I would like to preface my discussion of the recently filed Berry Lawsuit with several remarks.
First, I am not an attorney, and my only connection with the legal profession is that which occasionally arises out of my personal or business affairs. Second, I have no access to court records, opinions, etc., other than what is available via internet search engines.
Third, I am not a troll. However, I am someone who likes to evaluate things objectively. I did not kowtow to the WTS, and I also will not kowtow to the "clique" who, for all intents and purposes, control this DB, and seem to evaluate things regarding the WTS subjectively.
Please remember that I'm the person who suggested the idea (poorly received by this DB) that a group of us visit and support Bill Bowen at his own KH. I'm also the person who made the suggestion (totally rejected by this DB) that XJWs make use of the recently publicized SUCCESSFUL civil trespass lawsuit against a JW who called at the door of a person who had formally requested that JWs not call on them.
Since this XJW audience totally PANNED my "successful" lawsuit suggestion, I thought that I would take a look at this Berry Lawsuit and evaluate its chances of succeeding legally. Disappointingly, it appears that most of the Plaintiff Berry's claims against the WTS are basicly the same as those made against the WTS in the recent Bryan Rees case in Maine, and the WTS won that lawsuit hands down.
The Plaintiff charges the WTS and the local Congregation with 4 Counts. Lets evaluate each.
COUNT I - (Negligence)
For ordinary Negligence to occur, one party must owe a "duty of care" to another party, and the offending party must have breached that owed duty. Here is what the Maine Supreme Court said with regard to the claim that the WTS owes its members a "duty of care":
[¶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}
...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.
COUNT II - (Breach of Fiduciary Duty)
The Maine Supreme Court dismissed this same claim made by Rees due to the complaint's failure to state his claim with sufficient specificity. While Berry's complaint is much better in this regard, the Maine SC outlined that the law has never recognized a general fiduciary relationship between a church and its members. The Court also hinted that it would not be able to evaluate even a sufficiently pleaded claim due to Constitutional prohibitions against courts evaluating the internal activities of religions.
COUNT III - Statutory Failure To Report
Suspected Child Abuse
In Marquay v. Eno, (a 1995 decision) the New Hampshire Supreme Court said:
We hold that the reporting statute does not support a private right of action for its violation because we find no express or implied legislative intent to create such civil liability. First, we note that where the legislature has intended that civil liability flow from the violation of a statute, it has often so provided. See, e.g., RSA 358-A:10 (1984) (deceptive trade practices). Where, as here, civil liability for a statutory violation would represent an abrupt and sweeping departure from a general common law rule of nonliability, we would expect that if the legislature, which is presumed to recognize the common law, see Niemi v. Railroad, 87 N.H. 1, 9-10, 173 A. 361, 366 (1934), intended to impose civil liability it would expressly so provide. Here there was no expressed intent. Nor can we divine any implied intent. The reporting statute was originally enacted in 1965, applying only to physicians. Laws 1965, 193:1. It was amended in 1971 to extend the reporting requirement to all persons and to provide a $200 fine for its violation. Laws 1971, 531:2. In 1973, the penalty section was amended to provide that a violation would constitute a misdemeanor. Laws 1973, 532:8. Despite specific amendment of the penalty section, nothing in the legislative history suggests that civil liability was contemplated, let alone intended. In sum, considering that imposition of civil liability for all reporting violations would represent a sharp break from the common law and neither the statute nor the legislative history directly reveal any such intent, we are unwilling to say that violation of the child abuse reporting statute supports a private right of action. Accord Fischer v. Metcalf, 543 So.2d 785 (Fla.Dist.Ct.App.1989) (finding no cause of action under similar Florida reporting statute); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991) (no cause of action under Kansas reporting statute).
We now turn to the negligence per se question, considering the relevance of the reporting statute in cases where a common law cause of action exists based on an alleged failure to exercise a recognized duty of reasonable supervision. As discussed previously, use of a statute to establish the standard of care is limited to situations where a common law cause of action exists,...
(End Quote)
AND, as we have already seen, there is no common law "duty of care" owed by a church to its members.
COUNT IV - (Deceit and Breach of Fiduciary Duty)
I don't think this Count is doing anything except making arguments for "punitive damages" and to forestall any attempt by the Defendants to allege that the lawsuit is barred by the Statute of Limitations. I don't recognize any additional legal claims in this Count.
What all this boils down to is that this lawsuit differs little from the Rees lawsuit, which the WTS won hands-down. The only difference I spot in the two lawsuits is the Reporting Law that exists in New Hampshire, and the Supreme Court there has already said there is no civil liability for failing to report.
If someone sees something that I'm missing, please post such.