2003-779, HOLLY BERRY & a. v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. & a.

Congregation of Jehovah’s Witnesses (Wilt on Congregation); and their father, Watchtower Bible & Tract Society of New York, Inc. (Watchtower); the Wilton The plaintiffs brought an action for damages against the defendants,

orders of the Superior Court (Groff, J.) dismissing their claims. We affirm. BRODERICK, C.J. The plaintiffs, Holly Berry and Heather Berry, appeal

Society of New York, Inc. and Wilton Congregation of Jehovah’s Witnesses. of Patterson, New York, on th e brief, for defendants Watchtower Bible & Tract Brian J.S. Cullen on the brief, and Mr. Gardner orally), and Robert C. James, Devine, Millimet & Branch, P.A., of Manchest er (Donald E. Gardner and

plaintiffs. Marci A. Hamilton, of Washington Crossing, Pennsylvania, orally, for the Gawryl & MacAllister, of Nashua (Jared O’Connor on the brief), and

WATCHTOWER BIBLE AND TRACT SOCIETY OF NE W YORK, INC. & a.

No. 2003 - 779 Hillsborough – sou thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

or admissions of child abuse, [their] action [is] dismissed.” negligence are premised on the duty of the defendants to report the allegations Accordingly, the court ruled that “to the extent the plaintiffs’ claims of the alleged abuse, despite the requirements of the reporting statute. Watchtower and Wilton Congregation did not have a duty to report or disclose Because Rule 505 requires confidentiality, the court determined that obligated to] maintain the privilege and [could not] disclose any information.” “[w]ithout the waiver of both Ms. Poisson and Mr. Berry, the Elders [were [were] subject to the requirement of confidentiality.” The court concluded that with them by the plaintiffs’ mother were “of such a nature that the discussions ordained ministers for purposes of Rule 505 and that the matters discussed Following an evidentiary hearing, the court ruled that the elders were

applied to Watchtower and Wilton Congregation. statute, the trial court ruled that it applied to “any other person,” and thus duty to protect the plaintiffs from abuse. Finally, with regard to the reporting concluded that Watchtower and Wilton Congregation did have a common law did not owe the plaintiffs any fiduciary duty. The trial court, however, that RSA 169 - C: p. 2 29 did not create a private right of action and that the elders Relying upon Marquay v. Eno, 139 N.H. 708 (1995), the trial c ourt ruled

statute, RSA 169 - C: p. 2 29, did not create a private right of action. or fiduciary duty to protect the plaintiffs from abuse; and (3) the reporting information obtained from th e plaintiffs’ parents; (2) they had no common law (Rule 505) precluded them from making disclosure of any confidential identified in RSA 516:35 (1997) and New Hampshire Rule of Evidence 505 all claims, asserting, among other things, that: (1) the religious privilege Watchtower and Wilton Congregation moved for summary ju dgment on

concealment of the abuse (Count IV). abuse as required by RSA 169 - C: p. 2 29 (2002) (Count III); and engaged in willful to report it (Count II); breached their common law duties by failing to report the report the suspected abuse (Count I); breached their fiduciary duties by failin g alleged that Watchtower and Wilton Congregation were negligent in failing to about how she should handle the alleged abuse. Specifically, the plaintiffs report it to law enforcement authorities and improp erly counseled Poisson of the Wilton Congregation about the purported abuse, and that they failed to based upon allegations that their mother, Sara Poisson, informed certain elders The plaintiffs’ claims against Watchtower and Wilton Congregation are

defendant, he is not involved in this appeal. Berry. Although it is unclear from the record whether Berry remains a Paul Berry, for injuries from sexual and other abuse allegedly committed by p. 3 3

Greenville in 1984. Poisson’s daughter, Holly, was born of a prior marriage in Sara Poisson and Paul Berry were married in 1980 and moved to

applicable law.” Id. (quotation omitted). in a threshold inquiry that tests the facts in the complaint against the inferences drawn from those facts in the plaintiff’s favor.” Id. “We then engage pleaded in the plaintiff’s writ are true, and we construe all reasonable Area, 146 N.H. 495, 496 (2001) (quotation omitted). “We assume all facts susceptible of a construction that would permit recovery.” Rayeski v. Gunstock whether the al legations pleaded in the plaintiff’s writ are reasonably reviewing the trial court’s grant of a motion to dismiss, “our task is to ascertain grant of summary judgment.” Id. (quotations and brackets omitted). In the moving party is entitled to judgment as a matter of law, we will affirm the “If our review of that evidence discloses no genuine issue of material fact, a nd if Sandford v. Town of Wolfboro, 14 p. 3 3 N.H. 481, 484 (1999) (quotation omitted). properly drawn therefrom, in the light most favorable to the non - moving party.” judgment, we look at the affidavits and other evidence, and all inferences and some were dismissed by the trial court. “In reviewing a grant of summary Some of the plaintiffs’ claims were disposed of by summary judgment

Clause’s rule again st judicial intervention in ecclesiastical disputes. religious privilege; and (7) whether such an inquiry violates the Establishment those actions taken in relation to the plaintiffs’ alleged abuse violates the inquiry into the conduct of Watchtower and Wilton Congregation to discover whether the reporting statute supersedes the religious privilege; (6) whether an a common law duty to the plaintiffs to take remedial action to protect them; (5) presence of third parties; (4) whether Watchtower and Wilton Congregation owe when the communication is a non - private commun ication made in the see RSA 516: p. 3 35; N.H.R. Ev. 505; (3) whether the religious privilege applies Witness elders are “clergy” for purposes of the evidentiary religious privilege, the child abuse re porting statute, RSA 169 - C:29; (2) whether Jehovah’s the Wilton Congregation were required to report the alleged abuse pursuant to The plaintiffs raise several issues, including: (1) whether the elders in

Wilton Congregation were dismissed. This appeal followed. (Quotation omitted.) Accordingly, all remaining claims aga inst Watchtower and interpret church law, policies, or practices in the determination of the claims.” Establishment Clause of the First Amendment for the court to “review and the heading of “clerical malpractice” and that it would be a violation of the the plaintiffs, whether sounding in common law negligence or deceit, fell under In November 200 p. 3 3, the trial court ruled that all conduct complained of by p. 4 4

the same in accordance with this chapter. to suspect that a child has been abused or neglected shall report official, priest, minister, or rabbi or any other person having reason worker, any ot her child or foster care worker, law enforcement official, school nurse, school counselor, social worker, day care personnel . . . , Christian Science practitioner, teacher, school chiropractor, psychologist, therapist, registered nurse, hospital psychiatrist, residen t, intern, dentist, osteopath, optometrist, Any physician, surgeon, county medical examiner,

RSA 169 - C:29 provides:

remedy for their failure to report suspected abuse. abuse or physical injury and further that RSA 169 - C:29 does not provide a civil plaintiffs presented no evidence that the elders ha d reason to suspect sexual enforcement authorities. Watchtower and Wilton Congregation argue that the elders of the Wilton Congregation to report the suspected child abuse to law The plaintiffs arg ue that the plain language of RSA 169 - C:29 required

Holly when she was a young child. State v. Berry, 1 p. 4 48 N.H. 88 (2002). Jehovah’s Witnesses.” In 2000, Berry was convicted of sexually assaulting told the Plaintiffs’ mother she should keep the matter within the organization of policies and practices of the organization of Jehovah’s Witnesses, the elders .. . The plaintiffs further allege that “[i]n accord with directions to publishers, ten to twelve separate occasions that her husband was abusing their children. their identified problems. According to Poisson, she reported to the elders on joint prayers, Bible readings, and discussion of the Scriptures for application to elders provided the couple with spiritual advice and assistance, which included included verbal, mental and physical abuse. In response to her requests, the advice because she and her husband were having marital problems, which The plaintiffs allege that Poisson approached the elders seeking spiritual

given time, there were five to ten elders. problems and provide spiritual counsel. In the Wilton Con gregation, at any congregation when requested to do so and working with them to identify elders they are responsible for meeting with individual members of the hold secular employmen t and are not compensated for their work as elders. As lay people who do not have any formal religious training or education. They of the local congregation to be the congregation’s spiritual leaders. Elders are In the Jehovah’s Witness faith, elders are selected by the governing body

and her husband were practicing Jehovah’s Witnesses. 1978. Poisson and Berry’s daughter, Heather, was born in 1982. Both Poisson p. 5 5

149 N.H. 148, 1 p. 5 53 - 54 (2003), this court has identified three limited exceptions for the unanticipated criminal acts of third parties,” Remsburg v. Docusearch, Recognizing the “fundamental unfairness of holding private citizens responsible is no negligence.” Walls v. Oxford Management Co., 137 N.H. 653, 656 (1993). Iannelli v. Burger King Corp., 145 N.H. 190, 193 (2000). “Absent a duty, there Whether a duty exists in a particular setting is a ques tion of law.

importance of immunizing the defendants from extended liability. social importance of protecting the plaintiffs from sexual abuse outweighed the reporting of the abuse to th e authorities.” The trial court concluded that the upon them, requiring “only common sense advice to the church member and a facts of this case, the court declared that such a duty placed “little burden” duty should be placed on Watchtower and Wilton Congregation. Under the harm to a third party and applied a balancing test to determine whether such a limited circumstances in which a person has a duty to prevent foreseeable no affirmative duty to aid others, the trial court analogized this case to the circumstances of this case. While acknowledging that, in general, a person has a special relationship, a fiduciary relationship and/or the special had a common law duty to take remedial action to protect the plaintiffs due to The plaintiffs further contend that Watchtower and Wilton Congregation

“clergy” for purposes of the evidentiary religious privilege. Accordingly, we need not decide whether Jehovah’s Witness elders qualify as no cause of action for damages based on the elders’ failure to do so. report suspected child abuse to law enforcement author ities, the plaintiffs have at 71 p. 5 5. Even assuming, without deciding, that the elders had an obligation to however, support a private right of action for its violation. Marquay, 139 N.H. guilty of a misdemeanor.” RSA 1 69 - C:39. The reporting statute does not, statute is a crime and “[a]nyone who knowingly violates any provision . . . [is] not give rise to a civil remedy for its violation. Failure to comply with the We concur w ith the trial court that the child abuse reporting statute does

allegations could have arisen. allegations or admissions to anyone and thus no duty to report the were barred by the Religious Privilege from disclosing any of the of child abuse, the plaintiffs’ action must be dismissed. The Elders the duty of the defendants to report the allegations or ad missions to the extent the plaintiffs’ claims of negligence are premised on

that physically or psychologically injured. RSA 1 p. 6 69 - C:3 (2002). The trial court held An “abused child” includes children who have been sexually abused, or 6

Catholic Bishop v. Superior Ct., 50 Cal. Rptr. 2d 399, 40 p. 6 6 (Ct. App. 1996) (no between the plaintiffs and Watchtower or Wilton Congregation. See Roman There are no factors present that establish any special relationship

were at all times under the custody and protection of their parents. advice cre ates a special relationship). In fact, the evidence is that the plaintiffs p. 6 640 (Minn. Ct. App. 2004) (rejecting claim that control premised on faith - based or Wilton Congregation at any time. See Meyer v. Lindala, 675 N.W.2d 635, allegation that the plaintiffs were under the custody or control of Watchtower on congregation property or during congregation - related activities. There is no compulsory. There is no allegation that Berry’s alleged abusive acts took place there are none of the same considerations. Church attendance is not importance to society of education. Mar quay, 139 N.H. at 717. In this case students for and reliance upon a safe school environment and the general compulsory character of school attendance, the expectation of parents and e mployees giving rise to a duty of care was recognized because of the In Marquay, a special relationship between students and certain school

119 (1953) (quotation omitted). there is no relationship, there is no duty.” Guitarini v. Company, 98 N.H. 118, use due c are is imposed by law upon one party for the benefit of another. If brackets omitted). “The relation of the parties determines whether any duty to Thermal Technologies, 147 N.H. 70 p. 6 6, 710 (2002) (quotation, ellipsis, and deprive the other of his normal opportunities for protection.” Dupont v. Aavid who voluntarily takes custody of another under circumstanc es such as to innkeeper/guest, landowner/invitee and one who is required by law to take or criminal acts of others “are those of common carrier/passenger, relationships” givi ng rise to a duty to aid or protect individuals from the Under the Restatement (Second) of Torts § 314A (1965), “special

criminal misconduct’ by refusing to report the abuse themselves.” Defendants in this case facilitated ‘an especial temptation and opportunity for admonished not to speak to secular authorities upon the p ains of disfellowship, plaintiffs argue that “knowing that [Jehovah’s Witness] adherents were the congregation for moral, spiritual and practical guidance.” In addition, the members of the Wilton Congregat ion and relied to their detriment on elders of Watchtower and Wilton Congregation because “[they] and their family were The plaintiffs argue that a special relationship existed between them and

these exceptions apply here. We disagree. the duty is voluntarily assumed. Id. The plaint iffs argue that the first two of “especial temptation and opportunity” for the criminal misconduct; or (3) where circumstances exist including situations where the defendant’s acts create an there is a special rel ationship between the parties; (2) where special to the general rule that citizens have no such duty at common law: (1) where p. 7 7

perpetrated by her husband and had a common law obligation to intervene independent and overarching duty to protect her children from abuse person disclosing the conduct would be. Poisson, however, had her own sufficient to create civil liability but failure to dispense proper advice to the the elders of alleged criminal conduct and a failure to report it would not be plaintiffs, even if Pois son did not follow their advice. Apparently, knowledge by secular authorities they would have satisfied their common law duty to the dissent suggests that if the elders had counseled Poisson to report the abuse to p arties will be swallowed up and civil liability unreasonably extended. The rule which imposes no duty on citizens to prevent the criminal acts of third appropriate response to complaints of criminal activity. Otherwise, the general enforcement authorities or by a citizen’s improper advice concerning an mere failure of a citizen to report actual or suspected criminal conduct to law The special circumstances exception should never be triggered by the

reporting of the abuse to the authorities” is erroneous as a matter of law. Congregation to dis pense “common sense advice to the church member and a trial court’s ruling that a duty existed requiring Watchtower and Wilton running from Watchtower and Wilton Congregation to the plaintiffs and the criminal conduct by Berry. Consequently, there is no common law duty Watchtower and Wilton Congregation created an espe cial temptation for relationship with the defendants or that special circumstances existed in which mother. We hold that the plaintiffs have failed to establish either a special spiritual guidance and script ural advice, at the request of the plaintiffs’ is no allegation that the elders acted in any way other than by providing took place on congregation property or at congregation - related activities. There abuse hi s daughters. As noted, there was no allegation that the alleged abuse There is no allegation that the elders created any opportunity for Berry to criminal misconduct was created by Watchtower and Wilton Congregation. exist in this case such that an especial temptation and opportunity for Berry’s We also disagree with the plaintiffs’ assertion that sp ecial circumstances

Congregation. creates a special relationship between the plaintiffs and Watchtower or Wilton church membership or adherence to church doctrine by the plaintiffs’ parents despite fact that elders knew of the abuse). We decl ine to hold that the fact of member when he was a child did not establish special relationship with church (parishioner’s allegation that he was sexually assaulted by an adult church (Me. 1999) (quotat ion omitted), cert. denied, 52 p. 8 8 U.S. 1189 (2000) culpability.” Bryan R. v. Watchtower Bible & Tract Soc., p. 7 738 A.2d 839, 847 would give rise to both unlimited liability and liability out of all proportion to voluntary organization requiring it to protect its members from each other creation of an amorphous common law duty on the part of a church or ot her special relationship exists between a church and its parishioners). “The 8

agree that Marquay identified a fiduciary duty. Rather, we held that the school the elders became aware of the purported abuse by their father. We do not Watchtower and Wilton Congregation owed them a fiduciary duty of care when Finally, the plain tiffs argue, in reliance on Marquay v. Eno, that

law already requires. limits of civil liability imposed upon private citizens to effect what the criminal mechanism to protect victims and it would be unwise to expand the current the extent of that r equirement, this is generally a sufficiently effective to law enforcement authorities. While we are not called upon here to determine RSA 169 - C:29 requires certain persons to report suspected child abuse

civil liability for failure to prevent criminal acts of others. control that would give rise to a duty, a private citizen sh ould be immune from they did not create and over which they exercise no control. Without sufficient and extended family will find themselves at risk of civil liability for situations discovery can create a “special circumstance,” then close friends, neighbors criminal conduct or imprudent advice offered in response to a disclosure or prevent criminal assaults by third parties. If mere knowledge of alleged The common l aw narrowly defines those responsible civilly for failure to

moral obligation into a common law duty. reasonably possible to stop the abuse, it would be inappropriate to transform a the Wilton Congregation invested them with a strong moral obligation to do all children nor control its cessation or c ontinuation. Although their positions in between family members. The elders did not create the risk of harm to the property Wilton Congregation did not own or control and occurring solely their roles as church leaders, learned of alleged criminal activity happening on In the case before us, the elders were not similarly situated. They, in

Dupont, 147 N.H. at 713 - 14. protecting an employee from a criminal attack on workplace premises. in Dupo nt, where workplace supervisors allegedly did not act appropriately in Ianelli, 145 N.H. at 193 - 95; Remsburg, 149 N.H. at 153 - 55. The same was true criminal conduct which they could independently and affirmatively control. activities and conduct created a condition or enhanced a foreseeable risk of either over commercial property or information they sold to thir d parties. Their hard - to - gather information. In both cases the defendants exercised control, premises or to individuals about whom they were selling otherwise private or to prevent foreseeable criminal activit y directed either to patrons on their defendants were engaged in commercial activity and were held to have a duty In both Iannelli and Remsburg, on which the dissent relies, the

case to justify civil liability against Watchtower or Wilton Congregation. regardless of any advice she received. No special circumstances exist in this p. 9 9

customer from the criminal conduct of a group of patrons, in this case assault, (2000), where we found a com mercial establishment had a duty to protect a arguably relied upon it in Iannelli v. Burger King Corp., 145 N.H. 1 p. 9 90, 194 based upon the overriding foreseeability exception in that case, id. at 659, we duty. Wall s, 137 N.H. at 658 - 59. Although we rejected the prospect of liability existence of overriding foreseeability; and (4) when one voluntarily assumes the exception, see Remsburg v. Docusearch, 149 N.H. 148, 154 (2003); (3) the opportunity for criminal misconduct, also called the special circumstances relationship; (2) where the defendant creates an especial temptation and responsible for the criminal attacks of others: (1) when there is a special elucidated four exceptions to the general rule that individuals are not In Walls v. O xford Management Co., 137 N.H. 653, 658 (1993), we

respectfully dissent from that part of the majority opinion. Congregation) had no common law duty towards the plaintiffs. I, therefore, conclusion that defendant Wilton Congregation of Jehovah’s Witnesses (Wilton relationship between the plaintiffs and the defe ndants, I disagree with its give rise to a civil remedy for its violation, and that there was no fiduciary with the majority that the reporting statute, RSA 16 p. 9 9 - C:29 (2002), does not DALIANIS, J., concu rring in part and dissenting in part. While I agree

and dissented in part. NADEAU and DUGGAN, JJ., concurred; DALIANIS, J., concurred in part

different reasons. We need not, therefore, address the remaining arguments. 16 p. 9 9 - C:29, we affirm the trial cou rt’s dismissal of the plaintiffs’ action, albeit for a private cause of action for the alleged failure of the elders to comply with RSA common law duty to protect the plaintiffs and that the plaintiffs may not bring Beca use we hold that Watchtower and Wilton Congregation have no

“[w]ithout these basic facts, there can be no fiduciary relationship.” We agree. them or that their confidence had been reposed in the elders and that recognized, the plaintiffs did not allege that the elders acquired influence over College, 144 N.H. 458, 462 (1 p. 9 999) (quotation omitted). As the trial court confidence has been reposed and betrayed.” Schneider v. Plymouth State relationship . . . exists wherever influence has been acquired and abused or and communications betw een their parents and the elders. “A fiduciary plaintiffs’ allegations are based upon their parents’ relationship with the elders entrusted to the care of Watchtower or Wilton Congregation. Rather, the N.H. at 717. Nothing in the record indicates that the plaintiffs here were a special relationship with students entrusted to their care.” Marquay, 139 had breached a common law duty based upon the principle that “schools share was liable for the criminal acts of certain of its employees because the school p. 10 10

applicable law. In so doing, we assume the truth of all well - pleaded facts engage in a threshold inquiry that tests the facts in the writ against the reasonably susceptible of a construction that would permit recovery. We then We review motions to dismiss to determine if the plaintiff’s allegations are

perpetrated by third parties. 304 (1992), retains some force even when we are faced with criminal acts inextricably bound together, Manchenton v. Auto Leasing Corp., 135 N.H. 298, § 302 B at 88 (1965). Thus, the rule that duty and foreseeability are Authority, 432 A.2d 99, p. 10 104 (N.J. 1981); see also Restatement (Second) of Torts Goff, 985 P.2 d 53, 54 (Colo. Ct. App. 1999); McGlynn v. Newark Parking Babula v. Robertson, 536 N.W.2d 834, 837 (Mich. Ct. App. 1995); Solano v. (Ct. App. 2000); Doe v. Franklin, 930 S.W.3d 921, 927 (Tex. App. 1996); 342 (Cal. 1976); Juarez v. Boy Scouts of America, Inc., 97 Cal. Rptr. 2d 12, 29 duty. See, e.g., Tarasoff v. Regents of University of Californi a, 551 P.2d 334, foreseeability as a factor in a separate analysis to determine the existence of a exception. See Remsburg, 149 N.H. at 154. Other courts have also used incorporated into our liability analy sis through the special circumstances clear. I note, however, that the foreseeability of harm has at least been The status of the overriding foreseeability exception in our case law is not

added). misconduct, a duty is owed to those foreseeably endangered.” Id. (emphasis “Where the defendant’s conduct has created an unreasonable risk of criminal has a duty to exercise reasonable care to prevent that risk from occurring. created a condition which involves an unreasonable risk of harm to another from the rule that a party who realizes or should realize that his con duct has criminal misconduct brought about by the defendant. This exception follows includes situations where there is an especial temptation and opportunity for foreseeability exception with the special circumstances exception, which The decision in Remsburg merges what once was the overriding

(emphasis added). unanticipated acts of third parties . . . .” Remsburg, 149 N.H. at 154 the fundamenta l unfairness of holding private citizens responsible for the foreseeability exception, but explained that the general rule was “grounded in v. Docusearch, we again did not specifically address the overriding case, which arguably relied upon that exception. Most recently, in Remsburg overriding foreseeability exception, though we did so while ci ting the Iannelli duty to protect others from the criminal attacks of third parties, excluding the listed only three exceptions to the general rule that a private citizen has no In Dupont v. Aavid Thermal Technolog ies, 147 N.H. 706, 709 (2002), we

risk of harm. because the group’s behavior leading up to the assault created a foreseeable p. 11 11

137 N.H. at 659 (duty to protect tenants from criminal attack may arise when exercise reasonable care in disclosing third party’s information to client); Walls, therefore special circumstances imposed duty on private investigator to misconduct, including stalking and identit y theft, sufficiently foreseeable, upon by the majority. See Remsburg, 149 N.H. at 154 - 55 (risk of criminal alleged in this case, and the facts of the special circumstances cases relied secular authorities. I find no meaningful difference, however, between the facts elders of the Wilton Congregation instructed Poisson not to report the abuse to circumstances exception does not address the plaintiffs’ allegation that the request of the plaintiffs’ mother.” The majority’s analysis of the special way other than by providing spiritual guidance and scriptural advice, at t he The majority notes: “There is no allegation that the elders acted in any

ongoing. the number of reports over the years, it was also aware that the abuse was the harm being perpetrated on the plaintiffs through repe ated reports. Due to though in this case they arguably were. The Wilton Congregation was aware of The exact occurrence or precise injuries need not have been foreseeable, id., about by the actions or inactions of t he defendant. Iannelli, 145 N.H. at 194. exception includes when the opportunity for criminal misconduct is brought based upon the special circumstances exception. As noted above, this creat ed a situation facilitating Berry’s conduct. Accordingly, I find a duty Congregation had reason to anticipate Berry’s criminal conduct and that it Based upon these allegations, I believe that defendant Wilton

about the abuse and to be a better wife.” suffering, a nd instructed Poisson not to report it. They told her to “be silent meetings. The elders did not report the ongoing abuse the plaintiffs were Berry was present at the meetings. There were always two elders at the counsel them about the problems they were experiencing in their marriage. plaintiffs. The elders scheduled meetings with Pois son and Paul Berry to Wilton Congregation that her husband was abusing her daughters, the was occurring, Sara Poisson made ten to twelve reports to the elders of the to secular authori ties. During the period when the physical and sexual abuse among members of the congregation to elders within the organization, and not The Jehovah’s Witness faith encourages its members to report problems

six. physically and sexually abused by Paul Berry between the ages of three and from 1983 until 1989. Heather Berry was born on May 27, 1982; she was December 13, 1978; she was physically and sexually abused by Paul Berry The plaintiffs allege the following facts. Holly Berry was born on

the plaintiff. Dupont, 147 N.H. at 709. alleged by the plaintiff, construing all inferences in the light most fa vorable to p. 12 12

existed, the religious privilege barred the defendants from disclosing the abuse. The trial court found that, to the extent a common law duty may have

victims. accurately reflect our collective concern for the vulnerable class of child abuse duty to pro tect children through counseling a parent to seek help, would connection to the child, if any. See RSA 169 - C:29. Recognizing a common law any person who fails to report suspected child abuse, no matter what their The legislature has recognized this fact, and has attached criminal liability to their ability to protect themselves, especially when their abuser is a parent. Children who are victims of physical and sexual abuse are limited in

plaintiffs. special circumstances created an opportunity for Berry to continue abusing the upon their guidance and the fact that they did so in Berry’s presence. These seek help, their specific instruction to her not to seek help when she relied knowledge of the abuse over the years, their continued failure to counsel her to the fact that her husband w as the one abusing the children, the elders’ the duty in this case were the elders’ awareness of Poisson’s religious beliefs, however, and I would decide it based upon its facts alone. The facts creating relatives will face tort liability for giving bad advice. This is an unusual case, The majority fears heading down a slippery slope where friends and

plaintiffs from it. by its action and inaction, the Wilton Congregation had a duty to protect the to the p laintiffs was foreseeable to the Wilton Congregation, and facilitated both allowing Paul Berry to continue his pattern of abuse. Because the harm done and at least some of them instructed her not to seek such help, effectively Congregation, none of them advised her to seek help from secular authorities, numerous reports, made at different times to different elde rs of the Wilton understanding of the policy against seeking outside help. Yet, despite the The elders of the Wilton Congregation were aware of Poisson’s

knowledge that Pois son was not going to report him to secular authorities. to infer that Berry continued abusing the plaintiffs, his daughters, safe in the report the abuse in the presence of the abuser himself. It is not unreasonable instru ction to Poisson not to act. Further, the elders instructed Poisson not to because of their inaction, but actively facilitated the continuing abuse by their an opportunity for Paul Berry to continue abusing the plaintiffs precisely In this case, the elders of defendant Wilton Congregation not only created

of the law persuasive. relying upon the element of control. I do not find this retrospective statement foreseeably enhanced risk of attack). The majority characterizes these cases as landlord has created or is responsible for a known defective condition that p. 13 13

general applicability are interr elated . . . . A law failing to satisfy burdening a particular religious practice. . . . Neutrality and governmental interest even if the law has the incidental effect of general applicability need not be justified by a compelling establish the general proposition th at a law that is neutral and of

Court’s cases concerning the Free Exercise Clause but rely upon the Federal Constitution alone. The United States Supreme The defendants make no arguments specific to the State Constitution,

issue). May 5, 2005) (listing state and federal court decisions on eit her side of the Jackson v. Morrison, ___ So. 2d ___, ___, 2005 WL 1039146, at *38 - 43 (Miss. (summarizing litigation from around the country); Roman Catholic Diocese of negligent counseling. See Malicki v. Doe, 814 So. 2d 347, 357 - 58 (Fla. 2002) fiduciary duty, common law negligence, negligent supervision and hiring, and These suits have been brought under many theories, including breach of religiou s entities or their officials are permitted under the First Amendment. Courts around the country are split on whether civil suits against

O’Connell, 986 F. Supp. 73, 77 ( D.R.I. 1997). extends to common law provisions as well as statutory enactments.” Smith v. the nature of things, the second cannot be.” Id. at 303 - 04. “[T]he prohibition concepts, – freedom to believe and freedom to act. The first is absolute, but in Connecticut, 310 U.S. 296, 303 (1940). “[T]he Amendment embraces two It is applicable to the States through the Fourteenth Amendment. Cantwell v. of religion, or prohibiting the free exercise thereof . . . .” U.S. CONST. amend. I. Amendment states: “Congress shall make no law respecting an establishment I disagree with the trial court’s characterization of this inquiry. The First

“excessive government entanglement w ith religion.” of the Federal Constitution, concluding that such investigation would result in found that investigation into these claims was barred by the First Amendment these remaini ng claims as claims for negligent counseling. The trial court treatment for the plaintiffs outside the Congregation. The trial court classified Congregation was negligent in failing to instruct Poisson to seek help and The plaintiffs also claimed, in the aggregate, that the Wilton

authorities. been satisfied simply by counseling Poisson to report the abuse to secular to address it as well because I find that Wilton Congregation’s duty could have were barred from disclosing the abuse by the religious privilege, and I decline abuse could not stand. The majority does not ad dress whether the defendants that the defendants breached their duty by failing to report or disclose the See N.H. R. Ev. 505. The trial court concluded, therefore, that any allegations p. 14 14

would hold, in recognition of the State’s obvious interest in protecting children seek help from the authorities violate d a tenet of the Jehovah’s Witness faith, I 113, 123 (Mass. 1985). Even if the recognition of a duty to counsel Poisson to law imposes on the free exercise of religion.” Alberts v. Devine, 479 N.E.2d the State’s inter ests in the law’s enforcement outweighs the burden that the prevent religiously motivated conduct does not violate the First Amendment if Further, “[a] law, legislatively or judicially created, that would regulate or

burdened by a finding of a common law duty. does not bar the plaintiffs’ lawsuit, as no central tenet of the faith would be Therefore, I would hold that the Free Exercise Clause of the First Amendment Jehovah’s Witness faith prohibits its members from seeking outside help. forbidden f rom counseling Poisson to seek outside help, or even that the duty to protect the plaintiffs. The defendants have not alleged that they were doctrine or practice that would be burdened by a recognition of a common law The defendants in this case have not identified a specific religious

pursuit of the lawsuit. Fortin, 871 A.2d at 1226. identify “a specific religious doctrine or practice that will be burdened” by emphasis added). The entity claiming First Amendment protection must v. Cal. Bd. of Equalization, 493 U.S. 378, 384 - 85 (1990) (quotation omitted; observation of a central religious belief or practice. . . .” Swaggart Ministries inquiry “asks whether government has placed a substantial burden on the 871 A.2d 1208, 1227 (Me. 2005) (quotation omitted; emphasis added). The religiously prohibited conduct.” Fortin v. Roman Catholi c Bishop of Portland, engaging in religiously motivated conduct or for refusing to engage in with a religion’s specific doctrines and therefore impose penalties either for “The Free Exercise Cla use is violated only when laws actually conflict

O’Connell, 986 F. Supp. at 78. unless adherence to those standards interferes with some religious activity.” establishing standards of conduct does not implicate the free exercise clause religion.” Malicki, 8 p. 14 14 So. 2d at 354 (quotation and brackets omitted). “A law the enactment as it operates against the individual in the practice of his to launch a free exercise challenge, it is necessary to show the coercive effect of Div., Ore. Dept. of H uman Res. v. Smith, 494 U.S. 872, 882 (1990). “[I]n order the conduct itself must be free from governmental regulation.” Employment conduct is accompanied by religious convictions, not only the convictions but The Supreme Court has never held that “when otherwise prohibitable

(citati on omitted). Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531 - 32 (1993)

interest and must be narrowly tailored to advance that interest. these requirements must be justified by a compelling governmental p. 15 15

pedophiles by authorizing civil damages against a church that knowingly offering human sacrifices, it may protect its children against injuries caused by reasoning I find persuasive: “[J]ust as the State may prevent a church from Florida court, which had come to a slightly different conclusion, but whose to the plaintiffs. In its opinion, the court quoted the reasoning of a lower tort liabilit y for the negligent conduct of church officials that resulted in harm In Malicki, the Florida Supreme Court rejected a First Amendment bar to

church member . . . .” summary judgment: “The burden involves only common sense advice to the *18, *20. As the trial court found in its ruling on an earlier motion for duty in this case. See Morrison, ___ So. 2d at ___, ___, 2005 WL 1039146, at any “professional” clerical standard here to discover the Wilton Congregation’s See Black’s Law Dictionary 971 (7th ed. 1999). There is no need to rely upon The definition of malpractice relies upon adherence to prof essional standards. Nor do I find that it would create a cause of action for clergy malpractice.

least, counsel the member who approaches them for advice to seek help. due to the foreseeability of harm, the elders would be required to, at the very the level of being excessive. It would merely require that when a duty arose imposition of a duty upon the elders of the Wilton Congregation does not rise to advancem ent or inhibition of religion. Any entanglement created by the Wilton Congregation would have as its principal and primary effect either the (1997). I do not find that the inquiry into the advice given by the elders of the action, the second part of the test. Agostini v. Felton, 521 U.S. 203, 233 significant simply as an aspect of the inquiry into the effect of the government recognized, however, that the third part of the test, the entanglement factor, is first two parts of the Lemon test. The United States Supreme Court has The defendants do not challenge the plain tiffs’ claim upon either of the

2004). recognized by any court. See 47 Am. Jur. Trials 271, 288 (1993 & Supp. a claim for “clergy malpractice,” a cause of action which has not been substance of reli gious counseling. They argue that such an inquiry amounts to would require the trial court to evaluate religious doctrine and the quality and Poisson would foster excessive government entanglement with religion, as it 612 - 13 (1971). The defendants argue that any inquiry into the counsel given to government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, advances nor inhibits religion”; and (3) it does not “foster an excessive secular purpose; (2) “its principal or primary effect [is] one that neither State action does not violate the Esta blishment Clause if: (1) it has a

minimal. from abuse, that the burden on the free exercise of the defendants’ religion is p. 16 16

respectfully di ssent. defendant Wilton Congregation for common law negligence. Accordingly, I allow both Holly and Heather Berry to proceed with their claims against determination that Holly Berry is not barred by the statute of limitations, and time prior to filing” the lawsuit. Therefore I would uphold th e trial court’s response to Poisson’s repeated requests for aid until “within a short period of plaintiff was aware of the sexual abuse, she was not aware of the defendant’s relationship to the act or omission complain ed of.” RSA 508:4, I. Though the reasonable diligence should have discovered, the injury and its causal suit within three years of the time she discovered, “or in the exercise of time that plaintif f Holly Berry filed suit, the discovery rule allowed her to bring of limitations, RSA 508:4, I (1997) and RSA 508:8 (1997), had expired by the Finally, I would uphold the trial court’s decision that though the statute

occur.” Malicki, 814 So. 2d at 360 (quotation omitted). (including should know) creates a situation in which su ch injuries are likely to