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A.H. v. Church of God In Christ, Inc.

Supreme Court of Virginia

August 15, 2019

A.H., A MINOR, BY HER NEXT FRIENDS, C.H. AND E.H.
v.
CHURCH OF GOD IN CHRIST, INC., ET AL.

          FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY William N. Alexander, II, Judge

          OPINION

          D. ARTHUR KELSEY, JUSTICE.

         Don Billups, a church deacon and youth leader, was convicted of sexually abusing minors over the span of several years. He received two life sentences plus an additional term of 75 years in prison. One of the victims, A.H., filed this civil suit against (1) Don Billups; (2) his wife, Donna Billups; (3) the local church, Gospel Tabernacle Church of God in Christ ("Gospel Tabernacle"); and (4) the national denomination, Church of God in Christ, Inc. ("COGIC"). Among other allegations, A.H. claimed that the local church and the national denomination (collectively, the "church defendants") had known of a prior sexual-abuse allegation against Don Billups and had done nothing to warn or protect her.

         The circuit court granted the church defendants' demurrers and dismissed A.H.'s amended complaint with prejudice. On appeal, A.H. contends that her factual allegations, if presumed true, state legally viable claims against the church defendants and, thus, that her case should not have been dismissed on demurrer. Finding two of her arguments persuasive, we reverse in part and affirm in part.

         I.

         A.

         "Because this appeal arises from the grant of a demurrer, we accept as true all factual allegations expressly pleaded in the complaint and interpret those allegations in the light most favorable to the plaintiff." Coward v. Wellmont Health Sys., 295 Va. 351, 358 (2018). "To survive a challenge by demurrer," however, factual allegations "must be made with 'sufficient definiteness to enable the court to find the existence of a legal basis for its judgment.'" Squire v. Virginia Hous. Dev. Auth., 287 Va. 507, 514 (2014) (citation omitted).[1] A plaintiff may rely upon inferences to satisfy this requirement, but only "to the extent that they are reasonable." Coward, 295 Va. at 358-59 (emphasis in original). Distinguishing between reasonable and unreasonable inferences is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense," Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), guided by the principle that "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

         B.

         A.H. filed an initial complaint, and, with leave of court, an amended complaint against all four defendants. The circuit court granted the demurrers of Donna Billups and the church defendants and dismissed the claims against them with prejudice. In response, A.H. nonsuited her claims against Don Billups and appealed the circuit court's dismissal of her claims against the other defendants. We awarded A.H. an appeal only to address her claims against the church defendants. Our recitation of the facts, of course, restates only factual allegations that, even if plausibly pleaded, are as yet wholly untested by the adversarial process.

         1. The Relationships Among the Parties

         In her 35-page amended complaint, A.H. alleges that Gospel Tabernacle "at all times relevant to this action was owned, operated, managed, and/or otherwise controlled by" COGIC. J.A. at 45; see also id. at 46 (alleging that Gospel Tabernacle "has assumed the vows of membership in" COGIC); id. at 60 (alleging that COGIC "negligently supervised" Gospel Tabernacle). Gospel Tabernacle, "[a]s a local church," "is a part of the basic unit of the structural organization" of COGIC, with the former being "governed" by the latter's "Jurisdictional bishops" and "rules and regulations." Id. at 46. Gospel Tabernacle is "required to follow" COGIC's "Charter, Constitution, Laws and Doctrines." Id. Given this relationship, A.H. alleges, Gospel Tabernacle "was an agent" of COGIC. Id. at 47.

         In his capacity as a church "Deacon, Youth Leader and Drill Team Coach," Don Billups[2]served "as an employee and/or agent"[3] of the church defendants. Id. at 50; see also id. at 48 (alleging that "Don Billups acted within the actual or apparent authority of" the church defendants, "who held out that [he] was a person appropriate to coach a drill team and work within the Youth Department and as a Deacon"); id. at 49 (alleging that, "[a]t all relevant times to this action, Defendant Don Billups was an agent or employee of" the church defendants and "was acting within the scope of his agency or employment").[4]

         Donna Billups served as a "licensed missionary" for the church defendants and was responsible for, among other things, "child evangelism." Id. at 47-48 (emphasis omitted). As part of her child-evangelism responsibilities, she "assisted" her husband in coaching Gospel Tabernacle's drill team by "provid[ing] rides to children." Id. While serving in these capacities, Don and Donna Billups "were agents and/or employees acting within the scope of their agency or employment with" the church defendants. Id. at 48; see also id. at 49, 75.

         Both church defendants "selected, hired, employed, retained and supervised" Don and Donna Billups. Id. at 48. "At all relevant times, the Drill Team and Youth Department were subject to the direct control and supervision of" Gospel Tabernacle "and/or" COGIC. Id. at 49. Both Don and Donna Billups "actively recruited" young people for the drill team "during church services" through announcements and other means. Id. at 50. The church defendants held Don and Donna Billups "out to their congregants and the community as their agents." Id. at 75.

         2. The 2003 Sexual-Abuse Allegation

         In 2003, a 13-year-old girl reported that Don Billups had sexually abused her in 2002. Testifying at Don Billups's criminal trial in 2012, Donna Billups "admitted . . . that she was aware of accusations of the victim who came forward in 2003 and that she was 'aware of it when she [the victim] made it.'" Id. at 52 (alteration in original). Donna Billups testified at a bond hearing that, despite this knowledge, she had told her husband only that "he needs to ah, be more careful." Id. at 51. She "continued to allow children to be in [his] presence" and "admitted" that Don Billups had continued to "entertain[] children in her house on a regular basis, including on occasions when her daughters were not there." Id. She was aware that Don Billups had "made no change in his lifestyle and didn't try to stay away from young girls, be more careful, or not hang out with teenagers." Id. "Don was just being Don," she said, "Don was just doing Don." Id.

         Prior to the sexual abuse of A.H. (which occurred from 2006 to 2010), Gospel Tabernacle "and/or" COGIC "became aware of" the "allegations of sexual abuse that Defendant Donald Billups committed in 2002 as the result of a criminal and/or social services investigation." Id. at 52. Despite this knowledge, the church defendants "took no action" and "continued to permit Donald Billups to have access to children as well [as] privileges and duties as a church member, Deacon, Youth Leader and Drill Team Coach, without any restrictions at all, thus sanctioning and ratifying his conduct." Id. at 53. The church defendants did nothing even though they "knew or should have known of Don Billups'[s] propensities to commit harmful acts upon children," id. at 58.

         3. The Sexual Abuse of A.H. and the Criminal Trial

         "For the alleged purpose of furthering his assigned duties" on behalf of the church defendants, Don Billups "sought and gained the trust and friendship of Plaintiff A.H. and other children he similarly met through the church and their families." Id. at 53. The church defendants "knew or should have known that" A.H. visited the Billups residence "in conjunction with Drill Team activities and would otherwise engage in activities alone with Defendant Don Billups." Id.; see also id. at 59 (alleging that "Don Billups gained access to Plaintiff A.H. due to the negligence and recklessness of" the church defendants). Having held Don Billups out as their agent, the church defendants "voluntarily took the custody of the minor plaintiff and subjected her to an association with Donald Billups, a person likely to harm her and therefore owed a duty to exercise reasonable care to plaintiff to prevent her from being exposed to an unreasonable risk of harm," id. at 53.

         "Between 2006 and 2010," the amended complaint alleges, Don Billups sexually abused A.H. and other minors "at his home in the course of performing duties that were within the scope of his employment and/or agency with" the church defendants. Id. at 53-54. During this period, A.H. was between the ages of four and eight years old. Don Billups committed the abuse while "in execution of the services for which he was employed to perform by those same Defendants, namely as a Deacon, Youth Leader and/or Drill Team Coach." Id. at 54; see also id. at 48 ("At all relevant times to this action, [the church defendants] selected, hired, employed, retained and supervised Defendants [Don and Donna Billups] who were agents and/or employees acting within the scope of their agency or employment . . . ."); id. at 48-49 (alleging that Don and Donna Billups "acted within the actual or apparent authority" of the church defendants); id. at 76 (alleging that Don and Donna Billups committed tortious acts "during services that were within the ordinary course" of the church defendants' "business").

         "In the Fall of 2011," the church defendants "once again became aware of additional allegations" of sexual abuse by Don Billups "of multiple other children he [had] met through the church." Id. at 56. The pastor of Gospel Tabernacle "and/or" COGIC met with one of the new victims and her family, along with Don and Donna Billups, to address the issue. Id. Following the meeting, neither of the church defendants reported the sexual-abuse allegations to law enforcement authorities but instead "continued to permit Donald Billups to have access to children and privileges and duties as a church member, Deacon, Youth Leader and Drill Team Coach, without restrictions at all, thus sanctioning and ratifying his conduct." Id. at 56-57.

         In 2013, Don Billups was convicted "of sixteen (16) sex crimes involving minors, including Plaintiff A.H." Id. at 57. With respect to A.H., he "was charged and found guilty of object sexual penetration, aggravated sexual battery and taking indecent liberties." Id. The court imposed upon him two life sentences plus an additional term of 75 years in prison.

         4. The Claims Against the Church Defendants

         The amended complaint asserts various causes of action specifically against the church defendants. Count I alleges several theories of negligence liability. Count III asserts a claim for negligent infliction of emotional distress. Count VIII seeks to impose vicarious liability on the church defendants under the doctrine of respondeat superior. Finally, Count IX seeks an award of punitive damages. The circuit court dismissed each of these counts, and A.H. appealed.

         II.

         "The facts alleged," the circuit court held, "do not establish a cause of action against" the church defendants. Id. at 243. Because the court did not elaborate further, we will address each of A.H.'s theories of recovery separately and then determine, to the extent that any survive demurrer, whether they warrant a demand for punitive damages.

         A. Assumed & Special-Relationship Duties

         Don Billups, not the church defendants, sexually abused A.H. The church defendants, therefore, can be directly (as opposed to vicariously) liable only if they owed a duty to protect A.H. from this abuse. "As a general rule, there is no duty to warn or protect against acts of criminal assault by third parties. This is so because under 'ordinary circumstances, acts of assaultive criminal behavior by third persons cannot reasonably be foreseen.'" Terry v. Irish Fleet, Inc., 296 Va. 129, 135 (2018) (quoting A.H. v. Rockingham Publ'g Co., 255 Va. 216, 222 (1998)). "Indeed, 'in only rare circumstances has this Court determined that the duty to protect against harm from third party criminal acts exists.'" Id. (alteration omitted) (quoting Commonwealth v. Peterson, 286 Va. 349, 359 (2013)).[5]

         1. The Two "Rare Circumstances"

         Two such rare circumstances exist that constitute exceptions to this general rule of nonliability. The first involves a defendant who expressly assumes a duty to protect another from criminal harm. See Burns v. Gagnon, 283 Va. 657, 672-73 (2012); Kellermann v. McDonough, 278 Va. 478, 488-90 (2009); Didato v. Strehler, 262 Va. 617, 627-29 (2001); Morris v. Peyton, 148 Va. 812, 823-24 (1927); Karabalis v. E.I. Dupont de Nemours & Co., 129 Va. 151, 174 (1921).[6] Such a duty is not inferred merely because the defendant "'took precautions not required of it' to protect the safety of the plaintiff." Terry, 296 Va. at 137 (citation omitted) (quoting A.H., 255 Va. at 223). The judicial "creation of a duty under these circumstances would discourage other parties from taking extra precautions to avoid being subjected to a liability which they otherwise would not have had." Id. at 138 (citation omitted). To find such an assumed duty to protect, an action greater than an "implied undertaking" based merely upon "voluntary conduct" is necessary. Id. at 138-40. Instead, an action tantamount to an "express communication" of a "specifically described undertaking" is required to conclude that a defendant has assumed a legal duty to protect another from a criminal assault. Id. at 140.

         The second rare exception to the general rule involves a duty not assumed but imposed. The common law recognizes a duty to protect when a special relationship exists "(1) between the defendant and the third person which imposes a duty upon the defendant to control the third person's conduct, or (2) between the defendant and the plaintiff which gives a right to protection to the plaintiff." Brown v. Jacobs, 289 Va. 209, 215 (2015) (alteration and citation omitted); Burns, 283 Va. at 668-69 (citation omitted); Commonwealth v. Burns, 273 Va. 14, 18 (2007) (citation omitted); Burdette v. Marks, 244 Va. 309, 312 (1992).[7] The duty is not absolute, however. It only exists when the defendant could have foreseen the need "to take affirmative action to protect [the plaintiff] from harm." Burns, 283 Va. at 669 (citation omitted).

         The degree of foreseeability required "depends on the nature of the special relationship" because "[w]e have recognized two levels of foreseeable harm." Peterson, 286 Va. at 357; see, e.g., Wright v. Webb, 234 Va. 527, 532 (1987) ("[A] business invitee does not entrust his safety to a business invitor to the same extent a passenger does to a common carrier."). See generally K.L. ex rel. Lawson v. Jenkins, Record No. 130786, 2014 WL 11398624, at *1 n.1 (May 9, 2014) (unpublished) (describing the two levels of foreseeability); Sinclair, supra note 6, § 25-8, at 25-62 to -63 (same).

         For example, a special relationship exists between a business owner and an invitee. See Terry, 296 Va. at 136 n.3.[8] In that scenario, the duty to protect exists "only when there [is] an imminent probability of injury from a third party act." Id. (citing Wright, 234 Va. at 533); see 2 Dobbs et al., supra note 6, § 416, at 711 & n.11 (2d ed. 2011) (placing Virginia among jurisdictions that "continue to limit liability to such cases of imminent harm, and to those in which the defendant's method of doing business attracts crime").

         On the other hand, a special relationship also exists between an innkeeper and a guest, a common carrier and a passenger, and an employer and an employee. See Terry, 296 Va. at 136 n.3. The duty to protect in these contexts arises if the danger is either "known or reasonably foreseeable" to the defendant. Id. (citing Taboada v. Daly Seven, Inc., 271 Va. 313, 325-26 (2006) (innkeeper-guest), aff'd on reh'g, 273 Va. 269 (2007); A.H., 255 Va. at 220 (employer- employee); Connell v. Chesapeake & Ohio Ry., 93 Va. 44, 62 (1896) (common carrier-passenger)); see 2 Dobbs et al., supra note 6, § 416, at 712 & n.19 (2d ed. 2011). In no scenario, however, does the special-relationship doctrine impose anything akin to strict liability, and thus, even when applicable, the doctrine "does not make the defendant an insurer of the plaintiff's safety," Taboada, 271 Va. at 323.[9]

         The employer-employee relationship involves additional qualifications. In A.H., we recognized a special relationship between an employer and an employee "with regard to the employer's potential duty of protecting or warning an employee." 255 Va. at 220 (citing Restatement (Second) of Torts § 302B cmt. e(B) (1965)). Focusing our analysis on the facts of that case, we addressed this duty only in the context of protecting an employee from a third party's intentional or criminal acts, not from a third party's negligence - as our reliance on a Restatement provision with this limited scope implies. See Restatement (Second) of Torts § 302B & cmt. e(B) (applying the duty to protect an employee only in the context of intentional or criminal conduct of a third party).

         Though we have recognized a limited special-relationship duty on the part of an employer to protect an employee against a third party's intentional or criminal conduct, we have not to date recognized the inverse: a special-relationship duty on the part of the employer to control his employee so as to prevent the employee from harming third parties. We are aware that Restatement (Second) of Torts § 317 describes a duty on the part of an employer to control his employee "to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them." Our precedent, however, has held that an employer has no general duty to supervise one employee to protect another employee from intentional or negligent acts. See infra at 21 (citing, inter alia, Chesapeake & Potomac Tel. Co. of Va. v. Dowdy, 235 Va. 55, 61 (1988)). It seems incongruent that an employer would owe a duty to third parties that he does not owe to his own employee - particularly given that the interests of third parties are protected under Virginia law by traditional respondeat superior principles and the torts of negligent hiring and negligent retention, see infra at 17-20, 24-26.

         Virginia law does recognize, however, that a special relationship exists between a vulnerable individual in a custodial relationship and his or her custodian. That relationship, if proven, imposes a duty of reasonable care upon the custodian to protect the vulnerable individual in his custody. See Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 132-36 (2000) (reversing a trial court's decision to sustain demurrers when the plaintiff had alleged that she required 24-hour supervision from a psychiatric hospital and that the hospital had also taken charge of and exercised control over her assailant);[10] Doe v. Bruton Parish Church, 42 Va. Cir. 467, 472-73 (1997) (Lemons, J.) (recognizing that a special relationship exists when a minor is placed in the custody of a church childcare provider).[11] See generally Restatement (Second) of Torts § 320 & cmts. a-b & d (describing the duties arising when one individual "takes the custody of another"); Restatement of Torts § 320 & cmts. a-b & d (1934) (same); 2 Dobbs et al., supra note 6, § 418, at 727-34 (2d ed. 2011 & Supp. 2019) (discussing the duties attendant upon a custodial relationship); 3 Fowler V. Harper et al., Harper, James and Gray on Torts § 18.7, at 915-16 (3d ed. 2007) (same); Prosser & Keeton, supra note 5, § 56, at 376-77, 383 (describing the application of the special-relationship doctrine).[12]

         2. The Church Defendants & The Assumed Duty to Protect

         A.H.'s amended complaint asserts that the church defendants "expressly assumed a duty of supervision of church workers and activities in its sexual harassment/misconduct policy." J.A. at 47. In reviewing this assertion, however, we must "distinguish allegations of historical fact from conclusions of law. We assume the former to be true arguendo, but we assume nothing about the correctness of the latter because 'we do not accept the veracity of conclusions of law camouflaged as factual allegations or inferences.'" Sweely Holdings, LLC v. SunTrust Bank, 296 Va. 367, 371 (2018) (emphasis in original) (citation omitted). The point is particularly important here because the ultimate question "[w]hether a legal duty in tort exists is a pure question of law to be reviewed de novo," Brown, 289 Va. at 215 (citation omitted).

         We cannot accept A.H.'s conclusion of law - that the church defendants assumed a legal duty to protect her - because her factual allegations do not assert that these defendants made any clear communication to her of a "specifically described undertaking" to do so, Terry, 296 Va. at 140. At best, A.H. merely alleges that these defendants "'took precautions not required of [them]' to protect the safety of the plaintiff." Id. at 137 (quoting A.H., 255 Va. at 223). And the sole precaution identified in the amended complaint is the church defendants' internal "sexual harassment/misconduct policy," J.A. at 47, which A.H. further alleges was never "disseminate[d] . . . to the membership family of COGIC," id. at 63.

         An assumed duty to protect cannot be predicated solely upon an uncommunicated "implied undertaking" that is itself based entirely upon "voluntary conduct." Terry, 296 Va. at 138-40. Instead, there must be a clear expression of intent by a defendant to take on a legal duty to protect a plaintiff who is justifiably relying upon that clearly expressed intent. It is not reasonable to infer such intent merely from a defendant's adoption of an internal sexual harassment and misconduct policy. If merely creating such a policy were enough, standing alone, to impose legal liability where none previously existed, the law would provide a disincentive for employers to adopt and implement such policies.

         3. The Church Defendants & The Special-Relationship Doctrine

         AH. claims that the church defendants "voluntarily took the custody of the minor plaintiff and subjected her to an association with Donald Billups, a person likely to harm her, and therefore owed a duty to exercise reasonable care to plaintiff to prevent her from being exposed to an unreasonable risk of harm." J.A. at 53. According to A.H., it was while she was in the custody of the church defendants that Don Billups sexually abused her - an outcome that the ...


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