05-4915-cv
Doe v. Newbury Bible Church

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                         August Term, 2005

    (Argued: March 13, 2006            Decided: November 14, 2007)

                    Docket No. 05-4915-cv
___________________________________________________________

                                 JOHN DOE,
                                      Plaintiff-Appellant,

                                   -v.-

THE NEWBURY BIBLE CHURCH, THE NEWBURY CHRISTIAN SCHOOL, THE
              NEWBURY BIBLE CHURCH AND SCHOOL,

                                          Defendants-Appellees,

                              JOSEPH RINALDI,

                                          Defendant.

___________________________________________________________

Before:     JACOBS, Chief Judge; WESLEY, Circuit Judge;
            KOELTL, District Judge. 1

       Appeal from an order of the United States District

Court for the District of Vermont (Murtha, J.), which

adopted the Report and Recommendation of Magistrate Judge

Niedermeier and granted defendants-appellees= motion for

summary judgment.     The judgment of the District Court

granting defendants-appellees= motion for summary judgment

is affirmed.




1
  The Honorable John G. Koeltl of the United States District Court
for the Southern District of New York, sitting by designation.


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___________________________________________________________

ERIC R. GARDNER, Keene, New Hampshire, for Plaintiff-
     Appellant.

GREGORY M. EATON, Aten Clayton & Eaton PLLC, Littleton, New
     Hampshire, for Defendants-Appellees.
___________________________________________________________

PER CURIAM:

     The plaintiff-appellant John Doe (ADoe@) appeals from

the District Court=s order dismissing his claims against the

defendants-appellees the Newbury Bible Church, the Newbury

Christian School, and the Newbury Bible Church and School

(collectively, the Achurch defendants@) pursuant to the

church defendants= motion for summary judgment.   Doe sued

the church defendants and Joseph Rinaldi, the former pastor

of the Newbury Bible Church, alleging that he was sexually

molested as a boy by Rinaldi.   Rinaldi defaulted and is not

a party to this appeal.

     In a prior decision, this Court found that all but one

of Doe=s theories of liability against the church defendants

were without merit because there is no evidence that the

church defendants knew or had reason to know that Rinaldi

had a propensity for sexual misconduct.   Doe v. Newbury

Bible Church, 445 F.3d 594, 595 (2d Cir. 2006).   The

remaining theory of liability on appeal is Doe=s claim that

the Vermont Supreme Court=s decision in Doe v. Forrest, 853

A.2d 48 (Vt. 2004) adopted the Restatement (Second) of

Agency ' 219(2)(d) as a basis under which the church



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defendants could be held vicariously liable under state law.



     In relevant part, section 219(2) provides that A[a]

master is not subject to liability for the torts of his

servants acting outside the scope of their employment,

unless ... (d) the servant purported to act or to speak on

behalf of the principal and there was reliance upon apparent

authority, or he was aided in accomplishing the tort by the

existence of the agency relation.@    Restatement (Second) of

Agency ' 219(2) (1958).    In Forrest, the Vermont Supreme

Court expressly adopted section 219(2)(d) and found that

under section 219(2)(d) a county sheriff=s department could

be vicariously liable for sexual misconduct by a police

officer.   Forrest, 853 A.2d at 57, 67.   The court noted that

A[w]hat makes the circumstances of this case virtually

unique from a policy perspective is the extraordinary power

that a law enforcement officer has over a citizen,@ but

declined to decide whether section 219(2)(d) was applicable

to other professions.     Id. at 61, 66 n.6.

     Finding the issue to be an unresolved issue of Vermont

law and controlling in this appeal, we certified the

following question of state law to the Vermont Supreme

Court: AUnder Vermont law, as expressed in Doe v. Forrest,

176 Vt. 476, 853 A.2d 48 (2004), is a church subject to

vicarious liability for tortious acts of its pastor under

the Restatement (Second) of Agency ' 219(2)(d) if the pastor


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was allegedly >aided in accomplishing the tort by the

existence of the agency relation= with the church?@    Newbury

Bible Church, 445 F.3d at 597.

     The Vermont Supreme Court has answered our question in

the negative, holding that under Vermont law section

219(2)(d) does not apply to situations involving tortious

acts by a pastor.   Doe v. Newberry Bible Church, No. 2006-

186, 2007 WL 2068322, at & 8 (Vt. July 20, 2007).

     Therefore, the judgment of the District Court granting

the church defendants= motion for summary judgment is

AFFIRMED.




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