Maynard M. Kirpalani, Justice of the Superior Court
case concerns the alleged abuse of the plaintiffs, Paul
Andrews (" Andrews" ) and Daniel Sherwood ("
Sherwood" ), in the 1970s and 1980s by their parish
priest, Monsignor Maurice Souza (" Souza" ), who
has since passed away. The plaintiffs bring this action now
against the Most Reverend Daniel A. Cronin ("
Cronin" ), who was the bishop of the diocese when and
where the alleged abuse occurred. The matter is presently
before this court on Croninâs motion for summary judgment.
After a hearing and careful consideration of the materials
submitted, the motion is ALLOWED in part, and
DENIED, in part.
following facts are taken from the summary judgment record.
From 1970 until 1992, Cronin served as the bishop of the Fall
River diocese of the Catholic Church. As bishop, Cronin
governed the diocese, and had the authority and right to
manage it. In 1977, Cronin appointed Souza to be the pastor
of St. Anthonyâs church in East Falmouth. Souza remained at
St. Anthonyâs until his retirement in 1986. He passed away in
was an altar server at St. Anthonyâs from 1977, when he was
about nine years old, until approximately 1985. Andrews began
as an altar server at St. Anthonyâs in 1978 or 1979, when he
was nine or ten years old, until 1986. While they were altar
servers, Souza took the plaintiffs on numerous trips,
primarily to see sporting events, in Boston and around the
country. The out-of-state trips included yearly two-week
trips to Florida, yearly trips to New Hampshire, an extended
trip to the west coast, and trips to Canada, Wisconsin, New
York, Kansas City, and Hartford. Souza and the plaintiffs
would stay at hotels overnight. As a matter of routine each
morning during these trips, Souza would sexually molest the
this period, the plaintiffs also spent a significant amount
of time at the rectory where Souza and an associate pastor,
John Ozug (" Ozug" ), resided. Even though church
rules prohibited laypersons, such as the plaintiffs, from
" residing" in the rectory without the bishopâs
permission, the plaintiffs would often go there to watch
sporting events on television. Sherwood also would stay
overnight when he and Souza had a trip planned for the next
morning. Andrews also recalls staying overnight at the
rectory on one occasion. The abuse occurred at the rectory in
the same manner as at the hotels. Ozug never witnessed any
abuse, but saw the plaintiffs there, and knew that Sherwood
had stayed overnight. Ozug never reported those occurrences
as well as two other priests who had assisted him while he
was bishop of the Fall River diocese, John Harrington ("
Harrington" ) and John Oliveira (" Oliveira"
), each testified at their depositions that they had never
received notice that Souza was taking extended overnight
trips with the plaintiffs or other young boys, despite a
church rule in effect during the relevant period providing
that " [a] priestâs annual vacation is three weeks; he
is also to have a day to himself weekly and an overnight
every other week." Neither, according to these priests,
did they know that the plaintiffs had been staying at the
rectory, or that Souza had been, or had a history of
molesting boys. They, accordingly, never investigated Souza,
or inquired about what had been going on at St. Anthonyâs.
Cronin avers, however, that had he known about Souzaâs sexual
misconduct, he would have removed him from active ministry.
their depositions, Cronin, Harrington, and Oliveira were
presented with two letters concerning Souzaâs interactions
with parishioners regarding the cemetery at St. Anthonyâs.
The letters, sent to Cronin in September and October 1979,
inform him of Souzaâs " inept" handling of a
cemetery expansion, such that the recently-laid graves of
their loved ones were plowed over without their knowledge. In
one of the letters, Mrs. Lawrence D. Farias ("
Farias" ), writes that Souza " yelled and screamed
at me in an uncontrollable rage" when she approached him
about it, and asked her " whatâs this got to do with
me?" She concluded that " [i]n [her] estimation,
after seeing Father Souza act and talk the way he did, he is
incompetent to be a pastor of any parish." Souza also
wrote to Cronin about the matter, denying that he had treated
anyone insensitively, and informing him, as to the subject of
the other letter, that " Mrs. Rose died at precisely the
wrong time for our cemetery expansion" and " Mr.
Rose found another opportunity to clobber the church and
priest once again." While Cronin has no present
recollection of the letters, a note indicates that "
Bishop telephoned Msgr. Souza from Chancery on Sept. 17th and
placed him at ease." A letter from Oliveira informs
Farias that the matter " will be looked into." None
of the priests deposed recall whether or how the matter was
Harrington, and Oliveira also were shown records from Souzaâs
time at the seminary. The records indicate that Souza
abruptly took a leave of absence because he was in a "
melancholy state of mind" before returning to complete
his education. None of these priests recollect ever having
seen these records, or having reviewed them during Souzaâs
tenure at St. Anthonyâs. Cronin, Harrington, and Ozug all
testified that they had a good opinion of Souza at the time
the abuse is alleged to have occurred.
addition to testimonial and documentary evidence, the summary
judgment record also includes the report of Thomas Doyle
(" Doyle" ), a priest familiar with the laws and
practices of the Catholic Church and with clergy sex abuse
cases. Doyle opines that the " excessive amount of time
[Souza] took as time off in order to travel around with the
plaintiffs and other boys" is " highly
unusual" and " should have triggered inquiries from
[Cronin]." Doyle also opines that the two letters, which
describe violations of gravesites, something " highly
irregular and insensitive," also should have triggered
plaintiffs commenced this action on June 5, 2015. The
complaint states claims for: negligent hiring, retention,
direction, and supervision (Counts 1 and 3) and breach of
fiduciary duty (Counts 2 and 4). Cronin moves for summary
judgment on all counts. Further facts will be set forth as
prevail on a motion for summary judgment, the moving party
bears the burden of " show[ing] that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law" based on the
undisputed facts. Mass.R.Civ.P. 56(c). See Augat, Inc. v.
Liberty Mut. Ins. Co.,410 Mass. 117, 120 (1991). In
considering a motion for summary judgment, the court views
the evidence and draws all reasonable inferences in the light
most favorable to the nonmoving party. Currier v.
National Bd. of Med. Examârs,462 Mass. 1, 11 (2012).
" Ordinarily, summary judgment is not an appropriate
means to resolve claims of negligence because the question is
usually one of fact ... However, a judge may decide the issue
as a matter ...