                                                  .-•;-;•-C7 AP
                                                   STATE Or WA-SriTiui

                                                  tt\ij\y..c.i.   r.>iu-




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

N.K., an individual proceeding under a
pseudonym,
                                                  No. 67645-8-1
                    Appellant,
                                                  DIVISION ONE
             v.



CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS, a
foreign corporation sole registered to
do business in the State of Washington;
CORPORATION OF THE PRESIDENT
OF THE CHURCH OF JESUS CHRIST                     PUBLISHED OPINON
OF LATTER-DAY SAINTS AND
SUCCESSORS, a foreign corporation                 FILED: July 22, 2013
sole registered to do business in the
State of Washington; THE BOY
SCOUTS OF AMERICA, a
congressionally chartered corporation,
authorized to do business in the State
of Washington; and PACIFIC HARBORS
COUNCIL, BOY SCOUTS OF
AMERICA, a Washington nonprofit
corporation,

                    Respondents.
                                          J


      Becker, J. — Appellant NK1 was molested in 1977 by a volunteer scout
leader with a church-sponsored Boy Scout troop in Shelton, Washington, when




      1 NK is an adult proceeding by pseudonym.
No. 67645-8-1/2



NK was 12 years old. Thirty-two years later, NK brought negligence claims
against the church, the Boy Scouts ofAmerica (BSA), and the local boy scouting
council, for failing to protect him. These claims were dismissed on summary

judgment on the ground that the defendants owed no duty to protect NK from a

danger of which they were unaware.

       We reverse as to the church and remand for trial. The church had a

protective relationship with NK. From this relationship, a duty arose to take

reasonable precautions to protect children in the church's care from foreseeable

hazards, a category that may include the risk of child sex abuse by scout leaders.

This duty does not depend on the church having prior knowledge that its

volunteer scout leader was a molester. In any case, there is evidence that

church officials did become aware of the volunteer's dangerous propensities

several months before he left town. We also reverse orders that limited NK's

discovery from the church in time and scope.

       As to the scouting defendants, we affirm. There is no evidence that they

had a special relationship either with NK or with the adult volunteer who molested

him.



                                     FACTS

       The facts are set forth in the light most favorable to NK, the nonmoving

party on summary judgment. This court reviews summary judgment orders de

novo, engaging in the same inquiry as the trial court. Aba Sheikh v. Choe, 156

Wn.2d 441, 447, 128 P.3d 574 (2006).
No. 67645-8-1/3



       In 1977, NK was a 12-year-old boy living in Shelton. NK and his family
belonged to the Church of Jesus Christ of Latter-Day Saints (LDS). The church

is organized into geographic areas called "stakes." Subunits of stakes are called

"wards." NK's family belonged to the Shelton ward, which was part of the

Olympia stake. The Shelton ward of the church encouraged boys in the

congregation to participate in Boy Scouts. The church sponsored Boy Scout

Troop 155.

      A ward's leadership is referred to as the "bishopric," which consists of a

bishop and a first and second counselor. In 1977, the Shelton ward's second

counselor was the chairman of the ward's Boy Scout Committee. A troop has to

have a scout committee and officers in order to be chartered by the national Boy

Scout organization.

       Scoutmasters for Troop 155 are "called" to the position by the bishopric,

and then presented to the congregation, where they can be either affirmed or

opposed. In 1977, Ben Danford was called and affirmed by the congregation as

the official scoutmaster. He was registered on the official troop roster. There

was no official assistant scoutmaster.


       In the early spring of 1977, a stranger named Dusty Rhodes came to

Shelton from Juneau, Alaska. Danford, who met him at the time, thought the

stranger seemed untrustworthy. "Rhodes" left town, only to reappear a few

months later under the new name of Dusty Hall. Danford testified that Hall was

"personable," but he gave only a "vague" explanation of "what he did and who he
No. 67645-8-1/4



was and where he came from." Hall worked as a truck driver. He had no

children of his own. He had only recently converted to the LDS church. The

friends he made in Shelton included NK's parents. Soon, he became engaged to

Geraldine Worthy, the best friend of NK's mother. Worthy was a single mother of

three young children.

       Hall offered to volunteer with the scouting troop. The bishopric met and

decided to accept him as a volunteer. Hall quickly assumed substantial

responsibilities for the troop's activities, though he was never officially registered

with BSA. NK recalls Hall being introduced to him as his new scoutmaster. The

other boys and families of the troop and Worthy, Hall's fiancee, also knew him as

a scoutmaster. Hall held scout meetings every week. Some meetings were held

in the gym, and some were in the church's scouting cabin. There were two keys

to the scouting cabin; the bishop had one, and Hall had the other. Hall also took

the scouts on camping trips and helped them get their merit badges.

       According to NK, Hall began sexually molesting him in the early summer

of 1977, about a week after they met. The first two incidents occurred at NK's

home. NK testified that the only reason he ever let Hall into his house when his

parents were not there "was because he was one of our Scout leaders." The

third incident occurred during a troop sleepover at Hall's apartment. Other

incidents occurred during scouting campouts, in the church scout cabin after

scout meetings, in Hall's car in the church parking lot, or at Hall's workplace. In

all, Hall molested NK 20 to 30 times, approximately on a weekly basis. Hall also
No. 67645-8-1/5


molested at least two of NK's fellow scouts during scouting events and

sleepovers. One scout who was not molested stopped participating in Troop 155
because Hall made his family feel uncomfortable.

       On a Sunday at the end of the summer, Worthy learned from her six-year-

old son that Hall had molested him. Worthy reported the abuse to the bishop the

same day. The bishop told her not to call the police and that he would "take care

of it." The bishop tried to contact Hall. Hall gathered his things from Worthy's

home and left town the same night. The bishop called church members in

Juneau and made other efforts to contact Hall, but Hall could not be located and

he never returned.

       The bishop held a meeting with the parents of the scouts and asked them

to discuss Hall with their sons. Questioned by his parents and then by the

bishop, NK denied that Hall had molested him. He did not tell friends or siblings

about it either.


       NK filed this complaint in November 2009 against BSA, a congressionally-

chartered national organization, and Pacific Harbors Council of Boy Scouts of

America, one of numerous local councils chartered across the country by BSA.

The complaint also named two church defendants: Corporation of the President

of The Church of Jesus Christ of Latter-Day Saints and Corporation of the

Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints. The two

church defendants, who filed a joint answer and are jointly represented, are

corporations established to carry out the temporal affairs of the LDS church, a
No. 67645-8-1/6



world-wide religious organization with over thirteen million members.

       NK alleged that each defendant owed him a duty to protect him from the

criminal acts of Hall. He claimed that they failed in their duty in various ways: by
failing to check into Hall's background, by allowing him to supervise the children

in isolated settings without another adult present, and by failing to train

scoutmasters or warn scouts and their families about the danger of sexual abuse

in scouting.

       In August 2011, the court granted dismissal to all defendants on summary

judgment for absence of duty. NK assigns error to the orders of dismissal and

also to certain orders imposing limits on discovery from the church.


                                        DUTY


       The existence of a legal duty is a question of law considered on appeal de

novo. Sheikh, 156 Wn.2d at 448. A duty to protect another from sexual assault

by a third party may arise where the defendant has a special relationship with the

tortfeasor which imposes a duty to control the third person's conduct, or it may

arise where the defendant has a special relationship with the other which gives

the other a right to protection. Niece v. Elmview Group Home. 131 Wn.2d 39, 43,

929 P.2d 420 (1997), citing Restatement (Second) of Torts § 315(a) & (b).

       The defendants contend none of them owed NK a duty of protection

because they did not possess prior specific knowledge that Hall posed a threat to

boys. The requirement for prior specific knowledge of the tortfeasor's dangerous

propensities applies to the first type of special relationship identified in Niece but
No. 67645-8-1/7



not to the second. For example, in the relationship between parole officer and

parolee, where the parole officer has information showing that the parolee is

likely to cause bodily harm to others if not controlled, the parole officer is under a

duty to control the parolee to prevent him or her from doing harm. Taqqart v.

State. 118Wn.2d195, 219-20, 822 P.2d 243 (1992). But the existence of a duty

predicated on a protective relationship requires knowledge only of the "general

field of danger" within which the harm occurred. McLeod v. Grant County Sch.

Dist. No. 128. 42 Wn.2d 316, 321, 255 P.2d 360 (1953).

       In McLeod, a young student was raped by older students in a dark

unlocked room beneath school bleachers. The court held that the victim's suit

against the school district could go forward even though school officials were

unaware of the "vicious propensities" of the older students. McLeod, 42 Wn.2d at

321. The question was whether the harm fell within a "general field of danger"

which should have been anticipated.

       [W]e believe that here the general field of danger was that the
       darkened room under the bleachers might be utilized during periods
       of unsupervised play for acts of indecency between school boys
       and girls. If the school district should have reasonably anticipated
       that the room might be so used, then the fact that the particular
       harm turned out to be forcible rape rather than molestation,
       indecent exposure, seduction, or some other act of indecency, is
       immaterial. Had school children been safeguarded against any of
       these acts of indecency, through supervision or the locking of the
       door, they would have been protected against all such acts.

McLeod, 42 Wn.2d at 322. See also J.N, v. Bellingham Sch. Dist. No. 501, 74

Wn. App. 49, 871 P.2d 1106 (1994).

        Niece is similar. The plaintiff, a vulnerable elderly patient in a private
No. 67645-8-1/8



group home, was sexually assaulted by an employee. The employee had no

criminal history, and the group home had no knowledge of his dangerous

propensities. Niece, 131 Wn.2d at 42. The court recognized a special protective

relationship between the group home and the patient, similar to that in McLeod.

Niece, 131 Wn.2d at 43-44. The court held that the group home could be found

liable "as long as the possibility of sexual assaults on residents by staff was

within the general field of danger which should have been anticipated." Niece,

131 Wn.2dat50.

       The defendants suggest that McLeod and Niece have been superseded

by our Supreme Court's more recent decision in C.J.C. v. Corporation of Catholic
Bishop of Yakima, 138 Wn.2d 699, 985 P.2d 262 (1999). One of the three

appeals consolidated in C.J.C. was Funkhouser v. Wilson, 89 Wn. App. 644, 950
P.2d 501 (1998), affd in eart and remanded, 138 Wn.2d 699, 985 P.2d 262
(1999). In Funkhouser, two young members of a Baptist congregation were
molested by Wilson, a church deacon. The abuse did not take place on church
premises or during church-sponsored activities, but the church had received a
report of a previous molestation by Wilson before they decided to make him a
deacon. The Supreme Court concluded the trial court erred by dismissing the
case on summary judgment for absence of duty. This conclusion was supported
by "the conjunction offour factors present in the case":
       [W]e find the conjunction of four factors present in the case before
       us decisive to finding the existence of a duty is not foreclosed as a
       matter of law: (1) the special relationship between the Church and
       deacon Wilson; (2) the special relationship between the Church and
       the plaintiffs; (3) the alleged knowledge ofthe risk of harm
                                             8
No. 67645-8-1/9



       possessed by the Church; and (4) the alleged causal connection
       between Wilson's position in the Church and the resulting harm.
C.J.C, 138Wn.2dat724.

       The defendants here argue that under C.J.C a plaintiff must prove each

of these four factors as a conjunctive test in order to establish a duty on the part

of an organization to prevent abuse of children by a third party, including a duty

arising from a special relationship with the child victim. They are mistaken. The

first two C.J.C. factors—(1) the organization's special relationship with the

tortfeasor and (2) its special relationship with the victims—are well-settled

alternative grounds from which a duty can arise. Restatement (Second) of

Torts § 315 (1965), cited in Niece, 131 Wn.2d at 43. "As a general rule, there is

no duty to prevent a third party from intentionally harming another unless a

special relationship exists between the defendant and either the third party or the

foreseeable victim of the third party's conduct." Niece, 131 Wn.2d at 43

(emphasis added and internal quotation marks omitted), quoting Hutchins v.

1001 Fourth Ave. Assocs., 116 Wn.2d 217, 227, 802 P.2d 1360 (1991).

       It is true that in C.J.C the court emphasized that the church possessed

actual notice that the deacon was a child molester. But the reason for this

emphasis was because the allegations were of molestation occurring at the

deacon's home, when he was babysitting. "The molestation of these plaintiffs did

not occur on church property nor during church-sponsored activities. Defendants

did not recommend Wilson as a babysitter." C.J.C 138 Wn.2d at 730 (Madsen,

J., concurring/dissenting). These circumstances removed the case from the
No. 67645-8-1/10


ambit of cases like McLeod and Niece, where the defendants had custody of the

plaintiff when the abuse occurred.

      The four factors adopted by the C.J.C. court to support the existence of a

duty on the part of the Baptist church apply where the alleged abuse occurred at

times and places when the institutional defendant did not have custody of the

child. See Marquav v. Eno, 139 N.H. 708, 662 A.2d 272 (1995), applying

Restatement (Second) of Torts § 302B cmt. e, para D (1965) (actor has

brought into contact with the victim "a person whom the actor knows or should

know to be peculiarly likely to commit intentional misconduct, under

circumstances which afford a peculiar opportunity or temptation for such

misconduct"), cited in C.J.C 138 Wn.2d at 723. Nothing in the C.J.C. court's

analysis eroded the authority of protective relationship cases like McLeod and

Niece that apply in circumstances where the sexual assault occurs at a time and

place where the vulnerable victim is in the custody and care of the institutional

defendant. In fact, before discussing the four factors mentioned above, the

C.J.C. court recognized, as an issue of first impression, that a church's duties to

its youth are the same as a school's ifthe molestation occurs during church

activities, when the children are in the "custody and care" of the church:

       The children of a congregation may be delivered into the custody
       and care of a church and its workers, whether it be on the premises
       for services and Sunday school, or off the premises at church-
       sponsored activities or youth camps. As in other agency
       relationships, a church chooses its officials, directs their activities,
       and may restrict and control their conduct. In many respects, the
       activities of a church, and the corresponding duties legitimately
       imposed upon it, are similar to those of a school. As a matter of
       public policy, the protection of children is a high priority. In general,
                                              10
No. 67645-8-1/11



       therefore, we find churches (and other religious organizations)
       subject to the same duties of reasonable care as would be imposed
       on any person or entity in selecting and supervising their workers,
       or protecting vulnerable persons within their custody, so as to
       prevent reasonably foreseeable harm.

C.J.C 138 Wn.2d at 721-22.

       The C.J.C. court cited both Niece and McLeod with approval. We

conclude that Niece and McLeod are consistent with C.J.C. and they remain

good law. To establish the element of duty arising from a special protective

relationship, NK did not have to prove the church had prior specific knowledge

that Hall posed a threat.

       A duty arising from a protective relationship, as in Niece and McLeod, is

limited by the concept of foreseeability. Niece, 131 Wn.2d at 50. The duty "is to

anticipate dangers which may reasonably be anticipated, and to then take

precautions to protect the pupils in its custody from such dangers." McLeod, 42

Wn.2d at 320. The church contends sexual abuse by an adult volunteer was

unforeseeable.


       Foreseeability is a question for the jury2 unless the circumstances ofthe
injury are "so highly extraordinary or improbable as to be wholly beyond the

range of expectability." Niece, 131 Wn.2d at 50 (internal quotation marks

omitted), quoting Johnson v. State, 77 Wn. App. 934, 942, 894 P.2d 1366 (1995);




       2Typically when there is a jury question as to whether an injury is within the
general field of danger which the defendant should reasonably have anticipated, the
issue is presented in the "Proximate Cause-Superseding Cause" pattern instruction.
WP115.05.

                                               11
No. 67645-8-1/12



McLeod, 42 Wn.2d at 323. A sexual assault is not legally unforeseeable "as long

as the possibility of sexual assaults ... was within the general field of danger

which should have been anticipated." Niece, 131 Wn.2d at 50.

       The court held in Niece that sexual abuse by staff at a group home may

be a foreseeable hazard against which reasonable precautions should be taken.

Niece, 131 Wn.2d at 51. The court found this to be demonstrated by the prior

sexual assaults that had occurred at the group home, an earlier policy at the

home against unsupervised contact with residents, expert testimony that such
contact was unwise, and legislative recognition of the problem of abuse in
residential care facilities. Niece, 131 Wn.2d at 50-51. The church suggests that

in this case, there is inadequate support for foreseeability of child sexual abuse
because none of the above factors identified in Niece are present.

       BSA has long known of sexual abuse occurring in scouting. The files of
ineligible volunteers maintained by BSA since 1920 include allegations of
pedophilia and "perversion" by adult volunteers. In fact, a BSA procedural
manual concerning the files states that the "perversion" cases were the majority
of the cases on file.

       What knowledge the LDS church had is not as well established. The
record does not, for instance, show that the church was given the information
about the history of molestation in scouting thatwas known within BSA.
According to a BSA employee who oversaw the set up and maintenance of the
 ineligible volunteer files, BSA did not inform parents or troop committees about

                                             12
No. 67645-8-1/13



the existence of the perversion files. Scoutmaster Danford testified that he never

received any training from the Boy Scouts about the dangers of sexual abuse.

The church contends that the absence of such evidence is fatal to NK's claim

against the church.

       The general field ofdanger was that scouts would be sexually abused if a
stranger newly arrived in town was permitted to supervise them one-on-one in
isolated settings. Whether considered from the standpoint of negligence or
proximate cause, such a risk cannot be described as so highly extraordinary or
improbable as to compel deciding the issue of foreseeability as a matter of law.
See McLeod, 42 Wn.2d at 323-24. A defendant's actual knowledge of the

particular danger "is not required if the general nature of the harm is foreseeable
under the circumstances." Travis v. Bohannon, 128 Wn. App. 231, 240,115

P.3d 342 (2005). Therefore, even if there was no evidence that the church knew
about specific past incidents of child sexual abuse in scouting, we would decline
to decide as a matter of law that sexual abuse by adult scout volunteers was

unforeseeable by the church.

       The record contains evidence that the danger of sexual abuse by an adult

volunteer was one the church reasonably should have anticipated. By 1977,
 BSA was advising all chartered organizations to maintain "'two deep' leadership
 for their troops." Achurch witness from the Juneau branch testified that the
 church "always had the rule of two adults" in scouting events. Although BSA
 claims the policy was to ensure continuous leadership for a troop, a reasonable

                                             13
No. 67645-8-1/14



inference is that it was intended to prevent sexual abuse by adults. And as

discussed below, we are reversing discovery rulings that prevented NK from

developing other evidence bearing on the question of what the church knew

about the dangers of sexual abuse in scouting.

       Whether a duty exists, then, depends in this case on whether the

defendants had a special relationship with the boys in Troop 155 that gave them
a right to protection. "The duty to protect another person from the intentional or
criminal actions ofthird parties arises where one party is entrusted with the well
being of another." Niece, 131 Wn.2d at 50 (internal quotation marks omitted),
quoting Lauritzen v. Lauritzen, 74 Wn. App. 432, 440, 874 P.2d 861 (1994).
Examples of special protective relationships are listed in Hutchins, 116 Wn.2d at
228. Often in these cases, "the party that has been found to have a legal duty
was in a position to provide protection ... because he or she had control over
access to the premises that he or shewas obliged to protect." Lauritzen, 74 Wn.
App. at440-41. For school pupils, in particular, the essential rationale for
imposing a duty "is that the victim is placed under the control and protection of
the other party, the school, with resulting loss of control to protect himself or
herself." Hutchins, 116 Wn.2d at 228. These considerations explain why the

C.J.C. court held thatwhen children are delivered into the "custody and care" ofa
 church for church-sponsored activities, the church has the same duty owed by a
 school or other institution entrusted with the custody and care of vulnerable

 individuals.



                                              14
No. 67645-8-1/15



      The relationship between the church and the scouts in Troop 155 is similar

to the relationship in McLeod between the Grant County School District and its

students. Scouting was part of the church youth program. The church selected

the scoutmasters and adult volunteers for Troop 155. The church chapel was the

registered meeting place for the troop. The church actively encouraged children
of the congregation to participate in scouting, and it paid for the boys'
participation in the troop. NK's mother testified that the reason she let her son
spend time alone with Hall was "because the church held him out as a youth
leader who could be safely trusted with our children." Cf C.J.C 138 Wn.2d at
725 (placing Deacon Wilson into a position of trust over children "not only
brought him into close connection with the children of the congregation, it
allegedly inspired confidence to place the plaintiffs in his care"). The church
owned a scouting cabin where the boys participated in meetings and scouting
activities, away from the custody and protection of their parents. NK testified that
Hall sometimes brought him to the cabin outside of meeting times and molested
him there. Hall also molested him after scout meetings. The scouting cabin and
the other opportunities scouting provided to Hall for isolating his victims are
analogous to the darkened room under the bleachers where the rape occurred in
McLeod.

       The church, noting that the first two incidents of molestation occurred in
 NK's own home when his parents were away, prefers to characterize Hall's
 criminal acts as abuse by a trusted family friend rather than being attributable to


                                              15
No. 67645-8-1/16



lack of reasonable care by the church. If NK had been abused only in his own

home, the facts would be more like in Funkhouser and, under C.J.C arguably

NK could not establish a special relationship without proof that the Church had

reason to know Hall was a molester. But Hall molested NK while both were

engaged in scout activities. The fact that NK's parents failed to recognize Hall as

a danger does not eliminate the responsibility of the church to exercise

reasonable care when children are involved in church-sponsored activities. Just

as the protective custody of the school "is substituted for that of the parent," J.N..

74 Wn. App. at 57, the church was substituting for the parent when it had custody

of NK. See also Travis, 128 Wn. App. at 241-43 (student was injured while

working with a hydraulic log splitter during school-sponsored "Workday"; fact that

student's mother gave consent was at most concurrent negligence, not a

superseding cause that would relieve the school district of liability). The

evidence indicates that the reason NK's parents trusted Hall to be alone with NK

is that the church had put its imprimatur upon Hall as an accepted troop leader.

We conclude the church had a protective relationship with young NK that, under

McLeod and Niece, gave rise to a duty to protect him from foreseeable harms.

       We reach the opposite conclusion as to the scouting organizations. BSA

and Pacific Harbors Council did not have a custodial responsibility for the troop

members. Their relationship to NK was not analogous to the relationship

between school and pupil in McLeod.

       NK contends a duty of protection under McLeod and Niece was


                                             16
No. 67645-8-1/17



adequately established for BSA and the local council by evidence of their control

over the program and their right to exclude participants. Both BSA and the local

council provided training and education regarding how the scouting program was

to operate, and both were involved in screening volunteers. BSA would reject

the registration of any person whose name appeared in BSA's ineligible

volunteer files. BSA distributed a handbook that encouraged boys to trust scout

leaders, required registration forms with information about each scout's rank, and

collected dues from individual scouts. BSA provided the church with scouting

policies and rules, and expected them to be enforced. BSA reserved the right to

reject volunteers, leaders, and scouts deemed to be unfit. BSA officials could

have excluded Hall from volunteering if they had known about him. The local

council also had a degree of control over the activities of Troop 155. The local

council convened the larger scale camping outings that occurred each year,

stayed in touch with the troop's scoutmaster about fundraising activities and the

annual campouts, and facilitated the chartering and registration process for

Troop 155.

       BSA, of all the defendants, had the most extensive knowledge of the

history of sexual abuse in scouting and was in the best position to warn scouts,

parents, and local troops of the danger that adults who prey on children may

work their way into scouting as volunteers unless reasonable precautions are

taken at the local level. But the ability to warn and the right to exclude are not

enough to establish a special protective relationship. NK does not cite authority,


                                             17
No. 67645-8-1/18


and we have found none, that has allowed a case to proceed on the theory of a

protective relationship in the absence of a custodial relationship between the

organization and the victim. Without a custodial relationship, typically involving
on-the-ground control of day-to-day operations, an institutional defendant is not
in a position to provide protection from physical danger as a school or church
group does for children, orto monitor personal care as a hospital or nursing
home does for disabled patients. Because their relationship to the scouts in
Troop 155 was not custodial, we conclude BSA and the Pacific Harbors Council
did not have a protective relationship with NK.
       In addition to the special protective relationship theory, NK alleges that all
defendants owed him a duty because they had a special relationship with Hall
which imposed upon them a duty to control Hall's conduct. See Niece, 131
Wn.2d at 43, citing Restatement (Second) of Torts § 315(a). This duty does
depend on proof that the defendant was aware of the tortfeasor's dangerous
propensities. As to the scouting defendants, the record does not contain
evidence raising an inference that either BSA or Pacific Harbors Council were
even aware of Hall's existence. Therefore, those two organizations did not have
a special relationship with Hall imposing a duty to control his conduct.
       As to the church, however, there is evidence ofawareness of Hall's
 dangerous propensities. Achurch exposes itself to liability when it allows its
 youthful members to be supervised by a person known to have a history of
 sexual misconduct. C.J.C 138Wn.2d at 724; M.H. v. Corp. of Catholic


                                              18
No. 67645-8-1/19


Archbishop of Seattle. 162 Wn. App. 183, 192, 252 P.3d 914, review denied, 173

Wn.2d 1006 (2011). The church claims that it did not have any negative

information about Hall until just before he left town at the end of August or early

September of 1977. Bishop Gordon Anderson recalled receiving only one report

of abuse by Hall. He testified that he responded to it immediately by trying to

contact Hall, meeting with the scouting families, and investigating whether any of

the scouts suffered abuse. Bishop Anderson said that the report concerned a

boy who was molested at a birthday party sleepover. He described it as being

organized for a boy "who wanted to have a bunch of boys over to sleep out in a

tent." Bishop Anderson said he received the report from "a priesthood brethren"

who telephoned and told him he needed to investigate Hall. However, Worthy

said she reported to Bishop Anderson that Hall had molested her six-year-old

son during two overnight visits to Hall's apartment. She also said that Hall

disappeared for good the day after she reported this to the bishop. Worthy's

account differs enough from the "priesthood brethren" report that a jury could

conclude the bishop received two different reports and that the call about the

sleepover occurred some time before Worthy's report mobilized the bishop's

investigation.

       The inference that the church knew about Hall's misconduct for weeks or

months before taking action is further supported by a declaration by Daniel

Cowles, Jr., who was a scout in Troop 155 at the same time as NK. The

declaration states that during a Boy Scout campout, one of the boys in the troop


                                            19
No. 67645-8-1/20



told Cowles about being sexually molested by Hall. Cowles' declaration says he

reported the allegation to one of the members of the bishopric before the local

council Camporee in May 1977. He remembers making the report before the

May 1977 Camporee because "at the Camporee a man threatened me and told

me that I shouldn't tell anyone else." NK submitted the declaration by Cowles as

part of his evidence in opposition to the church's motion for summary judgment.

        A week later, the church filed a second declaration by Cowles in which he

stated that he does not recall precisely when he made the report concerning Hall,

but that Hall left town "two or three days after." If this declaration is accurate,

Cowles made his report not in May, but several months later, just before Hall left

town.


        The church argues that the second declaration merely "clarified" the first

one. The two declarations are not that easily reconciled. Presented with both, a

rational jury could believe Cowles' first declaration to be an accurate recollection

and the second a false recantation. Credibility is for the fact finder to decide.

Meadows v. Grant's Auto Brokers. Inc.. 71 Wn.2d 874, 881, 431 P.2d 216

(1967). We conclude the record manifests the existence of a genuine dispute as

to when the church first received actual notice that Hall was a danger to children.

To the extent NK alleges tort theories that may depend on proof of the church's

awareness of Hall's prior sexual misconduct with children, including the theory

affirmed in C.J.C. with regard to Deacon Wilson, the record provides such proof.

        NK argues at length in his reply briefthat Danford, the registered


                                              20
No. 67645-8-1/21



scoutmaster, was negligent in permitting Hall to become a de facto scoutmaster,

and that the scouting defendants are vicariously liable because Danford was their

agent with the authority to exercise BSA's right to exclude participants who are

deemed unfit for scouting. Vicarious liability is a different theory than duty arising

from a special relationship. Niece, 131 Wn.2d at 48. Although the word "agent"

appears throughout NK's opening brief, only his reply brief cites authority on the

law of agency and expressly sets forth a legal framework for vicarious liability as

a theory independent from duty arising from a special relationship. Because the

agency theory is argued for the first time in NK's reply brief, we do not consider it.

Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549

(1992).


                                    DISCOVERY


       NK contends the limitations imposed by the trial court on discovery from

the church were too restrictive.

       Parties seeking redress in Washington courts have a broad right of

discovery. Lowv v. PeaceHealth, 174 Wn.2d 769, 776, 280 P.3d 1078 (2012).

An appellate court reviews a trial court's discovery order for an abuse of

discretion. T.S. v. Bov Scouts of Am.. 157 Wn.2d 416, 423, 138 P.3d 1053

(2006).

       In general, NK asked the church to disclose unprivileged information

concerning the church's knowledge and handling of previous allegations of child

sex abuse in the church in the decades leading up to 1977. In general, the court

                                             21
No. 67645-8-1/22


limited discovery to information about what the church knew about Hall in

particular, having apparently concluded that broader knowledge about the risk of

child sex abuse was irrelevant. This analytical error undermines the discovery

orders NK has challenged on appeal.

       NK noted a deposition under CR 30(b)(6) to obtain live testimony

concerning any records maintained by the church dating back to 1950 about

individuals who had been accused of "engaging in inappropriate conduct with

minors" in the church or in scouting, as well as any policies and procedures in

effect between 1950 and 1985 for uncovering sexual abuse of children,

investigating allegations, or protecting children from abuse. In December 2010,

the court issued a protective order limiting such discovery to the years 1975

through 1980.

       In April 2011, NK moved to compel the church to disclose information on

24 topics NK identified in a second CR 30(b)(6) deposition notice. The topics

included the church's records, investigation, and knowledge of any allegations of

child sexual abuse in the church congregation or in boy scouting between the

years of 1975 and 1977. The church resisted this discovery request on

relevance grounds summarized as follows in a letter sent to counsel for NK:




                                           22
No. 67645-8-1/23



       [T]he topics are irrelevant. Many of the topics ask for information
       about "allegations of childhood sexual abuse by a church member."
       This topic would thus include, for example, cases of incest, cases in
       which a relative abused a minor, cases in which a neighbor or
       acquaintance abused a minor, etc. Such events . . . would be of no
       plausible relevance here.. .. [F]or a negligence claim to be brought
       against the church, Washington law regarding foreseeability
       requires ... the church to have had notice of sexual misconduct by
       Mr. Hall prior to the abuse of N.K. The deposition topics are not
       directed at knowledge of Mr. Hall's activities.

The court denied NK's motion with respect to 21 out of the 24 topics. The court

again accepted the argument that to be relevant to NK's negligence claim against

the church, the evidence had to concern the church's knowledge of a threat

posed by Hall specifically.

       The court erred in imposing these limitations because specific knowledge

of Hall's dangerous propensities is not required to prove a duty arising from a

protective relationship such as the church had with NK. The question is whether

abuse by Hall was within the general field of danger that should have been

anticipated. The church contends it was completely unaware of any danger

posed by allowing troop members to be alone with an unvetted and unsupervised

adult volunteer. The information requested by NK is highly relevant to the issue

whether the danger was reasonably to be anticipated and the related issue

whether the church failed to take reasonable steps to protect NK from that

danger.

       In view of the relevance of information about how much the church knew


about the problem of child sex abuse, either generally or through its involvement

in specific incidents, there is no tenable basis for the limitation on the temporal

                                             23
No. 67645-8-1/24



scope of discovery to the one or two years before Hall arrived in Shelton. Cf.

T.S., 157 Wn.2d at 418 (affirming, against BSA's challenge concerning the

proper test to be used where privacy interests are allegedly at stake, an order

permitting discovery of BSA's ineligible volunteer files over several decades

leading up to the alleged abuse). The temporal limitation is reversed.

       During the dispute over NK's motion to compel the CR 30(b)(6) deposition,

church witness Paul Rytting disclosed for the first time that the church's risk

management division "currently has some records relating to acts of sexual

abuse that allegedly occurred in the years 1975-1977 (such as the records

generated by this case)." The church successfully resisted NK's motion to

compel discovery of the risk management records, arguing that they were

created in the course of litigation that occurred after 1977 and were therefore

beyond the temporal limitation imposed by the trial court. The limitation on

discovery of the risk management documents generated after 1977 is also

reversed. If, for example, a scout victim came forward in 2005 and claimed that

his parents told a church leader in 1976 that a scoutmaster was molesting him,

such information would be relevant to what the church knew in 1976 about abuse

in scouting.

       The trial court also erred in accepting the church's argument that the

topics of NK's inquiry are protected by clergy-penitent privilege. Privileges from

discovery are to be narrowly construed. Trammel v. U.S., 445 U.S. 40, 50-51,

100 S. Ct. 906, 63 L Ed. 2d 186 (1980); C.J.C 138 Wn.2d at 717.


                                            24
No. 67645-8-1/25


       The church's argument relies on Jane Doe v. Corp. of President of Church

ofJesus Christ of Latter-Dav Saints. 122 Wn. App. 556, 90 P.3d 1147 (2004),
review denied, 153 Wn.2d 1025 (2005). Jane Doe involved a claim by two

women that their stepfather, an LDS church member, had abused them when

they were children and that the church breached a duty of care by failing to report

the abuse after their stepfather confessed it in a proceeding of a church

disciplinary council. The trial court ordered the church to produce a record of the

proceeding. On discretionary review, the only issue was whether the participants

in the disciplinary council "were ordained clergy members or necessary for the

communication to occur." Jane Doe, 122 Wn. App. at 562. This court held that

production of the record was barred by the clergy-penitent privilege because the

disciplinary council was ecclesiastical in nature, its purpose was to permit the

accused to "repent and reestablish a covenant with God," and all the participants

were ordained clergy as defined by the church. Jane Doe, 122 Wn. App. at 559,

564-66.


       Here, the church claims that any information it might possess related to

the church's knowledge of accusations and investigations of child sexual abuse

would be contained in "records of church disciplinary proceedings." The church

argues that any such information is protected under Jane Doe-

       Jane Doe bars production of a record of a confessional proceeding

because it contains privileged communications. It does not necessarily bar

production of other information that may be in the disciplinary files pertaining to



                                            25
No. 67645-8-1/26



what happened before and after the proceeding. The church's description ofthe
disciplinaryfiles indicates that they contain information that does not fall into the

category of privileged communications, for example, information about the event

that caused the church to convene a penitential council. The manager of

confidential records for the LDS church, Gregory Dodge, testified, "Most

commonly, a member's confession is the event that triggers the council."

Assuming (without deciding, because it has not been briefed) that the privilege

applies to a confession to a nonclergy member before a disciplinary council is

convened, there must be some cases in which the event that triggers the meeting

of a disciplinary council is an accusation rather than a confession. Indeed, in

Jane Doe, the council was convened because Jane Doe disclosed the abuse to a

friend, who disclosed it to a bishop, who reported it to a stake president, who

convened a stake disciplinary council. Jane Doe. 122 Wn. App. at 559.

       If the disciplinary files contain information in the relevant time period

concerning similar accusations or complaints, such as a letter or documentation

of a telephone call or other personal contact, and such allegations are then used

to start an investigative or disciplinary process, this information must be

disclosed even if it is stored in a file with a record of confession of the type

described in Jane Doe.

       The church's interrogatory responses state that bishops keep "an open-

door policy" for purposes of receiving any congregation member's concerns,

including reports of abuse. Leaders of the church's children and youth programs



                                             26
No. 67645-8-1/27



are asked to bring such concerns to the bishop, and the church members who

are aware of crimes are encouraged to report them to police. The church's

General Handbook of Instructions for the "Church Judicial System" states that

"Before deciding whether to convene a Church court," the member should be

interviewed. (Emphasis added.) If the member denies the accusation, the

bishop or stake president should "conduct an investigation to obtain further
evidence." These materials suggest the existence of documents outside the

scope ofthe clergy-penitent privilege that would be responsive to NK's request
for information about allegations and investigations.

       The church argues, however, that it is impossible to find out whether
disciplinary files contain nonprivileged information because, according to Dodge,
the files are maintained only to document "the ecclesiastical relationship"
between the member and the church. Dodge states that a discipline file "records

that person's spiritual standing in God's kingdom, whether he or she is a member
of the Church in good standing, and whether the member is worthy to partake of
the Church's sacred sacraments and otherwise participate in the Church."

According to Dodge, the only persons allowed to review these records are those
who "have an ecclesiastical reason for doing so, for example, the Bishop or the

Stake President in charge ofthe ward in which the member or former member
resides." The church argues that the very act of searching, conducted for the
church by an attorney or risk manager, would "violate the sanctity of these
sacred, privileged communications." Indeed, it appears that no one inside or

                                            27
No. 67645-8-1/28



outside the church, including Dodge, has yet examined any disciplinary files to

see if they are responsive to NK's request. Dodge speaks only hypothetically of

what "would be" in such files: "Other documents in every discipline file would be

correspondence with the member advising the member when and where the

council will be held, and a post-council letter advising the member of the

outcome."


      The church's argument here is similar to the argument our Supreme Court

rejected in Lowv when it held that the statutory privilege for quality assurance

records did not prevent a hospital from conducting an internal review of

information generated by a quality improvement committee in order to locate

unprotected information. Lowv, 174 Wn.2d at 773. In other words, a privilege

cannot be used "as a shield to obstruct proper discovery of information"

generated internally by the institution. Lowv, 174 Wn.2d at 777-78 (internal

quotation marks omitted), quoting Coburn v. Seda, 101 Wn.2d 270, 277, 677

P.2d 173 (1984). Adopting the church's position, to paraphrase Lowv, would

permit and even encourage a church to require that all reports and

correspondence concerning accusations, investigations, and incidents of sexual

abuse or other crimes be deposited in the disciplinary files where they could

remain insulated from discovery. See Lowv, 174 Wn.2d at 781. On remand, an

effective way must be devised for the church to review the disciplinary files and

extract from them any nonprivileged information.

      The church also raises First Amendment concerns. To the extent the



                                            28
No. 67645-8-1/29



church may be arguing that nonprivileged information in the disciplinary files is

shielded by the First Amendment, we disagree. "The First Amendment does not

provide churches with absolute immunity to engage in tortious conduct. So long

as liability is predicated on secular conduct and does not involve the

interpretation of church doctrine or religious beliefs, it does not offend

constitutional principles." C.J.C 138 Wn.2d at 728. This basic principle should

guide the trial court in reconsidering the discovery orders at issue in this appeal

and in deciding new discovery issues that may arise on remand.

       The order granting summary judgment to BSA and Pacific Harbors

Council is affirmed. The order granting summary judgment to the church

defendants is reversed. The protective orders and the orders denying the

motions to compel pertaining to discovery requested from the church are

reversed and remanded for reconsideration consistent with this opinion.



                                                  CVjCef?.
WE CONCUR:



                                                           6oO ,




                                             29
