O'Bryan & Ors v Holy See
24 November 2008, US Court of Appeals
The United States court of appeals for the sixth circuit kept alive the class action against the "Holy See" (sancta sedes), the episcopal jurisdiction of the Bishop of Rome (better known as "the Pope") and the "preeminent episcopal see" of the Roman Catholic Church. The Holy See is also a "sovereign" recognised by many countries including the US and immune from legal proceedings.
Foreign State Immunity
The defendant is immune from legal proceedings as a foreign state pursuant to the US Foreign Sovereign Immunities Act (FSIA) but the plaintiffs, representatives of victims of alleged sexual abuse, sought to overcome the immunity by arguing inter alia that there was a waiver of immunity or that the acts in question were "commercial activities", relying on certain "tortious exceptions" e.g. or the damages sought were for personal injuries.
The Claims
The plaintiffs' claims were not against the immediate attackers but against the Holy See as the "employer" or "supervising body". The plaintiffs alleged that abuses (all in the US) were committed by the tortfeasors while within the scope of employment and/or agency relationship with the defendant and with the apparent authority arising from the employment and/or agency relationship. The claims included inter alia violation of customary international law of human rights, negligence, breach of fiduciary duty, tort of outrage(?)/intentional infliction of emotional distress, deceit and misrepresentation. The plaintiffs also attacked a 1962 policy of the defendant setting out the procedures for dealing with some of the abuses which were part of the plaintiffs' claims.
Wearing Different Hats
In seeking to overcome the immunity issue, the plaintiffs seemed to argued (the judge said that the argument was "somewhat obscure") either that (the "first possible interpretation") the defendant was "schizophrenic" i.e. had actually not one but two separate, "parallel" personalities and only the first (recognised by the US) was immune but not the second (an "unincorporated head of an international religious organisation"). Alternatively, the plaintiffs argued, if the defendant was, after all, a single entity, it was acting in a non-sovereign capacity. The first argument was rejected by the court for lack of authority.
Respondeat Superior
The court of appeals also confirmed the ruling of the Supreme Court in Osborne v Payne 31 SW 3d 911 that the principal is not liable under the principle of respondeat superior ("let the superior reply" or better known by the less fanciful term, "vicarious liability") unless the intentional wrongs of the agent were calculated to advance the cause of the principal or were appropriate to the normal scope of the employment and therefore, a tortfeasor's conduct could not be considered within the scope of his employment.
In America
For the tortious exception to apply under the FSIA, the act complained of must have occurred within the US and for this reason, the plaintiffs' direct claims against the defendant e.g. promulgating the 1962 policy (in the Vatican) and supervision from abroad failed
Surviving Claim
The plaintiffs' claim that the Holy See personnel failed in their duty to supervise the tortfeasors survived. The court of appeals ruled that the failure occurred in the US and was within the scope of employment of these supervisors and did not fall within what the judge called "discretionary-function exception" or "arising-out-of-misrepresentation-or-deceit exception".
