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Honorable Timothy A. Bradshaw
Hearing Date/Time: October 7, 2016, 1 p.m.
With Oral Argument

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SUPERIOR COURT OF WASHINGTON
FOR KING COUNTY

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A.W.,

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No. 15-2-19425-9 SEA

Plaintiff,

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V.

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CORPORATION OF THE CATHOLIC
ARCHBISHOP OF SEATTLE, a sole
corporation,

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Defendant.

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I. RELIEF REQUESTED

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DEFENDANT CATHOLIC
ARCHBISHOP'S MOTION FOR
SUMMARY JUDGMENT

Defendant Catholic Archbishop of Seattle (Archdiocese) respectfully requests summary
judgment in favor of the Archdiocese against all of Plaintiff A.W.'s claims. Plaintiffs claims
arise out of allegations of sexual abuse by a school janitor at St. John's school in the
Greenwood area of Seattle in 1983. However, Plaintiffs claims should be dismissed.

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First, Plaintiff was not in the custody of St. John's at the time of the alleged abuse. The

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school year had ended, and Plaintiff had been returned to the custody of her parents. While

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Plaintiff alleges that the abuse occurred on school grounds, there is no evidence to suggest that

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Plaintiff was participating in a school sanctioned activity. Second, the individuals who were

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part of the administrative staff at St. John's have since passed away, as has the janitor himself.

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In addition, any records regarding the janitor, whether previously held by St. John's or held by
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 1
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

any authority such as Child Protective Services ("CPS") or the Department of Social and

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Health Services ("DSHS"), are no longer available. Accordingly, Plaintiff lacks information

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necessary to sustain her claim. Given this lack of information, Plaintiff can only speculate, and

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such speculation is not sufficient to survive Plaintiffs burden on summary judgment.

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In addition, Plaintiffs delay has severely prejudiced the Archdiocese's ability to raise a

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defense. Given the death of those who would likely have reported, and the destruction of CPS

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or DSHS records, Defendant has lost the ability to refute Plaintiffs bald assertions.

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Accordingly, the doctrine of laches serves as a bar to Plaintiffs claims.
Lastly, Plaintiffs claims are also barred by the statute of limitations. While Plaintiff

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may attempt to explain away the known facts by alleging that she did not realize the full impact
of the abuse, it is clear from her own testimony that she connected the abuse with her alleged
damages as early as her S1'1 grade year. Therefore, the Archdiocese request this Court enter an
order dismissing Plaintiffs claims with prejudice.

II. STATEMENT OF FACTS

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Alleged Abuse

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Over 33 years ago, on June 10, 1983, Charles Siddons, a janitor at St. John School,

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abused A.W., a student, when school was closed after the final day of the school year. Decl. of
Michael A. Patterson, Ex. A, A.W. Dep., 77:24-78:24; id. at Ex. B, Seattle Police Dept. Report,
p. 1. In the days approaching the abuse, Siddons asked A.W. if she would help him change the
locks at the school once school let out. Id. at Ex. A, A.W. Dep. at 78:25-79:6. The day prior to
the alleged abuse, Siddons approached Rose Morris, A.W.'s mother, who worked for St. John's
as the Parish Secretary. Id. at Ex. B, Seattle Police Dept. Report, p. II1. Ms. Morris gave
A.W. permission to work with Siddons after school let out at 10 a.m. and agreed to let Siddons
give A.W. a ride home afterwards. Id. Ms. Morris testified that she was aware this particular

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This is the statement of Rose Morris, as indicated by the signature at the end of the document.
PATTERSON BUCHANAN
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOBES & LEITCH, INC., P.S.
FOR SUMMARY JUDGMENT - 2
528679

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

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project was to occur after the school year had ended, and she thought nothing of it at the time.

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Id. at Ex. C, Morris Dep., 101:10-16.

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On the day of the abuse, Ms. Morris also gave Siddons permission for A.W. to

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accompany him to pick up filters for his fish. Id. at Ex. B, Seattle Police Dept. Report, p. 11.

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According to Ms. Morris and Christine Geddis, A.W.'s sister, helping Siddons after school did

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not happen on a regular basis. Id. at Ex. C, Morris Dep., 101:7-16 and 101:21-102:3; see also

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id. at Ex. D, Geddis Dep., 73:6-11.
A.W. stated in a police report that at some point in the afternoon after taking a lunch

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break, Siddons abused her by fondling her chest, legs, and vagina. Id. at Ex. B, Seattle Police
Dept. Report, p. 9-10. All of the faculty at the school were gone during the time that the abuse
occurred. Id. at Ex. A., A.W. Dep., 81:24-82:1. No one saw her at the office. Id. at 78:13-24;
81:24-82:1. No teachers were on the school grounds at the time because they were meeting up
at around 1:30 p.m. for an event they called "St. Margaret's Day." Id. at Ex. E, Desclos Dep.,
31:23-32:21. On the last day of school, teachers would meet for lunch to end the school year
with awards in a social setting. Id. Students were not expected to be at school at this point, for
school would have let out hours before, at 10:00 a.m. Id.

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With regard to her ability to remember the details of the abuse, A.W. testified, "I
remember up to a certain point, and then the memory goes away." Id. at Ex. A., A.W. Dep. at
82:7-8; see id. at 88:4-5. Plaintiff testified that three or four years after the abuse when she was
learning about sexual intercourse in eighth grade, she realized that Siddons had forced sexual
intercourse on her in addition to the fondling. Id. at 86: 11-21. She testified that when she
made the realization about the sexual intercourse, she experienced a strong emotional reaction,
and at this point understood what had happened to her. Id.', see also id. at 100:18-25. She also

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testified that she believed the intercourse had occurred because when she had her first

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consensual sexual experience at age 19, she panicked. Id. at 101:1-4.

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DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 3
528679

.

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

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On the same day of her abuse, A.W. reported to her parents what had happened. Id. at

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Ex. B, Seattle Police Dept. Report, p. 11. Ms. Morris contacted the police and Father Boyle,

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who then fired Siddons. Id. at Ex. C, Morris Dep. at 88:20-21. R.D. Reith of the Seattle Police

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Department took A.W.'s statement on June 14, 1983. See id. at Ex. B, Seattle Police Dept.

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Report, pp. 9-10. He is now dead. See id. at Ex. L, Washington State Archives. On June 21,

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1983, Siddons was arrested. Id. at Ex. B, Seattle Police Dept. Report, p. 6. Siddons gave a

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statement acknowledging that he had fondled A.W.'s chest, and put his hand in her pants and

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fondled her vaginal area. Id. at p. 8.

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Plaintiff alleges that prior to A.W.'s abuse, the Archdiocese was aware that another

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Plaintiffs Allegations of Other Abuse

student at St. John School was sexually abused by Siddons. Complaint, f 4.3. Plaintiff and the
Archdiocese have access to only limited evidence regarding this complaint. Parties can only
rely on the testimony of Mya Thomas (a friend of A.W. and a plaintiff in a separate lawsuit
against the Archdiocese) and Delores Thomas, Mya Thomas' mother, because Doug Arthur,
Father Boyle, Pauline Haslam, and Siddons, are all dead. See id. at Ex. E, Desclos Dep., 28:1430:1.

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Mya Thomas testified that before A.W.'s incident, she had reported her own abuse by
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Siddons to Mr. Arthur, the principal of St.. John's at the time, and Pauline Haslam, the school
secretary when she was in third grade. Id. at Ex. F, Mya Thomas Dep., 20:14-21:4. Mya
Thomas had transferred to the school and did not like St. Johns. Id. at Ex. G, Delores Thomas
Dep. at 33:24-34:6. Mya Thomas was progressively complaining about the school as time
wore on. Id. at 34:13-35:24. Mya Thomas alleges that when she met with Mr. Arthur with her
mother, Mr. Arthur did not believe that any abuse had occurred. Id. at Ex. F., Mya Thomas
Dep., 21:5-8. After this meeting, her mother would go back to school to report subsequent
abuse by Siddons, where she would be told that "they looked into it." Id. at 22:2-6.

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DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 4
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

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Because of the passage of time and the death of key witnesses, the Archdiocese cannot

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provide evidence of Mr. Arthur's actions following the report by Mya Thomas. This is not due

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to the fact that Mr. Arthur failed to act. Rather, it is due to the passage of time and the death of

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key witnesses. Staff and administrators who are still alive when Mya Thomas allegedly

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reported are Jodi Desclos and Kate Brune2, both of whom do not have personal knowledge as

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to actions that Doug Arthur may or may not have taken with regards to Siddons in light of any

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accusations. See id. at Ex. E, Desclos Dep., 29:11-14, 30:19-31:7. Neither Dan Sherman, the

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principal who took over after Doug Arthur in 1984, nor Father Picton, who was assigned to St.

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John's in 1985, have any personal knowledge because they arrived after Mya Thomas made

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any allegations. See id. at Ex. H, Sherman Dep., 9:14-25; see also id. at Ex. I, Picton Dep.
16:10-12. Furthermore, Father Picton stated that he had no knowledge of personnel issues
between 1981 and 1985, and those who would know about Father Boyle's responsibilities are
dead.

Id. at Ex. I, Picton Dep., 63:23-64:24. Finally, there is no remaining evidence that

determines whether Doug Arthur failed to report Mya Thomas' allegations to Child Protective
Services or law enforcement. Reports relating to claims of child abuse are expunged after 6
years if they were unfounded, and 35 years if they were determined to be credible. Id. at Ex. J.

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Department of Social and Health Services Records Retention Schedule, p. 68. As testified by
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Mya Thomas, she reported her alleged abuse when she was in third grade, which would be in
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the 1980-1981 timeframe, more than 35 years ago.
20:14-24.

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Impact of the Abuse

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See id. at Ex. F, Mya Thomas Dep. at

Plaintiff appears to have connected the alleged abuse to various issues in her life.
Plaintiff testified that she experienced a strong emotional reaction in eighth grade when she
came to the realization that Siddons had forced sexual intercourse upon her. Id. at Ex. A., A.W.

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Kate Brune's deposition was taken on September 2, 2016. We have not yet received the deposition transcript,
but it will be presented to the court before the court hears the motion.
PATTERSON BUCHANAN
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOBES & LEITCH, INC., P.S.
FOR SUMMARY JUDGMENT - 5
2

528679

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

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Dep., 100:18-25. Plaintiff also connected the alleged abuse to her desire to not want children.

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Id. at 16:5-16.

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connected her damages with the abuse as far back as 2004. Id. at Ex. K, Denise Jones Dep.,

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7:9-21, 20:19-20, 46:23-47:14, 51:5-8. Ms. Jones also testified that in 2004, Plaintiff discussed

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how her drive to overcome her abuse "permeates every area of her life." Id. at 51:9-52:6. In

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2006, Plaintiff also described the ways that being held back and attending St. John's following

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the abuse impacted her life. Id. at 58:11-62:7. Ms. Jones also testified that Angela was also

Plaintiffs best friend of 17 years, Denise Jones, also testified that A.W.

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previously aware of her injuries associated with the abuse, but delayed discussing them until a

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point when her mother was able to participate. Id. at 105:17-106:5. Between 1999 and 2004,

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A.W. appeared to be discussing how Ms. Jones dealt with her own sexual abuse as a way of
dealing with her own abuse. Id. at 109:12-115:14.
Furthermore, A.W. saw a counselor, whose name is forgotten, a couple years after the

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abuse due to Ms. Morris' concerns with A.W.'s performance in school. Id. at Ex. A, A.W.
Dep., 167:1-3, 12-17; id. at Ex. C, Morris Dep., 142:23-143:5. To determine A.W.'s alleged
behavioral changes, Ms. Morris believes that she may have told the counselor about A.W.'s
abuse by Siddons. Id. at 150:19-24, 169:5-13.

III. STATEMENT OF ISSUES

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1. Whether the Archdiocese can be found negligent when Plaintiffs injuries were caused by
an intentional actor after school was closed when all teachers were gone, for an activity
that was not sanctioned by or related to the Archdiocese, and Plaintiffs mother explicitly
provided permission for Plaintiff to spend time with the intentional actor after school.
2. Whether Plaintiff can establish a claim for outrage where she does not have any evidence
to support the alleged acts she alleges satisfy her claim for outrage.

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3. Whether the claims against the Archdiocese should be dismissed based upon the doctrine
of laches where the Plaintiff knew the facts of her claim for at least 28 years, and the
delay in bringing the claim prevents the Archdiocese from bringing a complete defense.

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DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 6
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

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4. Whether the statute of limitations applies to Plaintiffs claims where Plaintiff admitted
that she understood the meaning of what had happened to her as early as eighth grade and
she experiences a panic attach when engaging in a sexual encounter at the age of 19.

IV. EVIDENCE RELIED UPON

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1. Pleadings and files herein.

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2. Declaration of Michael A. Patterson, with attached exhibits.

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3. Relevant legal authority.

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V. AUTHORITY

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A. Summary Judgment Standards
Summary judgment is granted where there are no genuine issues of material fact and

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the moving party is entitled to judgment as a matter of law. CR 56(c). "A material fact is one

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that affects the outcome of the litigation." Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d

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780, 789, 108 P.3d 1220 (2005). "Questions of fact may be determined as a matter of law

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'when reasonable minds could reach but one conclusion.'" Id. at 788 (quoting Hartley v. State,

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103 Wn.2d 768, 775, 698 P.2d 77 (1985)). When considering a summary judgment motion,
the court must construe all facts and reasonable inferences in the light most favorable to the

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nonmoving party. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
A plaintiff cannot survive summary judgment by relying on speculation, hearsay, or

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conclusory argumentative assertions that unresolved factual issues might remain.

Lynn v.

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Labor Ready, Inc., 136 Wn. App. 295, 306, 151 P.3d 201 (2006). They must instead set forth

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specific facts that sufficiently rebut the moving party's contentions and disclose that a genuine

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issue as to a material fact exists. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1,

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13,721 P.2d 1 (1986).

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DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 7
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

B. Liability for The Acts of Third Parties is Disfavored and Limited
Under Washington law, liability for the acts of a third-party is generally disfavored,

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where a person has no duty to prevent a third-party from causing injury to another. However, a
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duty to protect another from harm by a third-person may arise when the defendant has a special
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relationship with the tortfeasor and the plaintiff. C.J. C. v. Corp. of the Catholic Bishop of
Yakima, 138 Wn.2d 699, 721, 985 P.2d 262 (1999) (citing, inter alia, Niece v. Elmview Group
Home, 131 Wn.2d 39, 43, 929 P.2d 420 (1997)).

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Under C.J. C. v. Corp. of the Catholic Bishop of Yakima, four factors are used to show
the existence of a legal duty:

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(1) the special relationship between the Church and [the abuser]; (2) the special
relationship between the Church and the plaintiff; (3) the alleged knowledge of the risk
of harm possessed by the Church; and (4) the alleged causal connection between [the
abuser's] position in the Church and the resulting harm."

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C.J.C., 138 Wn.2d 699, 721, 985 P.2d 262 (1999) (citing, inter alia, Niece v. Elmview Group

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Home, 131 Wn.2d 39, 43, 929 P.2d 420 (1997)).

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employee/agent was modified by the Court in N.K. v. Corp. of the Presiding Bishop of the

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Church of Jesus Christ ofLatter-Day Saints, et al, 175 Wn. App. 517, 307 P.3d 730 (2013).

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The analysis for sexual abuse by an

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C.J.C., together with N.K., hold that defendant may only owe a duty under one of two

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situations: either; (a) custody and care where the type of harm suffered was foreseeable; or (b)

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association occasioned by employment wherein the dangerous propensities of the employee

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were known and the victim was foreseeable. In either case of a duty owed under a theory of

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custody or knowledge of dangerous propensities, it is still required that a plaintiff show that a

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defendant's actions in protecting the alleged victim were unreasonable.
Here, the Plaintiff was not in the Archdiocese's custody and control at the time of

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abuse.

Moreover, irrespective of whether or not the Archdiocese was aware of Siddons

dangerous propensities, there is no evidence that Plaintiff was a foreseeable victim.

In

addition, Plaintiff cannot sustain her burden to show that the Archdiocese actions were
unreasonable.
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 8
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

The Archdiocese is Not Liable to Plaintiff as it did Not Have Custody of
Plaintiff at the Time of the Abuse.

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Plaintiff alleges that the Archdiocese was negligent in that it failed its "duty to take

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reasonable steps to protect A.W. from foreseeable harm while she was in its custody and care."

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See Plaintiff s Complaint. This claim is not supported under the facts and the law. A custodial

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relationship typically involves "on the ground control of day to day operations." N.K. v. Corp.

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of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, et al, 175 Wn.

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App. 517, 535, 307 P.3d 730 (2013).

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It is also well settled that a school district has a special relationship with students as a

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result of its role as a substitute parent. Christensen v. Royal Sch. Dist No. 160, 156 Wn.2d 62,
Because a child is compelled to attend school, "the protective

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70, 124 P.3d 283 (2005).

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custody of teachers is mandatorily substituted for that of the parent." McLeod, 42 Wn.2d at

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319; Niece, 131 Wn.2d at 44 ("The rationale for such a duty [is] the placement of the student in
the care of the defendant with the resulting loss of the student's ability to protect himself or
herself."); RESTATEMENT, supra, § 320 cmt. b ("[A] child while in school is deprived of the
protection of his parents or guardian. Therefore, the actor who takes custody of ... a child is
properly required to give him the protection which the custody or the manner in which it is
taken has deprived him."). There is a logical break at the point when a child is returned to the
custody of a parent, thereby extinguishing any liability on behalf of the school.
Lack of custody is supported in the holdings and reasoning applied in Scott v. Blanchet

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High School, 50 Wn.App. 37 (1987). In Scott, the plaintiffs sought damages relating to injuries
their daughter suffered from sexual abuse by a teacher. Id. at 38. The principal had heard
rumors that the plaintiffs' daughter and a teacher were in a sexual relationship. Id. at 40. The
principal met with the plaintiffs' daughter who denied the rumors were true. The principal also
met with the alleged abuser, who also denied the rumors, but later confessed to another teacher
that he had lied to the principal. Id. at 40-41. The plaintiffs then brought a negligent hiring and
supervision claim against the school after their daughter ran away with her teacher.
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 9
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

The

1

plaintiffs had alleged that the sexual activities with their daughter occurred within the context

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of counseling with the teacher, and the court concluded that these activities occurred outside

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the classroom. Id. at 41-42.

The court in Scott held the school had a duty to exercise ordinary care and supervision

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of its teachers. However, the school did not breach that duty. The court in Scott held that if a

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breach occurred, during counseling sessions, it was outside the scope of the school's duty. Id.

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at 44. The court found that plaintiffs lacked any evidence to support assumptions that any
after-hours counseling was authorized or encouraged by the school.

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The court

further held that at some point, the event is so distant in time and place that the responsibility
for adequate supervision is with the parents rather than the school. Id. The Scott court found
that the plaintiffs' arguments regarding duty to supervise students and teachers had failed in
that the responsibility at the time of the alleged activities had shifted away from the school. Id.
at 45.
This position is further supported in persuasive and informative cases like Rambo v.

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Id, at 42.

Webster Parish School Bd., 745 So.2d 770 (La. 1999). In Rambo v. Webster Parish School
Bd., plaintiff brought a claim against a school district based upon allegations of sexual abuse at
a high school near an elementary school bus stop. Rambo, 745 So.2d at 771-772. Plaintiff
alleged he was sexually assaulted by a high school janitor in the janitor's washroom.

Id.

Plaintiff was on the campus of the high school while waiting for a bus to take him to his
elementary school. Id. The janitor later entered a guilty plea for his conduct, and the victim
sued alleging negligent supervision.

Id.

The court held that there is generally no duty to

supervise the school grounds after school hours or during the summer. Id. at 772. The court
further held that while there was a limited duty to supervise children who are waiting on the
grounds for a school bus, the supervision that was in place was adequate. Id.

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The issues in Scott and Rambo bear a resemblance to the current matter. Here, the

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abuse occurred after school hours, and after the end of the school year, and at a time when
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 10
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

A.W. was not engaged in a school sanctioned activity. Rather, one day prior to the alleged

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abuse, Siddons asked Rose Morris for permission for A.W. to help him change the locks after

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school was out. On the day of the alleged abuse, when Siddons called Ms. Morris asking for

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permission to have A.W. accompany him to pick up filters, she gave him permission again.

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There is no evidence that this sort of activity was allowed by the administration at St. John's,

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While A.W. and her sister would stay after school sometimes because of their mother's job at

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the Parish offices, id. at Ex. C., Morris Dep., 100:14-22, A.W. did not help Siddons on a

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regular basis, id., 101:10-16 and 101:21-102:3.
The alleged abuse also occurred at a time when students were not expected to be at

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school. At the time of the alleged abuse, there were no teachers on the school grounds because
it was "St. Margaret's Day." After packing up, all of the teachers would meet up for lunch
together to end the school year with awards in a social setting. Id. at Ex. E, Desclos Dep.,
31:23-32:21. Students were not expected to be at school at this point, for school would have let
out hours before at 10 am. Id. As such, the Archdiocese did not have a custodial relationship
with the Plaintiff at the time of the abuse by the intentional actor. Moreover, as testified by
Plaintiff, no one saw her in Siddons office.

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In sum, Plaintiff has no evidence that her after-school work with Siddons was
sanctioned by St. John's. Furthermore, Plaintiff had been returned to the custody of her mother
who then allowed her to spend time with Siddons after the school year had ended and the
school had closed. Accordingly, St. John's did not owe any duty to Plaintiff as she was not in
thf*
r»iictr\r1v at thf* tim^ rvf
ito
x. vxx^s
j. Vh-? v v* v vy v*- j wv vxxv vxxxxv

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The Archdiocese Does Not Owe a Duty Based on the Mere Allegation of
Knowledge of Prior Misconduct of a School Janitor

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Plaintiff alleges that the Archdiocese also breached its duty to take reasonable steps to

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prevent Charles Siddons from harming A.W. to the extent it knew or should have known that

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Siddons posed a danger to A.W. See Plaintiffs Complaint at If 5.2. Plaintiff alleges that the
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 11
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

Archdiocese breached that duty by "allowing A.W. to be sexually abused despite the fact that it

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knew or should have known of that danger." Id. at ^ 5.3. However, evidence regarding the

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Archdiocese's knowledge of Siddons acts prior to A.W.'s abuse, and any actions they may

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have taken in response to that knowledge' are no longer available. Accordingly, there is no

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information available for the jury to determine whether the Archdiocese's failed to act

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reasonably, and therefore breached any duty. Therefore, Plaintiff lacks sufficient evidence to

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support her claim, absent application of the doctrine of res ipsa loquitor, or strict liability.
Both of which are inapplicable to the current matter.
a.

9
10

Plaintiff Lacks Evidence to Support her Claim that the
Archdiocese Breached any Duty.

Regardless of whether a duty is owed to Plaintiff under the duty to control or the duty to

11

protect, Plaintiff must still prove that the Archdiocese breached a duty of "reasonable care," or

12

to take reasonable precautions to protect others. C.J.C. 138 Wn. 2d at 722; Niece, 131 Wn.2d

13

at 45-46. In turn, the defendant may defend a claim by providing evidence of reasonableness in

14

response to a known or foreseeable danger.

15

principles of proximate cause. As discussed below, Plaintiff is unable to meet her burden of

16

proof to support her claim. There exists a void of information in this matter due to the death of

17

key individuals and the destruction of DSHS records.

This can also be explained further under the

18

A school, such as St. John's, is liable only if its breach of a duty was a proximate cause

19

of a plaintiff s injuries. Travis v. Bohannon, 128 Wn. App. 231, 240, 115 P. 3d 342 (2005).

20

Proximate cause has two elements: (1) Cause in fact, and (2) legal causation. Lowman v.

21

Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013). Cause in fact or "but for" causation refers

22

to the "physical connection between an act and an injury." Hartley v. State, 103 Wn.2d 768,

23

778, 698 P. 2d 77 (1985). Legal causation is a question of law, and is grounded in policy

24

considerations as to how far the consequences of a defendant's action should extend. Lynn v.

25

Labor Ready, Inc. 136 WN. App. 295, 311, 151 P.3d 201 (2007); Lowman, 178 Wn.2d at 169.
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 12
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle. WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

For example, a school does not owe a duty as a matter of law to a student when the

2

nexus between the harm and the school district's alleged negligent action is too remote. Coates

3

v. Tacoma Sch. Dist., 55 Wn.2d 392, 396-97, 347 P.2d 1093 (1960); Scott v. Blanchet High

4

Sch., 50 Wn.App. 37, 44-45, 747 P.2d 1124 (1987).

5

breach of duty is too remote to hold the defendant liable as a matter of law, courts are directed

g

to "evaluate 'mixed considerations of logic, common sense, justice, policy, and precedent.'"

7

8
p

10

11
12
13
14
15

Lowman, 178 Wn.2d at 169 (quoting Hartley, 103 Wn.2d at 779). In Coates, the Washington
Supreme Court held that a defendant school district did not owe a duty of reasonable care when
a student was involved in an accident on her way to a club initiation that was connected to the
school only through an advisor. Coates, 55 Wn.2d at 394-95, 347 P.2d 1093.

engaged in a romantic relationship with a teacher because the alleged sexual activities between
the teacher and student did not occur at school, during after-hours counseling, or with the
school's knowledge or consent.

Scott, 50 Wn.App. at 41-42, 45, 747 P.2d 1124.

19

20
21

22
23
24

For both

cases, the nexus between harm and alleged negligence was ruled too remote.
Essentially, Plaintiff must prove that the Archdiocese's breached its duty to the Plaintiff
in how it monitored and supervised Siddons.

18

Similarly,

in Scott, Division One held that a defendant school district did not owe a duty to a student who

16
17

To determine whether a defendant's

And this breach must be evidence of the

Archdiocese's own negligence, not the mere fact that the abuse occurred. For example, in Scott
v. Blanchett, the court looked to what steps were taken to check the background when hiring a
teacher who was later accused of becoming sexually involved with a student. Scott, 50 Wn.
App. at 43. In contrast, in N.L v. Bethel School Dist., 187 Wn. App. 460, 348 P.3d 1237
(2015), the court found that the defendant took no action to monitor a student despite the
student's status as a registered sex offender.

N.L, 187 Wn. App. at 473. In N.L, the plaintiff

put forth expert testimony regarding the standard of care at the time of the abuse and the need
to prepare a safety plan with respect to the sex offender student. Id, at 467. The N.L court was

25
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 13
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

provided testimony by the principal of the subject school regarding the safety plan, and

2

determined that a genuine issue of material fact existed. Id. 466-467, 473.

3

Unlike in N.L., as discussed above, there is no evidence of any lack of monitoring or

4

supervision that Plaintiff can present. The individuals who would have monitored Siddons are

5

deceased, Siddons himself is deceased, and any reports that were provided to DSHS, and any

6

subsequent DSHS investigations have been expunged.3
Instead, Plaintiff will likely attempt to point to the lack of evidence of monitoring or

7

8
9

10
11

12
13

reporting to claim that no such monitoring or reporting took place. However, it is readily
apparent that the reason this evidence is not available is due to Plaintiffs own delay in bringing
her claim. In order for Plaintiff to succeed at trial, the Court would need to allow Plaintiff to
make significant logical leaps and rely upon a series of assumptions and speculation on what
sort of efforts, or lack thereof, were undertaken by the administrative staff at St. John's with
respect to monitoring Siddons.
For example, Plaintiff will need to rely on speculation as to what actions Principal Doug

14
15

16

Arthur took or did not take in response to allegations of inappropriate behavior with respect to
students at St. John's. Plaintiff will also need to rely on speculation as to what supervision, or
lack thereof, was put in place regarding Siddons. In addition, Plaintiff will also need to rely on

17
speculation as to whether allegations regarding Siddons' were reported to DSHS.

18
19

20
21

22

Such

speculation is not sufficient for Plaintiff to sustain her burden. Plaintiff must provide specific
admissible evidence supporting the validity of the mere allegations of her complaint. Las v.
Yellow Front Stores, Inc., 66 Wn.App. 196, 198, 831 P.2d 744 (1992). Speculative statements,
argumentative assertions, and references to conclusory allegations are legally insufficient to
defeat a motion for summary judgment. Id

23
24
25

3 In addition, testimony about what was said to Doug Arthur, or others at the time, particularly with respect to
Mya Thomas' and Delores Thomas' testimony is inadmissible. The deadman's statute, RCW 5.60.030 bars Mya
Thomas and Delores Thomas' testimony regarding what they discussed with Dong Arthur and Paulene Haslam.
Mya Thomas and Delores Thomas are parties in interest as defined under RCW 6.60.030 as they "stand to gain or
lose in the action in question." Mya Thomas has recently filed her own claim against the Archdiocese regarding
Siddons.
PATTERSON BUCHANAN
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOBES & LEITCH, INC., P.S.
FOR SUMMARY JUDGMENT - 14

528679

2112 Third Avenue, Suite 500, Seattle. WA. 98121
Tel. 206.462.6700. Fax 206.462.6701

1

The alleged abuse did not occur Under any form of supervision of the Archdiocese.

2

Plaintiff was helping Siddons change locks, which was not an activity sanctioned or

3

encouraged by the school. Moreover, Rose Morris gave Siddons permission for A.W. to spend

4

time with him after school had let out. Rose Morris provided permission, knowing that A.W.

5

was not under the supervision of the school once school was let out. Under these facts, Ms.

g

Morris' actions constitute a superseding and intervening cause, thereby breaking the chain of

7

causation, if any existed, with respect to the Archdiocese. "Whether an act may be considered

8
g

10
11

a superseding cause sufficient to relieve a defendant of liability depends on whether the
intervening act can reasonably be foreseen by the defendant; only intervening acts which are
not reasonably foreseeable are deemed superseding causes." Anderson v. Dreis & Krump Mfg.
Corp., 48 Wn.App. 432, 442, 739 P.2d 1177 (1987).
Here, there is no indication that the Archdiocese was aware of Siddons asking A.W. to

12

13
14

stay after school to assist him with any task. Nor is there any indication that the Archdiocese
gave permission or could have anticipated any student would remain on school grounds after
the end of the school year. Moreover, there is no evidence to suggest that the Archdiocese was

15
16
17
18
19

aware of Ms. Morris' act of giving her daughter permission to assist Siddons on the day she
was abused. It would be unjust for the Archdiocese to be held liable for actions that occurred
outside the scope of its supervision,

When analyzing a nexus this remote, courts have

consistently limited the types of harms that schools such as St. John's must protect students
against. See e.g. Scott v. Blanchet, 50 Wn. App. at 45.

20

uU .

Strict Liability and Res Ipsa Loquitor do not apply to the present

case.

21
22

Irrespective of whether or not the Archdiocese owed Plaintiff a duty due to prior

23

knowledge of allegations of sexual abuse, Plaintiff cannot show that the Archdiocese breached

24

that duty. Here, Plaintiff alleges that the Archdiocese breached its duty "by allowing A.W. to

25

be sexually abused despite the fact that it [knew] or should have known of that danger." See
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 15
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle. WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

Plaintiffs Complaint at

5.3. The Court should not allow Plaintiff to rely upon the doctrine of

2

res ipsa loquitur to support most, if not all of her allegations because res ipsa does not apply to

3

the current matter.

4

The mere occurrence of an incident and an injury does not necessarily imply

5

negligence. Tinder v. Nordstrom, Inc., 84 Wn.App. 787, 792, 929 P.2d 1209 (1997) (citing Las

g

v. Yellow Front Stores, Inc., 66 Wn.App. 196, 201-02, 831 P.2d 744 (1992)). For the doctrine

7

to apply, it must be established that: (1) the accident or occurrence producing the injury is of a

8

kind which ordinarily does not happen in the absence of someone's negligence, (2) the injuries

g

are caused by an agency or instrumentality within the exclusive control of the defendant, and

10

11
12
13
14
15

(3) the injury-causing accident or occurrence is not due to any voluntary action or contribution
on the part of the plaintiff. Id. Further, where the circumstances show that an incident might
have happened as the result of one of two causes (or more) the rule fails and cannot be invoked.
Wellons v. Wiley, 24 Wn.2d 543, 550, 166 P.2d 852 (1946). Moreover, res ipsa is "sparingly
applied, in peculiar and exceptional cases, and only where the facts and the demands of justice
make it application essential." Curtis v. Leini169 Wn.2d 889, 239 P.3d 1078 (2010).
Here, Plaintiff attempts to show negligence occurred by merely showing the abuse

16

occurred. This application of res ipsa loquitor should not be allowed. First, damages relating to
17
18
19

20
21

22
23
24

sexual abuse is the type of injury that can happen in the absence of negligence. Sexual abuse is
an intentional tort, and as an intentional tort, is completely apart from negligence concepts such
as "fault."

Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 ("intentional torts are

part of a wholly different legal realm and are inapposite to the determination of fault pursuant
to RCW 4.22.070(1)."); Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 162, 795 P.2d 1143
(1990) ("the Legislature's intent to exclude intentional conduct from the definition of fault is
clear"). In fact, the Archdiocese has not been able to locate a single case in Washington where
res ipsa has been applied in the context of an intentional tort. The Court of Appeals in Vernon

25
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 16
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA. 98121
Tel. 206.462.6700 Fax 206.462.6701

1

v. Bethel School Dist., 2012 WL 3679624, *12, 170 Wn. App. 1016 (Div. 2, Aug. 28, 2012)

2

conducted a similar review and came to the same result.
The

3

Second, Siddons was not within the exclusive control of the Archdiocese.

4

Archdiocese's lack of exclusive control is evidenced by the fact that Siddons' actions

5

constituted an intentional tort, and not an act done at the direction of the Archdiocese,

g

Moreover, applying res ipsa to the current matter would work an injustice against the

7

Archdiocese under the res ipsa analysis. The exclusive control element requires the defendant,
who is the person most likely to know how the accident happened, to come forward with the

^
10
11

12
13
14
15

explanation. Pacheco v. Ames, 149 Wn.2d 431, 437, 69 P.3d 324 (2003). But if the defendant
does not have exclusive control, "he cannot offer a complete explanation, and it would work
an injustice upon him to presume negligence on his part and thus in practice demand of
him an explanation when the facts indicate such is beyond his ability." Pacheco, 149
Wn.2d at 437(citing Morner v. Union P.R. Co., 31 Wash.2d 282, 196 P.2d 744 (1948)
(emphasis added)).

As stated above, the individuals who were in a position to supervise

Siddons as well as Siddons himself, are all deceased. Accordingly, Plaintiff has no evidence as
to what level of control was being exercised over Siddons at the time of the abuse, or even if he

16
was on duty.
17
18
19

20
21

In turn, the Archdiocese cannot discover the necessary facts to provide a

complete explanation of the abuse. While Plaintiff may argue that res ipsa is required to meet
her demands for justice, such an argument ignores the rights of a defendant. Here, Plaintiff is
attempting to shift the burden to the Archdiocese to prove that their actions were reasonable
r i n nA c .
i r i V4-V/J.
r , +I. + n ^
> <Wa^
c r |_S
\ A n + V i r.L<Wa O
k_» J.

22

C. Plaintiffs Claim of outrage fails because there is no evidence in the record of any
intentional or reckless action by the Archdiocese.

23

To establish a claim for Intentional Infliction of Emotional Distress ("IIED" or

24

"outrage"), a plaintiff must show (1) extreme and outrageous conduct, (2) intentional or

25

reckless infliction of emotional distress, and (3) severe emotional distress on the part of the
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 17
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

Reid v. Pierce County, 136 Wn.2d 195 (1998).

Liability exists only where the

1

plaintiff.

2

conduct has been so outrageous in character, and so extreme in degree, as to go beyond all

3

possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a

4

civilized community. Saldivar v. Momah, 145 Wn. App. 365, 186 P.3d 1117 (Div. II 2008).

5

Washington courts look to the Restatement (Second) of Torts § 46 as a whole and "must

g

consider" the following factors when determining extreme and outrageous conduct:
(a) the position occupied by the defendant; (b) whether plaintiff was peculiarly
susceptible to emotional distress, and if defendant knew this fact; (c) whether
defendant's conduct may have been privileged under the circumstances; (d) the
degree of emotional distress caused by a party must be severe as opposed to
constituting mere annoyance, inconvenience or the embarrassment which
normally occur in a confrontation of the parties; and, the actor must be aware that
there is a high probability that his conduct will cause severe emotional distress
and he must proceed in a conscious disregard of it.4

7
8
9
10

11

Here, Plaintiffs claim fails as there is no evidence in the record of any intentional or

12
13
14
15
16

17
18

reckless action of the Archdiocese that led to Plaintiffs claimed emotional distress, as required
under the above Washington law. Reckless action is "[cjharacterized by the creation of a
substantial and unjustifiable risk of harm to others and by a conscious (and sometimes
deliberate) disregard for or indifference to that risk... [rjeckless conduct is much more than
mere negligence: it is a gross deviation from what a reasonable person would do." Black's
Law Dictionary (9th Ed. 2009).
Accordingly, in order for Plaintiff to establish that the Archdiocese was reckless, she

19

20
21

22

would need to show that there was a deliberate indifference to prior claims of sexual abuse by
Siddons. However, Plaintiff has no evidence that the Archdiocese was reckless or deliberately
indifferent.

The evidence regarding what the Doug Arthur's response was to allegations

against Siddons is no longer available. This issue alone is fatal to Plaintiffs claim for Outrage.

23
24
25

Phillips v. Hardwick, 29 Wn. App. 382, 387-88 (1981) (paraphrasing factors as set forth in Jackson v. Peoples
Federal Credit Union, 25 Wn. App. 81, 86-87 (1979) under the Restatement (Second) of Torts § 46, Comments e,
f, and g) (emphasis added); accord Doe v. Corp. of Church of Latter-Day Saints, 141 Wn. App. 407, 429-30
(2007)).
PATTERSON BUCHANAN
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOBES & LEITCH, INC., P.S.
FOR SUMMARY JUDGMENT - 18
4

528679

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

Moreover, Plaintiff cannot sustain her burden to show intent by the Archdiocese to

1
2

harm Plaintiff personally.

3

inflict severe emotional and psychological, distress on others..." Compl., "[ 5.8. Without any

4

connection to the specific victim, the Archdiocese cannot have the requisite intent to harm

5

resulting in emotional distress.

g

Archdiocese refused to report Siddons sexual abuses as alleged in her Complaint. Id. at 5.6.

7
8
g

10
11

12

15

In addition, Plaintiff does not have any evidence that the

Similarly, even if it were assumed that the Archdiocese did not report any of Siddons sexual
abuses, there is no evidence to support Plaintiffs accusations that it had done so to "conceal its
own bad acts, to protect its reputation, and to prevent victims from

coming forward." Id.

Essentially, Plaintiff has no evidence of the alleged behavior she is claiming is extreme or
outrageous, nor does she have any evidence of any intent on behalf of the Archdiocese.
Accordingly, Plaintiffs claim of outrage should be dismissed.
In addition, Plaintiff does not distinguish any damages she may have suffered by the

13
14

Instead, Plaintiff claims the Defendant knew its conduct "would

alleged actions of the Archdiocese, as opposed to the actions of Siddons himself. As expressed
in Boy 1 v. Boy Scouts of America, 832 F.Supp.2d 1282 (2011), a plaintiffs failure to
distinguish the emotional distress they may have suffered by the acts of an organizational

16

defendant from the acts of the abuser is fatal to a claim of Outrage. As Plaintiff has not made
17

any such distinction, Plaintiffs claim for Outrage should be dismissed.

18
19

Plaintiffs Outrage Claim Would Potentially Allow Double Recovery in Contravention
of Washington Law

20

Plaintiffs Outrage claim arises out of the same conduct as her negligence claim. Both

21

are based in part on the allegation that the Defendant knew or should have known about

22

Siddons and did nothing.

23

distress damages for the same act. As such, if Plaintiffs negligence claim is not dismissed,

24

Plaintiffs outrage claim must be dismissed to prevent double recovery.

D.

Washington courts do not allow double recovery of emotional

25
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 19
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

A plaintiff may recover emotional distress damages as a result of Outrage while at the

2

same time recovering emotional distress damages caused by other independent tort actions of a

3

defendant. See, e.g Doe v. Corp. of Church of Latter-Day Saints, 141 Wn. App. 407 (jury

4

found church-defendant liable for negligence and liable for outrage, awarding separate damages

5

for each—though negligence claim was subsequently dismissed on appeal).

^

recover separate emotional distress damages under multiple tort theories, the plaintiff must

y

establish that the emotional distress damages related to the outrage claim are based on separate

8
2
10
11

12
13

facts from the plaintiffs other causes of action. Compare Doe, 141 Wn. App. 407 (2007), with
Rice v. Janovich, 109 Wn.2d 48, 61-62 (1987) and Francom v. Costco Wholesale Corp., 98
Wn. App. 845 (2000). If a claim of outrage is based on the same conduct as another claim
affording emotional distress damages, Washington courts do not allow both claims to go to the
jury. See, e.g., Rice, 109 Wn.2d at 61-62 ("outrage should allow recovery only in the absence
of other tort remedies").
In the present case, Plaintiffs Outrage and negligence claims are both based on the

14
15
16

However, to

allegation that the Archdiocese knew about Siddons. As such, if the Court does not dismiss
Plaintiffs negligence claim, the Court must dismiss Plaintiffs Outrage claim to prevent double
recovery for the same act

17
18

The Archdiocese is entitled to summary judgment on each of Plaintiff s claims pursuant
to the doctrine of laches.

19

The doctrine of laches prohibits A.W. from recovering on any of his claims against the

20

Archdiocese because Plaintiff delayed in bringing the present lawsuit for 28 years, and as such,

21

prevents the Archdiocese from obtaining necessary information for its defense.

22

Laches is an equitable defense applied in addition to, but independent of, statutes of

23

limitations. Amende v. Pierce County, 70 Wn.2d 391, 397, 423 P.2d 634 (1967). The defense

24

of laches is grounded in the principle of equitable estoppel, which "will not permit the late

25

assertion of a right where other persons, by reason of the delay, will be injured by the
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 20
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

assertion." Id. at 398. In other words, "Public policy requires that private claims come to rest

2

at some time." Amende, 70 Wn.2d at 396. The purpose of laches is to prevent injustice and

3

hardship. Johnson v. Schultz, 137 Wash. 584, 243 P. 644 (1926).

4

Laches is applied when the following elements are present: (1) The plaintiff had

5

knowledge of the facts constituting a cause of action or a reasonably opportunity to discover

g

such facts; (2) there was an unreasonable delay in commencing the action; and (3) there is

q

damage to the defendant resulting from the delay. Amende, 70 Wn.2d at 397; In re: Marriage

8

of Hunter, 52 Wn. App. 265, 270 (1988).
Absent "unusual circumstances," courts do not generally apply the doctrine of laches.

9
10
11
12

13
14
15

Brost v. L.A.N.D., Inc., 37 Wn. App. 371, 375, 680 P.2d 453 (1984). However, such unusual
circumstances are recognized where the defendant has changed its position such that it "cannot
be restored to [its] former state." Brost, 37 Wn. App. at 375-76. A change of position is
recognized where the defendant cannot mount a meaningful defense because of a loss of
evidence due to the passage of time. Davidson v. State, 116 Wn.2d 13, 27, 802 P.2d 1374
(1991).
Unusual circumstances exist here that warrant dismissal.

Plaintiff admits she has

16

known about the abuse since it occurred in 1983. Plaintiff unreasonably delayed commencing
17
18

19

the present action by waiting at least 28 years to file this claim. Plaintiffs delay is unduly
prejudicial because crucial testimony and needed the Archdiocese needs to litigate this case is
now lost or unavailable due to the passage of time.

20
21

Plaintiff Has Had Knowledge of the Facts Forming the Basis of Her
Abuse Claims for at Least 28 Years.

22

Laches applies once the plaintiff has "knowledge of the facts constituting the cause of

23

action." Hunter, 52 Wn. App. at 270. Unlike the level of knowledge necessary to trigger the

24

statute of limitations under RCW 4.16.340, a laches defense does not require that the plaintiff

25

first connects her injuries to the abuse. In the present case, A.W. had knowledge of the facts

1

DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 21
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

giving rise to her allegation of abuse by Siddons since 1983, 33 years before she brought forth

2

this claim. On the same day that the abuse occurred, A.W. told her parents what had happened.

3

Then in a police report she gave soon thereafter, A.W. described the details of the abuse. A.W.

4

provides a great level of detail, including the events leading up to the abuse, as well as what

5

happened immediately after. As to her allegation of sexual intercourse, A.W. alleges that at the

g

time she did not have enough knowledge about human anatomy to know that the abuse by

7

Siddons included sexual intercourse. She made this realization four or five years later in an

8

g
10

eighth grade sexual education course. Therefore, at the latest, Plaintiff would have had the
knowledge of facts forming the basis of her abuse claim in 1986 or 1987, still more than 28
years before she brought her claim.

11

Plaintiff Has No Reasonable Excuse in Bringing the Present Action 28
Years Later.

12

A.W.'s failure to bring her claim in the last 28 years constitutes unreasonable delay

13

given that she knew about all of the facts of the alleged abuse since at least 1987, and there was

14

nothing preventing her from bringing this claim. A delay is considered unreasonable if it

15

occurs "under circumstances permitting diligence."

16

Funds v. Shopland Supermarket, Inc., 96 Wn.2d 939, 948-49 (1982). Washington courts have

17

found that periods of time as short as 15 years constitutes unreasonably delay. See In re

18

Parentage of Hilborn, 114 Wn. App. 275, 279 (2002) (holding that a mother's decision to wait

19

15 years before seeking child support payments from the father was unreasonable because she

20

knew where her child's father was and knew she was entitled to support from him.). A.W.

21

waited 28 years, and perhaps as long as 33 years before bringing this claim, despite knowing

22

about the alleged abuse since the time it occurred. Nothing prevented A.W. from pursuing this

23

claim, and therefore her delay in bringing it 28 years later is unreasonable.

Retail Clerks Health & Welfare Trust

24
25
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 22
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

The Archdiocese is Unable to Bring a Complete Defense Due to Loss of
Evidence.

2

Unavoidable loss of defense evidence due to the length of time passed can establish

3

material prejudice under the doctrine of laches. Davidson, 116 Wn.2d at 26-27 (holding that

4

the plaintiffs delay in bringing suit deprived defendant of substantial evidence, including

5

witnesses who had personal knowledge of facts giving rise to plaintiffs claim and documents

6

relevant to those facts); see also Amende, 70 Wn.2d at 399 (holding that plaintiffs 35-year old

7

claim barred by laches was in part due to "unavailability of old records" relevant to claim).

8

The death of a critical witness is sufficient to show prejudice supporting the application of the

9

doctrine of laches. "[I]f a deceased witness could have given testimony both relevant and

JQ

important to the determination of the action, that witness' death can be enough to satisfy a

11
12

showing of prejudice." 27 A Am. Jur. 2nd Equity § 152, (section cited with approval in
LaVergne v. Boyson, 82 Wn. 2d 718, 721, 513 P.2d 547 (1973)).
The passage of time between the alleged abuse and when this suit was filed severely

13
14
15
16

17
18
19

comprises the Archdiocese's ability to mount a sufficient and effective defense. Due to the
passage of time, and the lack of record keeping procedures at the time, documentary evidence
is sparse. The State did not retain any records regarding Siddons, so it is impossible to know if
anyone made reports regarding Siddons. In the case that the school reported Siddons, it is also
impossible to know the nature and findings of the investigations performed by DSHS or CPS
because such reports have been destroyed.
As for testimonial evidence, the following individuals are all dead: Doug Arthur, Father

20

Boyle, and Pauline Hasiam.
21

22
23
24
25

The Archdiocese is severely limited in putting forth a

comprehensive defense to Plaintiffs allegation that the Archdiocese had prior knowledge of
Siddons' propensity, and failed to act.

Doug Arthur and Father Boyle are the only

administrators who had decision-making power with regards to personnel. If alive, they could
have testified to whether they knew of any misconduct by Charles Siddons prior to 1983, and
what actions they took in response. But both Arthur and Boyle are dead. Charles Siddons, who
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 23
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

would have had knowledge about any prior conduct, and the school's knowledge of such

2

conduct, is also dead. Pauline Haslam is the secretary that Mya Thomas and Delores Thomas

3

allegedly told about Mya Thomas' abuse by Siddons. If alive, she could have testified to

4

confirm or deny Mya Thomas and Delores Thomas' testimonies.

5

Thus the jury will be left with testimonies of individuals such as A.W. and Mya

g

Thomas, who are bringing a claim against the Archdiocese. Jodi Declos testified that Mr.

7

Arthur would not have reported back to her about any steps he took with regards to any

8

g
10
11

12

13
14

allegations against Siddons. Kate Brune is alive, but her testimony does not show personal
knowledge as to the extent to which Doug Arthur took any action in response to allegations
against Siddons. Other witnesses, such as Dan Sherman or Father Picton, worked at St. John's
after Siddons was fired in 1983, and therefore lack any personal knowledge of any prior
allegations against Siddons.

knowledge about Father Boyle's responsibilities are dead. In the absence of other testimonial
evidence Plaintiff will ultimately benefit from this lopsided presentation of evidence.
In light of A.W.'s allegation that the abuse included sexual intercourse, which was not

15
16

Father Picton further testified that those who would have

mentioned in her report in 1983, nor admitted by Charles Siddons, the Archdiocese is unable to
challenge the credibility of these claims. If alive, Charles Siddons, could have confirmed or

17
18

19
20
21

22

denied this portion of the allegation.

statement, could have offered testimony about his impressions of A.W. and her credibility,
especially in light of her more recent allegation that Siddons forced sexual intercourse upon
her. Only A.W.'s testimony is left. However, her testimony is unreliable, for A.W. admits that
her own memories of the events are unclear. She testified that she only remembers the incident
up to a certain point, and then nothing after that.

23
24
25

If alive, R.D. Reith, the detective who took A.W.'s

Defendant's ability to defend Plaintiffs damages claim is also prejudicially limited by
Plaintiffs delay. For example, neither Plaintiff nor her mother remembers the name of the
counselor AW. saw a couple years after the abuse. The counselor is likely to have relevant
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 24
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

information regarding any changes in A.W.'s behavior and to what she attributed these

2

changes. Records regarding any sessions with a counselor cannot be found as long as Plaintiff

3

does not remember the name of the counselor.

4

Archdiocese will bear the brunt of the lack of evidence caused by Plaintiffs delay.

Plaintiff is not equally prejudiced.

The

Plaintiff is barred from bringing her claim because the statute of limitations began to
run when she connected issues later on in her life to the alleged abuse.

5

6

RCW 4.16.340 provides that:

7

All claims or causes of action based on intentional conduct brought by any person
for recovery of damages for injury suffered as a result of childhood sexual abuse
shall be commenced within the later of the following periods:

8
9

Within three years of the act alleged to have caused the injury or condition;

10

Within three years of the time the victim discovered or reasonably should have
discovered that the injury or condition was caused by said act; or

11
12

13

Within three years of the time the victim discovered that the act caused the injury
for which the claim is brought.

14

RCW 4.16.340. The appropriate standard for this Court to use in evaluating Plaintiffs claims

15

is whether he or she knew or should have known of a causal connection between the alleged

16

abuse and the claimed injuries. Oostra v. Holstine, 86 Wn. App. 536, 543, 937 P.2d 195

17

(1997), rev. denied 133 Wn.2d 1034 (1998) (holding that statute of limitations for civil action

18

based on childhood sexual abuse began to run when abuse victim traced her problems in adult

19

life to the sexual abuse by her stepfather); but see B.R. v. Horsely, 186 Wn. App. 294, 302-03,

20

345 P.3d 836 (2015) (finding that plaintiff was not time-barred from bringing her child sexual

21

abuse claim because she victim had not yet connected her problems in her adult life to her

22

childhood sex abuse).

23

Like the plaintiff in Oostra, and unlike the plaintiff in B.R., the Plaintiff here not only

24

experienced symptoms of the abuse, she also connects the abuse to her damages, more than

25

three years prior to bringing the claim. When questioned on how she came to believe that
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 25
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 T h i r d Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

,

1

Charles Siddons had forced sexual intercourse upon her, Plaintiff testified in response that

2

during a sexual education class in 8th grade she experienced a strong emotional reaction and felt

3

terrified, embarrassed, and ashamed. She stated that at this point she understood that Siddons

4

had forced sexual intercourse upon her.
Plaintiff also always connected her desire to never want to have children to her abuse.

5
g

A.W. testified:

Q

Any children?

A

No.

8

Q

Any particular reason you haven't had children?

9

A

Yes.

Q

And what is that?

A

After what happened to me, I didn't want to risk having a child and having
them go through what I did.

Q

And when you say that, you mean the rape of-

A

Yes.

Q

Siddons? That the reason why you don't want children?

7

10
11

12

13

A

14
15

Id. at 16:5-16.
Plaintiffs best friend of 17 years, Denise Jones, also discussed Plaintiffs connection of

16

17
18

Yes.

her damages with the abuse as far back as 2004. Ms. Jones testified in pertinent part the
following:

19

Q. Ma'am, I'm going to ask you again: Did she or did she not talk to you about the
abuse in 2004?

20

A. She didn't call it rape back then.

21

Q. What did she call it?

22

A. She called it molestation.

23

Q. Okay.

24

A. That she was molested, yeah.

25

Q. Can you talk to me about what she said back in 2004 when she talked to you about
molestation?
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 26
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

A. What comes to mind is how she had to walk past his office every day going up and
down the stairs. Every — you know, going to school, going to her different classes, she
had to pass by that place every day. And that's what was very painful for her at that
time. And I think that's when she first started realizing and, you know, putting things
together.

1

2
3
^

Id. at Ex. K: Dep. of Denise Jones, 46:23-47:14.
***

5
6

Q. So when — in 2004 was she talking about how that molestation impacted her life?
Did she talk to you about that?

7

A. A little bit, yes, um-hmm.

8

Id. at 51:5-8. Ms. Jones then went on to provide a lengthy discussion about what Plaintiff told

9

her in 2004 on how she was addressing the impact the abuse had on her life and how her drive

10

to overcome the abuse "permeates every area of her life." Id. at 51:9-52:6. Ms. Jones also

11

testified about a conversation that took place in 2006 where Plaintiff described the impact

12

being held back a year and attending St. John's following the abuse impacted her life. She also

13

testified that Angela was also previously aware of her injuries associated with the abuse, but

14

delayed discussing them until a point when her mother was able to participate. In addition, Ms.

15

Jones testified that in approximately 1999-2004, she spoke with Plaintiff about her own

16

experience with being sexually assaulted and Plaintiff questioned her on how she addressed her

17
18

19

injuries that resulted from that assault,

hindsight, it appeared to her that Plaintiff was asking these questions for her own benefit. Id. at
115:9-14.
Plaintiff will argue that she never made the connection between her injuries and abuse.

20
21

22
23

Id. at 109:12-115:8. Ms. Jones stated that that in

However, this argument is especially suspect when Plaintiff and her mother also claim that she
saw a counselor for a year a couple years after the incident due to her alleged falling grades. In
fact Rose Morris testified:

Q:

And you didn't think to discuss the sexual abuse with Siddons as a
possible source of her problems with the psychologist?

A*

I'm not sure. It seems to me that we might have said something, but I can't
say 100 percent absolutely.

24
25

DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 27
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

Id. at Ex. A, Morris Dep., 150:19-24. Then when referencing the story she wrote, Rose Morris

2

again thinks she may have told the counselor about Chuck Siddons:

3

Q:

And then on the next paragraph you mention, "My husband and I shared a
concern with the psychiatrist of an incident that had happened at the
school that may be related to our daughter's troubles here." Are you
referring to Chuck Siddons in this?

A*

Right. And that's what I'm trying to think, you know. I think we did, but
- you know, I think we did. I don't know for certain.

4
5

6
7

Id. at 169:5-13.
Plaintiff, and those close around her, appear to have connected several of the alleged

8

9

damages she has suffered to her abuse by Siddons several years before she brought this claim.
As such, Plaintiffs claim is barred by the statute of limitations.

10

VI. CONCLUSION

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12

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14
15
16

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18

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There is no genuine issue of material fact in this case on these issues and the Seattle
Archdiocese is entitled to judgment as a matter of law. Given the fact that key witnesses are
now deceased, and the fact that DSHS and CPS records have been expunged, Plaintiff lacks
evidence necessary to prove her claims. Plaintiff cannot show that the Archdiocese's actions
regarding Siddons were not reasonable as Plaintiff cannot show what acts the Archdiocese
actually took with respect to Siddons. Moreover, Siddons actions did not take place at a time
when Plaintiff was in the custody of the Archdiocese or even at a time when the Archdiocese
was aware that she was on campus. Plaintiffs lack of evidence warrants dismissal on summary
judgment.

20

In addition, Plaintiffs claims should be dismissed because they were brought beyond

21

the statute of limitations. By Plaintiffs own testimony she was aware of her damages and their

22

connection with the abuse as early as 8th grade, and this knowledge was further solidified when

23

Plaintiff was 19 years old.

24

Summary judgment is also warranted on the grounds that Plaintiff waited too long to

25

bring her claim, thereby damaging the Archdiocese ability to raise a defense. Had Plaintiff
DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 28
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

brought her claim at a time when witnesses like Doug Arthur were still alive, the Archdiocese

2

could have evidence available to them to address Plaintiffs allegation that its actions were

3

unreasonable.

4

alleged year-long therapy following the abuse would also have been available. This loss of

5

evidence is not due to the actions of the Archdiocese, but rather due to Plaintiff s own delay.

In addition, information relating to Plaintiffs alleged damages such as her

6

Child sexual abuse is undoubtedly a tragic event, and deserving of redress given

7

appropriate facts, and evidence. However, the Archdiocese has rights as defendant, and should

8
^
10
11

not be denied its ability to respond to allegations, and assist the fact finder in reaching an
appropriate determination of justice for both parties, not just Plaintiff. The Archdiocese has
been denied these rights due to Plaintiffs delay in bringing her claim.

a

Archdiocese request this
DATED this

12

Therefore, the

rt dismiss Plaintiffs claims with prejudice.

day of September, 2016.

13
PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

14
15

I certify that this motion contains 10,336 words,
consistent with our Motion for Over-length Brief,
filed separately. /
/I

16

17

gy/

18

//

Vx)

mmael A. Patterson, WSBA No. 7976
eith A. Talbot, WSBA No. 32154
Of Attorneys for Defendant

19

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DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 29
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

1

CERTIFICATE OF SERVICE

2
3
4

I, Angela Marino, hereby declare that on this

day of September, 2016,1 caused to

be delivered via the method listed below the document to which this Certificate of Service is
attached (plus any exhibits and/or attachments) to the following:

5

6
7

8
9
10
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ATTORNEY NAME & ADDRESS
Mr. Michael T. Pfau
Mr. Jason P. Amala
Ms. Beth Davis
PFAU COCHRAN VERTETIS AMALA, PLLC
403 Columbia Street, Ste 500
.
Seattle, WA 98104
Email: michaelfSjpcvalaw.com
Email: Jason@pcvalaw.com
Email: Bdavis@pcvalaw.com
Attorneys for Plaintiff

12

13

METHOD OF DELIVERY
• Electronic Mail
• ABC Legal Messenger Service
Regular U.S. Mail
Other:

I certify under penalty of perjury, under the laws of the State of Washington, that the
foregoing is true and correct.

14
DATED this

15

day of September, 2016, at Seattle, Washington.

16

17

IA

18

Angela Marmo, Legal Assistant

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21

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DEFENDANT CATHOLIC ARCHBISHOP'S MOTION
FOR SUMMARY JUDGMENT - 30
528679

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

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