Borchers v. Hrychuk

PAUL E. ALPERT, Judge (Ret., specially assigned). Appellant, Dale Borchers, sued appellees, Ronald Hyrchuk and Potomac Conference of the Seventh-Day Adventist Church (“Potomac Conference”), in the Circuit Court for Montgomery County for marital counseling malpractice, clergy malpractice, gross negligence, negligent hiring, intentional infliction of emotional distress, and breach of contract. 1 Potomac Conference moved to dismiss the counts against it on the ground that they failed to state claims upon which relief could be granted. The circuit court granted the motion in part— dismissing the marital counseling malpractice and negligent hiring claims without prejudice, and dismissing all of the other claims with prejudice. Borchers then filed an amended complaint against both Hyrchuk and Potomac Conference which asserted a single claim for marital counseling malpractice.

Potomac Conference moved to dismiss the amended complaint for failure to state a claim, and Hyrchuk moved for summary judgment on the amended complaint. The circuit court granted those motions, and this appeal followed. ISSUES Potomac Conference raises a threshold issue, which we rephrase: ¹⁴ I. Whether Borchers abandoned the claims in her initial complaint, other than the one for marital counseling malpractice, when she filed her amended complaint? Borchers, in turn, raises five issues, which we rephrase: II.

Whether the circuit court erred when it dismissed her claim for intentional infliction of emotional distress?

III

Whether the circuit court erred when it dismissed her marital counseling malpractice claim?

IV

Whether the circuit court erred when it dismissed her clergy malpractice claim? V. Whether the circuit court erred when it dismissed her gross negligence claim?

VI

Whether the circuit court erred when it found that there was no vicarious liability on the part of Potomac Conference? FACTS This case arises out of a sexual relationship that occurred in the summer of 1994 between Borchers, who was then an employee at a camp operated by Potomac Conference, and Hyrchuk, who was a pastor at that camp. Borchers claims that she was having marital difficulties at the time, and that when she sought advice from Hyrchuk, he exploited his position to initiate a sexual relationship with her. Additional facts will be presented in the discussion of the issues.

DISCUSSION I. Abandonment Potomac Conference argues that when Borchers filed her amended complaint, which stated only a cause of action for marital counseling malpractice and did not refer back to the initial complaint, she abandoned all of the claims in her initial complaint, other than the one for marital counseling malpractice. The problem with this assertion is that when the circuit ¹⁵ court granted Potomac Conference’s motion to dismiss the first complaint, it did so with prejudice for all but two of the counts in that complaint; the only claims in the initial complaint for which Borchers was given leave to amend were the ones for marital counseling malpractice and negligent hiring. In a situation like this, only those claims for which leave to amend was granted should be restated in an amended complaint; the failure to assert in the amended complaint the claims that were dismissed with prejudice does not constitute a waiver or abandonment of those claims on appeal. See Thomas v. Ford Motor Credit Company, 48 Md.App. 617, 628 , 429 A.2d 277 (1981) (Where, following grant of demurrer to all but one count of first declaration, buyer filed amended declaration reiterating allegations of count in first declaration to which demurrer was overruled, without any reference to previous declaration, plaintiff withdrew only remaining count of previous declaration).

Accordingly, by filing her amended complaint, Borchers only waived the negligent hiring claim, 2 the dismissal of which she does not contest in this appeal; but she clearly did not abandon the other claims asserted in her initial complaint.

II

Intentional Infliction of Emotional Distress Borchers argues that the circuit court erred when it dismissed her intentional infliction of emotional distress count on the ground that it failed to state a claim upon which relief could be granted. We disagree. In reviewing a grant of a motion to dismiss for failure to state a claim, “we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings!,]” and then determine the legal sufficiency of those allegations. Figueiredo-Torres v. Nickel, 321 Md. 642, 647 , 584 A.2d 69 (1991) ¹⁶ (quoting Sharrow v. State Farm Mutual Automobile Insurance Company, 306 Md. 754, 768 , 511 A.2d 492 (1986)).

In our performance of this review, “any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader.” Id. With respect to the tort of intentional infliction of emotional distress, Borchers alleged the following: 5. Mrs. Borchers and her husband are lifetime members of the Seventh-Day Adventist Church. Mrs. Borchers worked at a summer day camp operated by Sligo Church during the summer of 1994.

She had worked at the camp for several summers before that. 6. During the summer of 1994, Pastor Hyrchuk was employed as the Director of the summer camp and was Mrs. Borchers’ supervisor. 7. At all times relevant hereto, Pastor Hyrchuk was employed as a Pastor of Defendant Sligo Church and acted under its supervision but he was officially an employee of the Potomac Conference and his pay check came from that entity which also had supervisory powers over his activities. 8. Mrs. Borchers and her husband were experiencing marital difficulties during the summer of 1994.

In or about July of 1994, Mrs. Borchers approached Pastor Hyrchuk for counseling in regard to her marital situation. 9. Rather than ministering to Mrs. Borchers’ emotional and spiritual needs or providing proper marital counseling, Pastor Hyrchuk undertook a campaign of seduction of Mrs. Borchers taking advantage of her vulnerability and her trust in him and the Seventh-Day Adventist Church that he represented. Rather than advising her on how she might improve her marriage, Pastor Hyrchuk introduced her to a' novel, “Bridges of Madison County” in which a married woman enters into a poetically portrayed sexual relationship with another man to the — fictional—benefit of all parties concerned and persuaded her that they should emulate the conduct so portrayed. Being emotionally distraught and ¹⁷ depressed, Mrs. Borchers succumbed to Pastor Hyrchuk’s campaign. 10.

In late July and early August of 1994, Pastor Hyr-chuk’s invidious campaign succeeded and he had sexual intercourse with Mrs. Borchers on two occasions, once in a meeting room at the Sligo church. 11. At all times relevant hereto Pastor Hyrchuk knew of and used Mrs. Borchers emotional vulnerability and confidential information that she entrusted to him to take advantage of her. 12. The misconduct of Pastor Hyrchuk knew of and used Mrs. Borchers [sic] emotional vulnerability and confidential information that she entrusted to him to take advantage of her. 13. At all times relevant hereto Pastor Hyrchuk was acting within the scope of his employment as an employee of the Church Defendants and they are vicariously liable for his actions. 14.

On information and belief, the church Defendants were aware of Pastor Hyrchuk’s proclivities for sexual misconduct and they were negligent in retaining him in the sensitive and powerful positions in which they placed him. 40. Plaintiff realleges all of the foregoing and incorporates the same by reference. 41. Pastor Hyrchuk’s conduct was intentional or reckless in that, among other things, he knew of Mrs. Borchers [sic] previous emotional state and the almost certain adverse outcome to her of the seduction that he pursued. 42. Pastor Hyrchuk’s conduct was extreme and outrageous and violated all standards of civilized conduct expected of a counselor and a clergyman in whom persons in Mrs. Borchers’ emotionally vulnerable position had a right to place confidence. 43.

The outrageous conduct of Pastor Hyrchuk was causally related to the emotional distress experienced by Mrs. Borchers. ¹⁸ 44. The emotional distress that she experienced, which has been diagnosed to include post-traumatic stress disorder, is severe, long lasting and extremely damaging to her and her family. To sustain a claim for intentional infliction of emotional distress, a plaintiff must establish that: 1) the defendant’s conduct was intentional or reckless; 2) his conduct was extreme and outrageous; 3) there was a causal connection between the defendant’s wrongful conduct and the emotional distress suffered; and 4) the emotional distress was severe. Harris v. Jones, 281 Md. 560, 566 , 380 A.2d 611 (1977).

In this case, there is no question that the allegations of the complaint satisfy the requirements of intentional conduct, a causal connection, and severe emotional distress. The only question is whether Hyrchuk’s alleged conduct — having sex with Borchers after she approached him for help with her marital problems — was extreme and outrageous. In determining whether Hyrchuk’s alleged conduct was extreme and outrageous, we note initially that, in order to meet the requirements of the tort, the defendant’s conduct must have been so outrageous that it goes “beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community.” Continental Casualty Co. v. Mirabile, 52 Md.App. 387, 403 , 449 A.2d 1176 (1982) (quoting Restatement (Second) of Torts § 46, comment d (1965)). It is also important to remember the warning that the “tort of intentional infliction of emotional distress is rarely viable, and is ‘to be used sparingly ... ’” Bagwell v. Peninsula Regional Medical Center, 106 Md.App. 470, 514 , 665 A.2d 297 (1995) (quoting Kentucky Fried Chicken National Management Co. v. Weathersby, 326 Md. 663, 670 , 607 A.2d 8 (1992)).

That said, we also note the long-standing principle that “the extreme and outrageous character of the defendant’s conduct may arise from his abuse of a position, or relation with another person which gives him actual or apparent authority over him, or power to affect his interests.” Harris, 281 Md. at 569 , 380 A.2d 611 (quoting Restatement (Second) of Torts ¹⁹ § 46, comment e (1965)). See also Figueiredo-Torres, 321 Md. at 654 , 584 A.2d 69 ; Kentucky Fried Chicken, 326 Md. at 677 , 607 A.2d 8 (Both quoting the same); Richard T. Gilbert & Paul T. Gilbert, Maryland Tort Law Handbook § 16.1.3, pgs. 183-84 (1992) (Noting that “[ojrdinarily, liability will not extend to mere insults, threats or indignities; also noting that [a] caveat to that general statement is that, if the actor is in a special relationship to the plaintiff, such as employer to employee, the plaintiff may be entitled to a greater degree of protection from certain acts than if he were a mere stranger”). Following this principle, the Harris Court stated that “[i]n cases where the defendant is in a peculiar position to harass the plaintiff, and cause emotional distress, his conduct will be carefully scrutinized by the courts.” Id. Certainly, it is these latter concerns which led the Court of Appeals to hold, in Figueiredo-Torres , that the plaintiff had stated a cause of action for intentional infliction of emotional distress.

There, the plaintiff alleged that he had gone with his wife to see the defendant — a professional psychologist — for marriage counseling; he also alleged that, in the course of treatment, the psychologist had begun a sexual relationship with the wife, thus causing the dissolution of the plaintiffs marriage. In stating its holding, the Court focused on the nature of the officially-sanctioned treatment relationship between the plaintiff and the defendant: Coming from a stranger, or even a