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Bryan R. v. Watchtower Bible and Tract Soc.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 144
Docket:	Cum-98-531	
Argued:	May 4, 1999
Decided:	October 18, 1999




	[¶1]  Bryan R. alleges that he was sexually abused during several of his
adolescent years by Larry Baker, an adult member of his church.  He has
obtained a judgment against Baker, but his complaint against the church and
its elders was dismissed by the Superior Court (Cumberland County, Calkins,
J.) for failure to state a claim.  He appeals from the judgment dismissing the
claims against the church defendants.  We affirm the judgment.
	[¶2]  Because this matter was presented to the Superior Court on the
church's motion to dismiss, we take the material allegations of the
complaint as admitted.  See McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994). 
The following facts were alleged in Bryan's complaint:
	[¶3]  The Watchtower Bible and Tract Society is a New York-based
nonprofit corporation, better known as the Jehovah's Witnesses.  It is a
religious organization.  When the events at issue occurred, Robert Wells, Pat
LaBreck, and Bryan's stepfather were "elders" and members of the "judicial
body" of the Augusta congregation of the church, Larry Baker was an adult
member of the church, and Bryan R. and his family were members of the
	[¶4]  At some time in the past, also while Larry Baker was an adult
member of the church, he molested a minor member of the congregation
identified as "John Doe."  The elders of the Augusta congregation knew that
Baker had molested John Doe.  Wells, LaBreck, and Bryan's stepfather, in
their roles as the judicial body of the Augusta congregation, decided on the
following response to Baker's actions:  (1) they demoted Baker from
"ministerial servant" to "baptized entry level member"; (2) they "privately
rebuked" Baker; and (3) and they temporarily "forbade Baker from having
any contact with minor members" of the church.  The defendants did not
alert the members of the church to Baker's misdeeds.{1}
	[¶5]  Eventually, Baker was allowed by the defendants to resume
activities as an ordinary member of the church.  Bryan alleges that Baker was
able to earn his trust and confidence because the church placed Baker in a
position of leadership and respect.  Bryan was molested by Baker from 1989
through 1992 while Bryan was a teenager and lived next door to Baker.  He
alleges that his stepfather, who was aware of Baker's history, nonetheless
allowed Baker to spend time alone with Bryan at his home.  As a result of
Baker's repeated sexual abuse, Bryan suffered significant emotional harm
necessitating psychiatric hospitalization.
	[¶6]  Bryan filed this action against Baker, the church, and its elders
to recover damages for the injuries he suffered as a result of Baker's assaults
on him.  In count I of his complaint, he alleged that each of the defendants
breached a fiduciary duty owed to him as a member of the congregation; in
counts II and III, he alleged that the defendants were liable to him for
negligent infliction of emotional distress and intentional infliction of
emotional distress.  Count IV contained Bryan's claim against Baker for
battery, and in count V, Bryan alleged that his stepfather was individually
liable for negligence.  The stepfather was later dismissed from the action
pursuant to a joint motion filed by the parties, thereby resolving count V.
	[¶7]  The Watchtower Society, Robert Wells, and Pat LaBreck filed a
motion to dismiss each of the claims against them.  After a hearing, the
Superior Court granted the motion, concluding that Bryan had failed to state
a claim, relying on Swanson v. Roman Catholic Bishop of Portland, 1997 ME
63, 692 A.2d 441.  Bryan's appeal from that judgment was remanded for
lack of finality because the claims against Larry Baker had not yet been
adjudicated.  The Superior Court, based on a stipulation of the parties,
entered judgment against Baker.  After the entry of judgment against Baker,
Bryan appealed from the court's judgment dismissing the claims against the
church defendants.  Baker did not appeal the judgment against him.
A.  Standard of Review and Claims Asserted

	[¶8]  In reviewing the trial court's dismissal of a complaint, we
"examine the complaint in the light most favorable to the plaintiff to
determine whether it sets forth elements of a cause of action or alleges facts
that would entitle the plaintiff to relief" pursuant to a valid cause of action. 
McAfee, 637 A.2d at 465, quoted in Hamilton v. Greenleaf, 677 A.2d 525,
527 (Me. 1996)).  "The legal sufficiency of a complaint challenged pursuant
to M.R. Civ. P. 12(b)(6) is a question of law."  Hamilton, 677 A.2d at 527.
	[¶9]  Before examining the claims asserted by Bryan, it is instructive to
address those claims that he does not assert.  He does not allege that Baker
was an agent or employee of the church.  Nor does he claim that Baker
occupied any clerical position such as priest, minister, or pastor.  Cf.
Swanson, 1997 ME 63, ¶ 13, 692 A.2d at 445.{2}  Moreover, the complaint
does not allege that the church affirmatively placed Baker in a position of
control and supervision of children, such as a Sunday school teacher or
youth coordinator, or that the church knowingly placed Baker in a position
where he could sexually abuse children within a church setting.  Rather,
Bryan alleges that Baker was "able to earn [Bryan's] trust and confidence"
because of his position of power and authority in the church.{3}  These
allegations place Baker in a relationship to Bryan that was not different in
quality from any other member in good standing of the church.
	[¶10]  The crux of Bryan's claim is that the church, because of an
alleged special relationship with its members, has a duty to protect its
members from each other, at least when the church and its agents are aware
of a potential danger posed by a member.  Because the church elders knew
of Baker's propensity to abuse children, Bryan argues that they had an
independent duty to protect him from Baker.{4}  He addresses that duty
through three separate counts.  We address each count in turn.

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. 
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} 
	[¶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
	[¶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. 
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.  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.  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.

On to part 2.

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