Francis:
My evaluation is right on. If you think otherwise, you simply display your ignorance.
BERRY LAWSUIT EVALUATED
by MadApostate 133 Replies latest jw friends
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hawkaw
Mad Apostate and Francois,
You, Mad, stated from the Bryan R. v. WTS case (or Rees case as you call it) that:
The MSC Opinion states the following regarding #1 above:
"... 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." (brackets added)
As I have stated before, this is a partial quote from paragraph 17 in the Bryan R. v. WTS case. Paragraph 17 states (Note:I have bolded your quote from paragraph 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.
Did not the court conclude that Bryan R. failed to prove a “fiduciary relationship with sufficient particularity”. And for that reason they declined to recognize a general common law duty? The court was saying they needed more factual information from him and actually told Bryan R. what he needed to show. Did not this court come to a different conclusion than what you have suggested in your first post on this thread or have I miss understood?
I also noted that you also failed to make any comment with respect to Footnote 5 in the Bryan R. v. WTS case.
Lets look at what you said in your original post on this thread.
[¶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}
I notice in your post and subsequent posts you failed to bring up Footnote {5} which is found at the end of paragraph 12. Instead you have told this board there does not exist any "duty" when in fact Footnote {5} clearly shows, that in certain circumstances, a person must warn third parties. Just for the record again, here is what Footnote {5} states in the Bryan R. v. WTS case:
{5} In limited circumstances, courts have recognized that an actor may have a duty to warn third parties of the dangerous propensities of another when the actor has a special relationship with the dangerous person and the person threatened is a specific, foreseeable, and identifiable victim of the dangerous person's threats. See, e.g., Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 345 (Cal. 1976); Thompson v. County of Alameda, 614 P.2d 728, 734-35 (Cal. 1980) (declining to extend holding in Tarasoff when neither a special relationship existed nor had a specific individual been threatened); Brenneman v. State, 256 Cal. Rptr. 363, 367 (following Thompson in holding that "public entities and employees have no affirmative duty to warn of the release of an inmate with a violent history who has made nonspecific threats of harm directed at nonspecific victims"); Leonard v. Latrobe Area Hospital, 625 A.2d 1228, 1232 (Pa. 1993) (following Thompson, finding "no common law rule that imposes a duty on a psychologist or psychiatrist to warn a non-patient of a patient's dangerous propensities"). But see, e.g., Perreira v. State, 768 P.2d 1198, 1201 (Co. 1989) (holding that psychiatrist has duty to third parties to exercise due care in treatment and release of committed patients).
As I have stated before does not Footnote {5} put an entirely different “spin” on your conclusion? There are circumstances where an “actor” has a “duty to warn”. It up to Berry to prove it - right?
Look again at the Bryan R. v. WTS case. The Maine Court did not address the issue of "reporting" that is going on in the Berry case. But that Maine court did cite, in Footnote {7}, the Supreme Court decision Davis v. Monroe County Bd. of Educ., 119 S. Ct. 1661, 1666 (1999) (recognizing a statutorily imposed duty on the part of schools to protect children from abuse by other children or adults).
I have not read this decision yet but if the supreme court did allow a suit to go forward in this case would you then be willing to change your opinion some what.
I find this very interesting and I hope you do to.
Let me know what you think Mad Apostate and anyone else for that matter.
hawk
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Anchor
: State courts may not interfere in matters concerning religious doctrine or organization. (From the court record above)
Isn't that essentially what Maximus has been saying?
Hawkaw, thank you v e r y much for this most helpful thread.Anchor
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waiting
Hey Hawk,
I find this very interesting and I hope you do to.
Let me know what you think Mad Apostate and anyone else for that matter.
I have nothing to add to this discussion - but I find it very interesting - very.
Thank you both for the in-depth discussion - as this is unusual here. Also the the ability to keep emotions and comments on an even keel to keep the focus to the legal discussion. For persons like me, it's a learning experience.
My background is rife in growing up with child sexual abuse and then continuing with my child. I find it interesting to be able to see how a case is put together, arguments raised and defended/conceeded, to see what others rationalize/put forth in a legal defense without the emotional thrust.
Thank you.
waiting
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MadApostate
Hawkaw:
First, let me say that with respect to posting here at JWcom, some days are better for me than others. Yesterday was not a good day, and today has started off even worse. Frankly, I could not get up the motivation yesterday to put together a decent repsonse to your extemely lengthy post, and today is no better. I will try to respond in parts today depending on how my day progresses.
Let me try to address your statements found in paragraphs 2, 3, and 4 in your first lengthy post, which you followup on in your second. Yesterday, I posted one answer, which I completely changed to be more tactful. My tactful response got nowhere, so let me go back to being more straight forward.
"Fiduciary Duty" is an exception to the common law rule that Party One is not responsible for protecting Party Two from Party Three. Thus, a discussion of FD naturally involves a discussion of "ordinary negligence". The REES Opinion mixes comments about both in the section it labels as the FD discussion. The statement that I quoted applies to basic ordinary negligence. The MSC is noting that at common law, there is no obligation for churches to protect its' members from each other, thus no action under the "ordinary negligence" theory.
As I acknowledged n my thread-starting post, the MSC DID dismiss the FD allegation due to the complaint's lack of specificity. However, ALSO as I quoted, the court said that it had NEVER found a FD relationship under these circumstances. (The BERRY circ are worse, not better.) As I also acknowledged, BERRY does a much better job making a case for a FD relationship. This POSSIBLY will allow this issue to be tried, but I will be surprised if it is. If the judge instructs the jury correctly on this issue, BERRY loses. If not, Berry loses on appeal. There is no precedent for holding the WTS liable for crimes committed by a parent against his own chid in his own home. The facts of this case are TERRIBLE for testing this issue.
I will try to answer more later, if you will keep it to one topic at a time. That's the best I can do today.
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hawkaw
Anchor,
Thanks for your input.
I'm a little confused with your comment because I am not sure what Maximus stated.
My comment on the court's comments wrt the states interference in a religious institution was:
This is very true as long as the church honestly and in good faith believes in their doctrines. But religious organizations are not above any law that treats all people the same. A jury would not be allowed to determine whether an accused church member was sanctioned by the church. But a jury could determine if the church had a “secular” duty to report this event of abuse instead of concealing it.
Sorry to not be with it right now but could you fill me in a little on what your post mean't?
Thanks
hawk
p.s - thanks for your comments waiting
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juswonderin
Glad to read this information re: duty to warn 3rd parties:
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{5} In limited circumstances, courts have recognized that an actor may have a duty to warn third parties of the dangerous propensities of another when the actor has a special relationship with the dangerous person and the person threatened is a specific, foreseeable, and identifiable victim of the dangerous person's threats
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FYI:
My experience in dealing w/one Elder is that I was warned to keep my daughter away from a family where the man of the house had serious complaints re: inappropriate behaviour toward young girls. -
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hawkaw
Mad Apostate,
Gee sorry about this but I forgot to add one more comment.
You stated the following in a previous post:
"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.] (brackets added)
Note carefully what the Court said in the brackets. If there had been any previous "precedent" for this type claim, the Court would have provided info about such, with directions for REES to go back and amend his claim. The fact that the REES case was dropped after this decision says much.
In another thread you stated:
The MSC is noting that at common law, there is no obligation for churches to protect its' members from each other, thus no action under the "ordinary negligence" theory.
Your quote from the Bryan R. v WTS case is a partial one from paragraph 18. Thus, I decided to present to the board all of paragraphs 18 and 19 as well as Footnote {9} from the Bryan R. v. WTS case.
[¶¶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).
Footnote
{9} . The term "fiduciary" is "one of the most ill-defined, if not altogether misleading terms in our law." Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 10 F. Supp. 2d 138, 149 (D. Conn. 1998) (internal quotation omitted). One court offered the following explanation: Some of the indicia of a fiduciary relationship include the acting of one person for another; the having and exercising of influence over one person by another; the inequality of the parties; and the dependence of one person on another. Fiduciary duty arises, for example, between attorneys and clients, guardians and wards, and principals and agents. Doe v. Hartz, 52 F. Supp. 2d 1027, 1059 (N.D. Iowa 1999) (internal quotations omitted).When you look at all of paragraphs 18 and 19 with Footnote 9, is not the Maine Supreme Judicial Court actually telling Bryan R. what he had to prove?
I respectfully disagree with you that the “The MSJC is noting that at common law, there is no obligation for churches to protect its' members from each other, thus no action under the "ordinary negligence" theory”.
I believe the court was saying that there were no exact circumstances in the case law as to what Bryan R. had asserted. The court then went to show what Bryan R. had to prove.
But are the circumstances different in Berry’s case? Bryan R. asserted a special relationship that made the elders required to protect Bryan by disfellowshipping good old Baker. Problem was Bryan R. did not give any proof (facts) of a superior/inferior relationship and that is what killed the case.
Berry on the other wanted protection from the elders by reporting the “perp” to the authorities as required by statute. Is there a lot of evidence in the claim to assist the court to prove the relationship?
The court has provided the way to show the special relationship and now its up to Berry’s lawyer to prove it. Berry’s facts will be the elders were the “superior” in the relationship with the family. The elders reasonable step was to report the possible crime to the authority as required by statute. That was their duty to protect the family and they failed to do it (will be Berry’s arguments). This is the big test that the Bryan R. v. WTS case did not address.
You are right Mad Apostate, Bryan R. did give up by the looks of things. But his facts were different. There is new evidence since his trial and a statute that tells a certain person what to do.
So I guess my question is do the facts in the Berry case show the relationship to meet what the Court required?
hawk
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MadApostate
Hawkaw:
I disclose that I'm not up to speed today, ask that you wait and allow me to respond as I am able, and you take advantage of my situation to continue to SHITBOMB the subject with QUANTITY, but little quality.
Well, go ahead. I'm out of the discussion until I feel better.