Waite v. Church of Jesus Christ, Latterday Saints et al

Filing 117

MEMORANDUM in Opposition re 111 MOTION for Summary Judgment Regarding Specific Claims filed by Thomas A Waite. (Nordstrom, Stephen)

Waite v. Church of Jesus Christ, Latterday Saints et al

Doc. 117

Case 2:05-cv-00399-EFS

Document 117

Filed 05/22/2007

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RICHARD C. EYMANN Eymann Allison Hunter Jones, P.S. 2208 West Second Avenue Spokane, WA 99201-5417 [phone] STEPHEN L. NORDSTROM Nordstrom & Nees, P.S. 323 South Pines Road Spokane, WA 99206 [phone] Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON ) ) Plaintiff, ) ) vs. ) ) CORPORATION OF THE PRESIDING ) BISHOP OF THE CHURCH OF JESUS ) CHRIST OF LATTER DAY SAINTS, a ) Utah corporation; CORPORAITON OF ) THE PRESIDENT OF THE CHURCH OF ) JESUS CHRIST OF LATTER DAY ) SAINTS, a Utah corporation; DONALD C. ) FOSSUM; and STEVEN D. BRODHEAD, ) ) Defendants. ) ) ) THOMAS A. WAITE, Case No.: CV-05-399-EFS PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

LAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 1

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NORDSTROM & NEES, P.S.
ATTORNEYS AT LAW 323 South Pines Road Spokane, Washington 99206 [phone]

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Dockets.Justia.com

Case 2:05-cv-00399-EFS

Document 117

Filed 05/22/2007

Plaintiff, by and through his attorneys, STEPHEN L. NORDSTROM and
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RICHARD C. EYMANN, hereby respond to the church Defendants and Donald C. Fossum's Motion for Partial Summary Judgment regarding specific claims. I. INTRODUCTORY RESPONSE

Defendants contend that because this Court previously ruled that Plaintiff's failure to wear a seatbelt cannot be used at trial as evidence of his negligence, that evidence regarding all acts or omissions by Defendant church is also inadmissible at trial. Plaintiff disputes this contention. II. 1. FACTS

In answer to Plaintiff's Complaint, Defendant church and Defendant

Fossum admitted that a "special relationship" existed between Mr. Waite and the church. (Defendant's Answer, paragraph 7.3). 2. Defendant church denied that the special relationship between Mr. Waite

and the church was fiduciary in nature. (Joint Status Certificate and Discovery Plan, page 5, lines 7-8). III. ARGUMENT A. Defendant Church is not Entitled to Equal Benefit of this Court's Prior Ruling.

LAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 2

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NORDSTROM & NEES, P.S.
ATTORNEYS AT LAW 323 South Pines Road Spokane, Washington 99206 [phone]

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Case 2:05-cv-00399-EFS

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"The existence of a fiduciary duty depends upon satisfactory proof of a special
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relationship. This relationship is known as a fiduciary relationship." Bear Medicine v. United States, 241 F.3d 1208, 1218-1219 (9th Cir. 2001). In the present case, the defendant church has acknowledged that while Mr. Waite was on his mission, a "special relationship" existed between him and the church. ("...admit that a `special relationship' existed between Mr. Waite and the church." Defendant's Answer, Paragraph 7.3); "...Defendant LDS Church concedes a special relationship between itself and Mr. Waite. ..." (Joint Status Certificate and Discovery Plan, page 5, lines 6-7). Where a special relationship exists, there is an enhanced duty of care. AAS-DMP Mgt., L.P. v. Acordia Northwest, Inc., 115 Wn. App. 833, 839, 63 P.3d 860 (2003). This duty may include foreseeing whether one may become a victim, Walker v. State, 60 Wn. App. 624, 806 P.2d 249 (1991), rendering advice, AAS-DMP Mgt., L.P., supra, 115 Wn. App. at p. 839, providing superior knowledge or

information, Miller v. United States Bank, N.A., 72 Wn. App. 416, 865 P.2d 536 (1994), or a general duty to act in the best interest of the beneficiary party, Davis v. Church of Jesus Christ of Latter Day Saints, 258 Mont. 286, 295-296 (1993). However,

Defendant church denies that this special relationship between Mr. Waite and the church was of a fiduciary nature. (Joint Status Certificate and Discovery Plan, p. 5, lines 7-8).

LAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 3

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NORDSTROM & NEES, P.S.
ATTORNEYS AT LAW 323 South Pines Road Spokane, Washington 99206 [phone]

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Case 2:05-cv-00399-EFS

Document 117

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When considering the church's denial of a fiduciary duty in conjunction with the
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enhanced duties which accompany the acknowledged special relationship that existed between Mr. Waite and the unequivocally stronger positioned Defendant church, there are clearly questions of fact as to whether Defendant is entitled to wield the same shield as the Plaintiff. It should be noted that Defendant church did not address the issue of respondeat superior in its memorandum, and the church's negligence arising from the motor vehicle collision, which issue is separate from the fiduciary relationship question. B. Defendants' Liability is Predicated on Secular Conduct and Does Not Involve the Interpretation of Church Doctrine or Religious Beliefs. Defendant makes the broad statement that "religious training and policies are protected by the First Amendment," (Defendant's Memorandum, p. 6, lines 2-3). But the church provides no support or factual discussion that tortious conduct such as being a cause in fact of the motor vehicle collision or activities associated with that conduct somehow constitutes religious training or policy. Rather, Defendants rely solely on Turner v. Church of Jesus Christ of Latter Day Saints, 18 S.W.3d 877, 889 (Tex. App. Dallas 2000), and that court's all encompassing swath, that, "[t]he entire missionary program, including the training program, is a religious activity." Id. However, Turner did not involve a motor vehicle collision and that court was not asked to address training

LAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 4

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NORDSTROM & NEES, P.S.
ATTORNEYS AT LAW 323 South Pines Road Spokane, Washington 99206 [phone]

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Case 2:05-cv-00399-EFS

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regarding traffic safety and rules of the road, driver's education, highway safety training,
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or whether missionaries were provided training regarding the specific laws of the state. It is difficult to conceive of more secular issues than a motor vehicle collision or a corporation's duty regarding the vehicular safety of those individuals whom it governs, or others who may be adversely affected by those whom it governs. It is also difficult to believe that a court would allow any church, including the Mormon church with a force of 58,000 missionaries, most of whom begin their missions at age 19 (Turner, 18 S.W.3d at 882), to claim something akin to diplomatic immunity if it failed to properly instruct its missionaries regarding secular traffic safety and rules of the road. Yet, Defendants contend, "This court cannot examine the church's policies and rule on the effectiveness of its missionary training program. ... ," even though the issue is traffic safety and rules of the road. (Defendant's Memorandum, p. 8, lines 10-12). However, as previously noted in Plaintiff's own memorandum in support of partial summary judgment, the Supreme Court of the State of Washington does not agree. Issues that are secular in nature are not barred by the First Amendment. This proposition was specifically addressed in S.H.C. v. Sheng-Yen Lu, 113 Wn. App. 511, 54 P.3d 174 (2002), rev. den. by S.H.C. v. Lu, 149 Wn.2d 1011, 69 P.3d 874 (2003). Our (Washington state) supreme court then considered whether the claims against the church were barred by the First Amendment. The court stated that "[t]he First Amendment does not provide churches with absolute immunity to engage in tortious conduct. So long as liability is predicated on secular conduct and does not involve the interpretation of church
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NORDSTROM & NEES, P.S.
ATTORNEYS AT LAW 323 South Pines Road Spokane, Washington 99206 [phone]

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Case 2:05-cv-00399-EFS

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doctrine or religious beliefs, it does not offend constitutional principles." The court held that because these principles were not offended by the case before it, there was no constitutional bar to the claim. (footnote citation omitted) 13 Wn. App. at 520 (footnote citation omitted). IV. CONCLUSION Defendant church owes the Plaintiff an enhanced duty of care, and therefore does not stand in the same shoes as the Plaintiff. Further, the issues before the Court are secular in nature, and are not precluded by the First Amendment. Defendant's Motion for Partial Summary Judgment should be denied. DATED this 22nd day of May, 2007. NORDSTROM & NEES, P.S. By: s/Stephen L. Nordstrom STEPHEN L. NORDSTROM, WSBA #11267 Co-Counsel for Plaintiff

EYMANN ALLISON HUNTER JONES, P.S. By: Telephonically Approved 5/22/07 RICHARD C. EYMANN, WSBA #7470 Co-Counsel for Plaintiff

LAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 6

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NORDSTROM & NEES, P.S.
ATTORNEYS AT LAW 323 South Pines Road Spokane, Washington 99206 [phone]

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Case 2:05-cv-00399-EFS

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Filed 05/22/2007

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CERTIFICATE OF SERVICE I, Stephen L. Nordstrom, hereby certify that on the 22nd day of May, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following participants: Brian T. Rekofke Witherspoon Kelley Davenport & Toole 422 W. Riverside Avenue, Suite 1100 Spokane, WA 99201-0302 Andrew C. Smythe Paine Hamblen Coffin Brooke & Miller 717 W. Sprague Avenue, Suite 1200 Spokane, WA 99201-3503 s/Stephen L. Nordstrom STEPHEN L. NORDSTROM

LAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 7

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NORDSTROM & NEES, P.S.
ATTORNEYS AT LAW 323 South Pines Road Spokane, Washington 99206 [phone]

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