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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
April 9, 2008 Session C.S. v. THE DIOCESE OF NASHVILLE
Appeal from the Circuit Court for Davidson County No. 07C649 Walter C. Kurtz, Judge

No. M2007-02076-COA-R3-CV - Filed September 30, 2008

This case arose from the sexual abuse of a minor by a Catholic priest. The plaintiff, the victim, claimed the defendant, the priest's employer, knew of and concealed the priest's propensity to commit sex crimes against adolescent boys. Approximately thirty (30) years after the abuse, the plaintiff filed a complaint alleging that such actions constituted outrageous conduct and negligence by the defendant leading to the plaintiff's abuse. The defendant moved for dismissal of the case for failure to state a claim upon which relief can be granted because the statute of limitations bars such actions brought more than one year after the minor reaches the age of majority. The plaintiff argued the defendant's fraudulent concealment of plaintiff's cause of action tolled the statute of limitations. The trial court granted the defendant's motion to dismiss because the plaintiff had sufficient knowledge to discover his cause of action against the defendant before the statute of limitations expired. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the court, in which FRANK G. CLEMENT , JR. and RICHARD H. DINKINS, JJ., joined. Dan Channing Stanley, Knoxville, Tennessee, for the appellant, C.S. L. Gino Marchetti, Jr., Thomas F. Mink, II, for the appellee, The Diocese of Nashville. OPINION I. FACTS C.S. appeals the trial court's dismissal of his action for failure to state a claim upon which relief can be granted. Taking all facts alleged by C.S. in his complaint as true, the relevant facts are as follows.

In 1976, C.S. was a twelve-year-old, male parishioner of a church in east Tennessee where Father Edward McKeown (McKeown) served as priest. McKeown had been appointed to this position by the Diocese of Nashville (the Diocese), which governed the Roman Catholic Church's interests in the State of Tennessee. McKeown, who had provided C.S.'s parents with marriage counseling, regularly invited C.S. to events and gatherings, including several overnight trips. On these occasions, McKeown supplied C.S. and other adolescent males with large quantities of alcohol, showed them pornographic materials, engaged them in sexually explicit games, and physically molested them. In this manner, McKeown sexually abused C.S. ten to fifteen times over the next two years. In 1981, C.S. reached the age of majority. He filed suit against the Diocese in 2007, alleging that prior to and during his abuse by McKeown the Diocese knew of the priest's repeated exploitations of adolescent males but took affirmative steps to conceal those events for the purpose of preventing civil lawsuits against McKeown and the Church. C.S. stated he was unaware in 1981 or until shortly before he filed suit that the Diocese had such knowledge. C.S. alleged the abusive acts resulted in severe psychological and emotional injuries that irreparably impaired his ability to lead a normal life. He listed such injuries to include "severe depression, dysfunctional relationships, shame, [and] humiliation," describing them as "persistent, permanent, and debilitating in nature." The trial court found C.S. "[k]new of the abuse; knew the perpetrator of the abuse; and, knew that the perpetrator, McKeown, was a priest of and employed by the Diocese. All of these facts were known to Plaintiff approximately thirty (30) years ago." Therefore, the trial court held that the statute of limitations barred C.S.'s action approximately twenty-five (25) years prior to the filing of his complaint, and the discovery rule did not apply in this matter because C.S. had sufficient knowledge with which to discover his cause of action at that time. The trial court found the "Plaintiff at the very least had sufficient facts and knowledge, as set forth in his Complaint, that the wrong occurred and sufficient facts to put him on inquiry as to any action against the Defendant Diocese." On appeal, the plaintiff argues that the trial court erred in granting the Diocese's motion to dismiss for failure to state a claim upon which relief can be granted. Specifically, he argues (1) that his allegations regarding fraudulent concealment of McKeown's prior abuses toll the statute of limitations and (2) that the discovery rule applies in this matter, which would delay the accrual of C.S.'s cause of action until he learned of the Diocese's concealment of McKeown's prior abusive behavior.

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II. DISMISSAL OF AN ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED A motion pursuant to Tenn. R. Civ. P. 12.02(6) challenges the sufficiency of facts alleged by the plaintiff to state a legal cause of action. Pursell v. First Am. Nat'l Bank, 937 S.W.2d 838, 840 (Tenn. 1996). Because the motion disputes the basis of a claim, not the strength of the evidence, courts must construe facts liberally in favor of the plaintiff and consider them true as stated in the complaint. Abdur' Rahman v. Bredesen, 181 S.W. 3d 292, 311 (Tenn. 2005); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). Courts shall grant the motion only if none of the facts alleged by the plaintiff, even if substantiated, would merit a legal remedy. Abdur' Rahman, 181 S.W.3d at 311. Appellate review of dismissal for failure to state a claim upon which relief can be granted is de novo with no presumption of correctness. Stein, 945 S.W.2d at 716. III. CAUSES OF ACTION AND THE STATUTE OF LIMITATIONS C.S. filed his complaint against the Diocese based on theories of outrageous conduct and negligence in supervising its employee. The tort of outrageous conduct, also known as intentional infliction of emotional distress, requires the plaintiff prove by a preponderance of the evidence that the defendant's conduct was intentional or reckless, outrageous beyond the tolerance of civilized society, and severely injurious to the plaintiff's mental well-being. Doe v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 41 (Tenn. 2005). Under a negligent supervision theory, one may recover against an employer for the intentional acts of its employees made outside the bounds of their employment if the resulting harm was foreseeable to the employer. Smith v. Keyport SelfStorage, No. W1998-00810-COA-R3-CV, 2000 WL 558604, at *4 (no Tenn. R. App. P. 11 application filed). Therefore, "[a]n employer will be held responsible for the criminal acts of an employee . . where the employer knew or should have known that the employee was a threat to others." Doe v. Linder Construction Co., 845 S.W.2d 173, 185 (Tenn. 1992) (Daughtrey, J., dissenting). Because both of these tort actions involved personal injury to the plaintiff, they required commencement within one year of accrual. T.C.A.

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