by MadApostate 133 Replies latest jw friends
The REES case has been mentioned/discussed throughout this thread and in others, and noone has yet had to ask for my help in locating the opinion.
When I started researching it couple weeks ago, and first plugged a few "key words" into Google, I believe there were about 150 or so hits, with almost every main XJW site having something about it.
So, I saw no need to post a URL which should have already been known by, or easily accessible, to anyone interested in this subject.
Why the "attitude"?
Hi MA,
I have no attitude but when you quote from something you should post it.
Oh BTW when you read paragraph 10 in the "Bryan R. v. WTS decision do you notice that little supercript called "{4}" in the second last sentence. Go to the footnotes and read what {4} is all about.
hawk
Since you didn't bother to post the short footnote #4 (seems to run counter to your admonition to me), here it is:
{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). [end quote]
The Maine SC is simply noting that the Maine Legislature had subsequently passed a "reporting law". So?
Please, please - we are not hittin git off right - I am sorry.
As I told you I am in the process of preparing my response to you on the Bryan R. v. WTS case which contains the quote.
I apologize for my action to you, I do not want to get you mad. But in the same breath, if you want me or others to review, I recommended that you just post the url from now on. If you don't that is okay too. It just makes life easier for us people who like to read the whole document instead of just the quote.
Again sorry to upset you.
My post will be comming shortly.
hawk
Right on.....
"Cancel my subscription to the Resurrection, send my credentials to the house of detention, I got some friends inside.....”
The Doors
Okay Mad A.,
I think I have read over everything. I hope my comments seem adequate to you and you can provide some constructive criticism back to me.
My first point is you bring up the Count 1 in the Berry case which deals with negligence.
You are concerned because of the Bryan R. v. WTS case. You site from that case, all of paragraph 12, except for Footnote 5, and then a part of sentence 1 in paragraph 17.
In a nut shell you used Bryan Rees “fiduciary duty” count to discredit Berrys’ “negligence” count (Count I) . The Berry’s “fiduciary duty” count is actually Count II and I wonder if your comments should have been put there.
Quite frankly the negligence count in the Berry case deals with the failing to report. And because they failed to report and had a duty to report, Berry alleges the “perp” abused her. Bryan Rees wanted the church (WTS) to protect him from Baker and "control" Baker, which is a different circumstance.
In footnote {4} of the Bryan R. v. WTS case the Court states
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.
Just for the record “confidential communications” means the “perp” telling the elder. It does not mean the mother or child telling the elder and asking what to do?
So the Main Supreme Judicial Court didn’t address the issue of statutory reporting in the Bryan R. v. WTS case. This is important. If they did there may have been a different conclusion. And this is what the New Hampshire court will have to determine.
In sentence 2, paragraph 11 of the Bryan R. v. WTS case, the court states:
“In determining whether a duty exists, we must ascertain whether the alleged wrongdoer is “‘under any obligation for the benefit of the particular plaintiff.’”
Now lets take a look a Footnote {5} which is found at the end of paragraph 12:
{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).
Does not Footnote {5} puts an entirely different “spin” on your conclusion? There are circumstances where an “actor” has a “duty to warn”. It up to Berry to prove it - right?
Lets read paragraph 14 in Bryan R. v WTS:
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}
So the law says that a duty is imposed if a dangerous situation is created by the defendant even without a special relationship. Is that not what Berry will argue in her case?
Lets look at Footnote {7} in Bryan R. V. WTS :
{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).
So the Court in Bryan R v. WTS didn’t address negligence with respect to statutorily imposed duties. I think this is important Mad Apostate and something you have to think about.
As I have said before, if there is a statutory duty to report, there is a common law requirement that you could be found negligent. This is even talked about in the Marquay v. Eno case you site. Teachers have an “affirmative duty” within the scope of his or her duty to protect the child while at school. I don’t think they need to write the civil remedy into a statute as a special section.
Now lets go to the “Breach of Fiduciary Duty” count (Count II) in the Berry case which is related to the Bryan R. v WTS case.
The court needed two questions answered (found in Paragraph 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.
The court actually stated in paragraph 17 the following:
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.
So the court declined this case because Bryan Rees failed to prove a “fiduciary relationship with sufficient particularity”. A general allegation of a confidential relationship is not a sufficient basis for establishing the existence of one.
The court actually explained what Bryan R. had to prove to show a “fiduciary relationship with sufficient particularity” in paragraph 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).
Thus, the courts need specific facts to show the “relationship”, something Bryan Rees lawyer failed to do. Now look at the first 34 paragraphs in the Berry case’s claim. Are there or are there not specific facts to show this special relationship with sufficient particularity? You tell me Mad Apostate?
Mad Apostate, you also indicated that:
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.
My review of the Bryan R. v. WTS case, indicates that The Court did not consider the 1st Amendment when dealing with the “Breach of Fiduciary Duty” count. There was discussion in the “Intentional Infliction of Emotional Distress” count. Note paragraphs 27 and 28:
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}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.
This is very true as long as the church honestly and in good faith believes in their doctrines. But religious organizations are not above any law that treats all people the same. A jury would not be allowed to determine whether an accused church member was sanctioned by the church. But a jury could determine if the church had a “secular” duty to report this event of abuse instead of concealing it.
I look forward to your response back to me. And again sorry for the comment that upset you.
hawk
Mad A
I won't be around till tomorrow - So if you respond, I can't look at it until tomorrow.
Thanks for your patience and look forward to more talking on this issue.
hawk
Hawkaw:
No problem. I've been trying to put together a reply for the past 3 hours, but have experienced a series of interruptions.
Rather than try to comment on all points at once, I will try to comment via a series of shorter posts.
You have put a lot of time and effort into your post, and you raise many issues. I will initially try to address those issues which I see as being the ones most "legally" important to how this case will be handled. (I will be happy to address the other points in later posts.)
The BERRY LAWSUIT alleges that the WTS/Cong is guilty of:
1. General Negligence
2. Breach of Fiduciary Duty
3. Negligence Per Se
In the recent REES case, the Maine Supreme Court addressed both #1 and #2.
The MSC Opinion states the following regarding #1 above:
"... 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." (brackets added)
Then, with respect to the "breach of fiduciary duty" claim, the MSC states:
"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.] (brackets added)
Note carefully what the Court said in the brackets. If there had been any previous "precedent" for this type claim, the Court would have provided info about such, with directions for REES to go back and amend his claim. The fact that the REES case was dropped after this decision says much.
I have already addressed #3 in the thread-starting post, so I will reread your thoughts and respond accordingly.
With regard to your comments in paragraphs 2, 3, and 4, which seem to indicate that I am misusing a REES Opinion comment regarding "fiduciary duty" by applying it to the BERRY "ordinary negligence" allegation, you must understand that "fiduciary duty" is an exception to the common law rule that one party is not responsible for protecting a second party from the acts of a third party. The MSC fully outlines this in the REES Opinion. Their discussion of "fiduciary duty" includes the quoted remark pertaining "ordinary negligence".
Now what do you think of your evaluation?
