LINDA TEADT, FOR PUBLICATION
September 17, 1999
Plaintiff-Appellant, 9:25 a.m.
v No.204107
St. Joseph Circuit
Court
ST. JOHN’S EVANGELICAL CHURCH OF LC No.96000112 NO
BURR OAK, MICHIGAN, and ROBERT
GARBISCH,
Defendants-Appellees,
and
LUTHERAN CHURCH MISSOURI SYNOD,
MICHIGAN DISTRICT LUTHERAN CHURCH
MISSOURI SYNOD,
Defendants.
LINDA TEADT,
Plaintiff-Appellee,
v No.204118
St. Joseph Circuit
Court
LUTHERAN CHURCH MISSOURI SYNOD and LC No.96000112 NO
MICHIGAN DISTRICT LUTHERAN CHURCH
MISSOURI SYNOD,
Defendants-Appellants.
Before: McDonald, P.J., and Sawyer and Collins, JJ.
McDONALD, P.J.
These consolidated appeals present questions of first
impression in Michigan regarding whether to recognize a cause of
action for breach of fiduciary duty against a member of the
clergy who engaged in a sexual relationship with a parishioner.
In Docket No. 204107, plaintiff Linda Teadt appeals by leave
granted the trial court’s order granting summary disposition in
favor of defendants St. John’s Evangelical Church of Burr Oak,
Michigan (St. John’s) and Robert Garbisch. In Docket No. 204118,
defendants Lutheran Church Missouri Synod and Michigan District
Lutheran Church Missouri Synod appeal by leave granted the trial
court’s order granting in part and denying in part their motion
for summary disposition. We affirm in part and reverse in part.
This case arises out of a relationship between plaintiff and
Garbisch which spanned from late 1989 or early 1990 until the
fall of 1994. During the relationship, plaintiff and Garbisch
were both adults and were both married to third parties.
Garbisch was the pastor of defendant St. John’s church during the
relationship. Garbisch was also a “circuit counselor” for the
District, which is a pastor elected by more than one congregation
who serves as a communication link between pastors and
congregations and congregations and the District. Defendant
Synod describes itself as “a union of congregations which have
voluntarily organized to create the Synod.” Defendant District
is a “division[] of the Synod, organized by the Synod.”
Plaintiff’s relationship with Garbisch began when Garbisch
visited her at home before an upcoming surgery to her lower back.
The parties agree that initially Garbisch assumed the role of a
pastoral counselor and attempted to help plaintiff with several
personal difficulties she faced.1 The parties also agree that at
some later point plaintiff and Garbisch engaged in a sexual
relationship, which was not in any way related to or condoned
under church doctrine. However, plaintiff and defendants dispute
the context in which the sexual relationship between plaintiff
and Garbisch occurred.
Plaintiff’s position is that the counseling relationship
continued and that Garbisch used counseling in order to
eventually initiate a sexual relationship with her. Plaintiff
also claims that prior to initiating a sexual relationship,
Garbisch engaged in an inappropriate course of conduct such as
appearing at her home and school, giving her personal greeting
cards and inspirational messages, and discussing inappropriate
subjects, including “his perceived sexual inadequacies and
private parts.” Plaintiff alleges that Garbisch began making
sexual advances toward her and when she protested, he misled her
with his “distorted views of Christian morality,” which confused
plaintiff because of Garbisch’s “superior” status as pastor of
her church.2 Plaintiff claims that Garbisch became involved in
her life to the extent that his financial and emotional
assistance to her was in exchange for sexual relations.
Moreover, according to plaintiff, the Synod, District, and St.
John’s had a responsibility to either prevent Garbisch from
abusing his ministerial role or to intervene and end the
relationship in order to protect plaintiff. Plaintiff asserts
that St. John’s, the District, and the Synod were aware of the
relationship and should have ended Garbisch’s behavior.
Garbisch claims his relationship with plaintiff was entirely
consensual. According to Garbisch, while he initially offered
counseling services to plaintiff, their relationship developed
into a friendship and eventually into a sexual relationship.
Garbisch testified at his deposition that while he continued to
discuss plaintiff’s personal difficulties and continued to
attempt to assist her with her problems during their sexual
relationship, at that point in time his assistance was as an
individual and a friend rather than as a counselor.
Garbisch resigned as pastor of St. John’s toward the end of
1994 and moved away. The sexual relationship between plaintiff
and Garbisch ended at about that same time. Plaintiff later
filed her complaint against defendants. Relevant to this appeal
are plaintiff’s claims against Garbisch for breach of fiduciary
duty, intentional infliction of emotional distress or negligent
infliction of emotional distress, her claims against St. John’s
for negligent supervision, and/or retention, and her claims
against the Synod and District for vicarious liability and
negligent hiring, supervision, and/or retention.3
The Synod and District were the first to file a motion for
summary disposition in the trial court. They made their motion
under MCR 2.116(C)(4), (8), and (10). The motion was heard by a
judge other than the one assigned to the case because the judge
assigned to the case was on vacation. Following argument of
counsel, the court announced it would grant in part and deny in
part the Synod and District’s motion, saying it saw an issue of
fact with regard to the vicarious liability and negligent hiring,
supervision, and retention causes of action. Specifically, the
trial court found there were questions regarding whether
Garbisch’s actions were outside the scope of his authority as a
pastor and as a circuit counselor, which precluded summary
disposition on plaintiff’s vicarious liability claim. The trial
court also found that questions of fact remained regarding the
adequacy of the system for dealing with abuse allegations within
the Synod and District that precluded summary disposition on
plaintiff’s negligent hiring, supervision, and retention claim.
St. John’s later made a motion for summary disposition on
plaintiff’s claims against it for vicarious liability and
negligent hiring, supervision, and retention under 2.116(C)(4),
(8), and (10), which was heard by the judge assigned to the case.
The trial court granted St. John’s motion with respect to
plaintiff’s claim of vicarious liability under a respondeat
superior theory under MCR 2.116(C)(10), finding that no factual
development could sustain plaintiff’s claim because Garbisch’s
actions of engaging in a sexual relationship with a parishioner
and counselee were clearly outside the scope of his employment.
The trial court also granted summary disposition to St. John on
plaintiff’s claim of negligent hiring since plaintiff conceded
St. John’s had no reason to anticipate Garbisch’s actions when it
hired him. Next, the trial court addressed St. John’s motion
regarding plaintiff’s claim for negligent supervision and
retention. The trial court found there were questions of fact
regarding St. John’s duty to further investigate the situation
once a member of the Board of Elders raised his concerns
regarding rumors of a relationship between Garbisch and plaintiff
at a Board of Elders meeting. However, the trial court
eventually ruled that Garbisch had no recognized legal duty to
plaintiff because Michigan had not yet recognized a cause of
action for breach of fiduciary duty in this context. Near the
end of the hearing in which the trial court announced its ruling,
Garbisch made an oral motion for summary disposition under MCR
2.116(C)(8), relying on the arguments raised by St. John’s, the
Synod, and the District. The trial court granted Garbisch’s
motion, reasoning that the underlying duty owed by Garbisch must
be identified as a matter of law, and Michigan law did not
currently recognize such a duty.4 This Court granted leave to
appeal to plaintiff and to defendants Synod and District on the
trial court’s adverse rulings to these parties.
Plaintiff first argues the trial court erred in granting
summary disposition to Garbisch based on its finding that her
breach of fiduciary duty claim against Garbisch arising out of
their sexual relationship was not cognizable under Michigan law.
Plaintiff’s theory is that Garbisch is liable for the physical,
emotional, and psychological damages that she incurred as a
result of the relationship because Garbisch misused his
ministerial position of superiority and trust. Plaintiff
acknowledges that whether to recognize such a cause of action is
an issue of first impression in Michigan. Plaintiff urges this
Court to adopt the reasoning of F.G. v MacDonell, 696 A2d 697
(NJ, 1997), where the Supreme Court of New Jersey recognized a
cause of action for breach of fiduciary duty in the context of a
sexual relationship between a clergyman and a parishioner that
occurred while the clergyman was providing pastoral counseling to
the parishioner.
We review the trial court’s grant or denial of summary
disposition de novo. Vandenberg v Vandenberg, 231 Mich App 497,
499; 586 NW2d 570 (1998). Whether to recognize plaintiff’s cause
of action for breach of fiduciary duty in this context is a
question of law. Questions of law are reviewed de novo.
Hagerman v Gencorp Automotive, 457 Mich 720, 727; 579 NW2d 347
(1998).
We first address defendants argument that plaintiff’s claim
for breach of fiduciary duty essentially alleges the amatory tort
of seduction, which has been abolished in Michigan by statute,
MCL 600.2901(3); MSA 27A.2901(3). This Court defined the tort of
seduction in Cotton v Kambly, 101 Mich App 537, 539; 300 NW2d 627
(1980) as:
the act of persuading or inducing a woman of previously
chaste character to depart from the path of virtue by
the use of any species of acts, persuasions, or wiles
which are calculated to have, and do have, that effect,
and resulting in her ultimately submitting her person
to the sexual embraces of the person accused. [quoting
Savage v Embrey, 216 Mich 123, 127; 184 NW 503 (1921).]
The Legislature long ago abolished the civil causes of action for
seduction, alienation of affections, and criminal conversation.
Cotton, supra at 539. Currently, MCL 600.2901(3); MSA
27A.2901(3) abolishes the cause of action for “seduction of any
person of the age of 18 years or more.” In order to determine
whether plaintiff’s claim is barred by MCL 600.2901(3); MSA
27A.2901(3), we look to this Court’s decisions in Nicholson v
Han, 12 Mich App 35; 162 NW2d 313 (1968) and Cotton v Kambly,
supra.
In Nicholson, the plaintiff and his wife consulted the
defendant, a licensed physician, for marriage counseling. During
the counseling, the defendant-doctor engaged in a sexual
relationship with the plaintiff’s wife. The plaintiff and his
wife were divorced, and the plaintiff later filed suit against
the doctor alleging that he induced the plaintiff’s wife to
engage in a sexual relationship with him and to divorce the
plaintiff under the pretext of providing psychiatric and marriage
counseling services. The plaintiff’s complaint against the
doctor alleged claims of breach of contract, malpractice, assault
and battery, negligence, and fraud. The trial court dismissed
all of plaintiff’s claims, but the plaintiff only appealed the
trial court’s dismissal of his claims for breach of contract and
fraud. After examining the facts the plaintiff alleged in his
amended complaint and the gist of the actions for alienation of
affections and criminal conversation, this Court affirmed the
trial court’s finding that the plaintiff’s claims for breach of
contract and fraud were barred by the statute abolishing actions
for alienation of affections and criminal conversation.
Nicholson, supra at 43-44.
In Cotton, the plaintiff sued her psychiatrist and his
employer after the psychiatrist engaged in sexual intercourse
with her during the course of her psychiatric treatment or under
the guise of psychiatric treatment. The plaintiff claimed she
suffered mental and emotional damages and alleged willful
misconduct, negligence, malpractice, fraudulent
misrepresentation, and deceit against the psychiatrist. This
Court reversed the trial court’s dismissal of the plaintiff’s
complaint, holding that the plaintiff’s malpractice claim was not
barred by the statutes abolishing the civil cause of action for
seduction. Cotton, supra at 542. First, this Court found that
Nicholson was not dispositive because in Nicholson the
plaintiff’s malpractice claim was not the subject of the appeal.
Id. at 540. Next, this Court compared the allegations of the
plaintiff’s complaint with the definition of medical malpractice
and found no reason to distinguish the type of malpractice
alleged by the plaintiff, that the defendant induced her to
engage in sexual relations with him as part of therapy, from any
other type of medical malpractice, such as a defective operation
or improper administration of a drug. Id. at 540-541.
Explaining that in each malpractice situation, “the essence of
the claim is the doctor’s departure from proper standards of
medical practice,” this Court concluded that seduction was not
the gist of plaintiff’s malpractice claim. Id. at 541. This
Court reached this conclusion even though the facts alleged by
the plaintiff might also state a cause of action for common law
seduction. Id.
Turning to the case at bar, we examine the gravaman of
plaintiff’s first amended complaint, looking beyond the labels
used by plaintiff. Nicholson, supra at 42-43; Cotton, supra at
540. Several of the allegations in the complaint are similar to
allegations this Court would expect if a plaintiff were suing for
seduction. For example, plaintiff alleges that Garbisch
initiated and pursued a relationship with her that was at first
non-sexual by doing things such as visiting her at home, in the
hospital, and at school. Plaintiff also alleges that Garbisch
began making sexual advances to plaintiff, “exposing his private
parts” to plaintiff, and fondling plaintiff, all of which
resulted in a sexual relationship between them. Plaintiff claims
that during their sexual relationship, Garbisch promised to marry
her and encouraged her to divorce her husband. These allegations
are similar to those made when seduction was a viable cause of
action in Michigan. See Savage, supra at 126-127.
However, plaintiff’s first amended complaint also includes
allegations that seem to take it beyond merely stating a claim
for seduction. Specifically, plaintiff alleges that when she
protested in response to Garbisch’s sexual advances, Garbisch
misled her “with his own distorted views of Christian morality,
in a way that confused and intimidated plaintiff, … given …
Garbisch’s ‘superior’ status as pastor of her church.” Moreover,
plaintiff alleges that “[i]n the guise of offering ‘Christian
guidance’ and counseling, … Garbisch began to wrongfully
manipulate [her] thought process and decision making in ways that
were personally gratifying to him, yet terribly self-destructive
and damaging” to plaintiff. These allegations that Garbisch
misused his superior position as her pastor and counselor in
order to achieve a sexual relationship with her suggest that
seduction is not the gist of plaintiff’s complaint. See Cotton,
supra at 541. If seduction is not the gist of plaintiff’s
complaint, then her cause of action is not precluded by MCL
600.2901(3); MSA 27A.2901(3).
However, plaintiff’s allegations that Garbisch misused his
superior position as her pastor and counselor in order to achieve
a sexual relationship with her also reveal that the gist of
plaintiff’s action is in fact clergy malpractice. See Id.
Illustrative of this conclusion is plaintiff’s allegation that
Garbisch owed a duty to her and to the other defendants in this
case to “practice his religious calling in a reasonable, legal
and appropriate manner, and to refrain from any acts or omissions
that would violate his ministerial trust, and to function in a
legal and moral fashion as appropriate to the role of pastor.”
Michigan does not recognize a claim for clergy malpractice.
Isley v Capuchin Province, 880 F Supp 1138, 1160 (ED Mich, 1995);
Dlaiken v Roodbeen, 206 Mich App 591, 594; 522 NW2d 719 (1994).
In fact, the claim of clergy malpractice has been universally
rejected by courts in the United States. See Dausch v Rykse, 52
F 3d 1425, 1432 n 4 (CA 7, 1994) (collecting cases from state
supreme courts holding no cause of action for clergy
malpractice); Borchers v Hrychuk, 727 A 2d 388, 395 (Md Ct Spec
App, 1999); Doe v Evans, 718 So2d 286, 291 (Fla Dist Ct App,
1998), lv gtd June 23, 1999; F.G. v MacDonell, 696 A2d 697, 703
(NJ, 1997). The Supreme Court of New Jersey has aptly stated the
First Amendment problems created by a claim of clergy
malpractice:
First, such a claim requires definition of the relevant
standard of care. Defining that standard could embroil
courts in establishing the training, skill, and
standards applicable for members of the clergy in a
variety of religions with widely varying beliefs.
Furthermore, defining such a standard would require
courts to identify the beliefs and practices of the
relevant religion and then to determine whether the
clergyman had acted in accordance with them. The
entanglement could restrain the free exercise of
religion. [F.G. v MacDonell, supra at 703, (citations
omitted.)]
Plaintiff urges us to recognize her claim as one for breach
of a fiduciary duty rather than clergy malpractice. We have
examined authorities from other jurisdictions which have made
such a distinction. See Doe v Evans, supra; F.G. v MacDonell,
supra at 703-704, (holding that “unlike an action for clergy
malpractice, an action for breach of fiduciary duty does not
require establishing a standard of care and its breach,” but
instead, to establish a fiduciary duty, proof is required that
the parishioner “trusted and sought counseling from the pastor”
and “[a] violation of that trust constitutes a breach of the
duty); Moses v Diocese of Colorado, 863 P2d 310, 321 n 13 (Colo,
1993) (explaining that the fundamental difference between a cause
of action for breach of fiduciary duty and a cause of action for
clergy malpractice is “the former is a breach of trust and does
not require a professional relationship or a professional
standard of care, while the latter is an action for negligence
based on a professional relationship and a professional standard
of care.”) However, we are not persuaded by these authorities
that there is such a distinction on the record before us.
We believe our concerns with making a distinction between a
cause of action for clergy malpractice and a cause of action for
breach of fiduciary duty are succinctly stated by the court in
Langford v Roman Catholic Diocese of Brooklyn, 677 NYS 2d 436,
439 (NY Sup Ct, 1998). There, the court explained:
[I]n order for [the] plaintiff’s cause of action to
meet constitutional muster, the jury would have to be
able to determine that a fiduciary relationship existed
and premise this finding on neutral facts. The
insurmountable difficulty facing plaintiff, this court
holds, lies in the fact that it is impossible to show
the existence of a fiduciary relationship without
resort to religious facts. In order to consider the
validity of [the] plaintiff’s claims of dependency and
vulnerability, the jury would have to weigh and
evaluate, inter alia, the legitimacy of [the]
plaintiff’s beliefs, the tenets of the faith insofar as
they reflect upon a priest’s ability to act as God’s
emissary and the nature of the healing powers of the
church. To instruct a jury on such matters is to
venture into forbidden ecclesiastical terrain. On the
other hand, if we try to salvage [the] plaintiff’s
claim by stripping her narrative of all religious
nuance, what is left makes out a cause of action in
seduction – a tort no longer recognized in New York –
but not in breach of a fiduciary duty.
We believe plaintiff in this case faces the same
insurmountable difficulty. In this case plaintiff cannot
establish any imbalance of power in the relationship or explain
why she would repose trust in Garbisch without resorting to the
fact that Garbisch was her pastor.5 In other words, “religion is
not merely incidental to … plaintiff’s relationship with …
defendant, it is the foundation for it.” Amato v Greenquist, 679
NE2d 446, 454 (Ill App Ct, 1997); H.R.B. v J.L.G., 913 SW2d 92,
99 (Mo Ct App, 1995).
Moreover, we hesitate to allow a cause of action for breach
of fiduciary duty in the context of interpersonal relationships.
This Court has explained that a fiduciary relationship arises
from the reposing of faith, confidence, and trust and the
reliance of one upon the judgment and advice of another.
Vicencio v Ramirez, 211 Mich App 501, 508; 536 NW2d 280 (1995).
Relief is granted when such position of influence has been
acquired and abused, or when confidence has been reposed and
betrayed. Id. A person in a fiduciary relation to another is
under a duty to act for the benefit of the other as to matters
within the scope of the relation. Melynchenko v Clay, 152 Mich
App 193, 197; 393 NW2d 589 (1986), citing 1 Restatement Trusts,
2d, § 2, Comment b, p 6. To apply these principles to the case
before us, where no financial transactions are involved, it
appears Garbisch’s duty would be to act in a way that would
benefit plaintiff emotionally, if she reposed faith, confidence,
and trust and relied upon his judgment and advice. Such a duty is
impossible to define and has far-reaching implications. We
refuse to impose such a duty.
For all of these reasons, we find plaintiff’s claim for
breach of fiduciary duty against Garbisch is not cognizable under
Michigan law. Accordingly, the trial court properly granted
summary disposition to Garbisch on plaintiff’s claim for breach
of fiduciary duty. MCR 2.116(C)(8).
Plaintiff next argues the trial court erred in dismissing
her claim of intentional infliction of emotional distress against
Garbisch.6 The trial court never expressly addressed this claim.
However, because this Court reviews the trial court’s grant or
denial of summary disposition de novo, Vandenberg, supra at 499,
we will evaluate whether summary disposition was appropriate in
this case. See Smith v Calvary Christian Church, 233 Mich App
96, 113; 592 NW2d 713 (1998), lv pending.
In order to state a claim for intentional infliction of
emotional distress, a plaintiff must show (1) extreme and
outrageous conduct, (2) intent or recklessness, (3) causation,
and (4) severe emotional distress. Id.; Doe v Mills, 212 Mich
App 73, 91; 536 NW2d 824 (1995). Liability for such a claim has
been found only where the conduct complained of has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency and to be regarded as
atrocious and utterly intolerable in a civilized community. Id.
It has been said that the case is generally one in which the
recitation of facts to an average member of the community would
arouse resentment against the actor, and lead the average member
of the community to exclaim “Outrageous!” Doe, supra at 91. In
Doe, supra at 92, this Court explained that “it is initially for
the court to determine whether the defendant’s conduct reasonably
may be regarded as so extreme and outrageous as to permit
recovery.” However, “where reasonable [persons] may differ, it
is for the jury, subject to the control of the court, to
determine whether, in the particular case, the conduct has been
sufficiently extreme and outrageous to result in liability.”
Id., citing 1 Restatement Torts, 2d, § 46, comment h, p 77.
We find that plaintiff’s allegations are insufficient as a
matter of law to sustain a cause of action for intentional
infliction of emotional distress. Stripped of religious
overtones, plaintiff essentially alleges that a person pursued
her, an adult woman, gained her trust, and eventually engaged in
a consensual sexual relationship with her, albeit that her
consent was given when she was in a vulnerable position. This
type of activity does not rise to the level of conduct necessary
to satisfy the standard articulated in Doe, supra. Because
defendant’s conduct could not be reasonably regarded as extreme
and outrageous, plaintiff has failed to state a claim upon which
relief may be granted and summary disposition was appropriate
under MCR 2.116(C)(8).
Because plaintiff failed to establish that Garbisch
committed any actionable misconduct, her claims against St.
John’s, the Synod, and the District for any alleged negligent
supervision of Garbisch must fail. See Harts v Farmers Ins
Exchange, ___ Mich ___; ___ NW2d ___ (Docket No. 110683, issued
July 30, 1999), slip op at 13-14. Moreover, because plaintiff is
unable to establish liability against Garbisch, the alleged
agent, she is unable to establish vicarious liability against the
alleged principals, the Synod and District.7 Id. Accordingly,
we affirm the trial court’s grant of summary disposition in favor
of St. John’s, and we reverse the trial court’s ruling on the
summary disposition motions of the Synod and District. The trial
court should have granted summary disposition in favor of all
defendants on all plaintiff’s claims. In light of this
disposition, we save for another day the serious constitutional
questions raised by the Synod and District.
Affirmed in part and reversed in part.
/s/ Gary R. McDonald
/s/ David H. Sawyer
/s/ Jeffrey G. Collins
_______________________________
1 We find it unnecessary to detail plaintiff’s numerous personal
problems here.
2 The record is not entirely clear at what point in the
relationship plaintiff became a member of St. John’s.
Plaintiff’s appellate brief indicates she was not a practicing
member of any congregation when Garbisch first visited her home.
However, it is clear from the record that plaintiff did at some
point begin attending services at St. John’s and getting involved
in church programs, such as Sunday school.
3 Plaintiff does not challenge the trial court’s grant of summary
disposition in favor of St. John’s on her claim for vicarious
liability.
4 Plaintiff waived the notice requirement on Garbisch’s motion.
5 In fact, plaintiff appears to admit that initially Garbisch was
not even her pastor, because she was not involved in any church
when he began visiting her.
6 Plaintiff’s brief also mentions the tort of negligent
infliction of emotional distress. However, this cause of action
is clearly not applicable to the facts here because Michigan only
recognizes the tort of negligent infliction of emotional distress
when a plaintiff witnesses negligent injury to a third party and
suffers mental disturbance as a result. Duran v Detroit News,
200 Mich App 622, 629; 504 NW2d 715 (1993).
7 As noted in note 3, supra, plaintiff does not challenge the
trial court’s grant of summary disposition in favor of St. John’s
on her claim for vicarious liability. In any event, had
plaintiff challenged the trial court’s ruling on this issue, her
claim would fail for the same reason.
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