MO Court of Appeals' Eastern District Rules Man Abused 25 yrs. Earlier Could Sue for Sex Abuse

Missouri Lawyers Weekly
June 6, 2005

Advocates for sex abuse victims cheered last week's decision by the Missouri Court of Appeals' Eastern District which ruled that a man who repressed memories of abuse for about 25 years could still sue his former Catholic high school and its priests for the sexual assault he allegedly suffered as a teen.

The court split with the Western District and also overturned its earlier decision in H.R.B. v. Rigali which held that the five-year statute of limitations wasn't tolled by a repressed memory and instead begins running when the sex abuse happens or when the child turns 21.

"The court in H.R.B. erred in failing to apply the [time limit] standards set forth by our legislature," wrote Appellate Judge George W Draper III. "Hence, we choose to no longer follow the rationale in H.R.B. and its progeny as they contravene Missouri statutes and case law precedent. "

Although the court in Powel v. Chaminade College Preparatory, Inc., et al., MLW No. 52136 reversed summary judgment for the school on May 31, it immediately transferred the case to the Supreme Court.

Sex Abuse and Tort Victims 'on same footing'

Joseph Bauer, the St. Louis lawyer who represented the former student, said that this decision "is going to make a big difference to people wanting to make a claim who have a repressed memory. "

Although his case was against Chaminade, Bauer thinks the ruling which allows repressed memories to toll the statute of limitation "will have a greater impact on the Archdiocese. "

St. Louis lawyer Kenneth Chackes, one of the attorneys who represented several victims' advocacy groups that filed amicus briefs on behalf of the former student, said, "I thought it was great that an appellate court in Missouri has put sex abuse survivors on the same footing as other tort victims as far as the statute of limitations is concerned.

"The H.R.B. decision, which they expressly overruled, seemed to have created a special exception for these kinds of cases," said Chackes who also frequently represents sex abuse victims. "That's no longer going to be the case in the Eastern District. "

Although the ruling applies delays from repressed memories, he's hopeful that it also "signals a more tolerant view of applying statute of limitations" to other kinds of delays encountered in sex abuse cases such as when the abuse is "covered up" by the authorities.

Cancer Treatment Triggers Memories

Michael Powel was born on June 10, 1958. He went to Chaminade College Preparatory Inc., an all-boys high school in the St. Louis area, as a boarding student. He began going to the school late 1973 or early 1974 and attended from the ages of 15 to 17.

In February 2000, at the age of 41, Powel was treated for brain cancer. During the treatment, he recovered repressed memories of childhood sexual abuse that allegedly occurred while attending Chaminade. He told his wife about the abuse in the spring of 2000 and in 2001, he received therapy and treatment from a licensed clinical psychologist.

On June 2, 2002, Powel filed suit in St. Louis City Circuit Court against Chaminade, the Marianist Province of the United States, the Archbishop of St. Louis, Father William Christensen and Brother John J. Woulfe. He alleged that instructors Christensen and Woulfe regularly and repeatedly sexually assaulted him with acts that included fondling, viewing an X-rated movie, oral sex, and anal sodomy. He also alleged that Chaminade intentionally failed to supervise its clergy.

Chaminade filed a summary judgment motion that argued Powel's claims were barred by the statute of limitations. The school argued that an affidavit from Powel's psychologist was an admission by Powel that he knew he was molested and that he remembered the abuse from the time it began.

Powel argued he didn't have any conscious memory of the sexual abuse before his 18th birthday, that the memories weren't regained until February 2000 and that since he filed the case within two years of discovering the abuse, the suit was timely filed under the five-year statute of limitations.

St. Louis City Circuit Judge John Riley rejected Chaminade's analysis of the psychologist's affidavit as inaccurate. Instead, the trial judge found that the affidavit supported Powel's claim that he didn't recall the abuse until February 2000. The trial judge concluded that there was a genuine issue of material fact on the question of whether Powel involuntarily suppressed his memory at the time of abuse until February 2000 and it was for a jury to decide whether Powel's damage was capable of ascertainment before he recovered his memory.

However, because of the Eastern District Appellate Court's prior decision in H.R.B. v. Rigali, 18 S.W.3d 440 (Mo. App. E.D. 2000), the trial judge granted summary judgment for the school.


The former student appealed, arguing his damages weren't capable of ascertainment until February 2000, when he recovered his memory and that "he did not have to file until the cause of action accrued and he recovered his memory. "

Filing amicus briefs in support of the former student were the National Center for Victims of Crime; Victim Advocacy and Research Group; The Linkup, Inc.; Marilyn Van Derbur Institute, Inc.; Mothers Against Sexual Abuse; The Awareness Center; The Human Lactation Center, Ltd.; S.M.A.R.T.; Justice for Children; Survivor's Network of Those Abused by Priests; Leadership Council on Child Abuse and Interpersonal Violence; Survivors First; and Survivors Connection.

The school countered that the former student's damages were capable of ascertainment when he was subjected to the abuse and therefore the former student "would have to file within five years of the age of majority, regardless of whether or not he had a conscious memory of any childhood sexual abuse pursuant to Section 516.170. "

In other words, the former student had until he was 26 to file suit.

Writing for the court, Judge Draper noted that the question of whether the suit was timely filed "depends upon when his cause of action accrues for purposes of the statute of limitations. "

Section 516.100 provides: "[T]he cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and capable of ascertainment... "

An "objective standard" is used to determine when damages are capable of ascertainment, Draper noted. "'However, when contradictory or different conclusions may be drawn from the evidence as to whether the statute of limitations has run, it is a question for the jury to decide. '"

Draper acknowledged that the school's argument rested on H.R.B., a five-year-old opinion from the Eastern District. In H.R.B., a former parochial school student regained repressed memories of childhood sexual assault as a 13-year-old schoolboy. He sued the Archbishop of the St. Louis Archdiocese for intentionally failing to supervise a priest and a jury returned a verdict in favor of the former student. The Archbishop appealed arguing that the former student's damages were capable of ascertainment when the abuse occurred and therefore suit was time barred.

The Court of Appeals, reversing the jury verdict, concluded that the former student's "damages were sustained and capable of ascertainment in 1964 when they occurred. "

Draper wrote, "In the instant case, [the school] argues that [the former student], like Plaintiff in H.R.B., knew of his injury and damages when he was sexually assaulted as a student.

"Since [the former student] did not file suit as a minor or once he reached the age of majority, [the school] argues this Court is obligated by the holding in H.R.B. to affirm the trial court's judgment.

"We disagree. "

'Capable of Ascertainment'

Draper noted that statutes and case law identify four different events that "act as a 'trigger' to the running of the statute of limitations. "

They include: "the moment the defendant commits his wrong (the 'wrongful act' test); the moment the plaintiff sustains substantial injury or interference (the 'sustainment of injury' test); the moment that plaintiff's damages are substantially complete (the 'capable of ascertainment' test); or the moment the plaintiff first becomes aware that he [sic ] had been aggrieved (the so-called 'discovery' test). "

"Historically, Missouri has followed the 'capable of ascertainment' test in order to determine when a cause of action accrues," Draper stated. "Missouri courts apply the "capable of ascertainment" test to the exclusion of the other three tests to determine when a cause of action accrues. "

While H.R.B. correctly rejected the "discovery test" Draper said "its rationale seems to implicitly adopt the "sustainment of injury test" while ignoring nearly a century of precedent.

"H.R.B. holds that any plaintiff who suffers a traumatic event immediately knows the damage it will cause him or her," Draper said. "Accordingly, the traumatic event triggers the running of the statute of limitations, regardless of whether or not the plaintiff remembers the event. "

However, he noted in Harris v. Hollingsworth, 150 S.W.3d 85 (Mo. App. W.D. 2004), and Vandenheuvel v. Sowell, 866 S.W. 2d 100 (Mo. App. W.D. 1994), the Western District adopted H.R.B's reasoning.

"This is not Missouri law," Draper stated.

When the legislature, in 1919, adopted the current standard set out in 516.100, the time limits weren't triggered until "when the wrong is done or the technical breach...occurs. "

"The court in H.R.B. erred in failing to apply the standards set forth by our legislature," Draper said.

And he stated that H.R.B., Hollingsworth and Vandenheuval "all fail to follow our Missouri Supreme Court's opinion in Sheehan [v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995)], holding that repressed memory can prevent the ascertainment of injury and therefore forestall the running of the statute of limitations.

"Hence, we choose to no longer follow the rationale in H.R.B. and its progeny as they contravene Missouri statutes and case law precedent," Draper stated, reversing summary judgment for the school.

However, because of the general interest in the issue and to clarify the new split in the appellate districts, Draper transferred the case to the Supreme Court.

And because the issue of timeliness was decided under the general statute of limitations, Draper declined to address the former student's additional argument that his claim was timely under Section 537.046.2, which provides that a suit for childhood sexual abuse must be filed "within five years of the date the plaintiff attains the age of eighteen or within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse.... "

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(The full text of the Eastern District Court of Appeals' opinion in Powel v. Chaminade College Preparatory, Inc., et al., MLW No. 52136, is available from Missouri Lawyers Weekly - 11 pages. Call (800) 685-2147.)


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