Don Walderbach Vs. Archdiocese Of Dubuque, Inc. ( 2007 )

IN THE SUPREME COURT OF IOWA
No. 132 / 05-0793
Filed April 13, 2007
DON WALDERBACH,
Appellant,
vs.
ARCHDIOCESE OF DUBUQUE, INC.,
Appellee.
Appeal from the Iowa District Court for Dubuque County, Alan L.
Pearson, Judge.
Plaintiff in suit against Archdiocese based on alleged sexual abuse by
priest appeals from summary judgment for defendant. AFFIRMED.
Robert F. Wilson, Cedar Rapids, for appellant.
Brendan T. Quann and Davin C. Curtiss of O'Connor & Thomas, P.C.,
Dubuque, for appellee.
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LARSON, Justice.
The plaintiff, Don Walderbach, sued the Archdiocese of Dubuque,
contending he had suffered sexual abuse at the hands of Father Nicholas
Cigrand, a teacher and assistant pastor in the Archdiocese. The defendant
moved for summary judgment under Iowa Rule of Civil Procedure 1.981 on
the ground there were no genuine issues of material fact that could support
the plaintiff’s claim. The district court granted the motion, and we affirm.
I. Facts.
As a young man, Don Walderbach attended St. Patrick’s School and
served as an altar boy at St. Patrick’s Church, both located in Ryan, Iowa,
and part of the defendant Archdiocese. Father Nicholas Cigrand was an
assistant pastor at the church and served as one of Walderbach’s teachers
and as his supervisor as an altar boy. Walderbach alleges that
Father Cigrand sexually abused him on several occasions between 1966
and 1969. These incidents occurred in the rectory of St. Patrick’s Church
and in the church school.
According to Walderbach’s deposition testimony, his memory of
sexual abuse faded when he stopped attending St. Patrick’s School and was
no longer an altar boy. However, he claims he has had emotional problems
all of his life due, at least in part, to the abuse by Father Cigrand. In April
2002 Walderbach’s memory of these events returned after hearing about a
cardinal in Florida who was arrested for abuse.
Upon regaining his memory of the events, Walderbach filed suit
against the Archdiocese. Walderbach asserted the following claims against
the Archdiocese: (1) assault and battery, (2) intentional infliction of
emotional distress, (3) negligence based on a special relationship of the
defendant and Father Cigrand, and (4) negligent supervision. In addition,
Walderbach alleged vicarious liability under the doctrine of respondeat
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superior. The plaintiff alleged, as to the claims of assault and battery,
intentional infliction of emotional distress, and negligent supervision, that
the defendant “knew or should have known” of Father Cigrand’s actions.
Because Father Cigrand was an employee of the Archdiocese, the
Archdiocese owed the plaintiff a duty of care, according to the plaintiff.
The Archdiocese moved for summary judgment, arguing Walderbach’s
claims were untimely (not an issue on appeal). In addition, the defendant
contended there was no genuine issue of material fact that (1) the
Archdiocese knew, or should have known, of any sexual abuse by Father
Cigrand; (2) the Archdiocese was Father Cigrand’s employer; or (3) even if it
were his employer, the acts alleged were within the scope of that
employment.
II. Scope of Review.
Review of a district court’s ruling on a motion for summary judgment
is for correction of errors at law. Schlote v. Dawson, 676 N.W.2d 187, 188
(Iowa 2004). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law.” Iowa R. Civ. P. 1.981(3). A question of fact exists “if reasonable
minds can differ on how the issue should be resolved.” Walker v. Gribble,
689 N.W.2d 104, 108 (Iowa 2004). In reviewing the district court’s ruling,
the evidence presented must be viewed in the “light most favorable to the
party opposing the motion for summary judgment.” Kelly v. Iowa Mut. Ins.
Co., 620 N.W.2d 637, 641 (Iowa 2000); Gen. Car & Truck Leasing Sys., Inc. v.
Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996). However, the
opposing party “may not rest upon the mere allegations of his pleading but
must set forth specific facts showing the existence of a genuine issue for
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trial.” Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005); see also Iowa Rule
Civ. P. 1.981(5). Speculation is insufficient to create a genuine issue of
material fact. Hlubek, 701 N.W.2d at 96.
III. Defendant’s Alleged Negligence.
The defendant’s motion for summary judgment challenged the
sufficiency of the plaintiff’s evidence to show a genuine issue of material fact
on two issues necessary to establish a duty of care: whether the defendant
knew of Father Cigrand’s acts and whether an employer/employee
relationship existed between the Archdiocese and Father Cigrand. The
plaintiff’s resistance to summary judgment was very general with respect to
the defendant’s duties toward the plaintiff. His resistance stated:
The duties that the Archdiocese owed Walderbach and its other
parishioners were based on its possession of jurisdictional
authority over the selection, ordination, assignment,
supervision, training, instruction, and retention in good
standing of the diocesan priests it assigned to parishes within
its jurisdiction, an administrative relationship fixed within the
hierarchy of the Catholic Church.
First, the plaintiff contends he established a genuine issue of fact on
the issue of whether an employer/employee relationship existed between
the Archdiocese and Father Cigrand. Interestingly, the plaintiff’s claim is
based largely on an affidavit by Monsignor James O. Barta, which was
introduced by the Archdiocese in support of its motion for summary
judgment. This affidavit stated that
Father Nicholas Cigrand was never an employee of The
Archdiocese of Dubuque. St. Patrick’s Church, Ryan, Iowa, is
a corporation with Articles of Incorporation and Bylaws. It is a
separate legal entity from The Archdiocese of Dubuque. While
serving as an Assistant Pastor at St. Patrick’s Church, Ryan,
Iowa, Father Nicholas Cigrand was an independent contractor,
receiving a salary from St. Patrick’s Church. He was never an
employee of The Archdiocese of Dubuque.
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Factors indicating a relationship of employer and employee include:
the right of selection or employment at will, the responsibility to pay wages,
the right to terminate the relationship, the right to control the work, the
benefit received by the alleged employer, and the intent of the parties. Iowa
Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 541-42 (Iowa 1997). We have
said that “[i]n cases presenting a choice between categorizing a person as an
employee or an independent contractor, the primary focus is on the extent
of control by the employer over the details of the alleged employee’s work.”
Id. at 542.
Walderbach contends that he has established enough evidence to
prevail on the summary judgment issue by showing the Archdiocese has
jurisdictional authority and assigns priests to parishes within its
jurisdiction. He also contends that a priest owes duties of obedience and
submission to the Archdiocese and that Father Cigrand was appointed and
supervised by the Archdiocese and acted under its control and authority.
The Archdiocese responds that Father Cigrand was not an employee,
but rather an independent contractor. In support of this argument, the
Archdiocese relies on the vicar general’s affidavit in which he states that
Father Cigrand was not an employee, but was an independent contractor;
that St. Patrick’s Church is a separate legal entity with its own articles of
incorporation and bylaws; and that Father Cigrand was paid a salary by
St. Patrick’s Church, not the Archdiocese. The Archdiocese contends that
the “facts” Walderbach relies on to support his contention that an
employer/employee relationship existed are not based on evidence
contained in the summary judgment record, but on Walderbach’s own
arguments.
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We agree with the district court that the plaintiff’s evidence fails to
generate a genuine issue of fact to establish an employer/employee
relationship between the Archdiocese and Father Cigrand.
The plaintiff contends that the Archdiocese owed him a duty of care
because of the defendant’s knowledge of Father Cigrand’s actions. The
plaintiff contends that he presented evidence to show a material issue of
fact on the issue of the Archdiocese’s knowledge because the Archdiocese
had custody of all of the church records from St. Patrick’s Church.
According to the plaintiff’s argument, the Archdiocese would therefore
necessarily be on notice of the details of Father Cigrand’s “employment,”
including the acts of abuse. The problem is that nothing in the records
even suggests any abuse by Father Cigrand. As Monsignor Barta stated in
his affidavit, he had examined the files of the Archdiocese, and they showed
Father Cigrand served as an assistant pastor of St. Patrick’s Church from
1965 to 1968. His affidavit stated that no evidence appeared in the records
to show Father Cigrand had committed abuse or even that there were any
allegations of abuse.
The plaintiff also attempts to show the defendant had constructive
knowledge of the abuse because, according to the plaintiff’s deposition, a
priest, “probably Father Cooney, the Pastor of St. Patrick’s Church,
witness[ed] at least one of Father Cigrand’s acts of abuse.” The plaintiff
argues that this incident was sufficient to put the defendant Archdiocese on
“constructive notice” of the abuse because the priest who presumably saw
the incident would surely have reported it to the Archdiocese.
Based on the summary judgment record, a fact finder would
necessarily have to speculate about who actually observed the act or acts of
abuse and, if it was Father Cooney, that he reported this to the Archdiocese
so as to put the Archdiocese on notice of the alleged abuse. This hypothesis
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is merely speculative and fails to generate a genuine issue of fact to
establish the Archdiocese knew of Father Cigrand’s alleged abuse.
The district court properly granted summary judgment as to all of the
counts alleging direct negligence of the Archdiocese based on the alleged
acts of Father Cigrand. This leaves the issue of vicarious liability.
IV. Vicarious Liability.
The plaintiff also argues that the Archdiocese is vicariously liable for
the acts of abuse committed by Father Cigrand. A claim of vicarious
liability under the doctrine of respondeat superior rests on two elements:
proof of an employer/employee relationship (or employment as an
independent contractor), and proof that the injury occurred within the
scope of that relationship. See Biddle v. Sartori Mem. Hosp., 518 N.W.2d
795, 797 (Iowa 1994). For the reasons already discussed, no genuine issue
of material fact was generated to establish an employer/employee
relationship.
The plaintiff also argues that, if Father Cigrand was not an employee,
he was an independent contractor of the Archdiocese. He contends that,
while sexual abuse is an intentional tort not ordinarily considered to be
within the scope of one’s employment, the Archdiocese could be held liable
for the acts of abuse here because it “constructively ratified” Father
Cigrand’s acts. The plaintiff, however, failed to show a genuine issue of fact
as to the Archdiocese’s knowledge of the acts, so it could not be found liable
on the basis it “constructively ratified” them.
We conclude that the trial court properly granted summary judgment
in favor of the Archdiocese.
AFFIRMED.