IN THE SUPREME COURT OF IOWA 

No. 132 / 05-0793 

Filed April 13, 2007 

DON WALDERBACH, 

Appellant, 

vs. 

ARCHDIOCESE OF DUBUQUE, INC., 

Appellee. 

Appeal from the Iowa District Court for Dubuque County, Alan L. 

Pearson, Judge. 

Plaintiff in suit against Archdiocese based on alleged sexual abuse by 

priest appeals from summary judgment for defendant. AFFIRMED. 

Robert F. Wilson, Cedar Rapids, for appellant. 

Brendan T. Quann and Davin C. Curtiss of O'Connor & Thomas, P.C., 

Dubuque, for appellee. 
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LARSON, Justice.

 The plaintiff, Don Walderbach, sued the Archdiocese of Dubuque, 

contending he had suffered sexual abuse at the hands of Father Nicholas 

Cigrand, a teacher and assistant pastor in the Archdiocese. The defendant 

moved for summary judgment under Iowa Rule of Civil Procedure 1.981 on 

the ground there were no genuine issues of material fact that could support 

the plaintiff’s claim. The district court granted the motion, and we affirm. 

I. Facts. 

 As a young man, Don Walderbach attended St. Patrick’s School and 

served as an altar boy at St. Patrick’s Church, both located in Ryan, Iowa, 

and part of the defendant Archdiocese. Father Nicholas Cigrand was an 

assistant pastor at the church and served as one of Walderbach’s teachers 

and as his supervisor as an altar boy. Walderbach alleges that 

Father Cigrand sexually abused him on several occasions between 1966 

and 1969. These incidents occurred in the rectory of St. Patrick’s Church 

and in the church school. 

According to Walderbach’s deposition testimony, his memory of 

sexual abuse faded when he stopped attending St. Patrick’s School and was 

no longer an altar boy. However, he claims he has had emotional problems 

all of his life due, at least in part, to the abuse by Father Cigrand. In April 

2002 Walderbach’s memory of these events returned after hearing about a 

cardinal in Florida who was arrested for abuse. 

Upon regaining his memory of the events, Walderbach filed suit 

against the Archdiocese. Walderbach asserted the following claims against 

the Archdiocese: (1) assault and battery, (2) intentional infliction of 

emotional distress, (3) negligence based on a special relationship of the 

defendant and Father Cigrand, and (4) negligent supervision. In addition, 

Walderbach alleged vicarious liability under the doctrine of respondeat 
3 

superior. The plaintiff alleged, as to the claims of assault and battery, 

intentional infliction of emotional distress, and negligent supervision, that 

the defendant “knew or should have known” of Father Cigrand’s actions. 

Because Father Cigrand was an employee of the Archdiocese, the 

Archdiocese owed the plaintiff a duty of care, according to the plaintiff. 

The Archdiocese moved for summary judgment, arguing Walderbach’s 

claims were untimely (not an issue on appeal). In addition, the defendant 

contended there was no genuine issue of material fact that (1) the 

Archdiocese knew, or should have known, of any sexual abuse by Father 

Cigrand; (2) the Archdiocese was Father Cigrand’s employer; or (3) even if it 

were his employer, the acts alleged were within the scope of that 

employment. 

II. Scope of Review. 

Review of a district court’s ruling on a motion for summary judgment 

is for correction of errors at law. Schlote v. Dawson, 676 N.W.2d 187, 188 

(Iowa 2004). Summary judgment is appropriate “if the pleadings, 

depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter 

of law.” Iowa R. Civ. P. 1.981(3). A question of fact exists “if reasonable 

minds can differ on how the issue should be resolved.” Walker v. Gribble, 

689 N.W.2d 104, 108 (Iowa 2004). In reviewing the district court’s ruling, 

the evidence presented must be viewed in the “light most favorable to the 

party opposing the motion for summary judgment.” Kelly v. Iowa Mut. Ins. 

Co., 620 N.W.2d 637, 641 (Iowa 2000); Gen. Car & Truck Leasing Sys., Inc. v. 

Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996). However, the 

opposing party “may not rest upon the mere allegations of his pleading but 

must set forth specific facts showing the existence of a genuine issue for 
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trial.” Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005); see also Iowa Rule 

Civ. P. 1.981(5). Speculation is insufficient to create a genuine issue of 

material fact. Hlubek, 701 N.W.2d at 96. 

III. Defendant’s Alleged Negligence. 

 The defendant’s motion for summary judgment challenged the 

sufficiency of the plaintiff’s evidence to show a genuine issue of material fact 

on two issues necessary to establish a duty of care: whether the defendant 

knew of Father Cigrand’s acts and whether an employer/employee 

relationship existed between the Archdiocese and Father Cigrand. The 

plaintiff’s resistance to summary judgment was very general with respect to 

the defendant’s duties toward the plaintiff. His resistance stated: 

The duties that the Archdiocese owed Walderbach and its other 

parishioners were based on its possession of jurisdictional 

authority over the selection, ordination, assignment, 

supervision, training, instruction, and retention in good 

standing of the diocesan priests it assigned to parishes within 

its jurisdiction, an administrative relationship fixed within the 

hierarchy of the Catholic Church. 

 First, the plaintiff contends he established a genuine issue of fact on 

the issue of whether an employer/employee relationship existed between 

the Archdiocese and Father Cigrand. Interestingly, the plaintiff’s claim is 

based largely on an affidavit by Monsignor James O. Barta, which was 

introduced by the Archdiocese in support of its motion for summary 

judgment. This affidavit stated that 

 Father Nicholas Cigrand was never an employee of The 

Archdiocese of Dubuque. St. Patrick’s Church, Ryan, Iowa, is 

a corporation with Articles of Incorporation and Bylaws. It is a 

separate legal entity from The Archdiocese of Dubuque. While 

serving as an Assistant Pastor at St. Patrick’s Church, Ryan, 

Iowa, Father Nicholas Cigrand was an independent contractor, 

receiving a salary from St. Patrick’s Church. He was never an 

employee of The Archdiocese of Dubuque. 
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Factors indicating a relationship of employer and employee include: 

the right of selection or employment at will, the responsibility to pay wages, 

the right to terminate the relationship, the right to control the work, the 

benefit received by the alleged employer, and the intent of the parties. Iowa 

Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 541-42 (Iowa 1997). We have 

said that “[i]n cases presenting a choice between categorizing a person as an 

employee or an independent contractor, the primary focus is on the extent 

of control by the employer over the details of the alleged employee’s work.” 

Id. at 542. 

 Walderbach contends that he has established enough evidence to 

prevail on the summary judgment issue by showing the Archdiocese has 

jurisdictional authority and assigns priests to parishes within its 

jurisdiction. He also contends that a priest owes duties of obedience and 

submission to the Archdiocese and that Father Cigrand was appointed and 

supervised by the Archdiocese and acted under its control and authority. 

 The Archdiocese responds that Father Cigrand was not an employee, 

but rather an independent contractor. In support of this argument, the 

Archdiocese relies on the vicar general’s affidavit in which he states that 

Father Cigrand was not an employee, but was an independent contractor; 

that St. Patrick’s Church is a separate legal entity with its own articles of 

incorporation and bylaws; and that Father Cigrand was paid a salary by 

St. Patrick’s Church, not the Archdiocese. The Archdiocese contends that 

the “facts” Walderbach relies on to support his contention that an 

employer/employee relationship existed are not based on evidence 

contained in the summary judgment record, but on Walderbach’s own 

arguments. 
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We agree with the district court that the plaintiff’s evidence fails to 

generate a genuine issue of fact to establish an employer/employee 

relationship between the Archdiocese and Father Cigrand. 

 The plaintiff contends that the Archdiocese owed him a duty of care 

because of the defendant’s knowledge of Father Cigrand’s actions. The 

plaintiff contends that he presented evidence to show a material issue of 

fact on the issue of the Archdiocese’s knowledge because the Archdiocese 

had custody of all of the church records from St. Patrick’s Church. 

According to the plaintiff’s argument, the Archdiocese would therefore 

necessarily be on notice of the details of Father Cigrand’s “employment,” 

including the acts of abuse. The problem is that nothing in the records 

even suggests any abuse by Father Cigrand. As Monsignor Barta stated in 

his affidavit, he had examined the files of the Archdiocese, and they showed 

Father Cigrand served as an assistant pastor of St. Patrick’s Church from 

1965 to 1968. His affidavit stated that no evidence appeared in the records 

to show Father Cigrand had committed abuse or even that there were any 

allegations of abuse. 

 The plaintiff also attempts to show the defendant had constructive 

knowledge of the abuse because, according to the plaintiff’s deposition, a 

priest, “probably Father Cooney, the Pastor of St. Patrick’s Church, 

witness[ed] at least one of Father Cigrand’s acts of abuse.” The plaintiff 

argues that this incident was sufficient to put the defendant Archdiocese on 

“constructive notice” of the abuse because the priest who presumably saw 

the incident would surely have reported it to the Archdiocese. 

 Based on the summary judgment record, a fact finder would 

necessarily have to speculate about who actually observed the act or acts of 

abuse and, if it was Father Cooney, that he reported this to the Archdiocese 

so as to put the Archdiocese on notice of the alleged abuse. This hypothesis 
7 

is merely speculative and fails to generate a genuine issue of fact to 

establish the Archdiocese knew of Father Cigrand’s alleged abuse. 

 The district court properly granted summary judgment as to all of the 

counts alleging direct negligence of the Archdiocese based on the alleged 

acts of Father Cigrand. This leaves the issue of vicarious liability. 

IV. Vicarious Liability. 

 The plaintiff also argues that the Archdiocese is vicariously liable for 

the acts of abuse committed by Father Cigrand. A claim of vicarious 

liability under the doctrine of respondeat superior rests on two elements: 

proof of an employer/employee relationship (or employment as an 

independent contractor), and proof that the injury occurred within the 

scope of that relationship. See Biddle v. Sartori Mem. Hosp., 518 N.W.2d 

795, 797 (Iowa 1994). For the reasons already discussed, no genuine issue 

of material fact was generated to establish an employer/employee 

relationship. 

The plaintiff also argues that, if Father Cigrand was not an employee, 

he was an independent contractor of the Archdiocese. He contends that, 

while sexual abuse is an intentional tort not ordinarily considered to be 

within the scope of one’s employment, the Archdiocese could be held liable 

for the acts of abuse here because it “constructively ratified” Father 

Cigrand’s acts. The plaintiff, however, failed to show a genuine issue of fact 

as to the Archdiocese’s knowledge of the acts, so it could not be found liable 

on the basis it “constructively ratified” them. 

 We conclude that the trial court properly granted summary judgment 

in favor of the Archdiocese. 

AFFIRMED.