In Division JANE DOE, a minor by next friend, T.N., ) ) Appellant, ) ) No. SD38331 vs. ) ) FILED: September 3, 2024 FIRST BAPTIST CHURCH OF ) PIERCE CITY, MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY
Honorable David Allen Cole, Judge
TRANSFERRED TO SUPREME COURT PURSUANT TO RULE 83.02
Jane Doe (“Plaintiff”), by next friend, T.N., appeals from the circuit court’s grant of
summary judgment in favor of First Baptist Church of Pierce City (“FBC”) on her negligence
claim relating to sexual assaults she suffered while in the care and custody of FBC. We would
affirm the summary judgment of the circuit court on the basis of Gibson v. Brewer, 952 S.W.2d
239 (Mo. banc 1997), but due to the general interest and importance of the issues on appeal, we
transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02. 1
Factual and Procedural Background
The uncontroverted material facts establish that FBC is a Southern Baptist church and
1 All rule references are to Missouri Court Rules (2023). that Plaintiff participated in FBC’s youth ministries program. A youth pastor led FBC’s youth
ministries program and transported participants, including Plaintiff and others, to and from said
program in a church van. On two occasions in March of 2022, another participant in FBC’s
youth ministries program inappropriately touched Plaintiff in the church van during its operation
by the youth pastor. Plaintiff, thereafter, filed a negligence claim against FBC, premising her
claim on the failure by FBC to prevent the incidents by following standards for the prevention of
child sexual abuse.
FBC denied liability and moved for summary judgment. In its motion, FBC cited Gibson
for the proposition that “the First Amendment bars a negligence claim against a church if the
negligence claim would require the court to decide how a reasonably prudent church should have
acted.” FBC argued that Plaintiff’s negligence claim “would require [the circuit court] to decide
how [FBC], as an institution, and through its Youth Pastor, should have conducted its student
ministries.” FBC further argued that “[g]iven these facts, Plaintiff cannot prove, without [the
circuit court] violating the First Amendment, the element of breach as that would require [the
circuit court] to find how [FBC] should have conducted its youth ministries.”
The circuit court agreed with FBC and granted summary judgment in its favor. In
pertinent part, the circuit court, relying on Gibson, stated, “[w]hether negligence exists in a
particular situation depends on whether or not a reasonably prudent person would have
anticipated danger and provided against it.” The circuit court further stated, “[i]n order to
determine how a ‘reasonably prudent Diocese’[ 2] would act, a court would have to excessively
2 In Gibson, which is the controlling case, the religious entity defendant was the Catholic Diocese of Kansas City-St. Joseph. 952 S.W.2d at 243. As such, the Gibson opinion heavily relies on various denomination-specific titles appropriately applied to that entity, leadership, and members, including “Diocese,” “clergy,” and “parishioners.” Although we quote Gibson and utilize the aforementioned terminology extensively throughout our discussion, we recognize that such terminology is not necessarily appropriate to describe the various religious roles involved in the instant case.
2 entangle itself in religious doctrine policy and administration.” Plaintiff timely appeals this
judgment.
Standard of Review
“Summary judgment is designed to permit the trial court to enter judgment, without
delay, where the moving party has demonstrated, on the basis of facts as to which there is no
genuine dispute, a right to judgment as a matter of law.” ITT Commercial Fin. Corp. v. Mid–
Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). When the party moving for
summary judgment is a defending party, as is the case here, the movant’s right to summary
judgment can be established by showing one of the following:
(1) facts that negate any one of the claimant’s elements facts, (2) that the non- movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.
Id. at 381.
Discussion
Plaintiff raises five points on appeal challenging the circuit court’s grant of summary
judgment. In her first point, Plaintiff contends that FBC failed to plead specific facts in its
answer so as to properly plead the First Amendment as an affirmative defense. In her second and
third points, Plaintiff respectively contends that either FBC failed to assert any material facts that
the transportation of children involves religious practice or doctrine or, if FBC produced such
facts, there remains genuine issues of material fact regarding the issue. In her fourth point,
Plaintiff contends that, as a matter of law, the First Amendment does not prohibit her negligence
claim because her abuser was not a member of FBC’s leadership. Because we find that Gibson
is controlling as to all of Plaintiff’s points, we discuss those points together. Candidly, Plaintiff
3 acknowledges that only the Supreme Court of Missouri may be able to grant the relief she seeks
and, therefore, with her fifth point, she contends that Gibson was wrongly decided in order to
preserve that contention for transfer.
We begin our discussion with the controlling case. In Gibson, a boy and his parents
accused a member of a diocese’s clergy of sexual abuse and sued the diocese for, inter alia,
negligent hiring/ordination/retention, negligent failure to supervise, negligent infliction of
emotional distress, and independent negligence of the diocese. 952 S.W.2d at 243-44. The
circuit court dismissed these negligence claims on the basis that they failed to state claims upon
which relief could be granted, and the Supreme Court of Missouri affirmed holding that the First
Amendment of the United States Constitution, specifically the Free Exercise and Establishment
Clauses, 3 prohibit courts from entertaining certain negligence claims against religious
organizations where the analysis of the issues would require a determination on ecclesiastical
matters. Id. at 244, 246-50. 4
At this stage of our discussion, Gibson demonstrates why Plaintiff’s first point—
contending FBC failed to adequately plead the First Amendment as an affirmative defense—
fails. “An affirmative defense is defined as a defendant’s assertion of facts and arguments that, if
true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true.”
3 The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S CONST. amend. I. 4 Our high court observed that “[i]f neutral principles of law can be applied without determining questions of religious doctrine, polity, and practice, then a court may impose liability” and provided examples of two such situations arising in negligence. Gibson, 952 S.W.2d at 246.
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In Division JANE DOE, a minor by next friend, T.N., ) ) Appellant, ) ) No. SD38331 vs. ) ) FILED: September 3, 2024 FIRST BAPTIST CHURCH OF ) PIERCE CITY, MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY
Honorable David Allen Cole, Judge
TRANSFERRED TO SUPREME COURT PURSUANT TO RULE 83.02
Jane Doe (“Plaintiff”), by next friend, T.N., appeals from the circuit court’s grant of
summary judgment in favor of First Baptist Church of Pierce City (“FBC”) on her negligence
claim relating to sexual assaults she suffered while in the care and custody of FBC. We would
affirm the summary judgment of the circuit court on the basis of Gibson v. Brewer, 952 S.W.2d
239 (Mo. banc 1997), but due to the general interest and importance of the issues on appeal, we
transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02. 1
Factual and Procedural Background
The uncontroverted material facts establish that FBC is a Southern Baptist church and
1 All rule references are to Missouri Court Rules (2023). that Plaintiff participated in FBC’s youth ministries program. A youth pastor led FBC’s youth
ministries program and transported participants, including Plaintiff and others, to and from said
program in a church van. On two occasions in March of 2022, another participant in FBC’s
youth ministries program inappropriately touched Plaintiff in the church van during its operation
by the youth pastor. Plaintiff, thereafter, filed a negligence claim against FBC, premising her
claim on the failure by FBC to prevent the incidents by following standards for the prevention of
child sexual abuse.
FBC denied liability and moved for summary judgment. In its motion, FBC cited Gibson
for the proposition that “the First Amendment bars a negligence claim against a church if the
negligence claim would require the court to decide how a reasonably prudent church should have
acted.” FBC argued that Plaintiff’s negligence claim “would require [the circuit court] to decide
how [FBC], as an institution, and through its Youth Pastor, should have conducted its student
ministries.” FBC further argued that “[g]iven these facts, Plaintiff cannot prove, without [the
circuit court] violating the First Amendment, the element of breach as that would require [the
circuit court] to find how [FBC] should have conducted its youth ministries.”
The circuit court agreed with FBC and granted summary judgment in its favor. In
pertinent part, the circuit court, relying on Gibson, stated, “[w]hether negligence exists in a
particular situation depends on whether or not a reasonably prudent person would have
anticipated danger and provided against it.” The circuit court further stated, “[i]n order to
determine how a ‘reasonably prudent Diocese’[ 2] would act, a court would have to excessively
2 In Gibson, which is the controlling case, the religious entity defendant was the Catholic Diocese of Kansas City-St. Joseph. 952 S.W.2d at 243. As such, the Gibson opinion heavily relies on various denomination-specific titles appropriately applied to that entity, leadership, and members, including “Diocese,” “clergy,” and “parishioners.” Although we quote Gibson and utilize the aforementioned terminology extensively throughout our discussion, we recognize that such terminology is not necessarily appropriate to describe the various religious roles involved in the instant case.
2 entangle itself in religious doctrine policy and administration.” Plaintiff timely appeals this
judgment.
Standard of Review
“Summary judgment is designed to permit the trial court to enter judgment, without
delay, where the moving party has demonstrated, on the basis of facts as to which there is no
genuine dispute, a right to judgment as a matter of law.” ITT Commercial Fin. Corp. v. Mid–
Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). When the party moving for
summary judgment is a defending party, as is the case here, the movant’s right to summary
judgment can be established by showing one of the following:
(1) facts that negate any one of the claimant’s elements facts, (2) that the non- movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.
Id. at 381.
Discussion
Plaintiff raises five points on appeal challenging the circuit court’s grant of summary
judgment. In her first point, Plaintiff contends that FBC failed to plead specific facts in its
answer so as to properly plead the First Amendment as an affirmative defense. In her second and
third points, Plaintiff respectively contends that either FBC failed to assert any material facts that
the transportation of children involves religious practice or doctrine or, if FBC produced such
facts, there remains genuine issues of material fact regarding the issue. In her fourth point,
Plaintiff contends that, as a matter of law, the First Amendment does not prohibit her negligence
claim because her abuser was not a member of FBC’s leadership. Because we find that Gibson
is controlling as to all of Plaintiff’s points, we discuss those points together. Candidly, Plaintiff
3 acknowledges that only the Supreme Court of Missouri may be able to grant the relief she seeks
and, therefore, with her fifth point, she contends that Gibson was wrongly decided in order to
preserve that contention for transfer.
We begin our discussion with the controlling case. In Gibson, a boy and his parents
accused a member of a diocese’s clergy of sexual abuse and sued the diocese for, inter alia,
negligent hiring/ordination/retention, negligent failure to supervise, negligent infliction of
emotional distress, and independent negligence of the diocese. 952 S.W.2d at 243-44. The
circuit court dismissed these negligence claims on the basis that they failed to state claims upon
which relief could be granted, and the Supreme Court of Missouri affirmed holding that the First
Amendment of the United States Constitution, specifically the Free Exercise and Establishment
Clauses, 3 prohibit courts from entertaining certain negligence claims against religious
organizations where the analysis of the issues would require a determination on ecclesiastical
matters. Id. at 244, 246-50. 4
At this stage of our discussion, Gibson demonstrates why Plaintiff’s first point—
contending FBC failed to adequately plead the First Amendment as an affirmative defense—
fails. “An affirmative defense is defined as a defendant’s assertion of facts and arguments that, if
true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true.”
3 The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S CONST. amend. I. 4 Our high court observed that “[i]f neutral principles of law can be applied without determining questions of religious doctrine, polity, and practice, then a court may impose liability” and provided examples of two such situations arising in negligence. Gibson, 952 S.W.2d at 246. In the first example, “a church can be vicariously liable for the negligent operation of a vehicle by a pastor in the scope of employment.” Id. (citing Garber v. Scott, 525 S.W.2d 114, 119-20 (Mo.App. 1975)). In the second example, “[our high court]—when abolishing the doctrine of charitable immunity in Missouri—authorized a person who slipped and fell on church premises to sue for negligence.” Id. (citing Garnier v. St. Andrew Presbyterian Church of St. Louis, 446 S.W.2d 607, 608 (Mo. banc 1969)). “The result is that the church, as the owner and occupier of the premises in question, is subject to all the duties and liabilities which are incident to the ownership and possession of real estate.” Id. (internal quotation marks omitted). Our high court additionally observed that recognizing intentional tort claims, such as the intentional failure to supervise clergy, “does not offend the First Amendment.” Id. at 248.
4 Ressler v. Clay County, 375 S.W.3d 132, 140 (Mo.App. 2012) (internal quotation marks
omitted). We note that FBC asserts in its answer “that as a religious institution, Plaintiff’s
Second Amended Petition violates the Establishment and Free Exercise Clauses as found in the
First Amendment of the United States Constitution[.]” Plaintiff argues that this pleading fails to
comply with Rule 55.08, requiring affirmative defenses to be pleaded with “a short and plain
statement of the facts showing that the pleader is entitled to the defense or avoidance.” Rule
55.08.
The flaw in Plaintiff’s argument is that FBC’s motion for summary judgment appears not
to have been premised upon an affirmative defense. Rather, as it stated in its motion, FBC
moved for summary judgment on the basis that “Plaintiff cannot prove, without [the circuit
court] violating the First Amendment, the element of breach as that would require [the circuit
court] to find how [FBC] should have conducted its youth ministries.” (Emphasis added.) “[A]
matter that merely negates an element of the plaintiff’s prima facie case is not an affirmative
defense that must be pleaded in the defendant’s answer.” Varsalona v. Ortiz, 445 S.W.3d 137,
141 (Mo.App. 2014) (internal quotation marks omitted).
In Gibson, our high court held that there was no error in dismissing similar negligence
counts against a religious organization for failing to state a claim upon which relief could be
granted. 952 S.W.2d at 246-50. “[D]ismissal for failure to state a claim is proper where facts
essential to recovery are not pled.” Stein v. Novus Equities Co., 284 S.W.3d 597, 602 (Mo.App.
2009) (emphasis added). In a similar fashion, “[a] prima facie case for summary judgment can
be established by showing undisputed facts that negate any one of the plaintiff’s required proof
elements.” Ressler, 375 S.W.3d at 141 (internal quotation marks omitted). In either approach,
the defect lies with the plaintiff’s cause of action, not the failure of an affirmative defense. Rule
5 55.08 simply had no application here that would have prevented the circuit court’s summary
judgment. Accordingly, we would deny point 1.
Returning to the negligence claims at issue in Gibson, we must first address the negligent
hiring/ordination/retention and negligent failure to supervise claims. Our high court observed
that “[q]uestions of hiring, ordaining, and retaining clergy . . . necessarily involve interpretation
of religious doctrine, policy, and administration.” 952 S.W.2d at 246-47. “Such excessive
entanglement between church and state has the effect of inhibiting religion, in violation of the
First Amendment” and “would result in an endorsement of religion, by approving one model for
church hiring, ordination, and retention of clergy.” Id. at 247. Similarly, the negligent
supervision claim “implicates the duty of a master to control conduct of a servant[.]” Id. And
“[a]djudicating the reasonableness of a church’s supervision of a cleric—what the church ‘should
know’—requires inquiry into religious doctrine” and, as with the negligent
hiring/ordination/retention claim, “would create an excessive entanglement, inhibit religion, and
result in the endorsement of one model of supervision.” Id.
Plaintiff contends in its second and third points that FBC failed to demonstrate, for the
purpose of summary judgment, that the transportation of children involves religious doctrine or
policy. Plaintiff goes a step further in her fourth point, contending that the First Amendment has
absolutely no applicability to the undisputed material facts of this case because all of the First
Amendment principles set out by Gibson apply only in the situation described above—inquiry
into the relationship between a church and its clergy. As Plaintiff observes, the instant case
involves no such allegation against a cleric or any other religious official. Plaintiff suggests that
“[t]he central finding of each decision [including and since Gibson], despite what expansive
dicta may have been included, is that it is the purported interference with the relationship, or
6 governance, between the religious institution and its leadership that resulted in the immunity[.]”
Here, according to Plaintiff, the circuit court “relied on expansive out of context and unfounded
dicta to focus the analysis solely on whether the negligence claim would involve determining
how a ‘reasonably prudent Diocese’ would act.”
The flaw in this argument is that it ignores that negligent hiring, ordination, retention, and
supervision of religious officials are not the only negligence-based claims that our high court
determined are foreclosed by the First Amendment. Our high court also determined that there
was no error in the dismissal of the negligent infliction of emotional distress claim against the
diocese. Gibson, 952 S.W.2d at 248-49. The specific allegations were that “the Diocese
negligently inflicted emotional distress on them by: failing to investigate, covering up the
incident, and making the statements ‘this happens to young men all the time,’ this was ‘an
innocent pat on the butt’ and they should ‘forgive and forget’ and get on with their lives.” Id. at
248. Our high court observed that this claim “is related not to the relationship between the
Diocese and its clergy, but rather to the relationship between the Diocese and its parishioners.”
Id. at 249 (emphasis added). And yet the claim was foreclosed because “[t]o determine whether
the Diocese’s responses to its members’ claims were ‘reasonable,’ a court would inevitably judge
the reasonableness of religious beliefs, discipline, and government.” Id. Our high court held
that “[a]pplying a negligence standard to the actions of the Diocese in dealing with its
parishioners offends the First Amendment.” Id.
It was in a similar vein that our high court also determined that there was no error in
dismissing the claim for independent negligence of the diocese. Gibson, 952 S.W.2d at 249-50.
The alleged acts of negligence comprising this claim were:
(1) failing to have a policy to prevent sexual abuse of minors, (2) concealing unlawful sexual acts and abuse by failing to educate and accurately inform the
7 public, (3) ignoring and failing to investigate complaints, (4) trying to silence claims and prevent members and the public from discovering priests accused of sexual misconduct, and (5) failing to evaluate the propensity of priests to engage in improper sexual conduct.
Id. at 249. Our high court noted that the elements the plaintiffs had to show in order to establish
a claim for negligence were: “(1) defendant had a duty to the plaintiff; (2) defendant failed to
perform that duty; and (3) defendant’s breach was the proximate cause of the plaintiff’s injury.”
Id. (emphasis added). However, “[w]hether negligence exists in a particular situation depends
on whether or not a reasonably prudent person would have anticipated danger and provided
against it.” Id. In affirming the dismissal of this claim, our high court observed that “[i]n order
to determine how a ‘reasonably prudent Diocese’ would act, a court would have to excessively
entangle itself in religious doctrine, policy, and administration.” Id. at 249-50 (emphasis added).
Our high court explained:
The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it.
Id. at 250 (quoting Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 711 (1976)).
Our high court further explained that “[c]hurch members give their implied consent to be subject
only to such appeals as the organism itself provides for.” Id. (internal quotation marks omitted).
Thus, it is not accurate to say that “[t]he central finding” of Gibson was “that it is the
purported interference with the relationship, or governance, between the religious institution and
its leadership that resulted in the immunity[.]” Plaintiff’s attempt to provide support for this
argument relies heavily on Doe v. Roman Catholic Archdiocese of St. Louis, 347 S.W.3d 588
(Mo.App. 2011). In Doe, the eastern district of this Court distinguished Smith, By and Through
Smith v. Archbishop of St. Louis on behalf of Archdiocese of St. Louis, 632 S.W.2d 516
8 (Mo.App. 1982), a case predating Gibson, by stating, “[w]hile that case involved negligent
supervision, it did not involve negligent supervision of a member of the clergy, and thus, it did
not involve any First Amendment entanglement.” 347 S.W.3d at 595 n.4. Plaintiff utilizes this
excerpt from Doe to suggest that a negligence claim, so long as it does not involve the
relationship between a religious institution and its leadership, avoids any and all First
Amendment entanglement concerns. But as discussed supra, Gibson does not state or stand for
this proposition. Gibson, rather, is clear that negligence claims involving either the relationship
between a religious institution and its leadership or the relationship between that institution and
its members offends the First Amendment. And it is that latter relationship—manifested here by
the relationship between FBC and Plaintiff—that is of concern in the instant case. 5
Furthermore, the circuit court’s determination in the instant summary judgment that “[i]n
order to determine how a ‘reasonably prudent Diocese’ would act, a court would have to
excessively entangle itself in religious doctrine policy and administration” was not “unfounded
dicta” as Plaintiff argues. Rather, this was part and parcel of our high court’s holding in Gibson
that the dismissal of the aforementioned claim for independent negligence was not erroneous.
See 952 S.W.2d at 249-50. Here, the undisputed material facts of Plaintiff’s claim are similar to
that independent negligence claim from Gibson. Plaintiff asserts that FBC, a Southern Baptist
religious institution, had a duty to supervise the youth ministries program members, including
herself, while they were transported on a church van as part of that program, that FBC breached
this duty by failing to either have or follow a policy to protect minors from sexual abuse, and that
5 In her brief, Plaintiff observes that neither she, nor her abuser, were members of FBC’s congregation. According to the summary judgment materials, to be a member of FBC’s congregation, individuals have to be eighteen-years- old, which Plaintiff was not. It is undisputed, however, that Plaintiff was a member of FBC’s student youth ministries and was assaulted by another such member in the context of her attendance therewith. Plaintiff fails to draw any material distinction between being a member of FBC’s congregation and being a member of FBC’s student youth ministries, let alone develop such a distinction into a cogent legal argument against the circuit court’s summary judgment.
9 Plaintiff was injured as a result by the actions of a fellow youth ministries program member.
Under Gibson, “[i]n order to determine how a ‘reasonably prudent [Southern Baptist student
ministries program]’ would act, a court would have to excessively entangle itself in religious
doctrine, policy, and administration.” Id. Accordingly, we would deny points 2, 3, and 4.
The Gibson decision “is binding on this [C]ourt,” D.T. v. Catholic Diocese of Kansas
City-St. Joseph, 419 S.W.3d 143, 149 (Mo.App. 2013), and Plaintiff cites to no authority
suggesting otherwise. As such, we would deny Plaintiff’s fifth and final point, in which she
contends that Gibson was wrongly decided. We agree, however, that this case may present
issues of general interest and importance that our high court may want to address. We
acknowledge that FBC is correct that our high court recently reconsidered and declined an
invitation to overrule Gibson in Doe 122 v. Marianist Province of the United States, 620
S.W.3d 73, 76-81 (Mo. banc 2021). Yet, the only tort claims and holdings from Gibson that
were germane to the discussion in Doe 122 were those relating to the relationship between the
diocese and its clergy, i.e., negligent hiring or retention, negligent failure to supervise, and
intentional failure to supervise clergy. Id. at 75-77. Doe 122, therefore, did not reconsider the
holdings from Gibson that are germane to the instant case—those addressing the negligence tort
claims that related to the relationship between the diocese, not with its clergy, but with its
parishioners. See Gibson, 952 S.W.2d at 248-50. Our research has revealed no case since
Gibson discussing these holdings in detail or applying them as we have done here in the manner
in which Gibson, per our reading of that opinion, compels us.
Decision
We would affirm the summary judgment of the circuit court, but due to the general
10 interest and importance of the issues on appeal, we transfer the case to the Supreme Court of
Missouri pursuant to Rule 83.02.
BECKY J.W. BORTHWICK, J. – OPINION AUTHOR
JENNIFER R. GROWCOCK, C.J. – CONCURS
MATTHEW P. HAMNER, J. – CONCURS