United States District Court, D. Colorado
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
RAYMOND P. MOORE, District Judge.
THIS MATTER is before the Court on the following motions: (1) Defendant the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints' ("Defendant Church") Motion for Summary Judgment (ECF No. 47); (2) Plaintiff Ashley Lindeman's ("Plaintiff") Motion for Summary Judgment on Plaintiff's Claims of Negligent Hiring and Supervision against Defendant Church (ECF No. 49); (3) Plaintiff's Motion for Summary Judgment on Plaintiff's Claim of Battery against Defendant David Scott Frank ("Defendant Frank") (ECF No. 50); and (4) Defendant Frank's Motion for Summary Judgment on Plaintiff's First, Second, Fifth, and Sixth Claims for Relief (ECF No. 51) (collectively, "Motions"). On May 1, 2014, the Court heard oral argument and subsequently received Defendant Church's Supplement Brief (ECF No. 76). This case was originally filed in the District Court for the County of El Paso, Colorado and removed to this Court based on diversity jurisdiction under 28 U.S.C. § 1332. Upon consideration of the Motions and related filings,  the Court file, the applicable rules and law, and the argument of counsel, the Court: (1) grants Defendant Church's Motion for Summary Judgment; (2) denies Plaintiff's Motion for Summary Judgment against Defendant Church; (3) denies Plaintiff's Motion for Summary Judgment against Defendant Frank; and (4) denies in part and grants in part Defendant Frank's Motion for Summary Judgment.
I. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine issue of material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Plaintiff met Defendant Frank through his son ("Son"), one of Plaintiff's classmates. Plaintiff began attending the Franks' church, Defendant Church, including the Sunday School class which Defendant Frank taught. Over time, and after many communications, Defendant Frank and Plaintiff had sexual intercourse twice. At the time, Defendant Frank was 40 and Plaintiff was 15. Defendant Frank subsequently pled guilty to sexual assault with a 10-year age difference. The issue before the Court is whether either Defendant is liable to Plaintiff civilly for the sexual encounters. Defendants unequivocally admit that what occurred should not have, and Defendant Frank's actions cannot be condoned, but argue, independently, each is not liable in whole or in part. The Court agrees, in part.
III. FACTUAL BACKGROUND
Defendant Church's "Calling" of Defendant Frank to be a Sunday School teacher. Defendant Church "calls" on virtually all adult members who attend church regularly to perform unpaid, volunteer service within their local "ward" (congregation). (ECF No. 54-5, ¶ 4.) The ecclesiastical leader of a local church ward is the bishop and he has two counselors with whom he consults regarding most decisions, including which members to call to volunteer positions in the ward. (ECF No. 54-5, ¶ 5.) A name may be suggested to the bishop as to whom to call. (ECF No. 54-7, page 7.) The bishop prays for inspiration and, after deciding whom to call, he conducts an ecclesiastical interview to determine that person's moral worthiness and willingness to serve. (ECF No. 54-5, ¶ 6.) If the member affirms his/her worthiness and accepts the calling, the bishop or one of the counselors announces the assignment to the congregation in an open meeting and asks if there are any objections. If there is an objection, the bishop meets with the objector to determine the reason for his/her objection. A single objection may thwart the calling. Defendant Church seeks to mitigate the risk of abuse and other misconduct by drawing upon the collective knowledge of the congregation. (ECF No. 54-5, ¶ 7.)
Defendant Church teaches abuse cannot be tolerated in any form. (ECF No. 54-5, ¶ 3.) It keeps a membership record where an "annotation" is placed for any member who has engaged in conduct endangering children or youth. When a member's record is annotated, he or she is not allowed to serve with children or youth. (ECF Nos. 48-5, page 40; 48-7.)
Defendant Church has a 24/7 "Help Line" for bishops to call whenever they become aware of child abuse, which a professional therapist answers to discuss options for assisting the victim. An attorney may join on the call. (ECF No. 54-5, ¶ 8.)
The calling of a Sunday School teacher is limited to teaching a class on religious doctrine for about 40 minutes each Sunday in a group setting. (ECF No. 54-5, ¶ 4.) Defendant Church has a "two-deep" policy for certain settings where two adults must be present, including Sunday classrooms with "children" age 11 or under. (ECF Nos. 54-5, ¶ 9; 48-5, page 48.) Defendant Church does not apply the two-deep policy to teenage Sunday School classes because there are several teenagers in the classroom, the doors are not locked, the church is full of people, other adults are frequently in and out of the classroom, and the class is short. (ECF No. 54-5, ¶ 10.) Across all of its churches, Defendant Church holds thousands of Sunday School classes each Sunday and is aware of only one instance of sexual misconduct on church property involving a Sunday School teacher and a member of his class. (ECF No. 54-5, ¶ 11.) That incident involved a brief grope in the hallway outside the classroom. (ECF No. 54-5, ¶ 11.)
In 2008, Bishop Todd Miller was the ecclesiastical leader of the Eighth Ward of Defendant Church in which Defendant Frank and Son were members. (ECF No. 47-2, pages 12 & 21.) In December 2009, Bishop Miller designated Defendant Frank as a Sunday School teacher, after prayerfully considering the needs of the ward and the member. (ECF No. 47-2, pages 15, 21 & 22.) No one in the congregation objected to his approval as a Sunday School teacher. (ECF No. 47-12, page 3.) Bishop Miller first met Defendant Frank in 2003, when Bishop Miller was a member and not a bishop. (ECF No. 47-2, pages 20-22.)
As a Sunday School teacher, Defendant Frank's duties were limited to preparing for and teaching Sunday School class. (ECF No. 47-1, pages 126-127.) At the time of his calling, Defendant Frank's membership record bore no annotation for abuse. (ECF No. 48-5, page 53.) Bishop Miller had no knowledge of any criminal history involving Defendant Frank but was aware that around the time of the end of Defendant Frank's first marriage, he had taken his children across state lines. (ECF No. 48-5, pages 29, 35-37.) Bishop Miller viewed this as a dispute between husband and wife; a misunderstanding. (ECF No. 48-5, pages 37-38.) Defendant Church does not conduct background checks, and none was conducted of Defendant Frank. (ECF No. 47-12, page 4; ECF No. 48-5, pages 29.) If a criminal background check had been conducted of Defendant Frank it would have revealed the following:
1. March 26, 2002: Defendant Frank was arrested for misdemeanor violation of a restraining order (ECF 47-4);
2. April 25, 2002: In a domestic relations matter, a permanent protective order was entered by consent with no admission of the allegations (ECF No. 47-5);
3. January 13, 2003: After initially being arrested on March 19, 2002, Defendant Frank was found guilty of four counts of violation of custody (class 5 felony), fined, and sentenced to 60 days work release and three years' probation. On January 6, 2006, Defendant Frank was discharged from supervision and his sentence terminated after satisfying all court orders and probation terms and conditions. (ECF Nos. 47-4, 47-6, 47-7.) This is the matter to which the parties refer to as "kidnapping, " which arose from Defendant Frank moving with his children to Tennessee (ECF No. 54-2, page 6);
4. June 5, 2003: Defendant Frank pled guilty to violating a restraining order, resulting in a fine, suspended jail sentence, and probation. On April 15, 2005, he was discharged from further supervision and his probation sentence terminated after satisfying all court orders and conditions of probation (ECF Nos. 47-8 & 47-9);
5. August 11, 2005: Defendant Frank was arrested for violating a restraining order for calling his ex-wife 38 minutes after the time permitted by the order. (ECF No. 47-10.) The arrest was made pursuant to a domestic violence complaint;
6. August 24, 2005: Defendant Frank was arrested for violating a restraining order for calling his ex-wife eight minutes prior to the time permitted by the order. (ECF No. 47-11.) The arrest was made pursuant to a domestic violence complaint; and
7. December 12, 2008: Defendant Frank was arrested for misdemeanor violation of a restraining order. He had called his daughter on her birthday. (ECF No. 54-2, page 8.)
If Bishop Miller had knowledge of the information stated in the Colorado Database concerning Defendant Frank, he probably would not have extended a calling. (ECF Nos. 48-5, pages 39-40; 48-11.) The information shown to Bishop Miller and eliciting the negative response was, however, a summary which contained no explanation. (ECF No. 48-11.)
Plaintiff's Interactions with Defendant Frank. In about the fall of 2009, Plaintiff met Son at school and she was attracted to him. (ECF No. 54-6, pages 85 & 89.) Plaintiff and Son had frequent communications by telephone and text message on a cell phone shared by the Franks. (ECF No. 54-6, pages 86-87.) At some point in time, Defendant Frank responded to a communication Plaintiff sent to Son on the shared cell phone. (ECF No. 47-1, pages 133-135.) Whether there was a single communication or more is disputed, but such dispute is immaterial under the facts and circumstances of this case. ( Compare ECF No. 47-1, pages 133-135 with ECF No. 55-2, page 1.)
On January 3, 2010, because Plaintiff was interested in learning about the Mormon Church, she attended the Eighth Ward at Son's invitation. (ECF No. 47-1, pages 88, 93, 133.) There, Plaintiff met Defendant Frank in person for the first time. (ECF No. 47-1, pages 91 & 135.)
At Defendant Church, there were three successive church sessions which Plaintiff could attend. The first session was an hour of church services devoted to worship with the entire congregation. (ECF No. 47-1, pages 96-97.) Thereafter, there was Sunday School class which, for Plaintiff's age group, was taught by Defendant Frank; and, last, a Young Women's class. (ECF Nos. 47-1, page 97; 47-12, page 3.) Plaintiff attended all three sessions during her first visit and nothing inappropriate happened with Defendant Frank. (ECF No. 47-1, page 135.)
Over the next few months, Plaintiff attended Defendant Church anywhere from about three to 20 times. (ECF No. 47-1, page 96.) She did not attend every Sunday. (ECF No. 47-1, page 98.) Plaintiff and Defendant Frank texted each other before they met at church services. During worship services, Plaintiff sat with the Franks, and exchanged notes with Defendant Frank, but there was nothing sexual or inappropriate in them. (ECF Nos. 47-1, pages 97, 107-108; 55-2, page 2.) Between worship and Sunday School class, sometimes there were communications between Plaintiff and Defendant Frank, but Plaintiff was not sure there was any romantic or sexual content. (ECF No. 47-1, page 108.)
In the Sunday School class Defendant Frank taught, there were anywhere between five and 12 students, boys and girls, in Plaintiff's age group. (ECF No. 47-1, pages 120-121.) There was no co-teacher. There are two doors to the room, which were closed during class and, at that time, had a peephole that allowed people to look into the room but no window. (ECF Nos. 47-1, page 123; 48-5, page 46; 48-6.) During class, Defendant Frank had no physical contact with Plaintiff or the other students but did text her while teaching. (ECF Nos. 47-1, page 126; 52-3, pages 171-172.) Plaintiff was never alone with Defendant Frank during the class. (ECF No. 48-10, page 124.) The frequency in which the class had visitors is disputed but, in this case, such dispute is not material. (ECF No. 47-1, page 123; 47-12, page 2.)
After Sunday School Class, Plaintiff attended the Young Women's Class. (ECF No. 47-1, pages 97, 109.) During the Young Women's Class, Defendant Frank would text her to skip class and hang out with him, but she did not. (ECF No. 47-1, page 118.) Sometimes, after the Young Women's Class, she would help Defendant Frank put up chairs in the Sunday School room. (ECF No. 47-1, pages 109-110.) They were alone during that time and sometimes he would hug her, but there were no wandering hands. (ECF No. 47-1, pages 109-110, 123-124.)
At some point in time, Plaintiff began communicating with Defendant Frank outside of worship. (ECF No. 47-1, page 136.) Initially, it was "just regular conversation, " usually by texts. (ECF No. 47-1, page 136.) Between January 3, 2010 and June 30, 2010, they communicated by text messages hundreds of times, and by phone "thousands and thousands of times." (ECF No. 47-1, page 140.) This usually occurred between 9:00 p.m. to 2:00 a.m. or 3:00 a.m., when Defendant Frank got off of work at Chili's. (ECF No. 47-1, pages 140-141.) Plaintiff understood Defendant Frank's communications were not part of his Sunday School duties and he was acting as "a guy." (ECF No. 47-1, page 141.) Plaintiff believed Defendant Frank was trying to manipulate her into having sex. (ECF No. 47-1, page 141.)
At some point in time, and somewhere other than at the Eighth Ward, Defendant Frank gave Plaintiff a gift of "Tinker Bell" panties. (ECF No. 55-2, page 2.)
In late April 2010, around 1:00 a.m., Defendant Frank came over to Plaintiff's house. By then, Plaintiff and Defendant Frank were sexually interested in each other. (ECF No. 47-1, pages 147-149.) Plaintiff went out to Defendant Frank's car, willingly and without coercion, and, with her consent, ...