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Bryan R. v. Watchtower, part 2.

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.

Attorney for plaintiff: Michael J. Waxman, Esq., (orally) P O Box 375 Portland, ME 04112-0375 Attorney for defendants: Bruce C. Mallonee, Esq., (orally) Rudman & Winchell, LLC P O Box 1401 Bangor, ME 04402-1401 and Paul D. Polidoro, Esq. 2800 Route 22 Patterson, NY 12563-9804 (for Watchtower and others) Attorneys for amicus curiae: Frederick C. Moore, Esq., (orally) Robert C. Robinson, Esq. Daniel Nuzzi, Esq. Robinson Kriger & McCallum P O Box 568 Portland, ME 04112 (for the Roman Catholic Bishop of Portland) Parties that did not file briefs: Paul C. Catsos, Esq. Thompson & Bowie P O Box 4630 Portland, ME 04112 (for additional church defendants) M. Michaela Murphy, Esq. Daviau Jabar & Batten 1 Center Street Waterville, ME 04901 (for Baker)
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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