ZINTER, Justice.
[¶ 1.] A number of former students who attended an elementary boarding school alleged that they had been sexually abused while attending the school. They sued some of the alleged perpetrators and four entity defendants, including the Catholic Diocese of Sioux Falls.
[¶ 2.] These cases arise from alleged acts of sexual abuse at St. Paul's School in Marty, which is located on the Yankton Sioux Reservation. The creation of the school can be traced to 1921, when St. Meinrad Archabbey, a religious order of Benedictine monks located in Indiana, sent Father Sylvester Eisenman to the Dakotas. The school was founded around 1922 by a combination of efforts of Father Eisenman, the Sisters of the Blessed Sacrament,
[¶ 3.] Father Eisenman and other monks from St. Meinrad Archabbey staffed the school until approximately October 1954. At that time, Blue Cloud Abbey, a religious order of Benedictine monks founded by (but separate from) St. Meinrad Archabbey, assumed responsibility for the school. The Sisters of the Blessed Sacrament also provided staffing for the school until 1954, when the Oblate Sisters of the Blessed Sacrament
[¶ 4.] In 1955, title to the school was transferred from the BCIM to St. Paul's Indian Mission Corporation, a South Dakota non-profit corporation organized by Blue Cloud Abbey. According to the bylaws, membership in St. Paul's Indian Mission Corporation consisted of "those persons who have made Solemn Vows for Blue Cloud Abbey, and who are residing and have been appointed by the Abbot of Blue Cloud to reside at St. Paul's Indian Mission."
[¶ 5.] Between 2004 and 2008, former students of St. Paul's School commenced lawsuits against the Diocese, Blue Cloud Abbey, the Sisters of the Blessed Sacrament, and Oblate Sisters of the Blessed Sacrament. The students also sued a number of the alleged perpetrators. The alleged perpetrators included nuns from the Oblate Sisters of the Blessed Sacrament and the Sisters of the Blessed Sacrament, as well as monks and priests from Blue Cloud Abbey.
[¶ 6.] After a prior appeal and remand from this Court, see Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56, 752 N.W.2d 658, the circuit court granted summary judgment in favor of the Diocese on all substantive and some procedural issues. Substantively, the court ruled that the Diocese was not vicariously liable for the acts of the other defendants on the theory of respondeat superior. The court concluded that, assuming the Diocese was the principal, the alleged perpetrators were not acting within the scope of their agency or employment. With respect to direct liability for negligence and breach of fiduciary duty, the court ruled that the Diocese owed no duty to the students. The court reasoned that the Diocese did not exercise the extent of control over the other defendants necessary to establish an agency relationship that imposed a duty to the students. Because these substantive issues are dispositive, we do not address the numerous other rulings that have been raised by appeal and notice of review.
[¶ 7.] We review the circuit court's grant of summary judgment to "determine whether the moving party has demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law." Dykstra v. Page Holding Co., 2009 S.D. 38, ¶ 23, 766 N.W.2d 491, 496. We view the evidence most favorably to the students and resolve reasonable doubts against the Diocese. See id. The students, however, "must present specific facts showing that a genuine, material issue for trial exists." See id. "Entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 9, 752 N.W.2d 668, 674.
[¶ 8.] Respondeat superior is "a legal fiction designed to bypass impecunious individual tortfeasors for the deep pocket of a vicarious tortfeasor." Bass v. Happy Rest, Inc., 507 N.W.2d 317, 320 (S.D.1993). Under the doctrine of respondeat superior, an employer or principal may be held liable for "the employee's or agent's wrongful acts committed within the scope of the employment or agency." Hass v. Wentzlaff, 2012 S.D. 50, ¶ 20, 816 N.W.2d 96, 102-03.
[¶ 9.] In determining whether an intentional tort is within the scope of employment, this Court uses a two-prong test: whether the purpose of the act was to serve the principal and whether the act was foreseeable. Id. ¶ 21. Under the first prong, a "principal may be liable for an agent's acts where the agent's `purpose, however misguided, is wholly or in part to further the [principal's] business[.]'" Id. ¶ 23 (quoting Kirlin v. Halverson, 2008 S.D. 107, ¶ 22, 758 N.W.2d 436, 447). An act furthers the principal's business if it carries out the objectives of the employment.
Kirlin, 2008 S.D. 107, ¶ 12, 758 N.W.2d at 444 (quoting Deuchar v. Foland Ranch,
[¶ 10.] The students argue that the perpetrators were acting in furtherance of the Diocese's business by acting as teachers and caregivers in performing boarding school duties. Relying on Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), the students contend that the alleged sexual acts were within the scope of employment because the acts were performed by the alleged perpetrators "as a result of their positions" as priests, nuns, and teachers at the school. The students contend that under Fearing, the Diocese may be vicariously liable because, as a result of the perpetrators' positions of trust and confidence, they obtained the opportunity to be alone with the students and abuse them.
[¶ 11.] We disagree with the Fearing court's view of respondeat superior liability in these types of sexual abuse cases. In Fearing, a youth pastor, who was an employee of the archdiocese, committed a series of sexual assaults on a minor. Id. at 1165. The court considered the sufficiency of the complaint to withstand a motion to dismiss. The court concluded that although "sexual assaults ... clearly [are] outside the scope of ... employment," the vicarious liability inquiry does not end with that determination. Id. at 1166. The court applied an Oregon exception to the general rule of nonliability for acts committed outside the scope of employment. The Fearing court stated that the principal "still could be found vicariously liable, if acts that were within [employee's] scope of employment `resulted in the acts which led to injury to [the] plaintiff.'" Id. (quoting Chesterman v. Barmon, 305 Or. 439, 753 P.2d 404, 406 (1988) (en banc)). The court noted the complaint alleged that the pastor "used his position as youth pastor," and by virtue of that relationship, the pastor "gained the opportunity" to sexually assault the child. Id. The court concluded that "a jury could infer that the sexual assaults were the culmination of a progressive series of actions that began with and continued to involve [the pastor's] performance of the ordinary and authorized duties of a priest." Id. at 1167.
[¶ 12.] Most courts do not, however, follow Oregon's exception to the general rule of nonliability in cases involving an ecclesiastical officer's sexual abuse. Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d 712, 729 (Tenn.Ct.App.2008). Diocese of Memphis acknowledged the Fearing exception when the tortfeasor-employee "use[s] his employment to commit the tort." Id. But Diocese of Memphis observed that "[n]otwithstanding the fact that allegations of a cleric's sexual misconduct often include situations where the cleric used his or her position in the Church to gain the trust of and access to a victim, most courts have been unwilling to apply this exception to clergy sexual abuse cases." Id. (quoting Jana Satz Nugent, Note, A Higher Authority: the Viability of Third Party Tort Actions Against a Religious Institution Grounded on Sexual Misconduct by a Member of the Clergy, 30 Fla. St. U. L. Rev. 957, 968 (2003)); see
[¶ 13.] Generally, it is a question of fact for the jury whether an intentional tort is within the scope of employment. Kirlin, 2008 S.D. 107, ¶ 16, 758 N.W.2d at 445. "But there are occasional cases where [an agent's] digression from duty is so clear-cut that the disposition of the case becomes a matter of law." Doe v. Norwich Roman Catholic Diocesan Corp., 268 F.Supp.2d 139, 142 (D.Conn.2003) (quoting A-G Foods Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 579 A.2d 69, 73 (1990)). And in most cases, courts conclude that sexual abuse by priests represents such a far deviation from furthering a church or diocese's business, and is such a clear-cut digression from an employee's duty, that it is, as a matter of law, outside the scope of employment. Id. Indeed, "the majority of jurisdictions considering the issue of sexual contact between an ecclesiastic officer and a parishioner have held that the act is outside the scope of employment as a matter of law." N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 599 (Okla.1999). Simply stated, a priest's sexual relation with a parishioner is a substantial departure from the priest's duties and not within the church's business.
Id.; see also Tichenor, 32 F.3d at 960 ("[G]iven [the perpetrator-priest's] vow of celibacy and the Catholic Church's unbending stand condemning homosexual relations, [the priest's illicit sexual] acts represent the paradigmatic pursuit of `some purpose unrelated to his master's business.'"); Moses v. Diocese of Colorado, 863 P.2d 310, 330 (Colo.1993) ("Such [sexual] conduct is contrary to the principles of Catholicism and is not incidental to the tasks assigned a priest by a diocese."); Destefano v. Grabrian, 763 P.2d 275, 287 (Colo.1988) ("A priest's violation of his vow of celibacy is contrary to the instructions and doctrines of the Catholic church. When a priest has sexual intercourse with a parishioner it is not part of the priest's duties nor customary within the business of the church."); A.L.M. v. Diocese of Allentown, 68 Pa. D. & C. 4th 111, 124-25 (Pa.Ct.Com.Pl.2004) (unpublished) (concluding that under Pennsylvania law, the offending priest's sexual abuse would have been deemed outside the scope of employment).
[¶ 14.] We conclude that the alleged acts of sexual abuse in this case were solely in the perpetrators' own interests
[¶ 15.] "In order to prevail in a suit based on negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury." Highmark Fed. Credit Union v. Hunter, 2012 S.D. 37, ¶ 9, 814 N.W.2d 413, 415. The duty required is the "duty on the part of the defendant to protect a plaintiff from injury." Clausen v. Aberdeen Grain Inspection, 1999 S.D. 66, ¶ 11, 594 N.W.2d 718, 721.
[¶ 16.] Generally, there is no duty to "control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection." Kirlin, 2008 S.D. 107, ¶ 33, 758 N.W.2d at 449. Therefore, to prove negligence, the students must have established that the Diocese had a special relationship with the alleged perpetrators that imposed a duty to control the perpetrators' actions while working at the school. Alternatively, the students must have established that the Diocese had a special relationship with the students that imposed a duty of protection. The existence of a duty is a question of law we review de novo. First Am. Bank & Trust, N.A. v. Farmers State Bank of Canton, 2008 S.D. 83, ¶ 13, 756 N.W.2d 19, 26.
[¶ 17.] The students argue that the requisite special relationship existed between the Diocese and the perpetrators. The students' argument is based on agency. They contend that an agency relationship arose because the Diocese exercised significant control over the school, the other entities, and the alleged perpetrators. The students contend that the school could not have opened or remained in operation without the permission of the Bishop, and no Blue Cloud Abbey monk could function as a priest within the Diocese's geographic boundaries without the permission of the Diocese's Bishop. The students also contend that the Bishop is the immediate ecclesiastical superior of the Sisters, and the Sisters obtained "permission" from the Diocese to proceed with the formation and operation of the school in the 1920s and 1930s. The students contend that at the very least, there is a disputed issue of material fact about the matter. They rely on the affidavit of Father Thomas Doyle, an expert on Canon Law and sex abuse cases, who opined on the relationship among entities, orders, and missions in the Catholic Church. Father Doyle further opined on a bishop's "authority" and "control" over "pastoral and ministerial activities" of Catholic entities, which included schools operating in a diocese.
[¶ 18.] To establish an agency relationship there must be a "(1) manifestation by the principal that the agent shall act for him, (2) the agent's acceptance of the undertaking, and (3) the understanding of the parties that the principal is to be in control of the undertaking." A.P. & Sons Constr. v. Johnson, 2003 S.D. 13, ¶ 23, 657 N.W.2d 292, 297. In this case, even if we were to consider Father Doyle's opinions on the Canon Law regarding the authority
[¶ 19.] Instead, the undisputed evidence reflects that the school was founded in 1922 as a mission of St. Meinrad Archabbey and the Sisters of the Blessed Sacrament. Later, it became the mission of Blue Cloud Abbey and the Oblate Sisters of the Blessed Sacrament. Further, the school was incorporated by Blue Cloud Abbey prior to any alleged act of abuse, and only Abbey members were members and officers of the corporation. Ultimately, there is no evidence of any manifestations by the Diocese or the other defendants that this school was to be operated by the entity defendants for the Diocese and that the Diocese would be in control of the undertaking. Concededly, the Diocese had ecclesiastical authority and control over matters such as liturgy, removing a priest, granting "faculties," performing canonical visitations, and disallowing the transfer of a nun. But simply possessing such ecclesiastical authority and control is not a manifestation of an agency agreement. Notwithstanding Diocesan ecclesiastical authority and control over Catholic religious orders and their members, the students failed to establish an actual agency relationship between this Diocese and these defendants to undertake the operation of this school for the Diocese.
[¶ 20.] The students alternatively argue that the Diocese had a special relationship with the students that created a duty of protection. They contend that the Diocese acted in loco parentis and that such a relationship gave rise to the duty of protection. See E.H. v. M.H., 512 N.W.2d 148,
[¶ 21.] Similarly, the students argue that the Diocese's relationship with the students created a fiduciary duty of protection. To establish a fiduciary duty, a plaintiff must show "that the defendant was acting as plaintiff's fiduciary." Chem-Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 38, 652 N.W.2d 756, 772. This requires proof of "three things: (1) plaintiffs reposed `faith, confidence and trust' in [the defendant], (2) plaintiffs were in a position of `inequality, dependence, weakness, or lack of knowledge' and, (3) [defendant] exercised `dominion, control or influence' over plaintiffs' affairs." Id. (quoting Garrett v. BankWest Inc., 459 N.W.2d 833, 838 (S.D.1990)).
[¶ 22.] The students did not identify facts sufficient to overcome summary judgment on their in loco parentis or fiduciary duty claims. Although there is no dispute that St. Paul's Indian Mission Corporation was acting in a custodial, parental role while the students were attending its school, the Diocese did not undertake a similar role. The students identified no facts indicating that the Diocese — as opposed to the priests, monks, nuns, entity defendants, and the school — was acting as the custodian or parent of the students while they attended school. Moreover, the students identified no facts indicating that, in placing the students at the school, the students (or the students' parents or guardians) reposed faith, confidence or trust in the Diocese — as opposed to the priests, monks, nuns, entity defendants, and the school who were caring for the students. Therefore, the students failed to establish the existence of an in loco parentis or fiduciary relationship that imposed a Diocesan duty of protection while the students were in the custody and control of the entities that were operating this school.
[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON and WILBUR, Justices, concur.