Supreme Court
Robert Houllahan :
v. : No. 2021-32-Appeal. (PC 20-2010) Louis E. Gelineau et al. :
Peter Cummings :
v. : No. 2021-33-Appeal. (PC 19-10530) Louis E. Gelineau et al. :
Philip Edwardo :
v. : No. 2021-41-Appeal. (PC 19-9894) Roman Catholic Bishop of : Providence et al.
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
v. : No. 2021-32-Appeal. (PC 20-2010) Louis E. Gelineau et al. :
v. : No. 2021-33-Appeal. (PC 19-10530) Louis E. Gelineau et al. :
v. : No. 2021-41-Appeal. (PC 19-9894) Roman Catholic Bishop of : Providence et al.
Present: Suttell, C.J., Goldberg, Robinson, and Long, JJ.
OPINION
Justice Goldberg, for the Court. This Court is confronted with another
amendment of the General Laws, which, it is alleged, breathes new life into
previously time-barred lawsuits against Bishop Louis E. Gelineau, Bishop Thomas
-1- Tobin, the Roman Catholic Bishop of Providence, a Corporation Sole, and several
additional corporate defendants.
These consolidated cases came before the Supreme Court on February 1,
2023, on appeal by plaintiffs, Robert Houllahan, Peter Cummings, and Philip
Edwardo (Houllahan, Cummings, Edwardo, or collectively, plaintiffs) challenging
the dismissal of all claims in favor of defendants, Louis E. Gelineau; the Roman
Catholic Bishop of Providence, a Corporation Sole (RCB); Thomas Tobin; St.
Joseph’s Church Providence Rhode Island; Bishop McVinney Regional School,
Alias, Successor to Catholic Association for Regional Education; St. Anthony
Church Corporation North Providence; John/Jane Doe 1-250; and XYZ
Corporations 1-250 (defendants) in accordance with Rule 12(b)(6) of the Superior
Court Rules of Civil Procedure.
On appeal, plaintiffs allege that the trial court erred in ruling that G.L. 1956
§ 9-1-51 (the act), as amended, created a class of criminal actors beyond the scope
of actual perpetrators as set forth in the act. The plaintiffs also urge this Court to
abrogate its prior holding in the leading case of Kelly v. Marcantonio, 678 A.2d 873
(R.I. 1996), and its progeny, that serves to bar recovery against those whose conduct,
plaintiffs submit, rises to the level of criminality. The plaintiffs also contend that
the trial court erred in overlooking a single claim by plaintiff Edwardo that is based
-2- on New York law. For the reasons set forth in this opinion, we affirm the decision
of the Superior Court in all respects.
Facts and Travel
The plaintiffs in the cases at bar filed separate Superior Court actions alleging
that they were sexually molested as minors by priests in the Roman Catholic Diocese
of Providence (Diocese). We address each plaintiff’s allegations in turn.1
Robert Houllahan was born in the late 1960s to a devout Roman Catholic
family. He became acquainted with Normand Demers, offending priest, in his
capacity as a diocesan priest at St. Joseph’s Church. Demers engaged in a
relationship with Houllahan, which included religious instruction and training,
spiritual guidance, and socialization. The plaintiff alleges that, at some point in
1976, he was molested by Demers and another man in Demers’s private quarters
above the parish rectory. While in the rectory, Houllahan took note of several
children from Central America, some of whom were living in the rectory at the time.
For over twenty years, Houllahan was unable to speak of his abuse at the hands of
Demers.
Houllahan asserted that in the late 1970s, church officials were aware that
Demers was bringing boys to the United States from Central America for the purpose
1 We pause to note that this Court concurs with the trial justice’s observations that the accusations made by plaintiffs against each offending priest were hideous and appalling and shock the conscience of the Court. -3- of sexual molestation. Demers eventually was arrested in 1989, in Haiti, after the
director of an orphanage, with which Demers and the hierarchal defendants in this
case were associated, learned that he was molesting boys at the facility. The plaintiff
alleges that Bishop Gelineau, through his Auxiliary Bishop, Kenneth Angell,
promised the orphanage director that Demers would be investigated, prosecuted, and
punished in Rhode Island if the director would cooperate in helping to have the
charges against him dismissed. According to plaintiff, shortly after Demers’s return
to Rhode Island, these defendants returned him to service in a parish, describing the
original reports as unsubstantiated.
Peter Cummings was born in 1966 to a Roman Catholic family who regularly
received sacraments through parishes within the Diocese. As a practicing Roman
Catholic, Cummings developed great admiration, trust, reverence, and obedience to
Roman Catholic priests, including Reverend John Petrocelli. The plaintiff became
acquainted with Petrocelli while a student at Bishop McVinney Regional Elementary
School, which he attended from ages nine until thirteen. Petrocelli used his position
with the school to initiate and maintain a relationship with Cummings, encouraging
him to participate in different activities, including swimming at a local pool. It was
after one of these swimming sessions that Petrocelli first sexually assaulted
Cummings, taking him in his grasp and indicating that it was very important that he
be allowed to show Cummings how to dry his genitals. Although Petrocelli released
-4- Cummings when he said no and resisted, he proceeded to fondle himself under a
towel while Cummings continued to dry himself. This behavior continued
frequently while Cummings attended grade school.
Over a decade later, in 1992, Cummings was hospitalized after suffering a
severe psychological episode. He finally was able to speak about the abuse that he
suffered at the hands of Petrocelli when he was a child. Cummings contacted the
Diocese to alert it of Petrocelli’s abuse and was subsequently visited by Auxiliary
Bishop Angell. Although Bishop Angell offered to assist Cummings with his
treatment, Cummings alleged that Angell failed to acknowledge Petrocelli’s history
of misconduct, including a complaint recorded months earlier about Petrocelli
swimming with young boys.
Philip Edwardo also was born to a devout Roman Catholic family in 1966.
Commencing in either 1977 or 1978, Philip Magaldi, pastor of St. Anthony Church,
initiated and maintained a relationship with Edwardo as his mentor and confidant
through Edwardo’s work as an altar boy. Edwardo was a student at St. Thomas
Catholic Regional Elementary School, and Magaldi arranged to have Edwardo
available to serve Mass at several funerals each month while he was in school.
In 1979 or 1980, Magaldi learned that Edwardo’s mother had developed a
serious drinking problem, and that Edwardo’s home life was difficult. Magaldi
encouraged Edwardo to spend his spare time at St. Anthony’s rectory and church
-5- while also assisting with different tasks around the church. As Edwardo grew close
to the employees of the church, including Magaldi, he eventually was compensated
for his work, and Magaldi informed Edwardo’s father that Edwardo could stay at the
rectory any time he wished.
On occasion, Edwardo slept at the rectory at Magaldi’s urging, using a spare
bedroom on the second floor. On one occasion in the spring of 1980, Magaldi took
Edwardo to lunch in Warwick and then to a spa to use a swimming pool. When
Edwardo complained that he did not feel well, Magaldi used this as an excuse to
perform a “medical procedure” on Edwardo, but in actuality used the opportunity to
sexually assault him. Edwardo did not resist until he became dizzy and vomited.
Later that summer, Magaldi began regularly supplying Edwardo with alcohol.
During one incident, after several drinks, Magaldi contrived a medical problem and
induced Edwardo to assist him, which again ended in sexual assault. Over the
ensuing months, Magaldi became very physical with Edwardo, grabbing his buttocks
and genitals whenever the chance arose. When Edwardo attempted to ask Magaldi
to stop, Magaldi threatened to tell his father that he had been consuming alcohol.
This threat, along with Magaldi’s continued attention and gift giving, led to several
years of Magaldi’s abuse.
Edwardo estimates that he was sexually abused between 100 and 300 times
from 1978, when he was twelve years old, until 1983, when he was seventeen years
-6- old. Edwardo and Magaldi went on several out-of-state trips throughout this period,
including a two-day trip to New Hampshire, and a trip to New York City, where he
was supplied with alcohol by Magaldi and molested in his hotel room after he
attempted to go to sleep for the night. During this later trip, Magaldi mentioned to
Edwardo that Bishop Gelineau was informed about the trip because it was related to
his priestly duties.
Edwardo also alleges that he was physically beaten by another priest, at the
behest of Magaldi, for withdrawing from their interactions. Once Edwardo was
finally able to tell Magaldi to cease his abuse, Magaldi contacted Edwardo’s father
and fabricated a story about Edwardo stealing money from the church. According
to Edwardo, he chose to allow his father to believe Magaldi’s allegations rather than
disclose the abuse that had occurred.
Edwardo alleges that he was unable to speak of Magaldi’s abuse until
approximately 2007, when he contacted the Bishop’s office to alert them of the
abuse; Edwardo was then referred to Robert McCarthy2 in the Diocese’s Office of
Compliance. According to Edwardo, he spoke with McCarthy several times and
2 Robert McCarthy was the Diocese’s first education and complaint coordinator for sexual concerns. He was tasked with investigating and recommending appropriate resolutions for complaints of sexual misconduct involving anyone associated with the Diocese. He is not a defendant in this case. -7- provided a detailed statement outlining the years of abuse that he suffered at the
hands of Magaldi. 3
Bishop Gelineau was the Roman Catholic Bishop of Providence from 1972
until 1997. In this role, Bishop Gelineau was vested with legislative, executive, and
judicial power regarding the governance of the Diocese. Bishop Gelineau was
responsible for the “training, hiring, assignment, monitoring, and/or supervision of
diocesan candidates accepted for admission to the priesthood, seminarians, deacons
and priests generally”—including the offending priests. The RCB is the primary
corporate entity through which Bishop Gelineau and the Diocese conducted their
business.
The plaintiffs alleged that the offenses committed by the offending priests
were undertaken during the course and within the scope of their employment as
priests incardinated in the Diocese, under the authority of Bishop Gelineau and RCB.
The plaintiffs alleged these defendants knew that these priests were pedophiles
and/or ephebophiles4 who made sexual advances toward minor boys under the
pretext of their priestly duties. Among their several allegations, plaintiffs contended
3 During this time, Edwardo learned that Magaldi had been transferred to a Diocese in Texas, where he was accused of engaging in the same behavior with another child.
4 Ephebophilia is defined as “[a] paraphilia in which adult sexual gratification is derived from fantasies or acts involving a postpubescent adolescent, often of the same gender.” The American Heritage Dictionary of the English Language 597 (5th ed. 2011). -8- that defendants knew of, but failed to warn plaintiffs or their parents of, practices
commonly used by child predators, including swimming trips and outings as an
opportunity to abuse children, and that such practices were ongoing by these priests.
The plaintiffs also alleged that defendants understood that the activities undertaken
by the offending priests, including outreach to foreign orphaned boys and local
young male prostitutes, were for illicit sexual activity, but, in order to protect the
priests, declined to warn plaintiffs.
In their complaints, plaintiffs identified a bevy of other priests, incardinated
in the Diocese, who admitted to childhood sexual assault offenses, were convicted
of childhood sexual assault, or were under police investigation for childhood sexual
assault; the misdeeds of these priests are not before us. The plaintiffs alleged that
defendants ignored, concealed, and/or pretended to be unaware that priests were
sexually abusing children in order to protect the reputation of the Roman Catholic
Church rather than secure the safety and well-being of children. The plaintiffs
alleged that defendants engaged in a pattern of conduct that included falsely assuring
others that the issue of offending conduct would be addressed; ignoring or failing to
properly investigate complaints; suppressing the results of investigations;
reassigning offending priests to new parishes; falsely holding out offending priests
as competent, moral, and harmless; falsely representing that they would actively
assist in the criminal investigation and prosecution of priests accused of childhood
-9- sexual abuse; and failing to warn parishioners. According to plaintiffs, this conduct
not only protected the Bishop and the Diocese, it enabled and aided and abetted the
offending priests to further offend.
Motions to dismiss were filed in each case contending that all claims were
barred by the applicable statute of limitations set forth in G.L. 1956 § 9-1-14(b) that
was in effect when the abuse occurred. In accordance with § 9-1-14(b), actions for
personal injury arising from the claims asserted were subject to a three-year statute
of limitations. Specifically, defendants asserted that because they were not
perpetrators under the amended statute, § 9-1-51, which provides for a
thirty-five-year retroactive statute of limitations for actual perpetrators, these causes
of actions were time-barred pursuant to § 9-1-14(b).
A joint hearing on the motions to dismiss was held on September 30, 2020.
Significantly, upon inquiry by the trial justice, counsel for plaintiffs acknowledged
that plaintiffs were opposing the motions to dismiss based solely on the
interpretation of the term “perpetrator” set forth in § 9-1-51. Counsel for plaintiffs
also acknowledged that plaintiffs discovered their causes of action more than three
years before these actions were commenced.
The defendants argued that the thirty-five-year retroactive statute of
limitations set forth in § 9-1-51(a)(1), and enacted by the General Assembly in 2019,
applied only to individuals accused of actually engaging in sexual abuse, referred to
- 10 - as perpetrators in the act. The defendants contended that, pursuant to § 9-1-51(a)(2),
a non-perpetrator is one who may have caused or contributed to the wrongful sexual
activity by another person. The defendants averred that plaintiffs’ complaints must
be dismissed because defendants are non-perpetrators, and the retroactive
application of the thirty-five-year statute of limitations in the 2019 amendment to
§ 9-1-51 is applicable only to perpetrator defendants.
The plaintiffs relied heavily on this Court’s decision in Kelly, in which we
recognized that one who aided and assisted the childhood sexual abuse “to the degree
that he or she would be subject to prosecution under chapter 37 of title 11[,]” would
be considered a perpetrator defendant. Kelly, 678 A.2d at 876 (emphasis added). The
plaintiffs contended that although some concealment or aiding and abetting claims
may amount to negligence and not perpetrator conduct under Kelly, the defendants’
actions could nonetheless rise to the level of criminal aiding and abetting, and thus
constitute perpetrator conduct. Hence, according to plaintiffs, because defendants’
actions rose to the level of criminality, they were perpetrators under § 9-1-51 and
subject to the retroactive application of the thirty-five-year statute of limitations.
The trial justice issued a written decision on October 16, 2020, granting
defendants’ motions to dismiss all claims in all cases. The trial justice declared that
§ 9-1-51 “unambiguously distinguishes between ‘perpetrator’ and
‘non-perpetrator[,]’ [and a]ll wrongful conduct committed by a defendant which
- 11 - caused or contributed to childhood sexual abuse by another person is
‘non-perpetrator’ conduct regardless of whether the conduct would subject the
defendant to criminal prosecution under the Rhode Island penal code.” The trial
justice further determined that, even if the statute was ambiguous, it was clear that
the General Assembly intended to limit the term perpetrator to the actual abuser.
The trial justice concluded that the only conduct that met the definition of
perpetrator was conduct by the actual abuser, which in the cases before her, were the
offending priests. Because defendants were non-perpetrators, the thirty-five-year
statute of limitations was not applicable, and the actions were dismissed as
time-barred. Orders of dismissal, pursuant to Rule 12(b)(6), were entered in each
case. The plaintiffs timely appealed.
Standard of Review
“The sole function of a motion to dismiss is to test the sufficiency of the
complaint.” Benson v. McKee, 273 A.3d 121, 127 (R.I. 2022) (quoting Gannon v.
City of Pawtucket, 200 A.3d 1074, 1077 (R.I. 2019)). “When we review the grant
of a motion to dismiss pursuant to Rule 12(b)(6), we apply the same standard as the
hearing justice.” Id. (quoting Chase v. Nationwide Mutual Fire Insurance Company,
160 A.3d 970, 973 (R.I. 2017)). “A motion to dismiss may be granted only when it
is established beyond a reasonable doubt that a party would not be entitled to relief
from the defendant under any set of conceivable facts that could be proven in support
- 12 - of its claim.” Id. (quoting Chase, 160 A.3d at 973). This Court “ha[s] permitted a
statute-of-limitations defense to be raised by a motion to dismiss under Rule 12(b)(6)
—providing the alleged timing defect appears on the face of the complaint.” Martin
v. Howard, 784 A.2d 291, 297 (R.I. 2001).
“Under this standard, this Court confines its review to the four corners of the
complaint, assume[s] that the allegations set forth are true, and resolve[s] any doubts
in favor of the [complainant].” Benson, 273 A.3d at 127 (internal quotation marks
omitted). “There is, however, a narrow exception for documents the authenticity of
which are not disputed by the parties; for official public records; for documents
central to plaintiffs’ claim; or for documents sufficiently referred to in the
complaint.” Id. (quoting Chase, 160 A.3d at 973).
Analysis
Statutory Construction
The plaintiffs contend that the trial justice erred in dismissing their complaints
as time-barred after determining that defendants fell within the classification of
non-perpetrator, even if their conduct, as plaintiffs contend, would be subject to
criminal prosecution. “This Court reviews ‘questions of statutory interpretation de
novo.’” Epic Enterprises LLC v. Bard Group, LLC, 186 A.3d 587, 589 (R.I. 2018)
(quoting State v. Hazard, 68 A.3d 479, 485 (R.I. 2013)). “In matters of statutory
interpretation our ultimate goal is to give effect to the purpose of the act as intended
- 13 - by the Legislature.” Id. at 589-90 (quoting Webster v. Perotta, 774 A.2d 68, 75 (R.I.
2001)). “It is well settled that when the language of a statute is clear and
unambiguous, this Court must interpret the statute literally and must give the words
of the statute their plain and ordinary meanings.” Id. at 590 (quoting Alessi v. Bowen
Court Condominium, 44 A.3d 736, 740 (R.I. 2012)). When determining the intent
of the Legislature, “we consider the entire statute as a whole * * *.” Sorenson v.
Colibri Corp., 650 A.2d 125, 128 (R.I. 1994).
In accordance with § 9-1-51(a)(1)(i) and (ii), all claims against a perpetrator
defendant for injuries suffered as a result of sexual abuse must be brought within
thirty-five years of the alleged act, or within seven years from the time the victim
discovered, or reasonably should have discovered, that the injury was caused by the
act. See § 9-1-51(a)(1). The 2019 amendment allowed a new thirty-five-year statute
of limitations for claims pertaining to a perpetrator defendant to be applied
retroactively, that is, “any claim or cause of action based on conduct of sexual abuse
may be commenced within the time period enumerated in subsections (a)(1)(i) and
(a)(1)(ii) regardless if the claim was time-barred under previous version of the
general laws.” Section 9-1-51(a)(3), as amended by P.L. 2019, ch. 82, § 1; P.L. 2019,
ch. 83, § 1 (emphasis added).
- 14 - Conversely, claims against non-perpetrator defendants that were time-barred
under previous versions of the General Laws were not revived under the 2019
amendment to § 9-1-51. The relevant language is as follows:
“(2) All claims or causes of action brought against a non-perpetrator defendant by any person alleging negligent supervision of a person that sexually abused a minor, or that the non-perpetrator defendant’s conduct caused or contributed to the childhood sexual abuse by another person to include, but not be limited to, wrongful conduct, neglect or default in supervision, hiring, employment, training, monitoring, or failure to report and/or the concealment of sexual abuse of a child shall be commenced within the later to expire of:
“(i) Thirty-five (35) years of the act or acts alleged to have caused an injury or condition to the minor; or
“(ii) Seven (7) years from the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act.” Section 9-1-51(a)(2), as amended by P.L. 2019, ch. 82, § 1; P.L. 2019, ch. 83, § 1 (emphasis added).
As defined by the statute, the term sexual abuse is limited to “any act committed by
the defendant against a complainant who was less than eighteen (18) years of age at
the time of the act and which act would have been a criminal violation of chapter 37
of title 11.” Section 9-1-51(e) (emphasis added).
According to plaintiffs, because neither § 9-1-51(a)(1) or (2) provides an
explicit definition of a perpetrator or a non-perpetrator defendant, the language of
the statute must be viewed as ambiguous. Specifically, plaintiffs assert that the use - 15 - of the language “all claims” in both sections means that any tort claim could be
asserted against both a perpetrator and non-perpetrator defendant, except for failure
to report or professional negligence, thus rendering the distinction between the two
classes meaningless. The plaintiffs allege that the trial justice erred in dismissing
their complaints by unambiguously categorizing defendants as non-perpetrator
defendants, even though, plaintiffs contend, they could be found criminally
responsible for the sexual abuse committed by the offending priests. The plaintiffs
further argue that defendants are criminally responsible as perpetrators of the crimes
committed against plaintiffs, based on their own conduct. We disagree. Although
this Court recognizes and appreciates the pain and horror suffered by these plaintiffs
as innocent children, when the General Assembly amended § 9-1-51, the members
deliberately drew a clear dichotomy between perpetrator and non-perpetrator
defendants for retroactive application of the statute of limitations; its legislative
history gives rise to this conclusion.
It is well settled that when this Court examines the meaning of a statute,
“individual sections must be considered in the context of the entire statutory scheme,
not as if each section were independent of all other sections.” Sorenson, 650 A.2d at
128. Although § 9-1-51 does not define perpetrator, the statute sets forth a
nonexhaustive list of conduct pertaining to non-perpetrator defendants, which
comprise the very allegations made against these defendants. Non-perpetrator
- 16 - defendants are defendants accused of “negligent supervision of a person that
sexually abused a minor, or * * * [whose] conduct caused or contributed to the
childhood sexual abuse by another person * * *.” Section 9-1-51(a)(2) (emphasis
added). These acts include, but are not limited to, “wrongful conduct, neglect or
default in supervision, hiring, employment, training, monitoring, or failure to report
and/or the concealment of sexual abuse of a child * * *.” Id.
This Court has previously addressed the distinction between perpetrator and
non-perpetrator defendants regarding claims for childhood sexual abuse, most
notably in Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996). In Kelly, we were
confronted with the question of “whether claims for injuries resulting from the
sexual abuse of a minor [were] governed by G.L.1956 § 9-1-51, as amended by
P.L.1993, ch. 274, § 1 or G.L.1956 § 9-1-14(b) when those claims [were] asserted
against someone other than the alleged abuser.” Kelly, 678 A.2d at 875. Our decision
in Kelly rested on the definition of sexual abuse, which has remained unchanged. Id.
at 876. Childhood sexual abuse is conduct that falls within the provisions of chapter
37 of title 11 of the General Laws, entitled “Sexual Assault.”
In Kelly, this Court stated that when “read[ing] the definition [of sexual abuse]
contained in § 9-1-51(e) together with the main body of that statute, the rule that
emerges is that all actions brought pursuant to § 9-1-51 must be based on the
intentional conduct of ‘the’ defendant-perpetrator.” Kelly, 678 A.2d at 876.
- 17 - We acknowledged that “[a]lthough [§ 9-1-51] did not explicitly limit the
statute’s application only to perpetrator-defendants, the language used by the
General Assembly permits no other interpretation.” Kelly, 678 A.2d at 876. Thus,
perpetrators are limited to those accused of committing child sexual abuse. See id.
Significantly, in Kelly, this Court unequivocally declared that “the only intended
target of the legislation is the person who at the time of the abuse would have been
subject to criminal prosecution pursuant to chapter 37 of title 11 of our General
Laws.” Id. at 876 (emphasis added). That remains the law today.
In Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174 (R.I. 2008),
the plaintiffs’ complaint against many of these same defendants, which included
charges of criminal conduct, alleged, in part, concealing a felony; conspiracy; aiding
and abetting; intentional harm and misconduct; fraudulent concealment; and
intentional infliction of emotional distress. Ryan, 941 A.2d at 178 n.8. 5 Those claims
failed. Id. at 188. The alleged conduct of the hierarchal defendants did not classify
them as perpetrator defendants. Id. at 178.
Simply put, under § 9-1-51(a)(2), a non-perpetrator defendant is one who did
not engage in childhood sexual abuse as a principal or an aider and abettor, but one
whose wrongful conduct “caused or contributed to the childhood sexual abuse by
another person * * *.” Section 9-1-51(a)(2) (emphasis added). In the cases at bar,
5 Many of these same claims are asserted by plaintiffs in the cases at bar. - 18 - plaintiffs do not suggest that defendants engaged in the sexual abuse perpetrated by
the offending priests.6 The allegations made against these defendants, as in Kelly
and its progeny, are appalling, but the claims asserted fall squarely within
non-perpetrator conduct; there are no allegations of actual childhood sexual abuse
against these defendants, or of conduct that “actually aids and assists in the
commission of the criminal act to the degree that he or she would be subject to
prosecution under chapter 37 of title 11 as a principal.” Kelly, 678 A.2d at 876. We
therefore conclude that the trial justice properly found defendants to be
non-perpetrator defendants as designated by § 9-1-51.
Although plaintiffs argue that defendants can be classified as perpetrators and
rely on Kelly as support for this novel assertion, we reject these contentions.
According to plaintiffs, defendants could be found to have criminal liability for an
6 When drafting their complaints, plaintiffs mounted an “everything but the kitchen sink” pleadings approach, including more than thirty cumulative counts, spanning over four hundred pages of pleadings. The claims included allegations of (1) intentional misconduct (deliberately reassigning the offending priests, failing to remove or suspend, or otherwise stop them from pursuing sexual assaults on children); (2) intentional misconduct (breaching their duty of care and disregarding the rights and safety of plaintiffs by failing to warn or protect them from the offending priests under their supervision); (3) negligence in the hiring, supervision, and retention of the offending priests; (4) respondeat superior; (5) negligence for premises liability; (6) conspiracy to commit acts and violate plaintiffs’ rights; (7) fraudulent concealment/misrepresentation; (8) breach of fiduciary duty; (9) negligent infliction of emotional distress; (10) breach of duty in loco parentis; and (11) invasion of privacy. - 19 - offense, whether or not they were physically present when the crime was committed,
as either a coconspirator or an “accessory” to the offense. This simply is not the law.
The plaintiffs seize on the language in Kelly that states that an employer can
be considered a perpetrator if they “actually aid[] and assist[] in the commission of
the criminal act to the degree that he or she would be subject to prosecution under
chapter 37 of title 11 as a principal,” Kelly, 678 A.2d at 876, and argue that
defendants should be classified as perpetrators for “aiding and abetting” the
offending priests. The plaintiffs are incorrect. To be subject to prosecution under
chapter 37 of title 11, an offender must have actually committed the crime or be
guilty as an aider and abettor.
“Every person who shall aid, assist, abet, counsel, hire, command, or procure another to commit any crime or offense, shall be proceeded against as principal or as an accessory before the fact, according to the nature of the offense committed, and upon conviction shall suffer the like punishment as the principal offender is subject to by this title.” General Laws 1956 § 11-1-3.
To find that a party aided and abetted a principal, “the circumstances must
establish that a defendant ‘shared in the criminal intent of the principal and there
must be a community of unlawful purpose at the time the act is committed * * *
[and] assumes some participation in the criminal act in furtherance of the common
design * * *.’” State v. Gazerro, 420 A.2d 816, 828 (R.I. 1980) (emphasis added)
(quoting Johnson v. United States, 195 F.2d 673, 675 (8th Cir. 1952)).
- 20 - In order for defendants to be found to be aiders and abettors, the evidence
must establish that defendants knowingly, willfully, and intentionally sought,
through their conduct, to accomplish the sexual abuse of these children by these
priests. See United States v. O’Campo, 973 F.2d 1015, 1022 (1st Cir. 1992)
(defendant’s criminal liability for aiding and abetting was affirmed because he
“knowingly, willfully, and intentionally” assumed his role “to insure that the
distributive transaction of cocaine for money was fully consummated”). Assuming
the facts as alleged as true, there is nothing in the record before us that would lead
us to reach this conclusion. None of plaintiffs’ numerous allegations accuse
defendants of participating in the sexual abuse of these victims, nor assisting these
priests in accomplishing their goal of sexually molesting plaintiffs. It is clear that
the motivation of these defendants, although deplorable in its own right, was for
purely selfish, self-preservation purposes. We therefore conclude that defendants
cannot be found culpable as aiders and abettors.7
Other Criminal Allegations
We turn briefly to plaintiffs’ remaining arguments. The plaintiffs contend that
one could negligently fail to report child abuse, which could have the unintended
7 We pause to note that included in the allegations by plaintiff Edwardo was that he was physically beaten by another priest for withdrawing from his interactions with Magaldi. This other priest would certainly qualify as an aider and abettor as he sought to assist Magaldi in achieving his goal of his continued sexual assault of Edwardo. - 21 - effect of concealing it, but would not rise to the level of perpetrator, while,
conversely, one could undertake affirmative intentional conduct that could
categorize them as a perpetrator. We deem this argument unavailing. Section
9-1-51(a)(2) dictates that the acts that defendants are accused of committing is
non-perpetrator conduct. As set forth in § 9-1-51(a)(2), wrongful conduct including
supervision, monitoring, concealment, and failure to report child sexual abuse is
non-perpetrator conduct, even though it may violate Rhode Island’s penal code. The
General Assembly, with full knowledge that failure to report child sexual abuse is a
criminal act under the General Laws, designated this conduct as non-perpetrator.
Therefore, even if defendants’ actions constituted a violation of a criminal statute,
these defendants are non-perpetrators and the claims are time-barred.
Legislative History
This Court rejects plaintiffs’ contention that § 9-1-51 is ambiguous. And
indeed, were we to find ambiguity in § 9-1-51, its legislative history would prove
fatal to plaintiffs’ argument. When interpreting a statute, “we apply the meaning
most consistent with the intended policies and purposes of the Legislature” when the
meaning is unclear. Roe v. Gelineau, 794 A.2d 476, 484 (R.I. 2002). On January 23,
2019, House Bill No. 5171, the amendment to § 9-1-51 under review, was introduced
- 22 - in the General Assembly.8 This act, as originally drafted, would have extended the
statute of limitations for victims of childhood sexual abuse from seven years to
thirty-five years, while also extending the statute of limitations for conduct which
caused or contributed to childhood sexual abuse by others to thirty-five years. It
would have allowed claims against perpetrator and non-perpetrator defendants that
were previously time-barred to be brought within three years of the effective date of
the legislation. This proposed version of the statue was amended, and the provision
allowing for previously time-barred claims to be brought forward against
non-perpetrator defendants was removed.
The statute that is currently before us, enacted by the General Assembly, and
signed by the governor, markedly differs from the version first introduced.
Specifically, the amendment drew a clear distinction for claims against hierarchy
defendants as prospective only, which is the heart of this controversy. The act as
passed was limited to perpetrator defendants and allows for claims against
perpetrators within the newly extended statutes of limitations, regardless of whether
the claim had previously been time-barred. See § 9-1-51(a)(3). But the Legislature
did not allow complaints against non-perpetrator defendants to be resurrected. The
evolution of this legislation, from introduction to passage, convinces us that the
8 An identical companion bill, Senate Bill No. 315, was introduced in the General Assembly on February 13, 2019. - 23 - General Assembly deliberately and purposefully intended the revival of time-barred
claims against perpetrator defendants only. This is the law as it exists today.
The Discovery Rule
The plaintiffs next contend that this Court should abandon its holding in Kelly
and allow claims to go forward in cases in which defendants’ actions rise to the level
of criminality, even if they are time-barred. The plaintiffs argue that “this Court
should abandon that portion of Kelly * * * that is construed to carve out a per se rule
prohibiting delayed discovery, a fact-based claim, from proceeding in child sexual
abuse cases.” (Emphasis omitted.) The plaintiffs urge this Court to adopt a discovery
rule similar to our holding in Anthony v. Abbott Laboratories, 490 A.2d 43 (R.I.
1985), where we held that in actions involving drug-product liability, “the running
of the statute of limitations would begin when the person discovers, or with
reasonable diligence should have discovered, the wrongful conduct of the
manufacturer.” Anthony, 490 A.2d at 46.
In weighing this Court’s holding in Anthony against claims of childhood
sexual abuse in Kelly, we acknowledged that while “enforcement of claims
against perpetrator-defendants could be justified because those defendants would be
the persons directly responsible for any alleged repressed memories, neither that
policy reason, nor any other policy concerns, are strong enough to support judicial
application of the discovery rule to actions against nonperpetrator-defendants.”
- 24 - Kelly, 678 A.2d at 878. Our holding in Kelly has been reinforced by the recent
legislative history underlying the current version of § 9-1-51. It would be most
inappropriate for this Court to accomplish by judicial decree that which the General
Assembly refused to enact by statute. We therefore decline plaintiffs’ appeal to
abandon “this well-settled precedent.” Brochu v. Santis, 939 A.2d 449, 454 (R.I.
2008).
Equitable Estoppel
The plaintiffs next argue that the doctrine of equitable estoppel requires that
claims against defendants be allowed to proceed by virtue of defendants’ intentional
misconduct. “A defendant may be estopped from pleading the statute of limitations
on the ground that representations were made for the purpose of inducing the
plaintiff to rely thereon when the plaintiff did in fact so rely on the representations
to his [or her] injury.” Wolf v. S. H. Wintman Co., 92 R.I. 470, 473, 169 A.2d 903,
905 (1961). “Pursuant to the provisions of § 9-1-20, if a potential defendant
fraudulently conceals a cause of action from a potential plaintiff, the statute of
limitations is tolled until such time as the plaintiff discovers the existence of a cause
of action.” Ryan, 941 A.2d at 182. “In order to demonstrate that there has been
fraudulent concealment on the part of a defendant, a plaintiff must show: (1) that
the defendant made an actual misrepresentation of fact; and (2) that, in making such
misrepresentation, the defendant fraudulently concealed the existence of plaintiff’s
- 25 - causes of action.” Id. (citing Kelly v. Marcantonio, 187 F.3d 192, 200 (1st Cir.
1999)) (applying Rhode Island law). We have previously addressed this assertion.
In Ryan, we held that “the plaintiff must demonstrate that the defendant made
an ‘express representation or [engaged in] other affirmative conduct amounting in
fact to such a representation which could reasonably deceive another and induce
him [or her] to rely thereon to his [or her] disadvantage.’” Ryan, 941 A.2d at 182-83
(quoting Caianiello v. Shatkin, 78 R.I. 471, 476-77, 82 A.2d 826, 829 (1951)).
“Mere silence or inaction on the part of the defendant does not constitute actual
misrepresentation in this context.” Id. at 182. “The key consideration is whether or
not the defendant fraudulently misrepresented material facts, thereby misleading
the plaintiff into believing that no cause of action existed.” Id. at 183.
The plaintiffs in this case assert numerous accusations against defendants,
but there are no claims of actual misrepresentations of facts; nor were plaintiffs
convinced to believe that sexual assault did not occur; or that the offending priests
were not the persons who committed the sexual assault. Additionally, the
complaints fail to establish that these defendants made actual misrepresentations to
plaintiffs regarding potential civil claims. The plaintiffs have acknowledged that
they were aware of the sexual abuse perpetrated upon them by the offending priests
decades ago. We therefore conclude that the statute of limitations is not tolled under
- 26 - theories of equitable estoppel or fraudulent concealment but is counted among the
sins of silence committed by these defendants.
New York Claim
The plaintiffs allege that the trial justice erred in not addressing Edwardo’s
claim that defendants’ actions resulted in his sexual abuse by the offending priest in
the state of New York, in violation of that state’s laws.9 This Court has stated that a
party waives its alleged error of law if it “fail[s] to raise and develop it in its briefs,”
even if the issue was properly preserved in the trial court. McGarry v. Pielech, 108
A.3d 998, 1005 (R.I. 2015).
In their initial brief before this Court, plaintiffs declared, in a single sentence,
that the trial justice erred by not addressing the merits of the New York claim when
granting the motions to dismiss. The plaintiffs again asserted this contention in their
reply brief, arguing that the issues were properly preserved and should be remanded
to the Superior Court with instruction to address them on the merits as they were not
previously addressed by the trial court.
In Count XII of his amended complaint, Edwardo alleged that defendants’
intentional or negligent acts or omissions resulted in a violation of the New York
Child Victim’s Act. However, in Superior Court, plaintiffs’ objection to defendants’
9 New York C.P.L.R. § 214-g, which went into effect on February 14, 2019, revived previously time-barred claims of sexual abuse by persons who were under eighteen. - 27 - motions to dismiss consisted of a one-sentence footnote, and plaintiffs’
memorandum merely asserted that there was no question that liability as to
non-perpetrators has been revived under New York law.
“Generally, we deem an issue waived ‘when a party [s]imply stat[es] an issue
for appellate review, without a meaningful discussion thereof * * *.’” A. Salvati
Masonry Inc. v. Andreozzi, 151 A.3d 745, 750 (R.I. 2017) (quoting In re Jake G.,
126 A.3d 450, 458 (R.I. 2015)). In the cases at bar, plaintiffs provided scant
argument in their briefs as to why the New York claim should survive a motion to
dismiss.
Furthermore, at the hearing on the motions to dismiss, the trial justice inquired
whether plaintiffs were only proceeding on the interpretation of the word perpetrator
in the amended statute. The plaintiffs’ counsel affirmatively answered that the issue
before the court was the interpretation of the word perpetrator in the amended statute.
The plaintiffs’ counsel did not raise the issue of the New York claim at any point
during the hearing or at any time thereinafter.
This Court “ha[s] cautioned that a general objection is not sufficient to
preserve an issue for appellate review; rather, assignments of error must be set forth
with sufficient particularity to call the trial justice’s attention to the basis of the
objection.” Union Station Associates v. Rossi, 862 A.2d 185, 192 (R.I. 2004). The
failure of a specific objection, coupled with a failure to raise an issue during hearings
- 28 - will render an issue waived, unless the case “falls within the narrow exception to the
‘raise or waive rule’ * * *.” Id. Three factors must be satisfied in order for the
exception to apply:
“First, the error complained of must consist of more than harmless error. Second, the record must be sufficient to permit a determination of the issue. * * * Third, counsel’s failure to raise the issue at trial must be due to the fact that the issue is based upon a novel rule of law which counsel could not reasonably have known at the time of trial.” Shoucair v. Brown University, 917 A.2d 418, 428 (R.I. 2007) (quoting Harvey Realty v. Killingly Manor Condominium Association, 787 A.2d 465, 467 (R.I. 2001)).
In the cases at bar, plaintiffs failed to meaningfully develop their contention
that the New York claim should survive the motion and failed to address the issue at
the hearing or by way of postjudgment motions. The plaintiffs are asking the Court
to find error in a matter not fairly brought to the attention of the trial justice. There
is nothing in the record before us that would provide plaintiffs with an exception to
our long held “raise or waive rule.” We therefore conclude that that issue was not
properly preserved for review by this Court and decline to address it here.
Constitutional Claims
The trial justice declined to address defendants’ contention that § 9-1-51(a)(3)
violates article 1, section 2 of the Rhode Island Constitution for deprivation of
due-process protections because she found that the statute unambiguously
distinguished between perpetrator and non-perpetrator, and that plaintiffs’ claims - 29 - were not revived. The defendants ask us to opine nonetheless on issues of
constitutional significance.
We have long held that “[n]either this Court nor the Superior Court should
decide constitutional issues unless it is absolutely necessary to do so.” In re Brown,
903 A.2d 147, 151 (R.I. 2006). “When * * * fac[ing] a fork in the road, with one
turn that will require [this Court] to slog through the thicket of a constitutional issue
and the other offering a journey through more hospitable terrain, we routinely elect
to take the path of least resistance.” State v. Beaudoin, 137 A.3d 717, 726 (R.I. 2016).
In the cases at bar, because the trial justice granted the motions to dismiss the
plaintiffs’ claims as time-barred, it was unnecessary to address the constitutional
issues raised by the defendants. “[T]his Court ‘will not decide a constitutional
question raised on the record when it is clear that the case before it can be decided’
on other grounds such that the determination of the constitutional question is not
‘indispensably necessary for the disposition of the case.’” Amico’s Incorporated v.
Mattos, 789 A.2d 899, 909 (R.I. 2002) (quoting State v. Pascale, 86 R.I. 182, 185,
134 A.2d 149, 151 (1957)). We therefore decline to address the defendants’
contention that the revival of these claims against the defendants is prohibited by the
Rhode Island Constitution.
- 30 - Conclusion
For the reasons set forth in this opinion, we affirm the decision of the Superior
Court. The papers in this case may be returned to the Superior Court.
Justice Lynch Prata did not participate.
- 31 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Robert Houllahan v. Louis E. Gelineau et al.
Peter Cummings v. Louis E. Gelineau et al. Title of Case Philip Edwardo v. Roman Catholic Bishop of Providence et al. No. 2021-32-Appeal. (PC 20-2010) Case Number No. 2021-33-Appeal. (PC 19-10530) No. 2021-41-Appeal. (PC 19-9894)
Date Opinion Filed June 30, 2023
Justices Suttell, C.J., Goldberg, Robinson, and Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Netti C. Vogel
For Plaintiffs:
Timothy J. Conlon, Esq. Attorney(s) on Appeal For Defendants:
Howard Merten, Esq.
SU-CMS-02A (revised November 2022)