Here is the section of the REES Opinion which is entitled "Breach of Fiduciary Duty". I will place commentary, segregated and in ALL CAPS, amongst such. I have also spaced out the Opinion to make it easier to understand.
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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.
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UP TO THIS POINT, THE OPINION HAS DEALT WITH "DUTY OF CARE", WHICH IS AN ELEMENT OF "ORDINARY NEGLIGENCE". THE COURT POINTS OUT THAT THE GENERAL RULE IS "There does not exist a general obligation to protect others from harm not created by the actor."
NEXT, THE COURT DISCUSSES AN EXCEPTION TO THE GENERAL RULE, WHICH IS WHEN THERE IS A "SPECIAL RELATIONSHIP" BETWEEN PARTY#1 AND PARTY#2.
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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}
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THESE LAST TWO PARARAPHS MAKE IT PLAIN THAT NEITHER REES NOR BERRY CAN SUCCEED UNDER THE LEGAL THEORY OF "ORDINARY NEGLIGENCE".
HOWEVER, THEY CAN MOVE ON TO TRY TO PROVE THE "EXCEPTION" TO THIS RULE, WHICH MEANS THEY MUST PROVE THAT A "SPECIAL RELATIONSHIP" EXISTED BETWEEN THE WATCHTOWER SOCIETY AND THEMSELVES, AS MEMBERS OF SUCH.
IN THE NEXT PARAGRAPH, PAY CLOSE ATTENTION TO THE WORDS, "reviewable by the secular courts". THIS IS THE HINT THAT THE COURT GIVES REGARDING "CONSTITUTONALITY" OF EVEN CONSIDERING THE "SPECIAL RELATIONSHIP" ISSUE BETWEEN A CHURCH AND ITS MEMBERS.
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[¶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.
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IN THE LAST PARAGRAPH, THE COURT RULES THAT REES'S COMPLAINT FAILED TO "MAKE A CASE" REGARDING "FIDUCIARY DUTY", THUS NO PROCEEDING UNDER THE "EXCEPTION" THEORY.
THE SECOND PART OF THE SENTENCE SIMPLY REPEATS WHAT THE COURT STATED TO BEGIN WITH, THAT THERE IS NO "COMMON LAW DUTY", THUS NO PROCEEDING UNDER THE THEORY OF "ORDINARY NEGLIGENCE". (WHICH IS COUNT ONE IN THE BERRY LAWSUIT)
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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.
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THE LAST PARAGRAPH IS "THE NAIL IN THE COFFIN." HAWKAW'S ARGUMENT THAT THE BERRY'S CIRCUMSTANCES ARE DIFFERENT FROM REES IS NOT CORRECT IN THE CONTEXT OF THE LEGAL CIRC LOOKED AT BY THE COURTS.
OBVIOUSLY, NO TWO CASES ARE EXACTLY FACTUALLY IDENTICAL, BUT THE "LEGAL CIRC" CAN BE THE SAME. (AS I HAVE NOTED, THE BERRY'S FACTS ARE LESS DESIRABLE THAN EVEN REES'S.)
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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.
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NOTE IN THE NEXT PARAGRAPH WHAT THE COURT SLIPS INTO THE FD DISCUSSION. IN OTHER WORDS, EVEN ASSUMING YOU COULD PROVE THE ABOVE ELEMENTS -FORGET IT, WE ARE NOT GOING TO HOLD CHURCHES RESPONSIBLE FOR PROTECTING SOME MEMBERS FROM OTHER MEMBERS.
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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.
