California Court of Appeals, First District, Third Division
Alameda County No. HG11558324 Superior Court Trial Judge: Robert D. McGuiness.
[Copyrighted Material Omitted]
Mark F. Moreno; Boudreau Williams, Jon R. Williams; Jackson Lewis and Robert J. Schnack, for Defendant and Appellant Watchtower Bible & Tract Society of New York, Inc.
The McCabe Law Firm and James M. McCabe for Defendant and Appellant Fremont California Congregation of Jehovah’s witnesses, North Unit.
Furtado, Jaspovice, & Simons, Richard J. Simons and Kelly I. Kraetsch for Plaintiff and Respondent, Candace Conti.
In this case we consider the duty owed by a religious organization to one of its members who has been harmed by another member. Candace Conti, formerly a member of the North Fremont Congregation of Jehovah’s Witnesses (Fremont Congregation or Congregation) sued the Congregation and Watchtower Bible and Tract Society of New York, Inc. (Watchtower), the Jehovah’s Witnesses’s headquarters at the time, for damages for her sexual abuse as a child by Jonathan Kendrick (Kendrick), another member of the Congregation. Before Conti was molested, the Congregation and Watchtower (hereafter collectively defendants) elders and officials learned that Kendrick had molested another child. Conti sought to hold defendants liable for failing to warn the Congregation or her parents that Kendrick was a child molester, and for failing to limit and supervise his participation in church activities. A jury found defendants liable for compensatory damages to Conti, and held Watchtower liable for punitive damages.
We hold that defendants had no duty to warn the Congregation or Conti’s parents that Kendrick had molested a child, but that defendants can be held liable for failing to limit and supervise Kendrick’s “field service, ” a church-sponsored activity where members go door-to-door preaching in the community. Kendrick had unsupervised access to Conti during field service that he used as opportunities to molest her. Because breach of the alleged duty to warn was the sole basis for imposition of punitive damages on Watchtower, we reverse that portion of the judgment, with directions to enter judgment for Watchtower on the punitive damage claim. The compensatory damage award is affirmed.
The Jehovah’s Witnesses is a religion with about 1.2 million members in 13, 400 congregations in the United States. In the 1990’s, Watchtower was in charge of the church’s policies. Congregations are comprised of elders, ministerial servants, and rank-and-file members called “baptized publishers.” All members in good standing are considered “ministers.” Elders are the
spiritual leaders of their congregations, comparable to clergy in other religions. Ministerial servants do administrative work such as distributing literature to members, and handling microphones at meetings. Watchtower admitted that Fremont Congregation elders Gary Abrahamson and Michael Clarke were Watchtower’s agents while acting within the course and scope of their church duties. In addition to Sunday and midweek meetings, Congregation activities include field service, where small groups, usually consisting of two or three people, go door-to-door in neighborhoods to spread the church’s spiritual teachings.
Congregations are small and close knit. The average congregation has 75 to 150 members. At different times, the Fremont Congregation had from 100 to 140 members, of whom 6 to 13 were elders. Evelyn Kendrick (Evelyn), who was married to Kendrick during the period when he molested Conti, testified that “we only socialized with people of that congregation. We were kind ofwell, not told outright, but that we should only associate with people of that religion and not of any other religion because they could be a bad influence.” Congregation members call each other “brother” and “sister.”
Conti and Kendrick were Fremont Congregation members in the 1990’s, and for a time Kendrick was a ministerial servant. Conti testified that Kendrick began molesting her around the time she turned nine years old in late 1994, and continued until 1996 or 1997, when she was age 10 or 11. Before Kendrick molested Conti, the Congregation elders learned that he had molested his stepdaughter.
In November 1993, elder Clarke received a call from Evelyn or Kendrick asking for a consultation about Kendrick’s abuse of Evelyn’s daughter. Clarke and Abrahamson went to their home that week and spoke with Kendrick, Evelyn, and her daughter. The elders were told that, four months earlier, Kendrick had touched his stepdaughter’s breast around the time of her 14th birthday. The stepdaughter told Evelyn about the molestation minutes after it occurred, but Evelyn testified that she did not immediately report it because she thought it was an isolated incident and she was “trying to deal with it” within the family. The details of what the elders were told about the incident were disputed at trial. Among other things, Evelyn disputed the elders’ testimony that she told them to keep the incident private, and that Kendrick said he touched her daughter “inadvertently.” Even so, the elders did not believe the touching was accidental.
The elders told Evelyn and her daughter that they were free to report the incident to the police. Abrahamson testified that they neither encouraged nor discouraged Evelyn and her daughter from doing so; “[i]t was up to them.” Evelyn reported the incident to the police in February 1994. Kendrick
admitted touching his stepdaughter’s breast, and was convicted of a misdemeanor. Elders at the Congregation did not learn of Evelyn’s report to the police until a couple of years later.
After meeting with the Kendrick family, Clarke wrote a letter to Watchtower to report “a case of child abuse” by Kendrick. Abrahamson testified that the Congregation was required to contact Watchtower for instructions in such a situation. The copy of the letter in evidence is heavily redacted. In the unredacted portion, the letter stated that the Congregation had phoned Watchtower about the Kendrick matter, the “legal department had given us some direction, ” and Watchtower had asked the Congregation to submit its questions in writing. The letter said the elders planned to tell the Congregation that Kendrick would no longer be acting as a ministerial servant, and asked Watchtower to advise if that was an “incorrect” course of action. Clarke testified that Watchtower responded to his letter, but he did not provide the substance of the response and no written response is in evidence. The testimony was simply: “Q. And Watchtower did respond to the letter and he was removed as a ministerial servant? [¶] A. Correct. And we announced that.”
Allen Shuster, a Watchtower official in New York, testified that Watchtower policy allowed a known child molester to continue to perform field service, but not alone or with a child. Defense expert Monica Applewhite, whose testimony is discussed further below, said that Watchtower policies were implemented by letters sent “to all bodies of elders in the United States.” However, Shuster was unable to identify any church-wide writing that documented the limitations on field service by known child molesters. He said this policy was implemented by letters to elders on a case-by-case basis.
Abrahamson testified that he told the Fremont Congregation elders what he learned at the Kendrick family meeting, and they agreed that Kendrick was no longer fit to serve as a ministerial servant. They removed Kendrick from the position, and announced his removal to the Congregation without disclosing the reason for it.
Clarke testified that the Fremont Congregation elders were following Watchtower policy in keeping information about the molestation confidential. That policy was set forth in a July 1, 1989 letter from Watchtower to all elders in the United States, and it was a centerpiece of Conti’s case against Watchtower.
The letter addressed the elders’ “duties that may involve legal issues or questions.” Watchtower instructed the elders they “must be careful not to divulge information about personal matters to unauthorized persons.... Elders must give special heed to the counsel: ‘Do not reveal the confidential talk of another.’ (Proverbs 25:9)... Improper use of the tongue by an elder can result in serious legal problems for the individual, the congregation, and even the Society. [¶]... Worldly persons are quick to resort to lawsuits if they feel their ‘rights’ have been violated. Some who oppose the Kingdom preaching work readily take advantage of any legal provisions to interfere with it or impede its progress. Thus, elders must especially guard the use of the tongue.”
The letter continued: “The spirit of the world has sensitized people regarding their legal ‘rights’ and the legal means by which they can exact punishment if such ‘rights’ are violated. Hence, a growing number of vindictive or disgruntled ones, as well as opposers, have initiated lawsuits to inflict financial penalties on the individual, the congregation, or the Society. Many of these lawsuits are the result of the misuse of the tongue.... [¶]... [¶] The legal consequences of a breach of confidentiality by the elders can be substantial. If the elders fail to follow the Society’s direction carefully in handling confidential matters, such mistakes could result in successful litigation by those offended. Substantial monetary damages could be assessed against the elders or congregation.”
The letter went on to discuss “what to do in specific cases" (capitalization omitted), ” such as “[s]earch warrants and [s]ubpoenas, ” “[c]rimes and [c]riminal investigations, ” “[w]hen [l]awsuits are [t]hreatened, ” and “[c]hild [c]ustody.” On the subject of “[c]hild [a]buse, ” the letter stated: “Many states have
child abuse reporting laws. When elders receive reports of physical or sexual abuse of a child, they should contact the Society’s Legal Department immediately. Victims of such abuse need to be protected from further danger.” The letter concluded with “points to remember," (capitalization omitted) such as “[b]e extremely careful with [w]ritten material, ” and “[a]ppreciate the [i]mportance of [m]aintaining [c]onfidentiality.” With respect to confidentiality, the letter stated: “Elders must exercise extraordinary caution when it comes to handling confidential information about the private lives of others. Do not mistakenly minimize the gravity of a breach of confidentiality. Unauthorized disclosure of confidential information can result in costly lawsuits. Even if a lawsuit turns out favorably, valuable time and energy that could have been devoted to Kingdom interests will be lost.”
Clarke testified that the policy stated in the letter was intended to protect confidential ministerial communications as well as to avoid legal liability. He thought that “confidentiality is important for a minister.” He asked, “Why would anybody come to us with their problems if they knew that as soon as they come to us we were going to announce it? Why would anybody confess to a Catholic priest if they knew that after they confessed it was going to be announced at mass next week. It is ludicrous. [¶] So [the policy was] put in place so that the friends would feel comfortable coming to us and we could keep confidence.”
Clarke testified that the elders told Kendrick he could not “show affection to children, put children on his lap, work with them out in the door-to-door ministry, work with children in the Kingdom Hall. [¶] And we made it clear to him that we were going to be watching him. And we did, all, the whole body of elders.” Elder Lawrence Lamerdin said the Congregation had 10 to 13 elders at the time and they “made sure that [Kendrick] was watched.” Abrahamson saw “no need” to inform the Congregation that Kendrick had molested a child because the elders would have warned the parents of any child they saw Kendrick getting close to or isolating.
In an August 1, 1995 policy letter to United States elders on the subject of child abuse, Watchtower stated: “[S]teps should be taken to protect the child, or other children, from further sexual abuse. Obviously, parents would be keenly interested in taking adequate precautions in this regard.... Loving elders, too, will want to act in a way that demonstrates their protective care, since the word ‘overseer’ carries the thought of one who watches over, a guardian, a shepherd of the flock.... [¶] It would be appropriate to talk very frankly to a former child abuser, strongly cautioning him as to the dangers of hugging or holding children on his lap and that he should never be in the presence of a child without another adult being present.”
There was testimony that Jehovah’s Witnesses conduct no activities such as classes or trips that by their nature separate children from their parents, and Clarke testified that parents in the congregations are regarded as “the first line of defense” in preventing child sexual abuse. Parents were educated about child sexual abuse in Awake!, a publication distributed to all congregation members. Child abuse was discussed at length in the January 22, 1985 issue, which covered topics such as “Who Would Do a Thing Like That?” and “You Can Protect Your Child.” The subject was also the focus of the October 8, 1993 issue, which addressed the question “How Can We Protect [Our Children]?” The discussion under that heading stated: “Tragically, adult society often unwittingly collaborates with child abusers. How so? By refusing to be aware of this danger, by fostering a hush-hush attitude about it, by believing oft-repeated myths. Ignorance, misinformation, and silence give safe haven to abusers, not their victims.” Both issues addressed misconceptions about child sexual abuse, including the belief that such abuse is most commonly perpetrated by strangers to the victims, and the 1985 issue gave as an example a girl who was molested by “a man who was running a church group.”
Conti testified that she met Kendrick at the Fremont Congregation’s Kingdom Hall, a building for Congregation meetings that seats 220 people. She said that Kendrick insinuated himself into her family, befriended her father Neal at meetings, and then began coming to their house. He molested her several times a month for a couple of years. With one exception, the incidents occurred at Kendrick’s home, where he drove Conti after meetings and ...