This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Opinion
Supreme Court of Missouri
Case Style: Michael Gibson, et al., Appellants-Respondents, v. Father Michael Brewer, Respondent-Appellant,
and Catholic Chancery - Diocese o !ansas City - St. "oseph, Respondent.
Case #$%ber: #o. &'(')
*anddown Date: +,-)'-)''&
Appeal Fro%: Circ$it Co$rt o "ac.son Co$nty, *on. Gene R. Martin
Co$nsel or Appellant: or Gibson, et al., Sylvester "a%es, "r., #ancy /. !inner, and Brian C. Fries
or Brewer, "a%es R. 0yrsch and Michael 1. "oyce
Co$nsel or Respondent: "a%es 1. 2ierney, 0illia% M. Stapleton, and Brian ". Madden
3pinion S$%%ary:
The Gibsons filed suit alleging that Father Brewer, a Catholic priest, touched or fondled Michael in a sexual,
offensive, and unwelcome manner and that the Diocese continued to ignore the parents' complaints until Brewer was
eventuall removed from the Diocese! The Gibsons filed a petition for damages against both Brewer and the Diocese,
alleging nine counts" batter, negligent hiring#ordination#retention, negligent failure to supervise, negligent infliction of
emotional distress, intentional infliction of emotional distress, breach of fiduciar dut, conspirac, agenc liabilit, and
independent negligence of the Diocese!
The trial court issued two $udgments! %ne dismissed all counts against the Diocese for &failure to state a claim
upon which relief can be granted and because such claims as alleged against said defendant infringe upon its rights
provided b the First 'mendment to the (nited )tates Constitution!& The other $udgment dismissed all counts against
Brewer except batter, negligent infliction of emotional distress, and intentional infliction of emotional distress!
DISMISSED IN P!T" ##I!MED IN P!T" !E$E!SED IN P!T" !EMNDED.
Court en banc holds% *+, ' prere-uisite to appellate review is that there be a final $udgment! 'n appealable
$udgment resolves all issues in a case, leaving nothing for future determination! .ule /0!1+*b, provides an exception to
this &finalit rule& for cases with multiple claims! ' trial court ma enter $udgment on less than all claims and certif that
there is &no $ust reason for dela!& The designation b a trial court that its order is final and appealable is not conclusive!
Page 1 of 13
*2, 'lthough a circuit court ma designate its $udgment final as to particular claims, this designation is effective
onl when the order disposes of a distinct &$udicial unit!& The re-uired &$udicial unit for an appeal& has a settled meaning"
&the final $udgment on a claim, and not a ruling on some of several issues arising out of the same transaction or
occurrence which does not dispose of the claim!& 'n order dismissing some of several alternative counts, each stating
onl one legal theor to recover damages for the same wrong, is not considered an appealable $udgment while the other
counts remain pending because the counts are concerned with a single fact situation!&
*3, The circuit court did not dismiss the Gibsons' counts for batter, negligent infliction of emotional distress, and
intentional infliction of emotional distress against Brewer, which expressl incorporate the same facts as the counts
pending in the circuit court! The trial court did not resolve a single, distinct $udicial unit, and its $udgment is neither final nor
appealable as to the claims against Brewer! The appeals b or against Brewer are hereb dismissed!
*0, Missouri is a fact4pleading state! The count of breach of fiduciar dut does not compl with the basic
pleading rules! The trial court did not err in dismissing this count for failure to state a claim!
*5, ' civil conspirac is an agreement or understanding between persons to do an unlawful act, or to use
unlawful means to do a lawful act! 6n order to show a conspirac a plaintiff must establish that two or more persons with
an unlawful ob$ective, after a meeting of the minds, committed at least one act in furtherance of the conspirac, damaging
the plaintiff! The Gibsons' allegations do not support the inference of a &meeting of the minds!&
*7, 8ven the authorities cited b the Gibsons ac9nowledge that intentional sexual misconduct and intentional
infliction of emotional distress are not within the scope of emploment of a priest and are in fact forbidden! %n the facts
pleaded in this case, the Diocese is not liable under an agenc theor!
*/, :uestions of hiring, ordaining, and retaining clerg necessaril involve interpretation of religious doctrine,
polic, and administration! )uch excessive entanglement between church and state has the effect of inhibiting religion, in
violation of the First 'mendment! B the same to9en, $udicial in-uir into hiring, ordaining, and retaining clerg would
result in an endorsement of religion, b approving one model for church hiring, ordination, and retention of clerg! '
church's freedom to select clerg is protected &as a part of the free exercise of religion against state interference!&
%rdination of a priest is a &-uintessentiall religious& matter, &whose resolution the First 'mendment commits exclusivel
to the highest ecclesiastical tribunals of this hierarchical church!& The trial court did not err in dismissing the claims of
negligent hiring#ordination#retention!
*;, <egligent supervision implicates the dut of a master to control conduct of a servant! 'd$udicating the
reasonableness of a church's supervision of a cleric 44 what the church &should 9now& 44 re-uires in-uir into religious
Page 2 of 13
doctrine! This would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of
supervision! <onrecognition of this negligence tort preserves &the autonom and freedom of religious bodies while
avoiding an semblance of established religion!&
*=, .ecogni>ing the tort of intentional failure to supervise clerg, in contrast, does not offend the First 'mendment!
The right of free exercise does not relieve an individual of the obligation to compl with a valid and neutral law of general
applicabilit on the ground that the law proscribes *or prescribes, conduct that his religion prescribes *or proscribes,! This
rule logicall applies to intentional torts! .eligious conduct intended or certain to cause harm need not be tolerated under
the First 'mendment!
*+1, ' cause of action for intentional failure to supervise clerg re-uires a supervisor! The First 'mendment does
not, however, allow a court to decide issues of church government 44 whether or not a cleric should have a supervisor!
?ere, giving the allegations of the petition their broadest intendment, the Gibsons have alleged that the Diocese 9new that
harm was certain or substantiall certain to result from its failure to supervise Brewer, and thus have stated a cause of
action for intentional failure to supervise clerg! The trial court erred in dismissing this claim!
*++, To determine whether the Diocese's responses to its members' claims were &reasonable,& a court would
inevitabl $udge the reasonableness of religious beliefs, discipline, and government! 'ppling a negligence standard to
the actions of the Diocese in dealing with its parishioners offends the First 'mendment! The trial court did not err in
dismissing the Gibsons' claim for negligent infliction of emotional distress against the Diocese!
*+2, 6ntentional infliction of emotional distress re-uires not onl intentional conduct, but conduct that is intended
onl to cause severe emotional harm! The Gibsons' allegations do not support the inference that the Diocese's sole
purpose in its conduct was to invade the Gibsons' interest in freedom from emotional distress! The trial court did not err in
dismissing the Gibsons' claim!
*+3, 6n order to determine how a &reasonabl prudent Diocese& would act, a court would have to excessivel
entangle itself in religious doctrine, polic, and administration! Church members give their &implied consent& to be &sub$ect
onl to such appeals as the organism itself provides for!& The trial court did not err in dismissing the claims of
independent negligence b the Diocese!
Citation:
3pinion A$thor: D$ane Benton, Chie "$stice
3pinion 4ote: D5SM5SS/D 5# 1AR26 AFF5RM/D 5# 1AR26 R/4/RS/D 5# 1AR26 R/MA#D/D. 7i%ba$8h,
Robertson, Covin8ton, 0hite, *olstein, ""., and Flani8an, Sr. "., conc$r. 1rice, "., not sittin8.
Page 3 of 13
3pinion:
Michael Gibson and his parents Narron and Marianne Gibson appeal judgments of the circuit court dismissing
several counts of their petition against Father Michael Brewer and all counts against The Catholic Diocese of Kansas Cit!
"t# $oseph# Brewer purports to cross!appeal the trial court%s failure to dismiss the remaining counts#
The circuit court determined that there was no just reason to dela the appeals# .ule /0!1+*b,! &fter opinion b
the Court of &ppeals' (estern District' this Court granted transfer and now affirms in part' reverses in part' dismisses all
appeals b or against Brewer' and remands#
I.
This case was decided on motions to dismiss' prior to answer and discover# Therefore' the facts are assumed
as averred in the petitions# )ee @ohnson v! Araft General Foods, ))* "#(#+d ,,-' ,,* .Mo# banc /00-1#
Father Brewer' a Catholic priest and an associate pastor' invited Michael Gibson and a friend to spend the night
and watch movies in the church 2ector# Michael alleges that earl in the morning' Brewer touched or fondled him in a
se3ual' offensive' and unwelcome manner#
Michael%s parents' upon discovering the incident' reported it to the Diocese# 4fficials of the Diocese told them that
5this happens to oung men all the time5 and that Michael 5would get over it#5 Diocese emploees urged them to meet
with Brewer to resolve the situation# &fter hearing of similar incidents between Brewer and other oung bos' the Gibsons
5e3pressed their concerns to the Diocese#5 The were told that the incident with Michael was 5an innocent pat on the butt5
and that the should 5forgive and forget5 and get on with their lives# &ccording to the Gibsons' the Diocese continued to
ignore them until Brewer was eventuall removed from the Diocese#
The Gibsons filed a petition for damages against both Brewer and the Diocese' alleging nine counts6 batter'
negligent hiring7ordination7retention' negligent failure to supervise' negligent infliction of emotional distress' intentional
infliction of emotional distress' breach of fiduciar dut' conspirac' agenc liabilit' and independent negligence of the
Diocese# The trial court issued two judgments# 4ne dismissed all counts against the Diocese for 5failure to state a claim
upon which relief can be granted and because such claims as alleged against said defendant infringe upon its rights
provided b the First &mendment to the 8nited "tates Constitution#5 The other judgment dismissed all counts against
Brewer e3cept batter' negligent infliction of emotional distress' and intentional infliction of emotional distress#
II. Counts &ainst 're(er
None of the parties 9uestion the authorit of the trial court to certif its judgments as appealable under 2ule
:-#;/.b1# This Court sua sponte must determine its jurisdiction of these appeals# Bole v! Anowles, 0;* "#(#+d )<' ))
Page 4 of 13
.Mo# banc /00*1# 5& prere9uisite to appellate review is that there be a final judgment#5 6d! citing & 5+2!121! =f the trial
court%s judgments are not final' this Court lac>s jurisdiction and the appeals must be dismissed# Committee for 8duc!
8-ualit v! )tate, ):) "#(#+d --<' -*- .Mo# banc /00-1# &n appealable judgment resolves all issues in a case' leaving
nothing for future determination# Bole, 0;* "#(#+d at ))#
2ule :-#;/.b1 provides an e3ception to this 5finalit rule5 for cases with multiple claims# & trial court ma enter
judgment on less than all claims and certif that there is 5no just reason for dela#5 6d! The designation b a trial court that
its order is final and appealable is not conclusive# Alippel v! Bat9ins, <<: "#(#+d +)' ,; .Mo# &pp# /0)-1# =t is the
content' substance' and effect of the order that determines finalit and appealabilt# 8rlson v! Cusumano, <0/ "#(#+d
,/;' ,/+ .Mo# &pp# /0)*1#
&lthough a circuit court ma designate its judgment final as to particular claims' this designation is effective onl
when the order disposes of a distinct 5judicial unit#5 8rlson, <0/ "#(#+d at ,/+? )ee @! Cewin Boo9binding Co! v! ?olliston
Mills, <<* "#(#+d ,:*' ,:: .Mo# &pp# /0)-1? Ca9e v! Durham Cife 6ns! Co!, <<, "#(#+d ,++' ,+,!+- .Mo# &pp# /0),1# The
re9uired 5judicial unit for an appeal5 has a settled meaning6 5the final judgment on a claim' and not a ruling on some of
several issues arising out of the same transaction or occurrence which does not dispose of the claim#5 )tate ex rel! )tate
?w Comm'n v! )mith, ,;, "#(#+d /+;' /+, .Mo# /0*:1# 5&n order dismissing some of several alternative counts' each
stating onl one legal theor to recover damages for the same wrong' is not considered an appealable judgment while the
other counts remain pending because the counts are concerned with a single fact situation#5 Beir v! Brune' +<+ "#(#+d
*0:' <;; .Mo# /0*,1# =t is 5differing'5 5separate'5 5distinct5 transactions or occurrences that permit a separatel appealable
judgment' not differing legal theories or issues presented for recover on the same claim# 6d#
True' this Court once stated that the court of appeals% decisions cited in the preceding paragraphs should no
longer be followed# )pec9 v! (nion 8lec! Co#' :,/ "#(#+d /<' +; n# + .Mo# banc /0):1# @owever' this Court more
recentl called these cases 5well!reasoned decisions#5 Committee for 8duc! 8-ualit' ):) "#(#+d at -*-# Footnote + in
)pec9 is' in fact' the authorit that should not be followed' because' the ver ear )pec9 was decided' this Court adopted
2ule :-#;/.b1 and repealed 2ule )/#;< .that )pec9 had applied1 !! with the result that )pec9 was 5rethought'5 id#' and the
cases cited in this opinion are again good law#
@ere the circuit court did not dismiss the Gibsons% counts for batter' negligent infliction of emotional distress' and
intentional infliction of emotional distress against Brewer' which remain pending in the trial court# The other counts
purportedl certified as final and appealable !! breach of fiduciar and conspirac !! e3pressl incorporate the same facts
as the counts pending in the circuit court# The pending counts clearl arise from the same set of facts' and the same
Page 5 of 13
transactions and occurrences' as the counts supposedl appealed# &ccordingl' the trial court did not resolve a single'
distinct judicial unit' and its judgment is neither final nor appealable as to the claims against Brewer# This Court has no
jurisdiction of the appeals b or against Brewer' which are hereb dismissed# )ee 8rlson, <0/ "#(#+d at ,/+#
III. Counts &ainst the Diocese
The circuit court dismissed all counts against the Diocese# &ccordingl' the trial court resolved all legal issues and
left open no remedies for the Gibsons against the Diocese# & circuit court ma enter judgment as to fewer than all parties
and certif that there is 5no just reason for dela#5 .ule /0!1+*b,! (hen one defendant' but not all defendants' is
dismissed from a case' the trial court ma designate its judgment as final 5for purposes of appeal#5 )pires v! 8dgar, */,
"#(#+d ,:+' ,:* .Mo# banc /0:-1# The circuit court did not abuse its discretion in determining that the judgments against
the Diocese were final and appealable# This Court has jurisdiction over the appeals against the Diocese# Mo! Const! art!
D, & +1!
2eview of dismissal of a petition allows pleadings their broadest intendment' treats all facts alleged as true'
construes all allegations favorabl to plaintiff' and determines whether averments invo>e principles of substantive law#
Farm Bureau Town E Countr 6ns! v! 'ngoff, 0;0 "#(#+d ,-)' ,*/ .Mo# banc /00*1#
. #ailure To State Claim
). 'reach of #iduciary Duty
The Gibsons allege that the Diocese 5stood in a fiduciar relationship with the plaintiffs as recipients of services
controlled' directed and7or monitored b the defendant Diocese'5 and that the Diocese 5held a fiduciar relationship of
trust and confidence with the Gibsons#5 4ther than these general conclusions' the Gibsons simpl incorporate !! as a
5breach of fiduciar dut5 !! the other factual allegations in their petition#
Missouri is a fact!pleading state# Cuethans v! Bashington (niversit, )0- "#(#+d /<0' /:/ .Mo# banc /00*1#
Aleadings must contain a 5short and plain statement of the facts showing that the pleader is entitled to relief#5 .ule 55!15!
Fact!pleading presents' limits' defines and isolates the contested issues for the trial court and the parties in order to
e3pedite a trial on the merits# Cuethans, )0- "#(#+d at /:/!:+#
The count of breach of fiduciar dut does not compl with the basic pleading rules# The trial court did not err in
dismissing this count for failure to state a claim#
*. Conspiracy
The Gibsons allege that the Diocese conspired with Brewer to commit acts of se3ual misconduct and intentional
infliction of emotion distress' because it ./1 >new or should have >nown that Brewer was committing se3ual misconduct
Page 6 of 13
and failed to ta>e an action to prevent it or to warn them' .+1 failed to remove Brewer from his position' .,1 hid the
conduct of Brewer and other priests from the public' .-1 refused to ac>nowledge the problem or educate the public' .*1
ignored the problem' and .<1 e3tracted confidentialit agreements from se3 abuse victims#
& civil conspirac is an agreement or understanding between persons to do an unlawful act' or to use unlawful
means to do a lawful act# .itterbusch v! ?olt, :)0 "#(#+d -0/' -0- .Mo# banc /00;1# & plaintiff must establish that two or
more persons with an unlawful objective' after a meeting of the minds' committed at least one act in furtherance of the
conspirac' damaging the plaintiff# .ice v! ?odapp, 0/0 "#(#+d +-;' +-* .Mo# banc /00<1#
The Gibsons% allegations do not support the inference of a 5meeting of the minds#5 The trial court properl
dismissed the conspirac count for failure to state a claim upon which relief can be granted#
+. !espondeat Superior,&ency -iability
The Gibsons state the conclusion that Brewer was 5acting in the course and scope of authorit given him b
defendant when he committed the acts alleged#5 8nder the doctrine of respondeat superior, a principal is liable for its
agent%s acts that are ./1 within the scope of emploment and .+1 done as a means or for the purpose of doing the wor>
assigned b the principal# ?enderson v! Caclede .adio, 6nc!, *;< "#(#+d -,-' -,< .Mo# /0:-1? Cinam v! Murph, +,+
"#(#+d 0,:' 0-/ .Mo# /0*;1# Bven the authorities cited b the Gibsons ac>nowledge that intentional se3ual misconduct
and intentional infliction of emotional distress are not within the scope of emploment of a priest' and are in fact forbidden#
)ee e!g!, Brd v! Faber, *<* N#B#+d *)-' *)) .4hio /00/1? Aon9le v! ?enson, <:+ N#B#+d -*;' -*: .=nd# &pp# /00<1# 4n
the facts pleaded in this case' the Diocese is not liable under an agenc theor#
'. The #irst mendment
The Gibsons argue that the trial court erred in dismissing their claims' based on the First &mendment6 5Congress
shall ma>e no law respecting an establishment of religion or prohibiting the free e3ercise thereof # # # #5 (!)! Const!,
'mend! 6! The First &mendment applies to the states b incorporation into the Fourteenth &mendment# )ee Cantwell v!
Connecticut, ,/; 8#"# +0<' ,;,' <; "#Ct# 0;;' 0;,' )- C#Bd# /+/, ./0-;1? Congregation Temple 6srael v! Cit of Creve
Coeur, ,+; "#(#+d -*/' -*- .Mo# /0*01# The First &mendment applies to an application of state power' including judicial
decision on a state%s common law# Areshi9 v! )aint <icholas Cathedral, ,<, 8#"# /0;' /0/' ); "#Ct# /;,:' /;,)' - C#Bd#+d
//-; ./0<;1#
None of the parties cite' let alone discuss' the religion clauses of the Missouri Constitution' article =' sections *!:#
This Court has held 5that the provisions of the Missouri Constitution declaring that there shall be a separation of church
and state are not onl more e3plicit but more restrictive5 than the First &mendment# Faster v! Tusse, */+ "#(#+d 0:'
Page 7 of 13
/;/!;+ .Mo# banc /0:-1# Therefore' this Court does not address the applicabilit' if an' of the Missouri Constitution to
this case#
). Ne&li&ent .irin&,/rdination,!etention of Cler&y
The Gibsons allege that the Diocese was negligent in 5hiring7ordaining5 and then retaining Brewer# Negligence is
5conduct which falls below the standard established b law for the protection of others against unreasonable ris> of harm#5
.estatement *)econd, of Torts sec! 2;2 ./0<*1# To establish a claim for negligent hiring or retention' a plaintiff must
show6 ./1 the emploer >new or should have >nown of the emploee%s dangerous proclivities' and .+1 the emploer%s
negligence was the pro3imate cause of the plaintiff%s injuries# Gaines v! Monsanto Co!, <** "#(#+d *<)' *:/ .Mo# &pp#
/0),1# )ee also Mc?affie v! Bunch, )0/ "#(#+d )++' )+*!+< .Mo# banc /00*1? Forter v! Thompson, +;< "#(#+d *;0' */+
.Mo# /0-:1#
2eligious organiDations are not immune from civil liabilit for the acts of their clerg# ?!.!B! v! @!C!G!, 0/, "#(#+d
0+' 0) .Mo# &pp# /00*1# =f neutral principles of law can be applied without determining 9uestions of religious doctrine'
polit' and practice' then a court ma impose liabilit# Fresbterian Church v! Mar 8li>! Blue ?ull Memorial Fresbterian
Church, ,0, 8#"# --;' --0' )0 "#Ct# <;/' <;<' +/ C#Bd#+d <*) ./0<01? @ones v! Bolf, --, 8#"# *0*' <;,' 00 "#Ct# ,;+;'
,;+*' </ C#Bd#+d ::* ./0:01? Fresbter of 8li$ah Farish Cove$o v! @aeggi, <)+ "#(#+d -<*' -<:!<) .Mo# banc /0)-1#
For e3ample' a church can be vicariousl liable for the negligent operation of a vehicle b a pastor in the scope of
emploment# )ee, e!g!, Garber v! )cott, *+* "#(#+d //-' //0!+; .Mo# &pp# /0:*1? cf! Cox v! <ew ?ampshire, ,/+ 8#"#
*<0' *:-' *:)' </ "#Ct# :<+' :<*' :<: ./0-/1# This Court !! when abolishing the doctrine of charitable immunit in
Missouri !! authoriDed a person who slipped and fell on church premises to sue for negligence# Garnier v! )t! 'ndrew
Fresbterian Church of )t! Couis, --< "#(#+d <;:' <;) .Mo# banc /0<01# 5The result is that the church' as the owner and
occupier of the premises in 9uestion' is subject to all the duties and liabilities which are incident to the ownership and
possession of real estate#5 Claridge v! Batson Terrace Christian Church, -*: "#(#+d :)*' :): .Mo# banc /0:;1#
Euestions of hiring' ordaining' and retaining clerg' however' necessaril involve interpretation of religious
doctrine' polic' and administration# "uch e3cessive entanglement between church and state has the effect of inhibiting
religion' in violation of the First &mendment# )ee 'gostini v! Felton, FF8#"#FF' //: "#Ct# /00:' +;/* ./00:1? )erbian 8!
%rthodox Diocese v! Milivo$evich, -+< 8#"# <0<' :;)!//' 0< "#Ct# +,:+' +,);!)/' -0 C#Bd#+d /*/' reh! denied, -+0 8#"#
):,' 0: "#Ct# /0/' *; C#Bd#+d /** ./0:<1# )ee also Batson v! @ones, ); 8#"# <:0' :+:' +; C#Bd# <<< ./):/1#
B the same to>en' judicial in9uir into hiring' ordaining' and retaining clerg would result in an endorsement of
religion' b approving one model for church hiring' ordination' and retention of clerg# 'gostini, FF8#"#FF' //: "#Ct# at
Page 8 of 13
+;/*# & church%s freedom to select clerg is protected 5as a part of the free e3ercise of religion against state interference#5
Aedroff v! )t! <icholas Cathedral of .ussian %rthodox Church, ,-- 8#"# 0-' //<' :, "#Ct# /-,' /*-!**' 0: C#Bd#+d /+;
./0*+1# )ee also Gon>ale> v! .oman Catholic 'rchbishop, +); 8#"# /' /<' *; "#Ct# *' :!)' :- C#Bd#+d /,/ ./0+01?
)charon v! )t! Cu9e's 8piscopal Fresbterian ?osp!, 0+0 F#+d ,<;' ,<, .)th Cir# /00/1# 4rdination of a priest is a
59uintessentiall religious5 matter' 5whose resolution the First &mendment commits e3clusivel to the highest
ecclesiastical tribunals of this hierarchical church#5 )erbian 8! %rthodox Diocese, -+< 8#"# at :+;' 0< "#Ct# at +,)*# The
trial court did not err in dismissing the claims of negligent hiring7ordination7retention#
*. Ne&li&ent #ailure to Supervise Cler&y
The Gibsons allege that after Brewer was hired7ordained' the Diocese had a dut to supervise his activities' which
it failed to do# The Gibsons assert that the Diocese 5>new or reasonabl should have >nown of prior se3ual misconduct
and7or a propensit to such conduct5 b Brewer#
Negligent supervision implicates the dut of a master to control conduct of a servant6
& master is under the dut to e3ercise reasonable care so to control his servant while acting outside the scope of
his emploment as to prevent him from intentionall harming others or from so conducting himself as to create an
unreasonable ris> of bodil harm to them if
.a1 the servant
.i1 is upon the premises in possession of the master or upon which the servant is privileged to enter onl as
his servant' or
.ii1 is using a chattel of the master' and
.b1 the master
.i1 >nows or has reason to >now that he has the abilit to control his servant' and
.ii1 >nows or should >now of the necessit and opportunit for e3ercising such control#
.estatement *)econd, of Torts, sec! 3+/ ./0<*1# )ee also Conro v! Cit of Ballwin, :+, "#(#+d -:<' -:0 .Mo# &pp#
/0)<1#
&djudicating the reasonableness of a church%s supervision of a cleric !! what the church 5should >now5 !! re9uires
in9uir into religious doctrine# Based on the authorities cited in section ===#B#/' this would create an e3cessive
entanglement' inhibit religion' and result in the endorsement of one model of supervision# )ee 'gostini, FF8#"#FF' //:
"#Ct# at +;/*? Aedroff, ,-- 8#"# at //<' :, "#Ct# at /*-!**? Gon>ale>, +); 8#"# at /<' *; "#Ct# at :!)? )charon, 0+0 F#+d
at ,<,? )erbian 8! %rthodox Diocese, -+< 8#"# at :+;' 0< "#Ct# at +,)*#
Not recogniDing the cause of negligent failure to supervise clerg is not an establishment of religion because it is a
Page 9 of 13
5nondiscriminator religious!practice e3emption#5 8mploment Division v! )mith, -0- 8#"# ):+' ):0' //; "#Ct# /*0*'
/<;<' /;) C#Bd#+d ):< ./00;1# =t achieves 5a benevolent neutralit which will permit religious e3ercise to e3ist without
sponsorship and without interference#5 Bal> v! Tax Commission, ,0: 8#"# <<-' <<0' 0; "#Ct# /-;0' /-/+' +* C#Bd#+d#!!
<0: ./0:;1? Corporation of Fresiding Bishop of Church of @esus Christ of Cater4da )aints v! 'mos, -), 8#"# ,+:' ,,-'
/;: "#Ct# +)<+' +)<:!<)' 0: C#Bd#+d +:, ./0):1# Nonrecognition of this negligence tort preserves 5the autonom and
freedom of religious bodies while avoiding an semblance of established religion#5 Bal>, ,0: 8#"# at <:+' 0; "#Ct# at
/-/,#
This Court has considered the cases cited b the Gibsons# )ee Moses v! Diocese of Colorado, )<, A#+d ,/;
.Colo# /00,1' cert! denied, FF8#"#FF' //- "#Ct# +/*,' /+) C#Bd#+d )); ./00-1? Destefano v! Grabrian, :<, A#+d +:* .Colo#
/0))1? Brd v! Faber, *<* N#B#+d *)- .4hio /00/1? Aon9le v! ?enson, <:+ N#B#+d -*; .=nd# &pp# /00<1? 8ric9son v!
Christenson, :)/ A#+d ,), .4r# &pp# /0)01? @ones v! Trane, *0/ N#G#"#+d 0+: ."up# /00+1# For the reasons stated' this
Court finds other cases more persuasive# C!C!<! v! Chauder, *<, N#(#+d -,- .(is# /00:1? Frit>laff v! 'rchdiocese of
Milwa9ee, *,, N#(#+d :); .(is# /00*1' cert! denied, FF8#"#FF' //< "#Ct# 0+; ./00<1? )wanson v! .oman Catholic
Bishop of Fortland, <0+ &#+d --/ .Me# /00:1? Dausch v! .9se, /00, (C ,-):, .N#D# =ll# /00,1' affirmed in part and
reserved in part on other grounds, *+ F#,d /-+* .:th Cir# /00-1? )chmidt v! Bishop, ::0 F#"upp# ,+/ ."#D#N#G# /00/1?
.oppolo v! Moore, <-- "o#+d +;< .Ca# &pp# /00-1#
+. Intentional #ailure to Supervise Cler&y
2ecogniDing the tort of intentional failure to supervise clerg' in contrast' does not offend the First &mendment#
The right of free e3ercise does not relieve an individual of the obligation to compl with a valid and neutral law of
general applicabilit on the ground that the law proscribes .or prescribes1 conduct that his religion prescribes .or
proscribes1#
8mploment Division, -0- 8#"# at ):0' //; "#Ct# at /<;;' approved in Cit of Boerne v! Flores, FF8#"#FF' //: "#Ct# +/*:'
+/</' +/:/ ./00:1 Hinternal 9uotation mar>s omittedI#
This rule clearl applies to 5generall applicable criminal law#5 8mploment Division, -0- 8#"# at ))-' //; "#Ct# at
/<;,# =t also logicall applies to intentional torts# 2eligious conduct intended or certain to cause harm need not be
tolerated under the First &mendment# )ee Cantwell, ,/; 8#"# at ,;)# =ntent denotes 5that the actor desires to cause
conse9uences of his act' or that he believes that the conse9uences are substantiall certain to result from it#5
.estatement *)econd, of Torts sec! ;' ./0<*1# &n actor intends conduct when he 5>nows that the conse9uences are
certain' or substantiall certain' to result5 from his act# 6d! at cmt! b!
& cause of action for intentional failure to supervise clerg is stated if ./1 a supervisor .or supervisors1 e3ists .+1
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the supervisor .or supervisors1 >new that harm was certain or substantiall certain to result' .,1 the supervisor .or
supervisors1 disregarded this >nown ris>' .-1 the supervisor%s inaction caused damage' and .*1 the other re9uirements of
the 2estatement ."econd1 of Torts' section ,/: are met# This cause of action re9uires a supervisor# The First
&mendment does not' however' allow a court to decide issues of church government !! whether or not a cleric should
have a supervisor# )ee Aedroff, ,-- 8#"# at //<' :, "#Ct# at /*-#
@ere' giving the allegations of the petition their broadest intendment' the Gibsons have alleged that the Diocese
>new that harm was certain or substantiall certain to result from its failure to supervise Brewer' and thus have stated a
cause of action for intentional failure to supervise clerg# The trial court erred in dismissing this claim#
0. Ne&li&ent Infliction of Emotional Distress
The Gibsons allege that' after the reported the se3ual misconduct' the Diocese negligentl inflicted emotional
distress on them b6 failing to investigate' covering up the incident' and ma>ing the statements 5this happens to oung
men all the time'5 this was 5an innocent pat on the butt5 and the should 5forgive and forget5 and get on with their lives#
To prevail under negligent infliction of emotional distress' a plaintiff must show6 ./1 the defendant should have
realiDed that its conduct involved an unreasonable ris> of causing the distress' and .+1 the emotional distress or mental
injur must be medicall diagnosable and sufficientl severe to be medicall significant# Bass v! <oone Co!, <-< "#(#+d
:<*' ::+!:, .Mo# banc /0),1#
The Gibsons% claim is related not to the relationship between the Diocese and its clerg' but rather to the
relationship between the Diocese and its parishioners# To determine whether the Diocese%s responses to its members%
claims were 5reasonable'5 a court would inevitabl judge the reasonableness of religious beliefs' discipline' and
government# &ppling a negligence standard to the actions of the Diocese in dealing with its parishioners offends the First
&mendment#
=n short' the First and Fourteenth &mendments permit hierarchical religious organiDations to establish their own
rules and regulations for internal discipline and government' and to create tribunals for adjudicating disputes over
these matters# (hen this choice is e3ercised and ecclesiastic tribunals are created to decide disputes over the
government and direction of subordinate bodies' the Constitution re9uires that civil courts accept their decision as
binding upon them#
)erbian 8! %rthodox Diocese, -+< 8#"# at :+-!+*' 0< "#Ct# at +,):!))# The trial court did not err in dismissing the
Gibsons% claim for negligent infliction of emotional distress against the Diocese#
1. Intentional Infliction of Emotional Distress
The Gibsons allege that the Diocese%s conduct was e3treme and outrageous in 5allowing the assault to happen'
and in covering up the incident and other such incidents b defendant Brewer and other priests' b failing to properl
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investigate' and in their treatment of the Gibsons after the assault#5 The further allege that the Diocese 5acted
intentionall#5
To state a claim for intentional infliction of emotional distress' a plaintiff must plead e3treme and outrageous
conduct b a defendant who intentionall or rec>lessl causes severe emotional distress that results in bodil harm# A!G!
v! .!T!.!, 0/) "#(#+d :0*' :00 .Mo# banc /00<1# The conduct must have been 5so outrageous in character' and so
e3treme in degree' as to go beond all possible bounds of decenc' and to be regarded as atrocious' and utterl
intolerable in a civiliDed communit#5 Barrem v! Farrish, -,< "#(#+d <:;' <:, .Mo# /0<01# The conduct must be
5intended onl to cause e3treme emotional distress to the victim#5 A!G!, 0/) "#(#+d at :00#
&s discussed' under the First &mendment' liabilit for intentional torts can be imposed without e3cessivel delving
into religious doctrine' polit' and practice# )ee Cantwell, ,/; 8#"# at ,;:!;)# @owever' the Gibsons have failed to state
a claim# =ntentional infliction of emotional distress re9uires not onl intentional conduct' but conduct that is intended onl
to cause severe emotional harm# A!G!, 0/) "#(#+d at :00# The Gibsons% allegations do not support the inference that the
Diocese%s sole purpose in its conduct was to invade the Gibsons% interest in freedom from emotional distress# )ee id! at
:00!);;# The trial court did not err in dismissing the Gibsons% claim#
2. Independent Ne&li&ence of the Diocese
The Gibsons allege several acts of negligence b the Diocese6 ./1 failing to have a polic to prevent se3ual abuse
of minors' .+1 concealing unlawful se3ual acts and abuse b failing to educate and accuratel inform the public' .,1
ignoring and failing to investigate complaints' .-1 tring to silence claims and prevent members and the public from
discovering priests accused of se3ual misconduct' and .*1 failing to evaluate the propensit of priests to engage in
improper se3ual conduct#
To establish a negligence claim' a plaintiff must show6 ./1 defendant had a dut to the plaintiff? .+1 defendant
failed to perform that dut? and .,1 defendant%s breach was the pro3imate cause of the plaintiff%s injur# Martin v! Cit of
Bashington, )-) "#(#+d -):' -0, .Mo# banc /00,1#
(hether negligence e3ists in a particular situation depends on whether or not a reasonabl prudent person would
have anticipated danger and provided against it# )cheibel v! ?illis, *,/ "#(#+d +)*' +)) .Mo# banc /0:<1# =n order to
determine how a 5reasonabl prudent Diocese5 would act' a court would have to e3cessivel entangle itself in religious
doctrine' polic' and administration#
The right to organiDe voluntar religious associations to assist in the e3pression and dissemination of an religious
doctrine' 5 and for the ecclesiastical government of all the individual members' congregations' and officers within
the general association' is un9uestioned# &ll who unite themselves to such a bod do so with an implied consent
to this government' and are bound to submit to it#
Page 12 of 13
)erbian, -+< 8#"# at ://' 0< "#Ct# at +,)/' 9uoting Batson, ); 8#"# at :+)!+0# Church members give their 5implied
consent5 to be 5subject onl to such appeals as the organism itself provides for#5 6d! The trial court did not err in
dismissing the claims of independent negligence b the Diocese#
I$.
The appeal and cross!appeal involving Brewer%s liabilit are dismissed# The dismissal of the claim of intentional failure
to supervise against the Diocese is reversed' but the remainder of the judgment dismissing all other counts against the
Diocese is affirmed# The case is remanded for proceedings consistent with this opinion#
Separate 3pinion:
None
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
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