Church Not 'Vicariously Liable' for Abuse
Oakland Diocese Still Could Be Found Negligent in Lawsuit

By Ivan Delventhal
Tri-Valley Herald [Hayward CA]
Downloaded June 10, 2003

HAYWARD -- An Alameda County Superior Court judge ruled Monday that the Diocese of Oakland cannot be "vicariously liable" for the alleged sexual abuse of a young parishioner by a former priest at St. Bede's Catholic Church in Hayward.

The judge, however, left intact a claim of alleged negligence committed by the diocese in retaining and failing to supervise the priest.

"An employer may be liable to a third person for negligence in hiring or retaining an employee who is incompetent or unfit if the employer had reason to believe that an undue risk of harm would exist because of the employment," Judge Steven A. Brick wrote.

The lawsuit alleges that the diocese was aware of prior molestations by the priest and thus created an undue risk of harm by permitting him to remain at the Hayward parish.

The lawsuit was filed in November by Jennifer Chapin, who now lives in Manteca. Chapin alleges that she was molested by Monsignor George J. Francis beginning in 1979, when she was 5, and continuing until 1982, when she was 8. The lawsuit seeks unspecified damages.

Francis arrived at St. Bede's in 1957, retired in 1988 and died 10 years later after serving as a priest for 60 years.

Rick Simons, attorney for Chapin, said Francis used his position of trust in the church to control Chapin and commit the alleged abuses. The lawsuit had alleged that the diocese should be liable for Francis' sexual misconduct.

In addition to the claim of vicarious liability, the lawsuit against the diocese and church officials alleges childhood sexual abuse, battery, breach of fiduciary duty, and negligent retention and/or supervision.

The lawsuit was made possible under a new California law that took effect Jan. 1. Before that, a victim of childhood sexual abuse generally had to file suit by age 26.

Under the new law, in effect for this calendar year, older claims that otherwise would have been barred by the statute of limitations may go forward against institutions, such as churches, after a plaintiff's 26th birthday in cases where the defendant knew, or should have known, about the sexually abusive behavior and did nothing to stop it.

Brick agreed with defense attorneys Monday in affirming a tentative ruling that the Diocese of Oakland should not be subject to vicarious liability for the alleged sexual abuse by Francis.

"Such acts are unrelated to church activities and are startling," Brick wrote. "The motivating emotions for molestation are not fairly attributable to a priest's work-related events or conditions."

Further, the judge wrote that the connection between the authority conferred on a priest and abuses of that authority in order to engage in sexual misconduct is too attenuated to say that sexual assault falls within the range of risks that a priest's employer should bear.

Eric Kaufman-Cohen, attorney for the diocese, said the ruling was significant because it could limit the ability of the plaintiff to collect punitive damages against the diocese in the case.

Kaufman-Cohen said the ruling was warranted because the alleged abuse clearly was committed outside the course and scope of the priest's employment.


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