The lower court decision cannot possibly be upheld in the higher courts, because decisions of higher courts, unlike the former, create precedent; and the precedent that upholding such a decision would establish, would be nothing short of catastrophic for California's legal system**. As the Maine Supreme Court stated in a 1999 decision:
There does not exist a general obligation to protect others from harm not created by the actor. "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Restatement (Second) of Torts § 314 (1965). In other words, the mere fact that one individual knows that a third party is or could be dangerous to others does not make that individual responsible for controlling the third party or protecting others from the danger...
The creation of an amorphous common law duty on the part of a church or other voluntary organization requiring it to protect its members from each other would give rise to "both unlimited liability and liability out of all proportion to culpability." Cameron v. Pepin, 610 A.2d 279, 283 (Me. 1992)
What follows a bit farther below is the Maine Supreme Court decision that the above quote was taken from, reproduced in full for this blog. Take note that the circumstances and claims of the Plaintiff are almost an exact replica, detail for detail, of the Candace Conti case. If the names and locations were removed from both cases, a casual reader would probably have great difficulty distinguishing between them. And yet, interestingly enough, despite the striking similarities, the Maine Supreme Court came to a very different decision on the Bryan case than did the Alameda Superior Court in handling the Conti Case.
**As the blogger NotTheLastWord pointed out after this post first went up: “The Bryan R. v. Watchtower case in Maine does not set binding precedent for the Conti case in California since the Maine case did not go to the US Supreme Court. Cases decided only in State courts do not set binding precedents for cases in other States, although they may provide useful 'persuasive precedent', perhaps because they represent current trends in the law.”I thank the user for bringing this out, especially if I was not clear on my original points. I never meant to imply that the Maine case set binding precedent that a California appellate court must abide by; rather, I intended to make the point that a California appellate court will not itself create such a catastrophic legal precedent in California for the same reason that the Maine Supreme Court refused to create such a precedent in Maine, namely, “The creation of an amorphous common law duty on the part of a church or other voluntary organization requiring it to protect its members from each other would give rise to ‘both unlimited liability and liability out of all proportion to culpability.’” The Bryan v. Watchtower case is cited prominently by Defendants in the Conti case, so an appellate court will take it into consideration, even if only as ‘persuasive precedent.’
MAINE
SUPREME JUDICIAL COURT
Reporter
of Decisions
Decision:
1999 ME 144
Docket:
Cum-98-531
Argued:
May 4, 1999
Decided:October
18, 1999
Panel:
WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, and ALEXANDER, JJ.
BRYAN
R. v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., et al.
SAUFLEY,
J.
[¶1]
Bryan R. alleges that he was sexually abused during several of his adolescent
years by Larry Baker, an adult member of his church. He has obtained a judgment against Baker, but
his complaint against the church and its elders was dismissed by the Superior
Court (Cumberland County, Calkins, J.) for failure to state a claim. He appeals from the judgment dismissing the claims
against the church defendants. We affirm
the judgment.
I.
BACKGROUND
[¶2]
Because this matter was presented to the Superior Court on the church's
motion to dismiss, we take the material allegations of the complaint as
admitted. See McAfee v. Cole, 637 A.2d
463, 465 (Me. 1994). The following facts
were alleged in Bryan's complaint:
[¶3]
The Watchtower Bible and Tract Society is a New York-based nonprofit
corporation, better known as the Jehovah's Witnesses. It is a religious organization. When the events at issue occurred, Robert
Wells, Pat LaBreck, and Bryan's stepfather were "elders" and members
of the "judicial body" of the Augusta congregation of the church,
Larry Baker was an adult member of the church, and Bryan R. and his family were
members of the congregation.
[¶4]
At some time in the past, also while Larry Baker was an adult member of
the church, he molested a minor member of the congregation identified as
"John Doe." The elders of the
Augusta congregation knew that Baker had molested John Doe. Wells, LaBreck, and Bryan's stepfather, in their
roles as the judicial body of the Augusta congregation, decided on the following
response to Baker's actions: (1) they
demoted Baker from "ministerial servant" to "baptized entry
level member"; (2) they "privately rebuked" Baker; and (3) and
they temporarily "forbade Baker from having any contact with minor
members" of the church. The
defendants did not alert the members of the church to Baker's misdeeds.{1}
[¶5]
Eventually, Baker was allowed by the defendants to resume activities as
an ordinary member of the church. Bryan
alleges that Baker was able to earn his trust and confidence because the church
placed Baker in a position of leadership and respect. Bryan was molested by Baker from 1989 through
1992 while Bryan was a teenager and lived next door to Baker. He alleges that his stepfather, who was aware
of Baker's history, nonetheless allowed Baker to spend time alone with Bryan at
his home. As a result of Baker's
repeated sexual abuse, Bryan suffered significant emotional harm necessitating
psychiatric hospitalization.
[¶6]
Bryan filed this action against Baker, the church, and its elders to
recover damages for the injuries he suffered as a result of Baker's assaults on
him. In count I of his complaint, he
alleged that each of the defendants breached a fiduciary duty owed to him as a
member of the congregation; in counts II and III, he alleged that the
defendants were liable to him for negligent infliction of emotional distress
and intentional infliction of emotional distress. Count IV contained Bryan's claim against
Baker for battery, and in count V, Bryan alleged that his stepfather was
individually liable for negligence. The stepfather
was later dismissed from the action pursuant to a joint motion filed by the
parties, thereby resolving count V.
[¶7]
The Watchtower Society, Robert Wells, and Pat LaBreck filed a motion to
dismiss each of the claims against them.
After a hearing, the Superior Court granted the motion, concluding that
Bryan had failed to state a claim, relying on Swanson v. Roman Catholic Bishop
of Portland, 1997 ME 63, 692 A.2d 441.
Bryan's appeal from that judgment was remanded for lack of finality
because the claims against Larry Baker had not yet been adjudicated. The Superior Court, based on a stipulation of
the parties, entered judgment against Baker.
After the entry of judgment against Baker, Bryan appealed from the
court's judgment dismissing the claims against the church defendants. Baker did not appeal the judgment against
him.
II.
DISCUSSION
A. Standard of Review and Claims Asserted
[¶8]
In reviewing the trial court's dismissal of a complaint, we "examine
the complaint in the light most favorable to the plaintiff to determine whether
it sets forth elements of a cause of action or alleges facts that would entitle
the plaintiff to relief" pursuant to a valid cause of action. McAfee, 637 A.2d at 465, quoted in Hamilton v.
Greenleaf, 677 A.2d 525, 527 (Me. 1996)).
"The legal sufficiency of a complaint challenged pursuant to M.R.
Civ. P. 12(b)(6) is a question of law."
Hamilton, 677 A.2d at 527.
[¶9]
Before examining the claims asserted by Bryan, it is instructive to address
those claims that he does not assert. He
does not allege that Baker was an agent or employee of the church. Nor does he claim that Baker occupied any
clerical position such as priest, minister, or pastor. Cf. Swanson, 1997 ME 63, ¶ 13, 692 A.2d at
445.{2} Moreover, the complaint does not
allege that the church affirmatively placed Baker in a position of control and
supervision of children, such as a Sunday school teacher or youth coordinator,
or that the church knowingly placed Baker in a position where he could sexually
abuse children within a church setting.
Rather, Bryan alleges that Baker was "able to earn [Bryan's] trust
and confidence" because of his position of power and authority in the
church.{3} These allegations place Baker
in a relationship to Bryan that was not different in quality from any other
member in good standing of the church.
[¶10] The crux of Bryan's claim is that the church,
because of an alleged special relationship with its members, has a duty to
protect its members from each other, at least when the church and its agents
are aware of a potential danger posed by a member. Because the church elders knew of Baker's
propensity to abuse children, Bryan argues that they had an independent duty to
protect him from Baker.{4} He addresses
that duty through three separate counts.
We address each count in turn.
B. Breach of Fiduciary Duty
[¶11] Bryan bases his first theory of liability on
an alleged duty on the part of the church to protect him from the actions of
dangerous third parties. Whether a
defendant owes a duty of care to a plaintiff is a matter of law for the
court. See McPherson v. McPherson, 1998
ME 141, ¶ 8, 712
A.2d
1043, 1045; Fish v. Paul, 574 A.2d 1365, 1366 (Me. 1990). In determining whether a duty exists, we must
ascertain whether the alleged wrongdoer is "'under any obligation for the
benefit of the particular plaintiff.'"
Trusiani v. Cumberland & York Distribs., Inc., 538 A.2d 258, 261 (Me.
1988) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts §
53, at 356 (5th ed. 1984)).
[¶12] There does not exist a general obligation to
protect others from harm not created by the actor. "The fact that the actor realizes or
should realize that action on his part is necessary for another's aid or
protection does not of itself impose upon him a duty to take such
action." Restatement (Second) of
Torts § 314 (1965). In other words, the
mere fact that one individual knows that a third party is or could be dangerous
to others does not make that individual responsible for controlling the third
party or protecting others from the danger.{5}
[¶13] Indeed, at early common law, inaction or
nonfeasance was seldom actionable. As
commentators have noted, "[l]iability for nonfeasance was . . . slow to
receive recognition in the law."
Keeton, supra, § 56, at 373. Over
decades, however, courts have come to recognize a duty on the part of certain
groups to protect others from harm caused by third parties. "Certain relationships are protective by
nature, requiring the defendant to guard his charge against harm from
others." Id. § 56, at 383.{6} Nonetheless, "in the absence of the
requisite relationship, there generally is no duty to protect others against
harm from third persons." Id. § 56,
at 385.
[¶14] Even with the emergence of expanded liability
for nonfeasance, that principle has remained clear-in instances of
"nonfeasance rather than misfeasance, and absent a special relationship,
the law imposes no duty to act affirmatively to protect someone from danger
unless the dangerous situation was created by the defendant." Jackson v. Tedd-Lait Post No. 75, 1999 ME 26,
8, 723 A.2d 1220, 1221. Only when there
is a "special relationship," may the actor be found to have a common
law duty to prevent harm to another caused by a third party.{7} There is simply "no duty so to control
the conduct of a third person as to prevent him from causing physical harm to
another unless…a special relation exists between the actor and the other which
gives to the other a right to protection." Restatement (Second) of Torts § 315(b)
(1965).{8}
[¶15] Therefore, in order to determine whether the
church owed Bryan a duty of care to protect him from other members of the
church, we must determine whether a special relationship, reviewable by the
secular courts, exists between a church and its members in this context. Bryan asserts that such a relationship does
exist, and he refers to it as a "fiduciary" relationship. "One standing in a fiduciary relation
with another is subject to liability to the other for harm resulting from a
breach of duty imposed by the relation."
Id. § 874. He bases the alleged
fiduciary relationship on the "substantial trust and confidence" he
placed in the church, and alleges that the church breached its fiduciary duty
to him when it failed to warn him about Baker and failed to exert some type of
control over Baker's actions.
[¶16] Thus, we are presented with two
questions: first, whether we would
recognize a cause of action against a voluntary social or religious organization
for breach of a fiduciary duty to protect the organization's members from each
other. Put another way, we must
determine whether a voluntary organization such as a church has a special
relationship with its members that gives rise to a duty to protect those
members from a class of third parties-other members of the organization. Second, we are asked to determine whether
such a cause of action could be maintained against a church in light of the
free exercise protections contained in the First Amendment.
[¶17] On the facts alleged in the complaint, we
conclude that Bryan has failed to plead a fiduciary relationship with sufficient
particularity, and we decline to recognize a general common law duty on the
part of an organization such as a church to protect its members from each
other. Accordingly, we do not reach the
constitutional issue.
[¶18] We begin by addressing the identification of
a fiduciary relationship. Bryan has not
provided any support for his assertion that a religious organization has a
fiduciary relationship with its members that requires it generally to protect
those members from other members of the church who may present a danger. Nor have we ever found a fiduciary relationship
to exist in the circumstances presented here.
We recognize, as have many courts, that it is often difficult to
articulate exactly what proof is required to establish the existence of a
fiduciary relationship in particular circumstances.{9} A fiduciary relationship has been described
as "something approximating business agency, professional relationship, or
family tie impelling or inducing the trusting party to relax the care and vigilance
ordinarily exercised." L.C. v.
R.P., 563 N.W.2d 799, 801-02 (N.D. 1997) (internal quotation and alterations
omitted).
[¶19] We have described the salient elements of a
fiduciary relationship as: (1) "the
actual placing of trust and confidence in fact by one party in another,"
and (2) "a great disparity of position and influence between the
parties" at issue. Morris v.
Resolution Trust Corp., 622 A.2d 708, 712 (Me. 1993). A fiduciary relationship has been found to
exist in several categories of relationship, including business partners, see
Rosenthal v. Rosenthal, 543 A.2d 348, 352 (Me. 1988), families engaged in
financial transactions, see Estate of Campbell, 1997 ME 212, ¶ 9, 704 A.2d 329,
331-32, and corporate relationships, see Moore v. Maine Indus. Servs., Inc., 645
A.2d 626, 628 (Me. 1994); Webber v. Webber Oil Co., 495 A.2d 1215, 1224-25 (Me.
1985).
[¶20] We have noted, however, that a "general
allegation of a confidential relationship is not a sufficient basis for
establishing the existence of one."
Ruebsamen v. Maddocks, 340 A.2d 31, 35 (Me. 1975). As with any duty, its existence must be
informed by "the hand of history, our ideals of morals and justice, the
convenience of administration of the rule, and our social ideas as to where the
loss should fall." Trusiani, 538
A.2d at 261. Although a fiduciary duty
may be based on "moral, social, domestic, or[] merely personal
[duties]," Ruebsamen, 340 A.2d at 34, it does not arise merely because of
the existence of kinship, friendship, business relationships, or organizational
relationships. A fiduciary duty will be
found to exist, as a matter of law, only in circumstances where the law will recognize
both the disparate positions of the parties and a reasonable basis for the
placement of trust and confidence in the superior party in the context of
specific events at issue.{10} A court,
therefore, must have before it specific facts regarding the nature of the
relationship that is alleged to have given rise to a fiduciary duty in order to
determine whether a duty may exist at law.
[¶21] Thus, because the law does not generally
require individuals to act for the benefit of others, the factual foundations
of an alleged fiduciary relationship must be pled with specificity. Simple recitations of a trusting relationship
will not suffice for identifying a fiduciary duty. In order to survive a motion to dismiss a
claim for breach of fiduciary duty, the plaintiff must set forth specific facts
constituting the alleged relationship with sufficient particularity to enable
the court to determine whether, if true, such facts could give rise to a
fiduciary relationship. See Clappison v.
Foley, 148 Me. 492, 497, 96 A.2d 325, 328 (1953); see also Gibson v. Brewer,
952 S.W.2d 239, 245 (Mo. 1997) (en banc).
[¶22] The allegations set out in Bryan's complaint
do not provide the "sufficient particularity" required in pleading a
fiduciary relationship. See Ruebsamen,
340 A.2d at 35. Instead, the facts
alleged by Bryan as constituting a fiduciary relationship simply reiterate the
basic elements of a fiduciary relationship.
Recitation of those basic elements cannot substitute for an articulation
in the complaint of the specific facts of a particular relationship. The allegation that Bryan placed
"substantial trust and confidence" in the elders of the church and
trusted them "to protect him and guide him" does not set forth the
factual foundations for a special responsibility on the part of the
church. Such vague and nonspecific allegations
are wholly insufficient to make out a claim of a special relationship between
the organization and its members.
[¶23] Finally, the complaint does not allege that
there were aspects of Bryan's relationship with the church that were distinct
from those of its relationships with any other members, adult or child, of the
church. The creation of an amorphous
common law duty on the part of a church or other voluntary organization
requiring it to protect its members from each other would give rise to
"both unlimited liability and liability out of all proportion to
culpability." Cameron v. Pepin, 610
A.2d 279, 283 (Me. 1992); see also Jackson, 1999 ME 26, ¶ 8, 723 A.2d at 1221
(finding no special relationship between the American Legion and a
"regular customer" except as created by the Maine Liquor Liability
Act, 28-A M.R.S.A. §§ 2501-2520 (1988 & Supp. 1998)); Hughes v. Beta
Upsilon Bldg. Ass'n, 619 A.2d 525, 527 (Me. 1993) (finding no duty to prevent
spectator from injuring himself during fraternity activities).
[¶24] Accordingly, accepting the facts as alleged
in the complaint, the Superior Court did not err in dismissing that portion of
the complaint which depended upon the imposition of a generalized fiduciary
duty on the part of the church to protect members of its congregation from
other members.
C. Intentional Infliction of Emotional Distress
[¶25] Bryan next claims that the defendants may be
responsible for intentionally inflicting emotional distress upon him. If allowed to proceed, Bryan would be
required to demonstrate that the church's conduct was "so extreme and
outrageous as to exceed all possible bounds of decency and must be regarded as
atrocious [and] utterly intolerable in a civilized community." See Finn v. Lipman, 526 A.2d 1380, 1382 (Me.
1987). In addition, he would be required
to demonstrate that the church, through this specific conduct, intentionally or
recklessly inflicted emotional distress, or was certain or substantially
certain that emotional distress would result.
See id.; see also Davis v. Currier, 1997 ME 199, ¶ 5, 704 A.2d 1207,
1209; Colford v. Chubb Life Ins. Co., 687 A.2d 609, 616-17 (Me. 1996).
[¶26] In support of his claim, Bryan alleges that
the church knew of Baker's propensity to harm children, that it failed to
announce Baker's misdeeds to the congregation, that, through its agents, it
devised a plan to address his transgressions, and that this plan was
"woefully inadequate" to protect against future harm of minors,
including minor members of the church.
Bryan asserts that the church's failure to excommunicate Baker, its failure
to shun him, and its eventual decision to allow Baker to a resume a position of
leadership and respect within the church constituted acts that were
sufficiently extreme and outrageous that they exceeded all possible bounds of
decency.
[¶27] We do not lightly dismiss the harm caused by
the sexual abuse of children, nor do we misapprehend the enormity of that harm
if inflicted in the context of religious activities.{11} On these facts, however, we conclude that the
effort to hold the church responsible, in addition to the wrongdoer himself,
would require direct inquiry into the religious sanctions, discipline, and
terms of redemption or forgiveness that were available within the church in the
context of this claim, an inquiry that would require secular investigation of
matters that are almost entirely ecclesiastical in nature.{12}
[¶28] State courts may not interfere in matters
concerning religious doctrine or organization.
See Swanson v. Roman Catholic Bishop of Portland, 1997 ME 63, ¶ 7, 692
A.2d 441, 443. A religious organization's
decisions and actions when providing advice, counsel, or religious discipline to
its members will be based on the particular religious beliefs of the organization,
and thus, like the decisions and actions with respect to the organization's
government, cannot by themselves form the basis for secular liability. See id. ¶ 12, 692 A.2d at 445 (quoting
Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780, 790 (Wis. 1995) and
Schmidt v. Bishop, 779 F. Supp. 321, 332 (S.D.N.Y. 1991)). Allowing a secular court or jury to determine
whether a church and its clergy have sufficiently disciplined, sanctioned, or
counseled a church member would insert the State into church matters in a fashion
wholly forbidden by the Free Exercise Clause of the First Amendment.
[¶29] The Superior Court did not err in dismissing
that portion of Bryan's complaint asserting a claim of intentional infliction
of emotional distress against the church and its elders.
D. Negligent Infliction of Emotional Distress
[¶30] Although it is no longer necessary for a
plaintiff to plead or prove the existence of a separate tort in order to assert
a claim for negligent infliction of emotional distress, a plaintiff must
nonetheless demonstrate that the defendant owed him a duty of care and must
prove the breach of that duty of care by the defendant. See Devine v. Roche Biomed. Labs., Inc., 637
A.2d 441, 447 (Me. 1994). The removal of
the necessity for a plaintiff to allege an underlying tort or physical impact
did not create a new cause of action, but simply removed the barriers that
prevented plaintiffs from proceeding with claims already recognized in Maine,
when the only damage suffered was to the psyche. See id.
[¶31] In examining the scope of this tort, we have
declined to apply a pure foreseeability analysis to determine when a duty
arises. See Cameron v. Pepin, 610 A.2d
279, 284 (Me. 1992). Only where a
particular duty based upon the unique relationship of the parties has been
established may a defendant be held responsible, absent some other wrongdoing,
for harming the emotional well-being of another. See, e.g., Bolton v. Caine, 584 A.2d 615, 618
(Me. 1990) (holding that a physician-patient relationship gives rise to a duty
to avoid emotional harm from failure to provide critical information to
patient); Gammon v. Osteopathic Hosp. of Me., 534 A.2d 1282, 1285 (Me. 1987)
(holding that a hospital's relationship to the family of deceased gives rise to
a duty to avoid emotional harm from handling of remains); Rowe v. Bennett, 514
A.2d 802, 806-07 (Me. 1986) (holding that the unique nature of
psychotherapist-patient relationship gives rise to a duty of care to the patient).
[¶32] We have never recognized a relationship between
churches and their members of the type that would give rise to a duty to avoid
psychic injury to those members, and we could not do so without inquiring into
the ecclesiastical relationship whose components are not within the purview of the
secular courts. See Swanson, 1997 ME 63,
¶ 7, 692 A.2d at 443. The court did not
err in dismissing Bryan's claim of negligent infliction of emotional distress.
The entry is: Judgment affirmed.
FOOTNOTES********************************
{1}
. Bryan alleges that among the options available to the defendants upon
discovering Baker's misdeeds were: (1) "kick[ing] him out" of the
Watchtower Society; (2) publicly rebuking him for his actions; (3) requiring
him to undergo "professional evaluation for sexual impulse control";
(4) and requiring him to undergo "professional treatment for sexual
impulse control." Bryan alleges that the defendants took none of these
steps.
{2}
. Because Baker is not alleged to have been an employee or agent of the church,
we are not called upon to determine whether the "balancing of
interests" we referenced in Swanson may require a different result when a
child, rather than an adult, is injured by an agent of the church. Swanson,
1997 ME 63, ¶ 13, 692 A.2d at 445.
{3}
. He also argues that the church allowed Baker to lead "Field Ministry
Excursions" which included Bryan, thereby implying that by cloaking Baker
with power and respect, the church negligently allowed Baker to gain Bryan's
trust.
{4}
. Had the clergy members of the church learned of Baker's assault on Joe Doe
more recently, they would have had a statutory duty to report that information
to the Department of Human Services and to the appropriate district attorney's
office, unless the information was obtained during confidential communications.
See 22 M.R.S.A. § 4011(1)(D) (Supp. 1998). Bryan did not raise this issue
before the Superior Court, and the amendment adding clergy to the list of
mandated reporters was not enacted until long after the facts alleged in the
complaint took place. See P.L. 1997, ch. 251, § 1 (effective Sept. 19, 1997)
(adding "clergy members" to the list of those responsible for
reporting child abuse).
{5}
. In limited circumstances, courts have recognized that an actor may have a
duty to warn third parties of the dangerous propensities of another when the
actor has a special relationship with the dangerous person and the person
threatened is a specific, foreseeable, and identifiable victim of the dangerous
person's threats. See, e.g., Tarasoff v. Regents of Univ. of Cal., 551 P.2d
334, 345 (Cal. 1976); Thompson v. County of Alameda, 614 P.2d 728, 734-35 (Cal.
1980) (declining to extend holding in Tarasoff when neither a special
relationship existed nor had a specific individual been threatened); Brenneman
v. State, 256 Cal. Rptr. 363, 367 (following Thompson in holding that
"public entities and employees have no affirmative duty to warn of the
release of an inmate with a violent history who has made nonspecific threats of
harm directed at nonspecific victims"); Leonard v. Latrobe Area Hospital,
625 A.2d 1228, 1232 (Pa. 1993) (following Thompson, finding "no common law
rule that imposes a duty on a psychologist or psychiatrist to warn a non-patient
of a patient's dangerous propensities"). But see, e.g., Perreira v. State,
768 P.2d 1198, 1201 (Co. 1989) (holding that psychiatrist has duty to third
parties to exercise due care in treatment and release of committed patients).
{6}
. Among those who have been held in certain circumstances to have a duty of
care to protect others from harm by third parties are: innkeepers and
proprietors of similar establishments, see Brewer v. Roosevelt, 295 A.2d 647,
651 (Me. 1972); Schultz v. Gould Academy, 332 A.2d 368, 371 (Me. 1975); Tenney
v. Atlantic Assocs., 594 N.W.2d 11, 17 (Iowa 1999); jailers, see Harrison v.
Ohio Dep't of Rehabilitation & Correction, 695 N.E.2d 1248, 1253 (Ohio Ct.
Cl. 1997); and schools, see Hill v. Safford Unified Sch. Dist., 952 P.2d 754,
756 (Ariz. Ct. App. 1997).
{7}
. We do not address herein duties created by statute. See, e.g., Davis v.
Monroe County Bd. of Educ., 119 S. Ct. 1661, 1666 (1999) (recognizing a
statutorily imposed duty on the part of schools to protect children from abuse
by other children or adults).
{8}
. Accord Gragg v. Wichita State Univ., 934 P.2d 121, 128 (Kan. 1997) (holding
that corporate sponsors of fireworks on a university campus had no duty to
control conduct of third party); Hoff v. Vacaville Unified Sch. Dist., 968 P.2d
522, 527-29 (Cal. 1998) (holding that a school had no duty to protect
pedestrian from student); cf. J.E.J. v. Tri-County Big Brothers/Big Sisters,
Inc., 692 A.2d 582, 584-85 (Pa. Super. Ct. 1997) (holding that an organization
had no duty to warn of potential danger from sexual abuse of one of its
volunteers where injured child was not associated with organization's
programs).
{9}
. The term "fiduciary" is "one of the most ill-defined, if not
altogether misleading terms in our law." Martinelli v. Bridgeport Roman
Catholic Diocesan Corp., 10 F. Supp. 2d 138, 149 (D. Conn. 1998) (internal
quotation omitted). One court offered the following explanation: Some of the
indicia of a fiduciary relationship include the acting of one person for
another; the having and exercising of influence over one person by another; the
inequality of the parties; and the dependence of one person on another.
Fiduciary duty arises, for example, between attorneys and clients, guardians
and wards, and principals and agents. Doe v. Hartz, 52 F. Supp. 2d 1027, 1059
(N.D. Iowa 1999) (internal quotations omitted).
{10}
. Relationships "will not give rise to a confidential relation…unless
there is evidence of superior intellect or will on the part of the one or the
other, or of trust reposed or confidence abused." Ruebsamen, 340 A.2d at
35 (emphasis added).
{11}
. Bryan does not allege that Baker molested him during any of the church's
activities.
{12}
. The amicus provides multiple examples of differing principles applied in
various religions to determine whether and under what circumstances a church
can or should discipline its members and what methods of discipline,
counseling, and spiritual guidance are available.
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