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  Appeals Court Dismisses Priest Sex Abuse Case

By Bill Dries
The Daily News
September 17, 2008

http://www.memphisdailynews.com/editorial/Article.aspx?id=38610

A 2006 lawsuit against the Catholic Diocese of Memphis alleging sexual abuse by a Memphis priest was dismissed Tuesday by the Tennessee Court of Appeals.

The court ruled in the case of a man who claimed that Father Daniel DuPree sexually abused him while the man was a teenager in Memphis during the mid-1980s.

The ruling reverses an April 2007 decision by Shelby County Circuit Court Judge Robert Childers, who denied a motion by the diocese to dismiss the lawsuit. The church contended the statute of limitations had already passed for a civil claim. Childers disagreed and the church appealed his ruling.

Attorney Gary K. Smith, representing the unidentified plaintiff, told The Daily News he immediately would file a motion asking the Tennessee Supreme Court to review the ruling and hear the case on appeal.

The man, who filed the John Doe lawsuit, did not sue DuPree. He sued the Diocese of Memphis, claiming local Catholic church leaders knew DuPree was a danger to children and had sexually abused other children.

The abuse allegedly began in 1985 during a trip the then-16-year-old boy took with DuPree to Texas to visit DuPree's family. DuPree was a priest at Church of The Resurrection at the time. The abuse allegedly continued while DuPree was a chaplain and guidance counselor at Christian Brothers High School. The boy was a student there.

"The conduct alleged in Doe's complaint constitutes an invidious breach of the relationship of a parishioner with his priest and his church," Appeals Court Judge Holly Kirby of Memphis wrote in the opinion. "We are obligated, however, to examine dispassionately the timeliness of Doe's claims, respecting the important function of statutes of limitation in ensuring the prompt prosecution of claims and fairness to all parties."

Since John Doe wasn't claiming repressed memories of abuse, the Appeals Court considered whether his 2006 claim was timely 19 years after he became an adult.

The clock on the statute of limitations began ticking when the man turned 18 in February 1987 and ran out a year later, according to Tuesday's ruling.

Smith said the ruling could have a broader effect on similar claims involving other Memphis priests.

"Today's opinion by the court of appeals adversely impacts all victims of past priest abuse first harmed by the trusted cleric and then the diocese," Smith told The Daily News. "Now the Court of Appeals has closed the door on any relief these victims could pursue. The Court of Appeals says the victim, in effect, must assume the church is involved in these sex crimes and then at age 18 ask the church if they are involved in these sex crimes and then expect the church to be truthful and admit its involvement."

The 2006 lawsuit against the Diocese of Memphis alleges Catholic church leaders in Memphis knew or should have known that the Rev. Daniel DuPree was a danger and had sexually abused other children.

For purposes of the legal argument, the diocese did not deny or confirm the claim.

But the court held that John Doe did not take the steps he should have taken to determine whether the church should have known DuPree was a danger.

"Had the diocese been asked about Father DuPree's prior offenses in 1987, we cannot know whether the diocese would have been forthcoming in response to such inquiries," the opinion reads. "But the tolling theories relied upon by Doe are only available to a plaintiff who has exercised reasonable diligence."

Smith countered that because children were taught by the church that priests are authority figures, it was not reasonable to expect his client to challenge that.

"The church was all about cover up and protecting the pedophile priest," Smith said. "Under this ruling, they get immunity for their misdeeds that have wrecked so many lives."

There are three theories involved in the claim:

* Discovery: An injury is discovered but the source remains hidden.

* Fraudulent Concealment: Memphis Diocesan officials knew and concealed DuPree's alleged abuse of other juveniles. The Appeals Court ruling said, based on other court rulings, that making the case for concealment requires an effort by the plaintiff.

* "Doe knew that Father DuPree was a priest of the Diocese, obligating him to determine, as with any employer whose employee has injured a third party, whether the church shouldered some responsibility for the misconduct of its priest," the Appeals Court ruled.

* Equitable Estoppel: Did John Doe have "the means of knowledge of the truth as to the facts in question" when he turned 18? The Appeals Court ruled he did.
 
 
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