Mass. High Court Makes Landmark Child Abuse Ruling--JW (page 2)

rebel8

[[[[[applause]]]]]

I agree, the ultimate goal should still be to hold the WTS itself liable....but this is a great start!

Elsewhere

Excellent!!!

I wonder if in time the same thing could be done regarding any JW because of the fact that they are all considered to be ordained ministers.

Hopefully in time a court case will come along that will set the much needed precedent of establishing that the WTS does in fact exercise agency over local congregations. Once that happens the flood gates will open for lawsuits against the WTS.

Dragonlady76

I am so happy!

But we all know the real evil lies in New York, we somehow need to bring this to peoples attention, I think that the elders will be focused on to much and they are only taking orders from the WTBS.

Blondie thanks for the info, you have made my day!

Dragonlady76

hawkaw

But we all know the real evil lies in New York, we somehow need to bring this to peoples attention, I think that the elders will be focused on to much and they are only taking orders from the WTBS.

You are only as good as your writ or statement of claim. Just ask the Maine Supremes in Bryan R. v. the Watchtower Bible and Tract Society et. al.

Thus, I think counsel needs to clearly show the direct connection (eg. the policy and practice of the Watchtower) between the various head office corporations of the Watchtower and the local corporations which make up a Kingdom Hall or the individual congregations in the Hall in the Statement of Claim (or writ). Showing (and not just stating) the direct connection will make the boys in Krooklyn "vicarously libel" for any tort that individual elders or their congregation did.

hawk

avishai

Cool!!

loveis

You are only as good as your writ or statement of claim.

Just ask the Maine Supremes in Bryan R. v. the Watchtower Bible and Tract Society et. al.

Right on Hawkaw. Since that (early) case was such a key one for the WTS, I thought I might post the

full text of it here for our evaluation and comments (and ripping-apart). (Or: And now for our weekly

classroom law session on Court TV. )

(Hawkaw: You appear to be saying that Bryan R could have won this case if he had had better

lawyers. Please explain more clearly how that could have been so, in the light of the full opinion set

forth below.)

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.
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.

hawkaw

Hawkaw: You appear to be saying that Bryan R could have won this case if he had had better lawyers. Please explain more clearly how that could have been so, in the light of the full opinion set forth below

No. I am not saying better lawyers. What I am saying is the Court needs a writ or statement of claim to be drafted in such a way as to provide specific facts that consitute the alleged relationship. If Bryan R. had provided the specific facts then he may damn well have won. In my mind, Bryan R. opened the door to show legal counsel how to draft a statement of claim to win a summary judgement. Lawyers working in conjuction with advocates like Bill Bowen and others have refined their claims to include the specific facts.

Below, I have provided, underlined and bolded the key sections of the Opinion. Simply put the Supremes indicated "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":

[¶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] .... 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)).

[¶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}

[¶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.

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