisors) knew that harm was certain or substantially certain to result; (3) the supervisor (or supervisors) disregarded this known risk; (4) the supervisor’s inaction caused damage; and (5) the other requirements of the Restatement (Second) of Torts, 317, are met. Gibson, 952 S.W.2d at 248. The “other requirements” of this last element are that the unsupervised person commits an offense on premises that the ecclesiastical body possesses or on which the person was privileged to enter as the body’s servant or is using a chattel belonging to the body Weaver v. African Methodist Episcopal Church, Inc., 54 S.W.3d 575, 581
n. 10 (Mo.App. 2001).
Liberty United Methodist does not dispute that the Bs established the first and fifth elements. It contends that the Bs failed to make a submissible case as to the remaining elements. A plaintiff, of course, must make a submissible case as to each element or judgment notwithstanding the verdict is appropriate. Kinetic Energy, 22 S.W.3d at 697. Therefore, even if we assume that the Bs presented evidence sufficient to support a finding that Godsey posed a risk and that Wiggs and Fields knew that harm was certain or substantially certain to result, the Bs were also required to establish that they disregarded the risk.
We find no dispute in the record that Wiggs and Fields, as Godsey’s supervisors, did not disregard the risk he posed. While reasonable minds may differ as to whether their regard went far enough, they indisputably did something. They imposed conditions on Godsey and arranged for counseling. Hence, the Bs failed to support the third element — that is, that the church disregarded the known risk that Godsey posed.
The Bs, however, refer us to Rhodelander v. Liberty Christian Fellowship, 6 S.W.3d 402, 406 (Mo.App. 1999), where we phrased the third element as “disregard[ing a] known risk by failing to take any action to protect [the plaintiff].” The Bs contends on the basis of Rhodelander that taking action is not enough; the action must be taken to protect the plaintiff. Even if we accept the more narrow recitation of the third element expressed in Rhodelander — one not restated in this court’s most recent decision, Weaver — we would reject the Bs’ contention.
They argue that the jury found that Liberty United Methodist took no action to protect A.B. — that Wiggs’ and Fields’ action was to protect the church or help Godsey rather than protect her. Fields acknowledged that he and Wiggs did not intend for any of the conditions that they imposed on Godsey to protect A.B., but Fields also testified that they put together a course of action that they believed would protect the youth as a whole from any risk. A.B. certainly was part of this group and, thus, was one of those they took action to protect.
We do not see how reasonable minds could draw the distinction that the Bs attempt to draw. This is because the Bs’ interest and the church’s interest were virtually identical. Because the risk that Godsey posed to the church originated from his sexual assault of A.B., any action that Wiggs and Fields took to protect the church would necessarily have had the effect, whether intended or not, of protecting A.B. from Godsey. Similarly, because Godsey was the only person who sexually assaulted A.B., any endeavor to help Godsey refrain from such conduct necessarily constituted an attempt to protect A.B. Thus, the real issue is not whether Wiggs and Fields disregarded the risk by failing to take action to protect A.B., but whether the action that they took went far enough under the circumstances.
In Weaver, we addressed this same cause of action as it pertained to a minister who claimed that she had been sexually harassed by her supervisor, a church elder. Although the minister was not able to establish a right to recover the original damages from her sexual harassment, she argued that she was entitled to recover the damages flowing from the response to the harassment, including the emotional distress that she ultimately suffered from being left under the elder’s supervision. This court disagreed on the basis that Gibson denied us the ability to question the adequacy of the response taken by the church. Th Weaver court said, “Any consideration of whether [the] response to [the] complaint was sufficient, adequate or effective would necessarily involve the applications of principles of reasonableness, i.e., negligence principles. The court in Gibson has, we believe, totally rejected the application of such concepts to hiring, retention and supervision of clergy.” Weaver, 54 S.W.3d at 586.
While the Bs seek the damages they suffered from the sexual assaults rather than from the church’s response to those assaults, the principles of law enunciated in Gibson and summarized in Weaver remain the same. The Bs did not make a submissible case that Wiggs and Fields disregarded a known risk. While we have much doubt as to whether Wiggs’ and Fields’ action was reasonable under the circumstances, we will not — for we cannot — revise the elements of Gibson in a manner that would allow the jury to assess the sufficiency, adequacy, or effectiveness of the response. Id. Assessing the reasonableness of a response to the risk necessarily includes assessing the reasonableness of the supervision. Adjudicating the reasonableness of a church’s supervision of a cleric “requires inquiry into religious doctrine” and “would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision.” Blaeuer, 81 S.W.3d at 197 (quoting Gibson, 952 S.W.2d at 247)).
This opinion should in no manner be regarded as a license for clergy to sexually abuse children. We do not, and must not, tolerate sexual abuse of children in the name of religion. Such conduct is beyond comprehension and arguably not a religious practice by any measure. At the same time, however, we must be equally zealous in protecting First Amendment civil liberties. This, above all else, is the lesson of Gibson. This result is unsettling for this court. We reach it although we are uncomfortable with it because the law compels it.
Because we determine that the Bs failed to make a submissible case, we express no opinion as to whether their claim was barred by Missouri’s constitution, art. I, §§ 5-7, which creates an even higher wall of separation between church and state than does the First Amendment. Paster v. Tussey, 512 S.W.2d 97, 101-02 (Mo. banc 1974), cert. denied sub nom., 419 U.S. 1111 (1975). The judgment notwithstanding the verdict is affirmed.