Applying the Statutes of Limitation in Institutional Childhood Sex Abuse Cases
Despite a four-year statute of limitation for most causes of action against employers and volunteer entities arising from childhood sexual abuse, plaintiffs often bring decades-old claims and try to avoid the limitation defense. In these institutional sex abuse suits, plaintiffs typically make allegations of fraudulent concealment by the institutional defendant or memory problems of the plaintiff in attempt to avoid the statute of limitation. However, over the past decade, three appellate decisions have provided a roadmap for defeating defenses to the statute of limitation in institutional sexual abuse cases.
Florida’s statutes of limitation for an institutional sex abuse defendant afford[s] parties needed protection against the necessity of defending claims which, because of their antiquity, would place the defendant at a grave disadvantage. In such cases how resolutely unfair it would be to award one who willfully or carelessly slept on his legal rights an opportunity to enforce a stale claim against a party who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses. Indeed, in such circumstances, the quest for truth might elude even the wisest court.
With that policy background, Florida courts have steadfastly enforced the legislature’s time limits on claims for money damages, while they are also mindful that society benefits when survivors of child sexual abuse come forward.
After a discussion of Florida’s sex abuse-specific statutes of limitation, each of the popular theories to avoid the law statutes of limitation is addressed along with the case law that can be used to defeat each theory.
Sex Abuse-specific Statutes of Limitation F.S. §§95.11(7) and (9)
F.S. §95.11(3) provides a four-year statute of limitation for virtually all potential causes of action in an institutional sex abuse case. Causes that fall under that statute include negligence, intentional infliction of emotional distress, and respondeat superior. The Florida Legislature, however, enacted two sex abuse-specific sections of the civil statutes of limitation: F.S. §95.11(7) for intentional torts based on abuse, and F.S. §95.11(9) for sexual battery offences on victims under age 16. F.S. §95.11(9) applies to “any such action other than one which would have been time barred on or before July 1, 2010.”
Plaintiffs often allege repressed memory, suppressed memory, traumatic amnesia, or other memory defects in attempt to invoke a common law “delayed discovery” doctrine in childhood sex abuse cases. The Cisko opinion clarified Florida’s line of case law in this area by holding that allegations of repressed memory do not delay the accrual of the statute of limitation against an institutional defendant. Following Cisko, the delayed discovery doctrine in inapplicable to negligent of vicariously liable tortfeasors in childhood sexual abuse claims. To explain how Cisko court arrived at its holding, the case law leading up to Cisko must be examined, beginning with Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000)
Most plaintiffs who claim repressed memory cite to the Florida Supreme Court’s Hearndon decision for support to invoke the delayed discovery doctrine. In Hearndon, the plaintiff filed a complaint in 1991 against her stepfather for injuries that resulted from sexual abuses he allegedly committed from 1968 through 1975, when the plaintiff was between the ages of 8 and 15. The trial court dismissed the compliant as time-barred, despite the plaintiff’s allegations that she suffered “traumatic amnesia” caused by abuses perpetrated by her stepfather until approximately 1988.
Accordingly, the Hearndon court held that the “application of the delayed discovery doctrine to childhood sexual abuse claims is fair given the nature of the alleged tortious conduct and its effect on victims, and is consistent with our application of the doctrine to tort cases generally….” The court also alluded to the fact that the 1992 enactment of F.S. §95.11(7) and a statutory application of delayed discovery doctrine would have applied to Hearndon’s claim, but for the fact that her claim was filed in 1992. Thus, the Hearndon decision is narrow and did not specifically address whether the court was permitting delayed discovery in all childhood sexual abuse cases involving traumatic amnesia, or solely those involving the perpetrator. Plaintiff’s counsel have, thus, argued that repressed memory delays the accrual of the statute of limitation in all sex abuse cases.
The next case interpreting Hearndon is Davis v. Monahan, 832 So. 2d 708 (Fla. 2002), a suit by an elderly woman arising from her family’s misappropriation of her assets. In Davis, the Florida Supreme Court declined to extend application of the delayed discovery doctrine to claims of breach of fiduciary duty, conversion, civil conspiracy, and unjust enrichment. In explaining its rationale, the court discussed its ruling in Hearndon and stated that it found application of the doctrine appropriate in Hearndon “because the lack of memory was caused by the abuser—a situation similar to the statutory circumstances to which the doctrine applies.”
The court further explained “While we applied the delayed discovery doctrine to causes of action arousing out of childhood sexual abuse and repressed memory in Hearndon, we did so only after considering the unique and sinister nature of childhood sexual abuse, as well as the fact that the doctrine is applicable to similar cases where the tortious acts cause the delay in discovery.”
Despite the Davis court’s clarification that the Hearndon court’s application of the delayed discovery doctrine was the limited to intentional torts, Davis was not a sexual abuse case. The holding in Davis is, therefore, often argued and distinguished. Upon this precedential background Cisko was decided. The Cisko plaintiffs filed a one-count complaint in 2009 seeking damages for negligence against the Diocese of Steubenville (Diocese). The complaint alleged that the abuse suffered by the plaintiffs at the hands of a priest took place in 1996 or 1997 at Christ the King Church in Miami-Dade County, Florida. The plaintiffs alleged the suit was filed within four years of recovering their memories of abuse. Their theory of liability against the Diocese was based upon its alleged knowledge of the priest’s history of sexual molestation and its alleged negligence in permitting the priest to be placed at Christ Church without informing the church or the Archdiocese of Miami that the priest’s contact with children should be restricted.
The Diocese filed a motion for summary judgment, arguing that the plaintiffs’ assertions that they had repressed their memories of their sexual molestation until May 2005 were insufficient to delay the accrual of F.S. §95.11(3)(a), the four-year statute of limitation for a negligence action. In addition, the Diocese argued that F.S. §95.11(9), regarding sexual battery on victims under age 16, were not applicable on the facts of the case. In opposition to the motion for summary judgement, the plaintiffs argued that their repressed memories were sufficient to delay the accrual of their cause of action as to the negligence claim. They relied upon the Florida Supreme Court’s opinion in Hearndon, arguing that it was controlling on the facts before the trial court. Plaintiffs also argued that F.S. §95.11(7) did not alter their rights under Hearndon and the common law.
Both the Cisko trial court upon granting summary judgment, and the appellate court affirming same, held that “Hearndon [does] not apply to a negligence action.” The Cisko opinion explains, “A plain reading of Hearndon makes clear the holding is limited to its specific historical and procedural facts. The plaintiff in Hearndon brought and intentional tort action against her stepfather for sexual abuse she suffered by him as a child. She alleged the trauma caused her to suppress the memory of the events for many years, only recalling them later as an adult. The trial court and the district court of appeal determined the statute of limitations barred her action. The Florida Supreme Court, however, allowed the action to stand under the delayed discovery doctrine based on the plaintiff’s allegations of traumatic amnesia. The opinion strongly suggests the holding hinges not only on these specific allegations but also on the specific cause of action: a suit for intentional tort against the perpetrator.”
Cisko thereby clarified previous case law by explicitly rejection repressed memory as a means to toll or delay accrual of the statute of limitation against a negligent of vicariously liable defendant. It clarified that while the Florida Supreme Court’s opinion in Hearndon will delay the accrual of the statute of the statute of limitation against the actual abuser, absent the application of the legislature’s sex-abuse specific statutes of limitation; repressed memory is not a basis to delay the accrual of a cause of action against an institutional tortfeaser.
Equitable Estoppel Due to Fraudulent Concealment.
In Rubio, the plaintiff sued the Archdiocese of Miami, Inc., for negligence and vicarious liability related to alleged sexual abuse that he suffered as a child at the hands of his parish priest. The complaint was not filed until approximately 35 years after the alleged abuse ended. The trial court dismissed the plaintiff’s complaint with prejudice on the basis of the statute of limitation; the plaintiff appealed.
In his complaint, the Plaintiff made extensive factual allegations concerning the alleged wrongdoings by the Archdiocese of Miami, which allegations were taken as true for the purposes of the appeal. Rubio was a devout Catholic who served as an altar boy at Our Lady of Divine Providence when he was a child. Starting when he turned ten years old, for a two year period from 1976 to 1977, Rubio was sexually abused by his parish priest…. The abuse followed the classic pattern in which the sexual predator groomed his selected child-victim with compliments and special favors. In Rubio’s case, the sexual predator used his position as a priest employed by the Archdiocese to prepare, commit, and conceal the abuse. The Archdiocese knew of [the priest’s] history of molesting underage boys, but nevertheless continued to hold [the priest] out as a priest and spiritual leader. When it became aware of [the priest’s] misconduct, the Archdiocese failed to report the sexual abuse as required by law. Instead, the Archdiocese transferred [the priest] to different parishes, and ultimately to Spain, to conceal his criminal behavior from his parishioners and the public. This conduct was part of a systematic cover-up that reached the highest levels of the Vatican. The Archdiocese was negligent in hiring and retaining [the priest], and was vicariously liable, as the employer, for [the priest’s] misconduct.
The Rubio court rejected the alleged fraudulent concealment as a means to circumvent the statute of limitation, affirming the dismissal and holding that “equitable estoppel does not apply in this case because Rubio has not alleged any facts indicating the Archdiocese caused or induced him to refrain from filing suit within the limitations period.”
The Rubio court stated:
Rubio knew the abuse had occurred, knew the identity of the abuser, and knew the abuser worked for the Archdiocese. Yet, the amended complaint fails to allege any acts of the Archdiocese towards Rubio that caused him to delay filing his claims for the three decades that elapsed since the time he allegedly been abused as a child. As such, there is simply no basis upon which to apply the doctrine of equitable estoppel.
Rubio is the strongest and most recent case rejecting equitable estoppel in a sex abuse case, but it follows another decision which would likewise require dismissal in a similar case. In John Doe No. 23, the plaintiff filed suit more than 30 years after the acts giving rise to the plaintiff’s causes of action for negligence and respondent superior liability. The plaintiff conceded that his delay in filing suit was not the result of any repressed memory of the events. Rather, he asserted that his delay resulted from the defendant’s concealment of their knowledge that the subject employees had sexually abused other boys. He contends that this information would have assisted him in pursuing his wrongful hiring and supervision claims.
Despite that allegation, the trial court dismissed the plaintiff’s amended complaint, and the appellate court upheld that dismissal. The John Doe No. 23 court quoted a New York decision for its rationale to affirm the dismissal. F.S. §95.11(3)(a) and (p), the applicable statutes of limitation for negligence and vicarious liability, may be contrasted with the medical and professional malpractice statute of limitation found at F.S. §95.11(4)(a). That statute states that the limitation period “shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” The professional malpractice limitation period codifies the delayed discover doctrine, whereas the negligence and vicarious sections of statute of limitation do not. On the basis of this statutory construction, there is no knowledge requirement putative plaintiff’s in negligence or vicarious liability cases for the statute of limitation to begin running. Therefore, a delay by a plaintiff in realization of one component of their damages does not impact the running of the statute limitation.
In Young v. Ball, 835 So. 2d 385 (Fla. 2d DCA 2003), the plaintiff pleaded a civil conspiracy count against several defendants claiming that his name was forged on a loan document. The loan documents were forged in 1990, but the plaintiff discovered the forgery in 1993. He waited to file the complaint until 1999. The court granted summary judgment for the defendants on the basis of a four-year statute of limitation beginning in 1990, at the time the documents were forged, despite Mr. Young’s lack of notice until 1993. The Young court held:
The Monahan decision now makes it clear that the delayed discovery doctrine does not apply to a cause of action for civil conspiracy. Therefore, in this case the statute of limitations began to run when Young’s cause of action accrued. That happened in 1990, when the alleged conspirators applied for the loan and received the proceeds. Thus, Young’s 1999 action was barred under the four-year limitation period in section §95.11(3)(p), Florida Statutes (1989).
As shown above, the relevant and controlling case law all reaches the same conclusion: The four-year statute of limitation applies to virtually all causes of action against institutional defendant arising from child sexual abuse. Florida courts have not delayed the accrual of an individual’s cause of action against an alleged institutional tortfeasor based upon the application of the delayed discovery doctrine, indirect fraudulent concealment, or a failure of the plaintiff to connect the dots between the negligence and his or her injury. In doing so, the courts have kept the responsibility for any changes to those statutes squarely where it belongs—with the legislature.