FILED: November 8, 2000

RONALD H. CHECKLEY,
individually and as
Guardian Ad Litem for Shad Alan Wagner,
an incapacitated person,
on behalf of Shad Alan Wagner
and LON N. BRYANT,
Guardian Ad Litem for Shad Alan Wagner,

Appellants,

v.

CHARLES BOYD
and BIMLA BOYD,
husband and wife,
and KEIZER CONGREGATION OF
JEHOVAH'S WITNESSES, SALEM, OREGON,
an Oregon non-profit corporation,

Respondents.

Appeal from Circuit Court, Marion County.

Richard Barber, Judge.

Argued and submitted December 7, 1998, Wilsonville.

Kelly Clark argued the cause and filed the briefs for appellants.

Richard L. King argued the cause for respondents Charles Boyd and Bimla Boyd. With him on the brief was Warren Allen King O'Hara Bennett & Jepsen, LLP.

John E. Pollino argued the cause for respondent Keizer Congregation of Jehovah's Witnesses, Salem, Oregon. With him on the brief were Chess Trethewy and Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C.

Before Landau, Presiding Judge, and Haselton and Linder, Judges.

LINDER, J.

Dismissal of plaintiff Checkley's claims brought on his own behalf for intentional infliction of emotional distress and wrongful use of civil proceedings reversed and remanded; otherwise affirmed.

LINDER, J.

Plaintiff Ronald Checkley, as guardian and on behalf of his disabled brother, Shad Wagner, brought intentional infliction of emotional distress (IIED) claims alleging that defendants Charles and Bimla Boyd (the Boyds) engaged in a pattern of brainwashing, influencing, manipulating, and coercing Wagner. Plaintiff also brought actions on his own behalf for IIED and for wrongful use of civil proceedings. On all counts, plaintiff alleged that the Keizer Congregation of Jehovah's Witnesses (the Congregation) is vicariously liable for the Boyds' conduct because the Boyds were acting under the Congregation's direction and control. (1) The trial court dismissed plaintiff's actions on his own behalf for failure to state a claim. ORCP 21 A(8). The claims brought on Wagner's behalf proceeded to a jury trial, and the trial court directed verdict in defendants' favor at the close of plaintiff's case-in-chief. On appeal, plaintiff raises numerous assignments of error relating to the dismissals, the directed verdict, and various evidentiary rulings. For the reasons that follow, we affirm in part and reverse in part.

We begin by reviewing the trial court's dismissal of the IIED and wrongful use of civil proceedings claims that plaintiff brought on his own behalf. For purposes of reviewing a trial court's order of dismissal pursuant to ORCP 21 A(8), we accept all of the facts alleged in the complaint as true, and we give plaintiff the benefit of all reasonable inferences that may be drawn from the facts alleged. Glubka v. Long, 115 Or App 236, 238, 837 P2d 553 (1992).

In support of the IIED claims brought on his own behalf, plaintiff alleged that his brother, Wagner, suffers from mental disabilities due to physical injuries resulting from an automobile accident, and he has lived under plaintiff's care since 1981. As a result of his mental disabilities, Wagner is highly vulnerable to suggestion, influence, and coercion. According to plaintiff,

"[The] Boyds engaged in a deliberate pattern of brainwashing Wagner, and influenced, manipulated and coerced Wagner into thinking that:

"A. [Plaintiff] had stolen money from Wagner over the years and had dealt dishonestly with Wagner in financial matters;

"B. Wagner was being emotionally, spiritually and physically abused by [plaintiff];

"C. Wagner's physical needs were being neglected and that [plaintiff's] care of Wagner was inadequate;

"D. [Plaintiff's] lifestyle and religious beliefs were at odds with Wagner's;

"E. [Plaintiff] was holding Wagner prisoner and persecuting Wagner for his religious beliefs;

"F. [Plaintiff], not being a Jehovah's Witness, and opposing the involvement of Jehovah's Witnesses in Wagner's life, was an instrument of Satan, was under the influence of Satan, or was Satan, and that Wagner's salvation, and spiritual and emotional health was at risk if he continued to live with [plaintiff];

"G. Wagner had a religious and moral duty to attempt to remove [plaintiff] as guardian and conservator."

The complaint further alleged that, at the Boyds' urging, Wagner initiated proceedings to remove plaintiff as his guardian and conservator and that the allegations in support of removal were adjudicated to be without merit. According to the complaint, the Boyds' conduct in that regard was "deliberate and intentional and designed to cause [plaintiff] extreme turmoil and distress," and plaintiff did, in fact, suffer from "extreme and lasting emotional turmoil [and] distress" as a result.

In dismissing plaintiff's own claims for IIED against the Boyds and the Congregation, the trial court concluded that plaintiff had failed to state a claim but did not explain in what particular way or ways the court found the complaint to be deficient. (2) To properly plead a claim of IIED, a plaintiff must allege facts sufficient to demonstrate that the defendant: (1) intentionally--i.e., that the defendant intended to cause or knew with substantial certainty that his or her conduct would cause severe emotional distress; (2) engaged in outrageous conduct--i.e., conduct that was an extraordinary transgression of the bounds of socially tolerable behavior; and (3) caused the plaintiff severe emotional distress--i.e., the defendant did in fact cause the plaintiff emotional distress that was severe. McGanty v. Staudenraus, 321 Or 532, 543, 550-51, 901 P2d 841 (1995). In this case, we have no difficulty determining that the allegations of plaintiff's complaint, as we have just quoted them, sufficiently pleaded the elements of intent and causation for an IIED claim. The allegations as to the remaining element of "outrageousness," however, warrant discussion.

As detailed above, the complaint alleges that the Boyds knew that plaintiff's brother, Wagner, was susceptible to suggestion and influence; that the Boyds nonetheless engaged in a pattern of "brainwashing" the brother and "influenced, manipulated and coerced" him to believe that plaintiff was abusing him and was pilfering funds from him; that those accusations were "adjudicated to be without merit"; that the Boyds' conduct was "designed" to cause plaintiff extreme distress; and that the Boyds' motive for that conduct was to remove plaintiff as his brother's guardian. Viewing those allegations and all reasonable inferences they might support in the light most favorable to plaintiff, the complaint can be understood to allege both that the Boyds' conduct toward plaintiff was defamatory and that the Boyds knew that their defamatory accusations were unsubstantiated.

We agree with plaintiff that those allegations satisfy the outrageousness element of the tort of IIED. Decisions of both this court and the Oregon Supreme Court consistently have held that a defendant's publication of a defamatory or otherwise significantly stigmatizing statement, knowing the statement to be false, unfounded, or unsubstantiated, is conduct that, if found to be true by a factfinder, constitutes an extraordinary transgression of what is socially tolerable. The earliest of those cases is Hall v. The May Dept. Stores, 292 Or 131, 637 P2d 126 (1981). There, the court held that outrageousness was adequately pleaded where the allegations permitted an inference that the defendant-employer knew that it lacked proof that an employee stole store funds and that it nevertheless accused the employee of theft and threatened to have the employee arrested and charged, all as part of a design to coerce the employee into confessing. (3) Since Hall, our court consistently has reached the same conclusion on similar allegations or evidence, often emphasizing, as adding to the socially outrageous quality of the conduct, the fact that the defamation allegedly was to serve an ulterior purpose or to take advantage of an unusually vulnerable individual. (4)

The allegations of the complaint in this case fit well within those precedents. Plaintiff alleged that the Boyds accused him of pilfering funds from and abusing his brother, Wagner, a mentally disabled person who was especially vulnerable to influence and to whom plaintiff, as Wagner's guardian, owed special fiduciary duties. Such accusations are serious ones that potentially could have led to a formal investigation of plaintiff, OAR 411-020-0040, and ultimately to plaintiff's removal as guardian and conservator, ORS 125.225, in addition to civil liability, ORS 125.485. Indeed, at least in part due to those accusations, Wagner allegedly sought to have plaintiff removed as his guardian. Plaintiff's complaint, read in the light most favorable to plaintiff, permits an inference that the Boyds made those serious accusations against plaintiff either with knowledge that they were false or at least without substantiation. Plaintiff's complaint further alleges that the conduct was designed to prey on the particular vulnerabilities of plaintiff's brother, who suffered from significant mental disabilities due to physical injuries, in order to have the brother seek to remove plaintiff as his guardian. Such an inference falls within the bounds of what we and the Supreme Court consistently have concluded satisfies the "outrageousness" element of IIED.

Defendants assert three alternative grounds for affirming the trial court's dismissal. First, defendants argue, as they did below, that plaintiff's claims impinge on their constitutionally protected rights to free exercise of religion. (5) Specifically, according to defendants, all of the conduct and statements that are the focus of plaintiff's allegations were religiously motivated and "inextricably tied to religious beliefs." Thus, defendants contend that plaintiff's claims, if tried, would require an improper inquiry into the validity of their religious beliefs. In renewing their free exercise defense on appeal, defendants place primary reliance on Christofferson v. Church of Scientology, 57 Or App 203, 644 P2d 577, rev den 293 Or 456 (1982), cert den 103 S Ct 1196, 459 US 1206, 75 L Ed 2d 439 (1983). We agree that our decision in that case provides the analysis we should follow here, and we begin by discussing it in some detail.

The plaintiff in Christofferson brought a fraud action against the Church of Scientology, alleging that members of the church induced her to pay for its courses by representing, among other things, that the courses would provide her with knowledge of the mind and that the church's "Dianetics" theory was scientifically provable to cure such ailments as asthma and arthritis. In response to the plaintiff's claim that those representations were false and that the church either knew or should have known that they were false, the church maintained that the representations reflected the church's religious belief system. Thus, according to the church, to determine whether the representations were true or false, a factfinder would necessarily be required to pass on the truth or falsity of the church's religious tenets, which is an inquiry that itself violates the Free Exercise Clause. See, e.g., United States v. Ballard, 322 US 78, 64 S Ct 882, 88 L Ed 1148 (1944). Consequently, before trial, the church moved to exclude from the jury's consideration any evidence regarding the validity or sincerity of the church's beliefs and practices. That motion was denied. Later, at the conclusion of the evidence, the church moved to strike and withdraw from the jury all of the allegations related to what the church had asserted throughout the trial constituted the church's religious practices. That motion, too, was denied. Christofferson, 57 Or App at 235.

In affirming the trial court on both rulings, we observed that the success of a free exercise defense to a tort claim depends as a threshold matter on whether the conduct or statements on which liability is predicated were in fact religious in nature. Both of the church's motions in Christofferson effectively asked the trial court to decide the religious character of the representations and to withdraw that issue from the jury. Id. at 237. We held that a trial court may do so only if the religious character of the conduct or statements can be determined as a matter of law--that is, where no other conclusion can be drawn. Where the allegations or the evidence supports competing conclusions, the jury resolves the issue as it would any other question of fact. Id. at 237-38.

In analyzing whether the representations in Christofferson were religious as a matter of law, we examined: (1) whether the defendant organization was of a religious nature; (2) whether the claimed misrepresentations related to the organization's religious beliefs and practices; and (3) whether the statements, even if made on behalf of a religious organization and if possessing a religious character, were made for a wholly secular purpose. Id. at 241-44. We had little difficulty answering the first two questions affirmatively. As to the third, however, we concluded that a jury question was presented. Although the alleged misrepresentations were made on behalf of a religious organization and had a religious character, they were not of a kind that may only be classified as religious. Moreover, given the evidence, the jury could find that the statements were made for non-religious reasons. Consequently, the church's pretrial motion properly was denied as premature, and the motion at the end of trial, although it raised the issue at the proper time, was properly denied because evidence at trial created a jury question on whether the representations were made for religious reasons or for wholly secular ones. Id. at 235, 244.

Relying on Christofferson, defendants contend that "evidence" in this case suggests that the Boyds were "religiously motivated" and that there is "no evidence" to support plaintiff's allegations that the Boyds instead were motivated by a desire to inflict severe emotional distress. Those arguments reflect a misunderstanding of our standard of review and of the nature of plaintiff's claims. We are not at liberty to evaluate the "evidence" to which defendants refer because our review of an ORCP 21 A(8) dismissal is limited to an examination of the allegations of plaintiff's complaint. In other words, for defendants to prevail in their efforts to dismiss plaintiff's IIED claims, it must be clear from the face of the complaint that all of the conduct alleged here is necessarily religious in nature. As the court in Christofferson explained, that is a particularly difficult hurdle, one that rendered the pretrial motion in that case premature:

"There are certainly ideas which may only be classified as religious. Statements regarding the nature of a supreme being, the value of prayer and worship are such statements. There are also, however, statements which are religious only because those espousing them make them for a religious purpose."

Id. at 243-44. Plaintiff's complaint should be dismissed on this ground only if all of the Boyds' alleged conduct and statements are "of the type which must always and in every context be considered religious as a matter of law." Id. at 244. Because we are concerned here only with the allegations of the complaint, and not with any evidence that the parties might produce on the point, our task is limited to that determination.

Here, the Boyds' alleged "brainwashing" spans a wide variety of topics, some of which logically could relate to their religious beliefs (e.g., that plaintiff was an instrument of Satan, was under the influence of Satan, or was Satan). The potential connection to religious belief is less obvious, if it is obvious at all, with respect to other allegations. For example, the complaint alleges that the Boyds accused plaintiff of physically abusing Wagner, stealing his money, and neglecting his physical needs and care. Those allegations do not reflect statements or beliefs that, as Christofferson would require for pretrial dismissal, "always and in every context" would be considered to be religious in nature as a matter of law. Indeed, even for those allegations that more obviously may be religious in nature, the most we can conclude from the face of the complaint is that they potentially are so, rather than that they necessarily are so, which is what Christofferson demands. Id. at 244. It may well be that, at some later stage of the proceedings, the trial court may determine that some of the conduct or statements alleged are "purely religious appeals" and that no other conclusion could reasonably be drawn. But a dismissal of plaintiff's claims in toto on this ground is premature, as it would have been in Christofferson. Defendants' free exercise defense, consequently, does not provide a basis for dismissal of the claims. See Erickson v. Christenson, 99 Or App 104, 111 n 5, 781 P2d 383 (1989), appeal dismissed 311 Or 266 (1991) (Free Exercise Clause of First Amendment did not provide basis for ORCP 21 dismissal of negligence claim).

As a second alternative ground for affirming the dismissal of plaintiff's IIED claims on his own behalf, defendants argue that the claims are merely disguised ones for "loss of society"--i.e., the tort of alienation of affections--which defendants assert would not be actionable in a brother-to-brother relationship. We disagree that plaintiff's IIED claims are not what they purport to be. The gravamen of the tort of IIED is "a loss due to intentionally inflicted severe emotional distress." Spiess v. Johnson, 89 Or App 289, 294, 748 P2d 1020, aff'd by equally divided court 307 Or 242, 765 P2d 811 (1988) (emphasis original). The fact that, among other harms allegedly suffered, the brothers' relationship in this case also may have been damaged by defendants' actions does not automatically transform the IIED claim into one seeking to remedy that loss. See Spiess, 89 Or App at 294 (husband's allegations that wife's psychiatrist became sexually involved with wife, followed the family on vacations, and encouraged wife to file for divorce stated a claim for IIED, not the abolished torts of criminal conversation and alienation of affections). Even though the means of inflicting the distress may have involved damage to the brothers' relationship, the nature of the harm alleged--namely, severe emotional distress--makes the stated claim one for IIED. Id.

Defendants advance a third, and final, reason why we should affirm the trial court's ruling on an alternative ground. Defendants argue that they are not liable to plaintiff for the Boyds' conduct because it was directed toward plaintiff's brother, a third person, and plaintiff was not present at the time the conduct occurred. Relying on the Restatement (Second) of Torts