Murray v. Nazareth Reg'l High Sch.

579 F.Supp.3d 383

William J. MURRAY III, Plaintiff,

v.NAZARETH REGIONAL HIGH SCHOOL f/k/a Nazareth High School, Roman Catholic Diocese of Brooklyn, Xaverian Brothers USA Inc. a/k/a Congregation of St. Francis Xavier, and John Does Nos. 1-10, Defendants.

20-cv-1471 (RJD) (RML)

United States District Court, E.D. New York.

Signed August 25, 2021

Liza Roys, Pro Hac Vice, Houston, TX, Timothy Bearb, Pro Hac Vice, Matthews & Associates, Houston, TX, Pedro De La Cerda, Pro Hac Vice, Tim K. Goss, Pro Hac Vice, Freese & Goss, PLLC, Dallas, TX, Peter W. Smith, Peter W. Smith Law LLC of Counsel to D'Arcy Johnson Day PC, New York, NY, for Plaintiff.

Francis Jarlath Scahill, Scahill Law Group P.C., Bethpage, NY, for Defendant Nazareth Regional High School.

Karen L. Campbell, Lewis Brisbois Bisgaard & Smith LLP, New York, NY, Christopher Louis Donati, Kaitlyn E. Fallon, Lyle S. Zuckerman, Davis Wright Tremaine LLP, New York, NY, for Defendant Xaverian Brothers USA Inc.

MEMORANDUM & ORDER

DEARIE, District Judge

Plaintiff William J. Murray III brings a negligence action against Nazareth Regional High School ("Nazareth"), the Xaverian Brothers USA Inc. (the "Xaverians") and the Roman Catholic Diocese of Brooklyn (the "Diocese"), alleging repeated sexual abuse by George Gardiner, a now-deceased Catholic clergyman also known as Brother Barton.

Nazareth and the Xaverians answered the amended complaint, ECF No. 41, on October 9, 2020. ECF Nos. 45-46. The Diocese moves to dismiss for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). ECF No. 51. The motion is granted.

BACKGROUND

Plaintiff alleges the Diocese is a "Roman Catholic organization and a non-profit religious corporation" in New York with its principal place of business in Brooklyn. (Am. Compl. ¶ 3.) During the relevant period, Nazareth was a private Catholic school located within the Diocese and run by the Xaverian Brothers, another Roman Catholic organization "dedicated to education and having affiliated schools throughout the United States." (Id. at ¶¶ 4-5.)

Plaintiff does not allege he was a parishioner or student of the Diocese; he alleges that Brother Barton, a Xaverian Brother employed by the Diocese, traveled with him to the Diocese for "three to four weeks" in 1967 and abused him on properties "owned and operated" by the Diocese. (Id. at ¶¶ 30-33, 39.) Plaintiff alleges Br. Barton took "hundreds of nude and/or pornographic photos" of him on the Nazareth campus and abused him in "church-provided living quarters," located somewhere in New York City. (Id. at ¶¶ 33, 35-36.) According to the amended complaint, plaintiff originally met Br. Barton two years prior, when plaintiff was twelve years-old attending summer camp in Maryland. (Id. at ¶¶ 30-33.)

According to the amended complaint, as the owner-operator of Nazareth, the Diocese was the "competent ecclesiastical authority" responsible for directing the activities of the School and for intervening and taking corrective action in the event of the sexual abuse of minors. (Id. at ¶¶ 38-39, 46.) Plaintiff alleges the Diocese failed to take such action in his case despite "warning signs" that Br. Barton was abusing him; for instance, singling out plaintiff for private trips and Br. Barton's history of school assignments. (Id. at ¶¶ 84.)

Specifically, plaintiff alleges Br. Barton was transferred five times from one school or diocese to another between 1953 and 1970. (Id. at ¶ 28.) Exhibit C to the Diocese's declaration in support of its motion to dismiss includes a publicly available record of Br. Barton's assignment history, which shows the following:

1953-1957: Mount St. Joseph, Baltimore, MD

1958: St. John's Preparatory School, Danvers, MA

1959-1963: St. Xavier, Louisville, KY

1964-1965: Nazareth HS, Brooklyn, NY

1966-1967: OLGC, Wheaton, MD

1968: Nazareth HS, Brooklyn, NY

1969-1970: Leave of Absence

(ECF No. 53-3 at 12; Am. Compl. ¶¶ 28-29; ECF No. 50 at 3.)

The amended complaint also includes extensive allegations about the alarming history of sexual abuse by clergy and the Catholic Church's failure to act. (Am. Compl. at ¶¶ 17-27.) For instance, citing to a report about the Diocese of Pennsylvania, plaintiff alleges that "the Church" has policies and procedures aimed at keeping child sexual abuse by clergy a secret. (Id. at ¶¶ 23-24.) This allegedly includes transferring a known priest-predator to "a new location where no one will know he is a child abuser," rather than remove him from the priest- or brotherhood. (Id. at ¶ 24(f).) Thus, plaintiff alleges that "Br. Barton's numerous assignments and transfers correspond with ... Defendant Diocese's concurrent knowledge of Br. Barton's sexual abuse of minors." (Id. at ¶ 106.)

DISCUSSION

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim will have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in the plaintiff's favor. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are not enough to survive a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

1. Negligence

Plaintiff asserts a negligence claim against the Diocese, alleging it should be held vicariously liable as Br. Barton's employer and directly liable as a negligent school operator and/or property owner-operator. (Am. Compl. ¶¶ 76-95.) The Diocese argues plaintiff has failed to adequately allege facts to support a negligence claim premised on any of these theories. (ECF No. 52 at 5-14.)

A. Imputed negligence—respondeat superior

Plaintiff alleges the Diocese is vicariously liable for Br. Barton's misconduct during the summer of 1967 at Nazareth and at "church-provided" housing under the doctrine of respondeat superior. (Am. Compl. ¶¶ 60, 77, 95.) The Diocese counters that it cannot be held liable on this theory because (1) Br. Barton was not employed by the Diocese during the relevant period, and (2) even if he were an employee at the time, the alleged abuse was not within the scope of his employment. (ECF No. 52 at 9-12.)

To state a claim for respondeat superior under New York law, a plaintiff must plead facts showing, among other things, that the tortious conduct was undertaken within the scope of employment and was thus in furtherance of the employer's interests. Rosenfeld v. Lenich, 370 F. Supp. 3d 335, 350-51 (E.D.N.Y. 2019) (citing N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 739 N.Y.S.2d 348, 765 N.E.2d 844, 846-47 (2002) ) (citations omitted). When it comes to sexual abuse, New York courts repeatedly have held that it "arise[s] from personal motives" and does not "further an employer's business, even when committed within the employment context." Ross v. Mitsui Fudosan, Inc., 2 F. Supp. 2d 522, 531 (S.D.N.Y. 1998) ; cf. Bouchard v. New York Archdiocese, No. 04-cv-9978 (CSH), 2006 WL 1375232, at *4 (S.D.N.Y. May 18, 2006) (collecting New York cases and noting that clergy sexual abuse is unrelated to the Church's business especially where the conduct "was not a part of any religious or faith-based action").

For purposes of this motion, I construe the amended complaint to allege that defendant was an employee of Nazareth, and thus of the Diocese, during the relevant period. The Diocese argues that plaintiff's allegation that Br. Barton was an employee of the Diocese in the summer of 1967 is in tension with publicly available information showing Br. Barton's assignment history, which plaintiff incorporates by reference in the amended complaint and relies on in opposition to defendant's motion. That information indicates Br. Barton was an employee of Nazareth from 1964-1965 and again in 1968, but an employee of a Maryland diocese in 1967. (ECF No. 53-3 at 12; Am. Compl. ¶¶ 28-29; ECF No. 50 at 3.) Because this is a Rule 12 motion, I accept as true the amended complaint's allegation that Br. Barton was the Nazareth school photographer during the summer of 1967. (Am. Compl. ¶¶ 29, 33.)

However, employee or not, plaintiff still fails to state a claim for negligence under a theory of respondeat superior because the amended complaint does not contain allegations that Br. Barton's sexual misconduct furthered the Diocese's business interests, as required under New York law. This is so whether the abuse occurred at Nazareth, at "church-provided" housing that was funded by the Diocese (which is not clear from the complaint), or both.

B. Direct negligence

Plaintiff also fails to state a negligence claim against the Diocese on the theory that the Diocese owed him a duty of care as school custodian or property owner.

i. Special relationship

Plaintiff fails to state a claim for negligence against the Diocese based on a school-pupil theory because plaintiff acknowledges he was never a student at Nazareth or any school within the Diocese.

In New York, a "special duty is owed to students requir[ing] a school to act when a child, while in its charge, is threatened by the negligence of a third party, and it must make reasonable efforts to anticipate such threats." Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 (N.Y. 1976). As such, schools "will be held liable for foreseeable injuries proximately related to the absence of adequate supervision." Mirand v. City of New York, 84 N.Y.2d 44, 614 N.Y.S.2d 372, 637 N.E.2d 263, 266 (1994). This duty is premised...