""You can also see that case here http://www.nh.gov/judiciary/supreme/opinions/2005/berry081.htm so you know its not those pesky apostates making stuff up.""
Shame on you! You really need to read the whole transcript not just part of it. Take for instance the following, also from the same transcript:
There are no factors present that establish any special relationship between
the plaintiffs and Watchtower or Wilton Congregation. See Roman Catholic Bishop
v. Superior Ct., 50 Cal. Rptr. 2d 399, 406 (Ct. App. 1996) (no special relationship
exists between a church and its parishioners). "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." Bryan R. v. Watchtower Bible & Tract
Soc., 738 A.2d 839, 847 (Me. 1999) (quotation omitted), cert. denied, 528 U.S. 1189
(2000) (parishioner’s allegation that he was sexually assaulted by an adult church
member when he was a child did not establish special relationship with church despite
fact that elders knew of the abuse). We decline to hold that the fact of church
membership or adherence to church doctrine by the plaintiffs’ parents creates a special
relationship between the plaintiffs and Watchtower or Wilton Congregation.
We also disagree with the plaintiffs’ assertion that special circumstances exist in
this case such that an especial temptation and opportunity for Berry’s criminal
misconduct was created by Watchtower and Wilton Congregation. There is no allegation
that the elders created any opportunity for Berry to abuse his daughters. As noted,
there was no allegation that the alleged abuse took place on congregation property or
at congregation-related activities. 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. We hold that the plaintiffs have failed to establish either
a special relationship with the defendants or that special circumstances existed in which
Watchtower and Wilton Congregation created an especial temptation for criminal conduct
by Berry. Consequently, there is no common law duty running from Watchtower and Wilton
Congregation to the plaintiffs and the trial court’s ruling that a duty existed requiring
Watchtower and Wilton Congregation to dispense "common sense advice to the church member
and a reporting of the abuse to the authorities" is erroneous as a matter of law.
The special circumstances exception should never be triggered by the mere failure of a
citizen to report actual or suspected criminal conduct to law enforcement authorities or by
a citizen’s improper advice concerning an appropriate response to complaints of criminal
activity. Otherwise, the general rule which imposes no duty on citizens to prevent the criminal
acts of third parties will be swallowed up and civil liability unreasonably extended. The dissent
suggests that if the elders had counseled Poisson to report the abuse to secular authorities
they would have satisfied their common law duty to the plaintiffs, even if Poisson did not follow
their advice. Apparently, knowledge by the elders of alleged criminal conduct and a failure to
report it would not be sufficient to create civil liability but failure to dispense proper advice
to the person disclosing the conduct would be. Poisson, however, had her own independent and
overarching duty to protect her children from abuse perpetrated by her husband and had a common
law obligation to intervene regardless of any advice she received. No special circumstances
exist in this case to justify civil liability against Watchtower or Wilton Congregation.
Because we hold that Watchtower and Wilton Congregation have no common law duty to protect the
plaintiffs and that the plaintiffs may not bring a private cause of action for the alleged failure
of the elders to comply with RSA 169-C:29, we affirm the trial court’s dismissal of the plaintiffs’
action, albeit for different reasons. We need not, therefore, address the remaining arguments.
