Tort Law - Sexual Abuse

Chicago Daily Law Bulletin
June 30, 1998

The Illinois Appellate Court, 2d District, has reversed a ruling by Kane County Circuit Judge Timothy Q. Sheldon.

Plaintiff Joell Clay sued Brother Richard Kuhl and the Society of the Missionaries of the Sacred Heart for damages arising out of sexual abuse Kuhl allegedly committed against her when she was a young girl.

In her complaint, filed on Jan. 10, 1996, the plaintiff alleged that Kuhl began sexually abusing her in 1972 or 1973, but that she did not recall that molestation until February 1995. She alleged that Kuhl sexually abused her more than 900 times during a four-year period, starting when she was 5 or 6 years old.

She also alleged that the Society had notice that Kuhl was sexually abusing children and failed to take steps to prevent him from molesting her.

The defendants filed motions to dismiss on the basis that the claims were barred by the statute of limitations. The trial judge granted the motions.

On appeal, the plaintiff argued that under section 13-202.2 of the Code of Civil Procedure, she was entitled to bring her action within two years of the time she discovered that the act of childhood sexual abuse. Since she filed her action on Jan. 10, 1996 -- within two years of when she claimed to have recalled the abuse -- she argued that her claims were filed on time.

The appeals court said section 13-202.2(b) of the code provides that an action for damages for personal injury based on childhood sexual abuse must be commenced within two years of the date the person abused discovers or through the use of reasonable diligence should discover that the act occurred.

The court said childhood sexual abuse is a type of event that ordinarily should put the plaintiff on notice of his or her injury. Victims of such abuse would normally be aware of the occurrence of the actions that constitute the abuse when it happens, the court said.

However, we recognize the possibility that a plaintiff in such a case may subsequently suffer from a condition or disability that renders her unable to recognize that the event occurred or that she suffered a resulting injury," the court said.

In certain circumstances, the court said, a plaintiff may be suffering from a condition that precludes her from recognizing that she has been a victim of childhood sexual abuse.

The appeals court reversed the dismissal. The court remanded the matter to the trial court so that the plaintiff could file an amended complaint specifically alleging why she was unable to discover the alleged sexual abuse until 1995.

The appeals court said the plaintiff's allegations that she had no memory of the molestation at any time until February 1995 was insufficient to toll the statute of limitations under section 13-202.2. In other cases in which the discovery rule has been applied, the court said, each plaintiff provided a well-articulated explanation of why it was impossible for her to discover her injury sooner.

Based on the plaintiff's bare" allegations, she seemed to be alleging that the discovery rule should be applied because she did not remember until 1995 that the abuse occurred.

The plaintiff cites no authority for the proposition that mere forgetfulness is a legitimate ground to toll the statute," the court said. We therefore conclude that, as a matter of law, mere forgetfulness cannot constitute a sufficient ground to toll the statute."

Joell Clay v. Brother Richard Kuhl and Society of the Missionaries of the Sacred Heart, No. 2-97-0266. Justice Fred A. Geiger wrote the court's opinion with Justice John J. Bowman concurring and Justice S. Louis Rathje specially concurring. Released June 22, 1998. (18 pages) 007A


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