Emotional distress liability for church's refusal to tell plaintiff where his ex-wife was keeping the children (which the church knew)?

[Volokh, Eugene]

In Gulbraa v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 2007 WL 1149970 (Utah App. Apr. 19), plaintiff "is the natural father and [sole] custodial parent of two sons (the Children)....  However, Plaintiff's ex-wife, the Children's natural mother, and her current husband took the Children to Japan in violation of court orders.  Plaintiff sought the help of several government agencies, including the Federal Bureau of Investigation (FBI), to locate and bring the Children back to Utah, resulting in federal kidnapping charges being brought against Plaintiff's ex-wife and her current husband."

Gulbraa sued the Church for the Church's allowing the children to go through certain religious rituals without him present; he claimed that this was tortious and also breached their promises to him, but the court rejected these claims on Establishment Clause grounds.  But the court did not reject one claim, and I reproduce the discussion below.  Any question on whether it's constitutional, and sound as a matter of tort law, to make the church liable for this?

Eugene


¶ 20 However, Plaintiff's claim for intentional infliction of emotional distress would not necessarily implicate the Church's religious doctrines. Plaintiff's first amended complaint alleges that a local church leader in Japan told Plaintiff that "the local [c]hurch leaders [in Japan] had been instructed not to share any information about the [C]hildren with ... Plaintiff, because they were afraid that Plaintiff would use th[at] information to come get the [C]hildren." The first amended complaint further states that "[c]hurch leaders have ... conspired with federal fugitives, wanted on kidnapping charges, to conceal the ... [C]hildren and to interfere with Plaintiff's custodial and parental rights." Plaintiff asserts that the Church Defendants' conduct in "concealing the [C]hildren [from Plaintiff,] making decisions regarding [the C]hildren and their religious upbringing, ... and knowingly making false representations to ... Plaintiff regarding [the C]hildren's [c]hurch activities ... constitutes extreme and outrageous conduct" sufficient to support a claim for intentional infliction of emotional distress.

¶ 21 To sustain a claim for infliction of emotional distress, Plaintiff must allege that the Church Defendants acted

(a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.

Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344, 347 (1961). Moreover, Plaintiff's distress must be " 'severe,' " such that " 'no reasonable person could be expected to endure it.' " Schuurman v. Shingleton, 2001 UT 52,¶ 23, 26 P.3d 227 (alteration omitted) (quoting Restatement (Second) of Torts § 46 cmt. j (1948)).

¶ 22 Plaintiff's claim for intentional infliction of emotional distress would not necessarily unconstitutionally "inject [the court] into substantive ecclesiastical matters," Presbyterian Church, 393 U.S. at 451. As part of his claim for intentional infliction of emotional distress, Plaintiff asserts that the Church instructed church leaders to conceal the location of the Children from Plaintiff. Such conduct is not "an entirely religious matter beyond the courts' ability to adjudicate," Hancock v. True & Living Church of Jesus Christ of Saints of the Last Days, 2005 UT App 314,¶ 17 n. 2, 118 P.3d 297, but is instead "secular activity potentially amounting to a violation of generally applicable civil law," id. at ¶ 17. Thus, Plaintiff's claim for intentional infliction of emotional distress is not entirely barred under the entanglement doctrine. See Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25,¶¶ 14-15, 21 P.3d 198.

¶ 23 The Church Defendants assert that the Church's conduct cannot be considered outrageous, sufficient to support Plaintiff's claim for intentional infliction of emotional distress. However, whether this conduct was "outrageous and intolerable," Samms, 358 P.2d at 347, is a question of fact to be determined by the fact finder. Likewise, whether Plaintiff's distress was " 'severe,' " Schuurman, 2001 UT 52 at ¶ 23 (citation omitted), is also a question for the fact finder. The district court granted the Church Defendants' motion to dismiss, not allowing factual development of Plaintiff's claim. Consequently, we cannot determine whether the Church's conduct was outrageous or whether Plaintiff's resulting distress was severe.

¶ 24 Therefore, we conclude that the district court erred when it dismissed Plaintiff's claim for intentional infliction of emotional distress, but only as it relates to the Church's conduct instructing Church leaders to conceal the location of the Children from Plaintiff.FN3

FN3. We note that our decision here does not mean that Plaintiff's claim for intentional infliction of emotional distress would not be subject to summary judgment disposition. It simply requires the discovery process to proceed and allows Plaintiff an opportunity to further develop his case.