                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT MEMPHIS
                                 February 23, 2010 Session

 NORMAN REDWING v. THE CATHOLIC BISHOP FOR THE DIOCESE
                     OF MEMPHIS

                    Appeal from the Circuit Court for Shelby County
                      No. CT-005052-08      D’Army Bailey, Judge


                 No. W2009-00986-COA-R10-CV - Filed May 27, 2010


                                 PARTIAL DISSENT
                         ___________________________________


HOLLY M. KIRBY, J., DISSENTING:

I concur in the majority’s analysis of the ecclesiastical doctrine and its holding that we do not
have subject matter jurisdiction of Mr. Redwing’s claims of negligent hiring and retention,
but that we do have subject matter jurisdiction to adjudicate his claim of negligent
supervision. I must dissent, however, from the majority’s holding that, as a matter of law,
Mr. Redwing’s claim of negligent supervision is barred by the statute of limitations. I
believe that, in this case, dismissal based on the pleadings is premature and that Mr. Redwing
is entitled to conduct discovery on facts pertinent to whether the statute of limitations is
tolled.

As noted by the majority, the facts in this case are similar to those presented in Doe v.
Catholic Bishop for the Diocese of Memphis, No. W2007-01575-COA-R9-CV, 2008 WL
4253628 (Tenn. Ct. App. 2008), perm. app. den. (Mar. 16, 2009). As in Doe, Mr. Redwing
asserts that the Defendant Catholic Bishop is directly liable for the negligent hiring, retention,
and supervision of the offending priest. See id. at *2.

However, in Doe, the plaintiff’s complaint contained only a “cryptic allegation” that, despite
the exercise of reasonable diligence, the plaintiff had “only recently learned of the
[Diocese’s] negligent conduct.” Id. at *17 n.17. In contrast, in the instant case, Mr.
Redwing’s amended complaint asserts that the Roman Catholic Church as a whole “has gone
to great lengths” to conceal instances of child sexual abuse and the Church’s knowledge of
such abuse, detailing specific acts by the Church in order to avoid criminal and civil liability,
avoid being compelled by courts to disclose information on abuse, and avoid scandal and
financial loss.1 It alleges that the defendant Diocese misled Mr. Redwing and his family as
to the Diocese’s knowledge of the priest’s history and propensity for sexual abuse of minors,
and took active steps to “conceal the Diocese’s . . . wrongdoing in supervising Father
Guthrie, and prevent Norman Redwing and other victims of Father Guthrie from filing civil
lawsuits,” and fraudulently concealed information relevant to Mr. Redwing’s claims. I
believe that the specific factual allegations in Mr. Redwing’s amended complaint distinguish
this case from Doe, and warrant permitting discovery to proceed.

In Doe, we declined to hold that, had Doe pursued any claim against the Diocese or the priest
at the time he reached majority, he ipso facto would have learned that there were prior
instances of sexual molestation by the offending priest and that the Diocese had knowledge
of them. Id. at *14. Instead, we deemed it “necessary to examine in some detail what Doe
knew at the time he reached majority and follow the thread of what would have happened”
had he pursued a claim against the Diocese or the priest. Id.

In Doe, based on the facts that the plaintiff knew when he reached majority, the only claim
he could have alleged against the Diocese was for vicarious liability, under the doctrine of
respondeat superior. Id. at *15. Had he pursued such a claim against the Diocese, we found
a substantial possibility that the claim would have been dismissed based on the pleadings,
prior to any discovery on the Diocese’s knowledge of prior instances of child sexual abuse.
Id. at *16. However, we found further that a reasonable person in Doe’s position when he
reached majority would have filed a lawsuit against the offending priest. Had he done so,
we found, routine discovery would have involved questions about the Diocese’s knowledge
of prior abuse. Id. The Doe Court commented that, had the Diocese been asked about the
priest’s prior offenses, “we cannot know whether the Diocese would have been forthcoming
in response to such inquiries.” Id. at *17. Nevertheless, tolling theories such as the


1
 The complaint alleges that the Church as a whole sought to maintain secrecy about child sexual abuse
by:

        Failing to disclose complaints to law enforcement officials, parishioners and the public;

        Maintaining secret archives and files of evidence of sex abuse, accessible only to
        bishops;

        Instructing Church officials in destruction of incriminating documents and spoliation of
        evidence regarding sexual abuse by clergy;

        Threatening and coercing victims and their families to withdraw complaints and retract
        allegations of sexual abuse.

                                                   -2-
discovery rule were “only available to a plaintiff who has exercised reasonable diligence.”
Id. On that basis, we held that Doe’s claim against the defendant Diocese was barred by the
statute of limitations.

In the case at bar, the claim at issue is Mr. Redwing’s claim of negligent supervision against
the Diocese. For such a claim against an employer, it is not enough, of course, to simply
assert wrongful conduct by the employee. To recover against an employer for negligent
supervision, the plaintiff must show that the “harm caused by the employee’s action [was]
foreseeable to the employer.” Smith v. Keyport Self-Storage, 2000 WL 558604, at *4 (Tenn.
Ct. App. May 5, 2000). The plaintiff must show “specific knowledge” of facts that would
put the employer on notice of the employee’s wrongful acts. Overland v. Swifty Oil Co.,
2001 WL 856580, at *4 (Tenn. Ct. App. July 31, 2001) perm. app. den. (Dec. 10, 2001).
Thus, at the time he reached majority, Mr. Redwing could not be expected to assert a claim
of negligent supervision against the Diocese without at least inquiry notice of facts showing
that the priest’s wrongful conduct was reasonably foreseeable by the Diocese.

Using the methodology in Doe, what happens when we “follow the thread” of what would
have occurred had Mr. Redwing “exercised reasonable diligence” and filed a lawsuit against
the offending priest? Mr. Redwing alleges in his complaint that the Church, and the
defendant Diocese, went to “great lengths” to avoid any disclosure of its knowledge of child
sexual abuse, and took affirmative steps to mislead Mr. Redwing and his family and
fraudulently conceal information pertinent to his claims. Presuming Mr. Redwing’s
allegations to be true, which we must at this point, even if Mr. Redwing had filed a lawsuit
against the priest when he reached majority, there is a substantial possibility that he would
not have discovered that he had a claim of negligent supervision against the Diocese. Doe,
at *16.

The issue of whether “the plaintiff exercised reasonable care in discovering the injury or
wrong is usually a fact question for the jury to determine.” Schmank v. Sonic Automotive,
Inc., 2008 WL 2078076 at *3 (Tenn Ct. App. May 16, 2008)(quoting Wyatt v. A-Best Co.,
910 S.W.2d 851, 854 (Tenn. 1995)).See also, Turner v. Roman Catholic Diocese, 987 A.2d
960, 982-3 (Vermont 2009)(issue of whether plaintiff was on inquiry notice of Diocese’s
potential liability of church leadership was issue for the jury). Judgment on the pleadings or
dismissal of the complaint is appropriate only “where the undisputed facts demonstrate that
no reasonable trier of fact could conclude that a plaintiff did not know, or in the exercise of
reasonable care and diligence should not have known, that he . . . was injured as a result of
the defendant’s wrongful conduct.” Id. This is true, of course, regardless of whether the
plaintiff seeks to have the statute of limitations tolled for thirty days or, as here, for nearly
thirty years.



                                               -3-
If permitted discovery, Mr. Redwing may not be able to acquire sufficient evidence for a
reasonable trier of fact to find that, at the time he reached majority, he did not have inquiry
notice of facts to support a claim of negligent supervision against the Diocese. If that is the
case, dismissal of his complaint will be appropriate at that point. However, for now, I
believe that dismissal is premature, and that the trial court should be affirmed on this issue.




                                             ________________________________________
                                             HOLLY M. KIRBY, J.




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