John Doe 121, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0480

John Doe 121,
Appellant,

vs.

Diocese of Winona,
Respondent,

St. Mary's Catholic Church,
Respondent.

Filed September 24, 2018
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Winona County District Court
File No. 85-CV-16-16

Patrick W. Noaker, Noaker Law Firm LLC, Minneapolis, Minnesota; Leander James,
Melanie Baillie, James, Vernon & Weeks P.A., Coeur d’Alene, ID (for appellant)

Thomas R. Braun, Christopher W. Coon, Restovich Braun & Associa tes, Rochester,
Minnesota (for respondent Diocese of Winona)

Thomas B. Wieser, John C. Gunde rson, Meier, Kennedy & Quinn, Ch t d . , S t . P a u l ,
Minnesota (for respondent St. Mary’s Catholic Church)

Considered and decided by Worke, Presiding Judge; Jesson, Judg e; and Klaphake,
Judge.


 Retired judge of the Minnesota Court of Appeals, serving by ap pointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant John Doe was a stude nt at St. Mary’s Catholic Church during the early
1960s, where he asserts he was sexually abused by Father Richar d Hatch. In 2015, Doe
sued respondents St. Mary’s and the Diocese of Winona seeking r elief under multiple
theories of negligence, arguing that respondents should have fo reseen, or known about,
Father Hatch’s sexually abusive tendencies toward children. Th e district court granted a
motion to dismiss, and then a motion for summary judgment, whic h resulted in all of the
claims being dismissed. Because we determine there is a genuin e issue of material fact
regarding whether the Diocese sh ould have foreseen Father Hatch ’s sexually abusive
tendencies, we affirm in part, reverse in part, and remand.
FACTS
In 1954, Richard Hatch was ordained to priesthood, and through 1962, he was
assigned to three churches in Minnesota—St. Vianney’s in Fairmo nt, St. Leo’s in
Pipestone, and St. James’ in St. James. His now-released pries t file shows that he was
reprimanded several times during this period for a variety of c onduct. Most of his
transgressions involved the failure to pay debts he incurred. However, the letters also refer
to “indiscretions” and “imprudence” other than a failure to pay debts.
The most concrete indication of these wrongdoings come from a 1 961 letter to
Father Hatch from the Bishop of Winona. This letter reprimande d Father Hatch for two
independent reasons: his poor financial habits and the taking of two teenagers with him on
vacation. The letter states:

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I have spoken to you several times in regard to your apparent
disregard and lack of concern for debts which you have and
which you incur.

. . .

I regret very much that informat ion has also come to me that
you have apparently found it necessary to take a vacation to
Florida. Certainly one who is deeply in debt is not justified in
expending money in such a manner. In addition to that, reports
have come to me that you have taken one or two teenagers with
you in spite of the advice which I gave to you at the time of
your retreat.

Since it seems impossible for me to impress fully upon you the
seriousness of matters of this kin d and also in regard to your
finances, I shall find it necessary to suspend you from all
priestly work if I receive any further reports concerning debts
which are unpaid or the taking o f teenagers with you on trips
no matter what the objective may be.

I sincerely pray that you will realize the seriousness of all o f
these matters and readjust yourself so that you may continue to
avoid being a source of scandal to others.
With knowledge of this warning o f a potential suspension for ad ditional misconduct, in
addition to access to Father Hatch’s personnel file containing the letters referring to
indiscretions, the Diocese of Winona assigned him to St. Mary’s Catholic Church in June
1962. Appellant John Doe was a student at St. Mary’s from firs t through eighth grade.
Doe regularly attended mass and served as an altar boy and woul d also visit Father Hatch
alone in the priest’s living quarters. It was during this time , in 1962 or early 1963, that
Doe alleges Father Hatch sexually abused him on multiple occasions.
In June 1963, Father Hatch wa s removed from his position at St . Mary’s and was
sent to Via Coeli, a congregation of priests who provided care for other priests in need.

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Troubled priests were sent to Via Coeli with the hope that thei r conduct would improve,
and then they could return to assignments at churches. Althoug h the record is unclear as
to what behavior may lead to a priest being sent to Via Coeli, what is in the record are
letters that Father Hatch wrote to the Bishop of Winona while at the facility. These letters
apologized for hardships he caus ed through his “imprudent actio ns.” Father Hatch
ultimately left Via Coeli within a year without the permission of the Bishop of Winona.
He then voluntarily ceased any ministerial duties and ultimately passed away in 2005.
In 1996, it was reported to the Diocese of Winona that Father H atch had sexually
molested two boys while assigned to his duties and that he took pornographic pictures of a
third boy. Then in 2013, the Diocese of Winona received another complaint of child sexual
abuse by Father Hatch that occurred from 1959 to 1962.
In January 2016, Doe filed a comp laint against the Diocese of W inona and
St. Mary’s.1 The complaint alleged that Doe was sexually abused by Father Hatch while
he attended St. Mary’s and that the defendants knew of the dang ers of Father Hatch, but
failed to prevent the sexual abuse from occurring. The complaint set forth claims of general
negligence, negligent supervision, and negligent retention against both St. Mary’s and the
Diocese.

1 Doe was able to timely file this matter approximately 50 years a f t e r F a t h e r H a t c h ’ s
assignment at St. Mary’s because of the Child Victims Act. Thi s statute states that
“[n]otwithstanding any other provision of law, in the case of a lleged sexual abuse of an
individual under the age of 18, i f the action would otherwise b e time-barred under a
previous version of [the Child V ictims Act], or other time limi t, an action for damages
against a person . . . may be commenced no later than three years following May 25, 2013.”
2013 Minn. Laws ch.89, § 1 at 729.

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In July 2016, the district court granted rule 12.02(e) motions to dismiss the general
negligence claims. The court noted the general rule that a per son does not owe another
individual a duty to protect him from the harm caused by a thir d person, unless there is a
special relationship between the parties and the harm is forese e a b l e . H e r e , t h e c o u r t
determined that no special relationship existed as there were no facts to suggest the plaintiff
was in the custody or control of St. Mary’s or the Diocese.
In November 2017, the district court granted motions for summa ry judgment on the
remaining counts—negligent superv ision and negligent retention. In regard to the
negligent-supervision claims, the district court determined tha t there were no facts in the
record to suggest Father Hatch’s sexual abuse of Doe was forese eable or that it was
foreseeable that Father Hatch had sexually abusive tendencies. In regard to the negligent-
retention claims, the court dete rmined that there was no eviden ce suggesting that the
respondents knew of, or should have known of, Father Hatch’s sexually abusive conduct.
Doe appeals.
D E C I S I O N
In its simplest terms, negligence consists of “a departure fro m a standard of conduct
required by the law for the protection of others against unreas onable risk of harm.” Seim
v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981) (quotations omitted). And this standard
of conduct is traditionally the standard of a reasonable individual of ordinary prudence. Id.
While a plaintiff may bring a general negligence claim against another individual under
this basic standard of reasonable care, negligence actions typi cally take a different shape
when brought against an entity for the conduct of its employees. These different forms of

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negligence against an employer fo r injuries caused by an employ ee are negligent hiring,
negligent supervision, and negligent retention. M.L. v. Magnuson, 531 N.W.2d 849, 856
(Minn. App. 1995), review denied (Minn. July 20, 1995). But when there is a “special
relationship” between two partie s and the harm is foreseeable, then a general-negligence
claim can be brought against an entity for the conduct of its e mployees. Doe 169 v.
Brandon, 845 N.W.2d 174, 177-78 (Minn. 2014).
H e r e , D o e b r o u g h t c l a i m s o f g e n e r a l n e g l i g e n c e , a s w e l l a s c l aims of negligent
supervision and negligent reten tion, against St. Mary’s and the Diocese. Each of these
claims was dismissed, and Doe now appeals. We first address th e general-negligence
claims against St. Mary’s and the Diocese, and then turn to the negligent-supervision and
negligent-retention claims.
I. The district court did not err in dismissing the general-negligence claims.

Doe contends that the district court erred when it granted the respondents’ motion
to dismiss the general-negligence claims pursuant to Minn. R. Civ. P. 12.02(e)—failure to
state a claim upon which relief can be granted. 2 “ O n a p p e a l f r o m t h e d i s t r i c t c o u r t ’ s
dismissal of a complaint for failure to state a claim on which relief can be granted, we
review de novo the claim’s legal sufficiency.” Leonard v. Nw. Airlines, Inc., 605 N.W.2d
425, 428 (Minn. App. 2000).

2 The Diocese also argues that a general-negligence claim is not recognized in Minnesota
against an employer for the harm of its employees. Because we determine the general-
negligence claims lack merit, we decline to reach this issue.

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Minnesota law follows the general common-law rule that a person does not owe a
duty of care to another if the harm is caused by a third party’ s conduct. Doe 169, 845
N.W.2d at 177-78. One exception to this general rule is when there is a special relationship
between a plaintiff and a defendant, and the harm to the plaintiff is foreseeable. Id. at 178.
Here, Doe contends both that the re was a special relationship a nd that the harm was
foreseeable to meet this exception. We affirm the district cou rt’s order dismissing the
general-negligence claims because: (1) there is no evidence of a special relationship
between Doe and the Diocese; and (2) because there is no eviden ce that St. Mary’s could
foresee the harm to Doe.
With regard to the evidence of a special relationship between Doe and the Diocese,
here that evidence focuses on faith-based instruction. And thi s court has held that faith-
based advice or instruction, without more, does not create a special relationship. Meyer v.
Lindala, 675 N.W.2d 635, 640 (Minn. App. 2004). True, a special relat ionship also may
exist when “an individual, whether voluntarily or as required by law, has custody of another
person under circumstances in which that other person is deprived of normal opportunities
of self-protection.” Bjerke v. Johnson , 742 N.W.2d 660, 665 (Minn. 2007) (internal
quotation marks omitted). But o ur review of the pleadings does not reveal any facts that
suggest the Diocese had any custody or control over Doe. While Doe points to caselaw
suggesting that schools have custody over students, this is only significant in determining
whether St. Mary’s—not the Diocese—had custody over Doe. Because Doe failed to plead
any facts suggesting the Diocese had a special relationship with Doe, we affirm the district
court’s dismissal of the general-negligence claim against the Diocese.

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We further affirm the district court’s order dismissing the general-negligence claim
against St. Mary’s. While St. Mary’s, based on the pleading, h ad a special relationship
with Doe because of its custody over students, that alone is in sufficient. There must also
be harm to Doe that was foreseeable to St. Mary’s. See Wood on behalf of Doe v. Astleford,
412 N.W.2d 753, 755 (Minn. App. 1987); review denied (Minn. Nov. 24, 1987). Here,
there is no evidence that St. Mary’s could foresee the harm to Doe. The evidence that could
suggest Father Hatch’s harm was foreseeable was the letters in his personnel file, but the
record does not establish that St. Mary’s had access to these letters. And at oral argument,
counsel for Doe conceded that there was no evidence in the reco rd that suggests Father
Hatch’s conduct was foreseeable to St. Mary’s. Because Father Hatch’s harm was not
foreseeable to St. Mary’s, the ge neral-negligence claim fails, regardless of whether a
special relationship existed.
We affirm the district court’s order dismissing the general-negligence claim against
the Diocese because there is no evidence of a special relations hip present. We further
affirm the court’s order dismissing the general-negligence clai m against St. Mary’s
because the harm to Doe was not foreseeable.
II. Genuine issues of material fact exist as to whether Father Hatch’s sexually
abusive tendencies were foreseeable to the Diocese.

Doe argues the district court erred when it granted summary judgment on the counts
of negligent supervision and negligent retention. “Summary judgment is appropriate when
there is no genuine issue of material fact and a party is entitled to judgment as a matter of
law,” and this court reviews a district court’s grant of summar y judgment de novo “to

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determine whether there are any genuine issues of material fact and whether the court erred
in its application of the law.” Senogles v. Carlson , 902 N.W.2d 38, 42 (Minn. 2017)
(internal citations omitted). Furthermore, this court views “the evidence in the light most
favorable to the party against whom summary judgment was granted.” Id.
Here, the district court granted summary judgment on Doe’s clai ms of negligent
supervision and negligent retention against both St. Mary’s and the Diocese. “To make
out a successful claim for negligent supervision, the plaintiff must prove (1) the employee’s
conduct was foreseeable; and (2 ) the employer failed to exercis e ordinary care when
supervising the employee.” C.B. ex rel. L.B. v. Evangelical Lutheran Church in Am., 726
N.W.2d 127, 136 (Minn. App. 2007) (internal quotation marks omi tted). Negligent
retention requires that: (1) “the employer becomes aware or should have become aware of
problems with an employee that indicated his unfitness;” and (2 ) “the employer fails to
take further action such as inve stigating, discharge, or reassi gnment.” Yunker v.
Honeywell, Inc., 496 N.W.2d 419, 423 (Minn. App. 1993) (citation omitted), review denied
(Minn. Apr. 20, 1993). The district court determined that ther e was insufficient evidence
to create a genuine issue of mater ial fact regarding whether Fa ther Hatch’s sexual
tendencies toward children were foreseeable or whether the resp ondents should have
become aware of his sexual tendencies. We disagree in regard t o the counts against the
Diocese, but not St. Mary’s, as the letter referencing teenagers—to which the Diocese had
access—is sufficient to create a dispute of material fact as to the Diocese.

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Courts in Minnesota have consis tently stated that in “close cases,” foreseeability is
an issue for the jury to resolve.3 See, e.g., Astleford, 412 N.W.2d at 755; Larson v. Larson,
373 N.W.2d 287, 289 (Minn. 1985). Here, the Diocese had a letter that reprimanded Father
Hatch for taking teenagers with him on a vacation. This letter noted this was not an incident
that came out of nowhere: “reports have come to me that you hav e taken one or two
teenagers with you in spite of the advice which I gave to you at the time of your retreat .”
(Emphasis added.) And the letter underscored the seriousness o f the misconduct as it
threatened a potentia l suspension for fur ther similar conduct. W h i l e t h e r e a r e s e v e r a l
reasonable interpretations of this letter, one interpretation i s that Father Hatch was
chastised for taking teenagers w ith him because he had prior in appropriate conduct with
teenagers or was suspected of having done so. And because this is a reasonable inference
a jury could make, it is a close call whether this letter is sufficient to determine that it was
foreseeable that Father Hatch had sexually abusive tendencies toward children.4
The Diocese contends that the letter referencing teenagers rep rimands Father Hatch
solely for his lack of financial responsibility relating to the vacation. We agree that the
letter reprimands Father Hatch fo r the financial aspect of taki ng a vacation. But viewing

3 The Minnesota Supreme Court has recently reaffirmed the standa rd that in close cases,
foreseeability is for a jury to determine. See Senogles , 902 N.W.2d at 43 (“As we
reaffirmed recently, when the issue of foreseeability is clear, the court, as a matter of law,
should decide it, but in close cases, the issue of foreseeabili ty is for the jury.”); see also
Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 629 (Minn. 2017).
4 While the letter referencing the teenagers is sufficient on its own to create a genuine issue
of material fact as to whether Father Hatch’s sexually abusive tendencies were foreseeable
to the Diocese, it is bolstered by Father Hatch’s letters apolo gizing for his “imprudent
actions” written after he was removed from his position at St. Mary’s.

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the letter in a light most favorable to Doe, the letter makes i t clear that the allegation
regarding teenagers is a separat e issue from Father Hatch’s mis behaviors concerning
financial responsibility. For example, after discussing the financial misconduct, the letter
states “[i]n addition to that,” and then mentions teenagers for the first time. Similarly,
directly after discussing the con duct with the teenagers, the l etter refers the taking of
teenagers as a distinct issue fro m the financial concerns: “ser iousness of matters of this
kind and also in regard to your finances.” (Emphasis added.)
The Diocese further argues that even if the letter referencing teenagers reprimands
Father Hatch for something other than financial misconduct, thi s second allegation is too
vague and amounts to nothing more than speculation. The Dioces e i s c o r r e c t t h a t
speculation alone is not enough to avoid summary judgment. See Osborne v. Twin Town
Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008) (“Mere speculation, without some concrete
evidence, is not enough to avoid summary judgment.” (Alteratio ns omitted)). But here
the letter referencing misconduct with teenagers is concrete en ough to rise above mere
speculation—it chastises a priest for misconduct with teenagers and threatens him with a
suspension—which makes the issu e of foreseeability a close call appropriate for the jury
to determine. Because the Diocese—but not St. Mary’s—had access to this letter prior to
assigning Father Hatch to serve in Winona, we reverse and remand the district court’s order
granting summary judgment regardin g the negligent supervision a nd retention counts
against the Diocese, but affirm the order regarding the counts against St. Mary’s.
In sum, the Diocese had access to Father Hatch’s personnel file prior to assigning
him to St. Mary’s. Inside this file were numerous letters repr imanding Father Hatch for

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his financial misconduct, but one letter contained a separate allegation—misconduct with
teenagers. The letter referenced previous “advice” from the Bishop to Father Hatch on this
topic and stated that he would be suspended if he took teenager s with him on trips, “no
matter what the objective may be.” With this knowledge—that Fa ther Hatch was not
allowed to have youth with him on trips, that the Bishop was co ncerned about the
“seriousness of matters of this kind,” and that the Bishop stated that it seemed “impossible”
for him to convey to Father Hatch the significance of the matter—a reasonable jury could
find that it was foreseeable to the Diocese that Father Hatch m ay have sexually abusive
tendencies towards children. We therefore reverse the grant of summary judgment on the
negligent-supervision and negligent-retention claims against th e Diocese and remand for
trial. We affirm the district court’s dismissal of the general negligence claims and affirm
the summary judgment on the claims against St. Mary’s.
Affirmed in part, reversed in part, and remanded.