Missouri Supreme Court to Clarify Childhood Sexual Abuse Law

By Donna Walter
St. Louis Daily Record/St. Louis Countian
June 2, 2005

It should be up to a jury to decide whether a former Chaminade student's claims against his high school stemming from the sexual abuse by two of his teachers are precluded by the general statute of limitations, said the Missouri Court of Appeals, Eastern District, as it transferred the case to the Missouri Supreme Court.

The question turns on when the injuries suffered by Michael Powel were capable of being ascertained, the test used in Missouri to determine when a cause of action accrues. The Missouri General Assembly in 1919 added the "capable of ascertainment" language to Section 516.100.

According to the Court of Appeals, Powel was capable of ascertaining his injury in 2000 when he regained his memory of the abuse by Father William Christensen and Brother John J. Woulfe while the Connecticut native was a boarding student at Chaminade College Preparatory.

In coming to this decision, the appellate court determined that an earlier decision by the Eastern District should no longer be followed. That case was H.R.B. vs. Rigali, and it was the reason Judge John J. Riley granted Chaminade's motion for summary judgment, which was based on Powel's failure to file his lawsuit within the statute of limitations.

Under Section 516.120, Powel had five years to file his lawsuit. He sued in February 2002, almost 2 1/2 years after he regained his memory of the abuse. But the defendants - Chaminade, the Marianist Province of the United States, Archbishop Justin Rigali and the two instructors - argued Powel should have filed suit within five years of the abuse or within five years after he reached age 21.

H.R.B. supports this position. Senior Judge Robert E. Crist, joined by Judge Mary Rhodes Russell and Judge Lawrence G. Crahan, talked about the capable of ascertainment test. "Damage is sustained and capable of ascertainment when it can be discovered or made known, not when the plaintiff actually discovers the injury or wrongful conduct," Crist wrote, citing Harris-Laboy vs. Blessing Hosp. Inc., a 1998 Eastern District decision. The H.R.B. court then held the plaintiff's damages were "sustained and capable of ascertainment in 1964 when they occurred."

"Where an overt sexual assault occurs, the injury and damage resulting from the act are capable of ascertainment at the time of the abuse," Crist wrote, as the court rejected the argument the plaintiff repressed his memories because "his testimony shows that, at the time the acts were perpetrated, he had full knowledge of the events and knew they were wrongful."

The H.R.B. court said Sheehan vs. Sheehan, a 1995 Missouri Supreme Court decision, does not create an exception to the statute of limitations but, rather, was a narrow holding to defeat a dismissal.

But the reasoning of the H.R.B. court "seems to implicitly adopt the 'sustainment of injury test' while ignoring nearly a century of precedent," said the Court of Appeals in Powel's case.

"H.R.B. holds that any plaintiff who suffers a traumatic event immediately knows the damage it will cause him or her. Accordingly, the traumatic event triggers the running of the statute of limitations, regardless of whether or not the plaintiff remembers the event. There are similar cases in the Western District which also hold that an injury immediately accrues," wrote Chief Judge George W. Draper III, citing Harris vs. Hollingsworth, a 2004 decision, and Vandenheuvel vs. Sowell, a 1994 decision. "This is not Missouri law.

"By the legislature's adoption of our current standard in 1919, an action does not accrue 'when the wrong is done or the technical breach . . . occurs,'" he added, citing Section 516.100. "The court in H.R.B. erred in failing to apply the standards set forth by our legislature. Moreover, H.R.B., Hollingsworth, and Vandenheuvel all fail to follow our Missouri Supreme Court's opinion in Sheehan, 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. Further, pursuant to Rule 83.02, we certify this case for transfer to the Missouri Supreme Court because of its general interest and to clarify the differing case law in the appellate districts."

Applying this law to the facts in Powel's case, the appellate court said there was no evidence that Powel had any memory of the abuse when it occurred and that there was evidence he had no memory of the abuse until he began treatment for brain cancer. This evidence is enough to defeat summary judgment, and the question of when the abuse Powel suffered was capable of ascertainment should be made by a jury, said the court.

"You're going to have to look at the facts of each case," said St. Louis attorney Joseph L. Bauer Jr., who represented Powel. "In this case, I think the facts are that he did repress his memory. We have an opinion from a very well-qualified psychiatrist or psychologist that said that he repressed his memory, and under those circumstances, how can he possibly file a lawsuit for something he doesn't know anything about until his memory returns?"

This decision, if it is upheld by the Missouri Supreme Court, can be expected to have a broad impact on childhood sexual abuse cases.

"I think it could have a significant impact on claims against perpetrators of childhood sexual abuse because they can't hide behind the statute of limitations in this type of circumstance where somebody did repress the recollection," said Bauer. "I think there are going to be a lot of possible claims that can now go forward that under the prior ruling were dismissed. Those people [whose claims were] dismissed were not even allowed their day in court, to at least have a jury decide."

The Court of Appeals declined to decide whether Section 537.046 applied to Powel's claims. That statute gives minors who repress memories of sexual abuse and who regain those memories as adults more time to file their lawsuits. Whether the statute applies to claims of failure to supervise a perpetrator is an issue that has not been decided by any Missouri court at this time, said the Court of Appeals.

Gerard T. Noce, who represented Chaminade and the Marianist Province, declined to comment before discussing the decision thoroughly with his client.

The case drew the attention of a large number of victims' groups for which Patrick W. Noaker of St. Paul, Minn., filed an amicus brief with co-counsel Kenneth Chackes of St. Louis and Rebecca M. Randles of Kansas City. The groups that joined in the brief were National Center for Victims of Crime, Victim Advocacy and Research Group, The Linkup Inc., Marilyn Van Derbur Institute Inc., Mothers Against Sexual Abuse, 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 Connections.

Judges Lawrence E. Mooney and Glenn A. Norton concurred with Draper's opinion.

Michael Powel, appellant, vs. Chaminade College Preparatory Inc., and the Marianist Province of the United States, respondents, and Archbishop Justin Rigali, William Christensen, and John J. Woulfe, defendants; No. ED84366; handed down May 31.


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