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Bouchard v. New York Archdiocese

March 25, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Plaintiff Angie Bouchard brought this action on August 31, 2004, in New York State court, alleging numerous common law claims relating to sexual abuse she suffered at the hands of Father Fernando Kennedy.*fn1 On December 17, 2004, Defendants Archdiocese of New York (the "Archdiocese"), Cardinal John Egan, and the Church of Our Savior removed this action to federal court based on diversity jurisdiction under 28 U.S.C. § 1332.*fn2 (Docket No. 1)

As a result of Judge Haight's May 18, 2006 and October 24, 2006 orders concerning Defendants' previous motion to dismiss and motion for summary judgment (Docket Nos. 28 & 63),*fn3 the only claims remaining in this case are for negligence and negligent hiring, supervision, and retention against the Archdiocese and the Church of Our Saviour ("Defendants").*fn4 (Am. Cmplt. ¶¶ 27-34, 71-78) Defendants have moved for summary judgment on those remaining claims. (Docket No. 102) Because Plaintiff has offered no evidence that Defendants knew or should have known of Father Kennedy's alleged propensity to commit sexual abuse, Plaintiff's negligence claims fail as a matter of law, and Defendants' motion for summary judgment must be granted.


A.Factual History

In the summer of 2001, Father Fernando Kennedy, a Roman Catholic priest from Sri Lanka, served as a visiting priest at the Church of Our Saviour in Manhattan for two to three months. (Defs. Rule 56.1 Stat. ¶¶ 1-2; O'Connor Dep. at 27-28)*fn5 The Church of Our Saviour is located within the Archdiocese of New York. (Defs. Rule 56.1 Stat. ¶ 2) The Church of Our Saviour was without a pastor during the summer of 2001 -- when Father Kennedy served as a visiting priest -- because the previous pastor had died and had not yet been replaced. (O'Connor Dep. at 30)

During that summer, Father Kennedy "performed certain duties of a priest at the Church of Our Savior [sic], . . . and [] was paid by the church to perform said duties. However, Fr. Kennedy was never trained or supervised by any priest at the Church of Our Saviour or the Archdiocese of New York." (Pltf. Rule 56.1 Stat. ¶ 2) In 2001, "all priests had universal faculties to celebrate Mass and hear Confessions, so it was not unusual . . . for pastors to have a priest help out without getting all the paperwork."*fn6 (Alonso Decl., Ex. F (O'Connor 2004 Memorandum)*fn7 ; see also Bouchard v. New York Archdiocese, No. 04 Civ. 9978 (CHS), 2006 WL 3025883, at *4 (S.D.N.Y. Oct. 24, 2006) ("Bouchard II"). Church pastors were permitted to invite "visiting priest[s] for the summer to help out," without obtaining prior approval from the Archdiocese or church administration. (O'Connor Dep. at 17)

During the summer of 2001, when Plaintiff was twenty-four years old, she met Father Kennedy while attending mass at the Church of Our Saviour. (Pltf. Dep. at 148; Defs. Rule 56.1 Stat. ¶ 3) Father Kennedy asked Plaintiff whether she had ever been sexually abused. After Plaintiff told him that she had been abused, Kennedy "started talking about how he had helped other women around the world with his . . . method of helping women with abuse -- with getting better from abuse." (Pltf. Dep. at 151-52, 154) Kennedy then suggested that they "make an appointment and we can talk about it or I can show you." (Id. at 155) Near the end of July, Plaintiff met with Kennedy in private at the Church sacristy. (Id. at 160-61, 164) After questioning her about the abuse she had suffered, Kennedy told Plaintiff to take a cloth and "wipe the area in which [she] was touched or abused [and] imagine this person going up in flames or burning away in flames and disappearing." (Id. at 165) Plaintiff followed Kennedy's instructions and proceeded to "wipe" herself in this way, over her clothes, describing "out loud" what she was imagining. (Id. at 165, 169) At the end of this meeting, Plaintiff agreed to meet with Kennedy a second time "to continue the method." (Id. at 213)

During the second private session, also conducted in the Church sacristy, Kennedy instructed Plaintiff to wipe herself in the same way and to again imagine her abusers "going up in flames." (Id. at 236) It is not clear whether Kennedy touched Plaintiff during these meetings. (See Pltf. Rule 56.1 Stat. ¶ 4; Pltf. 2009 Aff. ¶ 13; but see Pltf. Dep. at 161) At the time, Plaintiff did not think that anything that had transpired at these meetings was wrong. She "felt [Father Kennedy] was trying to help and [Plaintiff] had never had help at all really with [her] abuse." (Id. at 215) Plaintiff did not believe that the sessions were effective, however, and told Kennedy "[t]his is not working" and that she was "uncomfortable." (Id. at 236) Kennedy responded that "the reason why this isn't working is because we're not in the right setting," and "for this to really be working for you, we need to have a bed and we need to have a room, a private room with a bed." (Id. at 68)

The third and final encounter between Plaintiff and Kennedy took place at Plaintiff's apartment in Queens in early September 2001. Kennedy instructed Plaintiff to lie down and repeat the same acts of wiping her body with a cloth and imagining her abusers in flames. (Id. at 70) Kennedy then told Plaintiff, however, that he needed to do "one last thing" and "time how long it takes for [her] to orgasm, and if it's within a certain amount of time, then my method has worked." (Id. at 72-73) Father Kennedy then used his hand to bring Plaintiff to orgasm. (Id.) Afterwards, Kennedy told Plaintiff to "get up" and "brought [her] in front of a mirror and started touching [her] breasts," telling her "I have to do this because . . . if I touch them, I know by their . . . look, that you're [] better now." (Id. 73-74) As he was leaving, Kennedy told Plaintiff he would be leaving the country soon and would not see her again. (Id. at 74)

Plaintiff did not disclose this sexual abuse until she began meeting with therapist Delores McCullough near the end of 2002 or early 2003. (Pltf. Dep. at 264-68, 271-72) On April 27, 2004, McCullough informed Monsignor Desmond O'Connor, the Archdiocese's Director of Priest Personnel and victims' assistance coordinator, of Plaintiff's allegations. (Defs. Rule 56.1 Stat. ¶ 5; O'Connor Dep. at 8, 22) This was the first notice to Defendants of Plaintiff's allegations concerning Father Kennedy. (Defs. Rule 56.1 Stat. ¶ 6; O'Connor Dep. at 22) Defendants had likewise not previously been aware of any other claims of sexual abuse made against Father Kennedy. (Defs. Rule 56.1 Stat. ¶ 6; O'Connor Dep. at 54)

After learning of Plaintiff's allegations, O'Connor identified Plaintiff's alleged abuser as Father Kennedy -- Plaintiff could not recall his name -- and met with Plaintiff to discuss the abuse. (Alonso Decl., Ex. F; O'Connor Dep. at 23-25) On June 21, 2004, O'Connor sent a letter to the bishop of Kennedy's home diocese in Sri Lanka notifying him of Plaintiff's allegations.*fn8 (Alonso Decl., Ex. A) The Church also paid for certain therapy Plaintiff received, but otherwise took no action concerning Plaintiff's allegations. (Id. Ex. F; Pltf. 2009 Aff. ¶ 10)

B.Procedural History

Plaintiff filed this action on August 31, 2004, shortly after her meeting with O'Connor. On May 18, 2006, Judge Haight dismissed Plaintiff's battery, negligent infliction of emotional distress, and breach of fiduciary duty claims. Bouchard v. New York Archdiocese, No. 04 Civ. 9978 (CHS), 2006 WL 1375232 (S.D.N.Y. May 18, 2006) ("Bouchard I"). Judge Haight denied Defendants' motion for summary judgment on Plaintiff's remaining claims, however, stating that "[w]here factual issues are decisive, it is generally considered preferable for the parties to complete discovery. . . . Accordingly the present motion of the Archdiocese and Egan ...

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