Beep, Beep said: 1. I have yet to come across a single VERIFIABLE of a cover up. Yes I have read all sorts of claims but not one verifiable
Hillsborough–southern judicial district
No. 2003-779
Holly berry & a.
v.
Watchtower Bible and Tract Society of New york, Inc. & a.
Argued: October 20, 2004
Opinion Issued: July 15, 2005
Gawryl & MacAllister, of Nashua (Jared O’Connor on the brief), and Marci A. Hamilton, of Washington Crossing, Pennsylvania, orally, for the plaintiffs.
Devine, Millimet & Branch, P.A., of Manchester (Donald E. Gardner and Brian J.S. Cullen on the brief, and Mr. Gardner orally), and Robert C. James, of Patterson, New York, on the brief, for defendants Watchtower Bible & Tract Society of New York, Inc. and Wilton Congregation of Jehovah’s Witnesses.
BRODERICK, C.J. The plaintiffs, Holly Berry and Heather Berry, appeal orders of the Superior Court (Groff, J.) dismissing their claims. We affirm.
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The Wilton Congregation was aware of the harm being perpetrated on the plaintiffs through repeated reports. Due to the number of reports over the years, it was also aware that the abuse was ongoing.
The majority notes: "There is no allegation that the elders acted in any way other than by providing spiritual guidance and scriptural advice, at the request of the plaintiffs’ mother." The majority’s analysis of the special circumstances exception does not address the plaintiffs’ allegation that the elders of the Wilton Congregation instructed Poisson not to report the abuse to secular authorities. I find no meaningful difference, however, between the facts alleged in this case, and the facts of the special circumstances cases relied upon by the majority. See Remsburg, 149 N.H. at 154-55 (risk of criminal misconduct, including stalking and identity theft, sufficiently foreseeable, therefore special circumstances imposed duty on private investigator to exercise reasonable care in disclosing third party’s information to client); Walls, 137 N.H. at 659 (duty to protect tenants from criminal attack may arise when landlord has created or is responsible for a known defective condition that foreseeably enhanced risk of attack). The majority characterizes these cases as relying upon the element of control. I do not find this retrospective statement of the law persuasive.
In this case, the elders of defendant Wilton Congregation not only created an opportunity for Paul Berry to continue abusing the plaintiffs precisely because of their inaction, but actively facilitated the continuing abuse by their instruction to Poisson not to act. Further, the elders instructed Poisson not to report the abuse in the presence of the abuser himself. It is not unreasonable to infer that Berry continued abusing the plaintiffs, his daughters, safe in the knowledge that Poisson was not going to report him to secular authorities.
The elders of the Wilton Congregation were aware of Poisson’s understanding of the policy against seeking outside help. Yet, despite the numerous reports, made at different times to different elders of the Wilton Congregation, none of them advised her to seek help from secular authorities, and at least some of them instructed her not to seek such help, effectively allowing Paul Berry to continue his pattern of abuse. Because the harm done to the plaintiffs was foreseeable to the Wilton Congregation, and facilitated both by its action and inaction, the Wilton Congregation had a duty to protect the plaintiffs from it.
The majority fears heading down a slippery slope where friends and relatives will face tort liability for giving bad advice. This is an unusual case, however, and I would decide it based upon its facts alone. The facts creating the duty in this case were the elders’ awareness of Poisson’s religious beliefs, the fact that her husband was the one abusing the children, the elders’ knowledge of the abuse over the years, their continued failure to counsel her to seek help, their specific instruction to her not to seek help when she relied upon their guidance and the fact that they did so in Berry’s presence. These special circumstances created an opportunity for Berry to continue abusing the plaintiffs.
Children who are victims of physical and sexual abuse are limited in their ability to protect themselves, especially when their abuser is a parent. The legislature has recognized this fact, and has attached criminal liability to any person who fails to report suspected child abuse, no matter what their connection to the child, if any. See RSA 169-C:29. Recognizing a common law duty to protect children through counseling a parent to seek help, would accurately reflect our collective concern for the vulnerable class of child abuse victims.
The trial court found that, to the extent a common law duty may have existed, the religious privilege barred the defendants from disclosing the abuse. See N.H. R. Ev. 505. The trial court concluded, therefore, that any allegations that the defendants breached their duty by failing to report or disclose the abuse could not stand. The majority does not address whether the defendants were barred from disclosing the abuse by the religious privilege, and I decline to address it as well because I find that Wilton Congregation’s duty could have been satisfied simply by counseling Poisson to report the abuse to secular authorities
