*1 Plaintiff-Appellant, Doe, BBB John
v. Congregation, Mary's Milwaukee, St. Archdiocese of Defendants-Respondents , Lanser, and Father Jerome 1, Company and Alias Insurance No. Alias Insurance [Case 0423] Company No. No. Defendants. 94 - Plaintiff-Appellant, Doe, MMM John
v. Company Com No. Alias Insurance Alias Insurance pany Milwaukee, St. Boniface 2, Archdiocese No. Neuberger,
Congregation, Father Michael [Case 94-0695] Defendants-Respondents. No. Plaintiff-Appellant, T.C.,
v. Joseph Reverend S. Col Milwaukee, Archdiocese lova, Church, Defendants- and St. James Catholic 94-2124] [Case
Respondents. No. Plaintiff-Appellant, J.J.,
v. Michael Father Milwaukee, Archdiocese Congregation, Neuberger, and St. Boniface [Case 94-2128] Defendants-Respondents. No. Callaghan's Digest, same and section number. topic *See Wisconsin Plaintiff-Appellant,
A.C., Reverend William J. Milwaukee, Archdiocese *2 Effinger, and St. Francis Desales Church, Catholic
Defendants-Respondents. [Case 94-2141] No. Plaintiff-Appellant,
Susan Smith,
v. Reverend William J. Archdiocese Milwaukee, Effinger, Mary's Church, St. Catholic Defendants- Respondents. [Case 94-2384] No.
John Brown, Plaintiff-Appellant, St. Francis Desales Milwaukee, Archdiocese Effinger, Church, Catholic and Reverend William J. Defendants-Respondents. [Case 94-2852] No.
Supreme Court 94-0423, 94-0695, 94-2124, 94-2128, 94-2141, 94-2384, Nos. 94-2852. Oral 27, 1997. argument January June Decided (Also 94.) reported in 565 N.W.2d Callaghan's Digest, topic *See Wisconsin same and section number.
ABRAHAMSON, C.J., concurs.
Crooks, J., part. took no MMM Doe there were For John BBB Doe and John Jeffrey Anderson, Mark A. R. and briefs by Wendorf Anderson, Reinhardt & Paul, MN and oral argu- St. ment Mark A. by Wendorf. Smith, T.C., J.J., A.C.,
For Susan John Brown Timothy Elliott, J. Cesar Robert L. there were by briefs Hausmann-McNally, S.C., Milwaukee and oral Elliott. Robert L. argument Con- Mary's Archdiocese of Milwaukee & St.
For St. Francis St. Boniface gregation, Congregation, Church, Church, Mary's St. Catholic Desales Catholic Flynn, H. Matthew J. Katherine there were briefs Brady, Mil- Grebe, Quarles & Michael J. Fischer Flynn. Matthew J. argument by waukee and oral Joseph For the Reverend S. Collova there were Christopher Stacy Hase, Jaekels, J. briefs David J. Franke, S.C., and Cook & Milwaukee. C. Gerber Ward Court) (in separate Supreme filed in *6 No brief Effinger, regards William and Father Jerome to Father joined by Boyle, they Milwaukee, P. as Lanser Gerald in the briefs filed on behalf of Archdiocese Milwaukee. (in Court) separate Supreme filed in
No brief regards Neuberger by Flynn, Michael Alex to Father joined Milwaukee, he in the filed on behalf of as briefs Archdiocese of Milwaukee. GESKE, P. are 1. JANINE J. Seven cases
before the court on a consolidated certification from the appeals. plaintiffs allege children, court of that as continuing adulthood, one case into he or she sexually by priest was abused Roman Catholic employed by the Archdiocese of Milwaukee. All of their complaints by were dismissed the circuit court for Mil- County summary waukee on motions to dismiss or for judgment grounds: following on one or more of the by limitations, claims were barred the statute of for upon failure to state a which relief can be claim granted, public policy grounds. or on appeals following
¶ 2. The court certified the question: discovery Does the rule save an otherwise untimely, against non-incestuous, sexual assault claim alleged perpetrator alleged the individual when the alleged perpetrator minor, victim was a and the was a person position in a of trust vis-a-vis the child/victim? Applying cases, rule to these we conclude plaintiffs' timely that the claims were not filed because plaintiffs discovered, each of the or in the exercise of diligence, reasonable should have discovered that he or assault(s) injured alleged she was at the time of the alleged multiple the last date of the assaults. Conse- quently, plaintiff each should have filed his or her applicable statutory period action within the of one or reaching majority. two after We conclude that in properly case, each the circuit court held that plaintiff claims of each are barred the statute of minors, limitations for and therefore affirm. plaintiffs' ¶ 3. The seven claims are similar plaintiffs, nature, but not identical. Five T.C., J.J., they A.C., Smith, Susan Brown, and John claim that assault(s) recently were not aware until that the sexual psychological injuries. caused their and emotional Two plaintiffs, John BBB Doe and John MMM Doe, claim they repressed memory of the incidents of identity abuse, and of the of the abusers.1 The Doe *7 plaintiffs allege they injuries suffered aas result of abuse, the but were not aware that the abuse caused injuries they recently these until recalled the abuse. priest All seven claim the individual defend- negligently positions authority. ants misused their plaintiff against Each also asserts claims the churches negligent employment, and the Archdiocese for train- ing supervision priests, of the defendant and for report failure to the abuse.
1Although repressed the claim of memory of the incident of sexual assault is not asserted in BBB Doe and MMM Doe complaints, allegation this was included in their in oppo briefs sition to the motions to dismiss. The circuit included this courts allegation in they the facts that considered as true when mak ing legal their determinations as to sufficiency of the Doe claims.
319
FACTS AND PROCEDURAL HIS-
T.C., J.J., A.C.,
TORY-PLAINTIFFS
SUSAN
SMITH, AND JOHN BROWN
following
us
4. Because these cases come to
summary judgment,
grant of motions to dismiss or for
pled
we must take as true all facts
and all reasonable
solely
purpose
testing
therefrom,
inferences
for the
legal sufficiency
Watts,
of the claims. Watts v.
(1987).
purposes
506, 512,
Wis. 2d
caused assaults, sexual T.C. and J.J. each subse- quently developed coping According mechanisms. complaint, suppressed per- T.C.'s he and was unable to existence, ceive the nature, or cause of his psychological injuries approxi- and emotional until mately years 1992, when he was 26 old. T.C. was damage unaware that he had suffered emotional until subsequently diagnosed during it was treatment. According complaint, coping to J.J.'s as a result of these per- mechanisms and distress, his he was unable to ceive or know the existence or nature of his psychological injuries and emotional and their connec- assault(s) approximately tion to the sexual until December of after the date of assault. complaints 7. Both T.C. and J.J.'s include against priest claims the individual defendant for fiduciary duty breach or ecclesiastical and breach of complaints ministerial duties. Both include claims against negligent supervision the local church for liability apparent authority. for under the doctrine of complaint J.J.'s age does not recite his date birth or at the time of the complaint allege assaults. While the does not Neuberger's J.J. was student of Father or of the Archdio cese, allegations we take the Neuberger that Father breached duty "instruct, advise, counsel, his to J.J. to teach and and to interpret truthfully faithfully the doctrine and tenets of the faith, Roman Catholic Church on matters relig morals and doctrine," ious age. that J.J. was at least of school *9 the Archdio- claims against include complaints
Both supervision training, placement, negligent cese for apparent the doctrine of under liability of the priest, Stat. under Wis. duty and for authority, breach Both harm. mitigate abuse report 48.9815 § damages for punitive include a claim complaints defendants. all against Smith, and John A.C., facts for Susan 8. The assault by all sexual allege are similar because
Brown claims relat- and all include Effinger William J. Father During of alcohol. negligent consumption ing on a number of assaulted A.C. sexually Father Effinger A.C.'s does not state complaint his Although occasions. school-age a that he was allege in it does age (1995-96) neglected Abused or §48.981 Stat. Wis. children. coroner, (2) REQUIRED physician, REPORT. A PERSONS TO nurse, dentist, optometrist, examiner, chiropractor, medical professional, acupuncturist, or mental health social other medical counselor, family therapist, professional
worker, marriage and worker,.. teacher, or coun- public .school administrator assistance day 767.11, selor, in a care under s. child care worker mediator institution, day provider, caring alcohol or care center or child counselor, drug of the treatment staff abuse member other county department by working employed with a or under contract 51.42, 51.437, therapist, occupational 46.23, physical under s. or audiologist, emergency speech-language pathologist, therapist, having police rea- or law enforcement officer medical technician or suspect child seen in the course of cause to that a sonable neglected having professional or or reason duties has been abused professional course of duties has that a child seen to believe neglect neglect and that abuse or threatened with abuse or been sub.(2m), shall, provided report except as under the child will occur sub.(3). including attorney, Any person, provided an other as neglected having suspect that a child has been abused or reason to threatened with abuse or reason to believe that a child has been may neglect make neglect of the child will occur and that abuse or making report report. person under this subsection such a No doing. discharged employment may for so from be against Effinger, Father A.C. filed suit minor. Milwaukee, DeSales and St. Francis Archdiocese February approximately 16, 1994, Church on Catholic assault(s). years after the After the Archdiocese was *10 Effinger's on A.C., of Father assault made aware appropriate treat failed to take action to Archdiocese According problems. to mental and emotional A.C.'s complaint, he he was unaware that had suffered A.C.'s damage psychological until was sub- and he emotional sequently diagnosed during He unable treatment. was any bring this he una- to action earlier because was injury cause, of the and and because ware its precipitated an emo- actions and omissions defendants' making incapable bringing A.C. suit. tional condition ¶ in 1968 when Susan 9. Sometime or years Effinger raped, old, was 8 9 Father Smith record, and Based on the assaulted molested her. reported apparently the assault to sev- Smith Susan shortly family immediate members afterwards. eral Effinger, against the Archdio- filed suit Father Smith Mary's 9,1993, on St. Catholic Church March cese, and assault(s). years 24 after the Effinger sexually During 1979, Father 10. on a number of and molested John Brown
assaulted was that John Brown record indicates occasions. years approximately old and thus was born against filed suit time of the assaults. Brown at the Effinger, Francis Archdiocese, and St. Father approxi- 9, 1993, Church on March DeSales Catholic years mately the assaults. after A.C., assaults, As of the sexual 11. a result experienced symptoms psycholog- Smith, and Brown subsequently distress ical and emotional According developed coping com- their mechanisms. psychological plaints, and the distress as result of coping suppressed mechanisms, each and was unable perceive or know the existence, nature, or cause of psychological injuries his or her and emotional until approximately January of Thus, A.C. did not injuries approximately years know of his until after injuries assault, his Susan Smith did not know of her years until 24 after her assault,6 and Brown did not injuries know of his until 14 after his assault. ¶ 12. A.C., Smith, and Brown each claim Father Effinger They breached his ministerial duties. claim negligent training, place- Archdiocese was in the supervision priests; ment, and is liable under the apparent authority, doctrine of breached their contract vicariously for educational services, is liable for Father Effinger's negligent consumption alcohol, duty breached a report § under Wis. Stat. 48.981 to mitigate Similarly, they abuse and harm. claim the negligent supervision, churches are liable for *11 are vicar- iously Effinger's negligent liable for Father consumption alcohol, of and are liable under the doc- apparent authority. trine of A.C., Smith, and Brown punitive damages against also seek all the defendants. CIRCUIT COURT DISPOSITION OF THE CASES
OF T.C., J.J., A.C., SMITH, SUSAN AND JOHN
BROWN ¶ 13. The Archdiocese and the churches in the T.C., J.J., and A.C. cases moved for dismissal on the grounds that upon the failed to state a claim granted, which any relief could be and that actionable applicable claims were time barred under the statute of 6While expressly not alleging in her complaint amended repressed that she knowledge of the itself, sexual assault there is evidence in the record that point, at some Smith repressed knowledge of the event itself. Judge court, John E. McCor- The circuit
limitations. together the motions heard and decided mick, pertaining J.J., A.C. The court dismissed T.C., and complaints First, three reasons. the their for each of plaintiff was aware held that because each circuit court duty a of due assault, he had of the incident of sexual injury. diligence Therefore, the com- to discover by applicable plaints statute were barred court dismissed the Second, the circuit limitations. grounds prevention public policy complaints on protection from stale claims. of defendants of fraud and complaints failed ruled that the Third, the circuit court granted upon which relief could be to state a claim against Wis- and the churches because the Archdiocese yet recognized the claim of not courts have consin negligent supervision. defendants case, In Susan Smith's summary judgment on a statute for based
moved against claims, on all of Susan Smith's limitations bar policy grounds, public to state a claim for failure Mary's. against The circuit and St. the Archdiocese granted Judge Crivello, defendants' Frank T. court, judgment summary that The circuit court held motion. by the statute was time-barred Smith's action Susan applica- public policy dictated an limitations and discovery the sexual consistent with rule tion of therapist exploitation statute, Wis. Stat. a years. § to 15 limited which 893.585/ (1991-92) exploitation Sexual §893.585 Stat. Wis. (1) 893.54,893.55 893.57, Notwithstanding an therapist. ss. damages commenced within for shall be action under s. 895.70 *12 or be barred. the cause of action accrues after (2) bring is unable to person action under s. 895.70 entitled to If a any to bring the sexual contact or due due to the effects of the action period therapist, threats, the from the instructions or statements inability part limited for the commencement is not of the time In 15. John case, Brown's the defendants summary judgment. Judge
moved for The circuit court, granted dismissing Frank T. Crivello, motion, the all of by applicable Brown's claims as barred statute of limitations. The court dismissed Brown's claims against the Archdiocese and St. DeSales, Francis find- ing that Brown had failed to state a claim for respondeat superior report and for failure to abuse. Effinger's The court held that Father actions were beyond scope employment of his therefore, respondeat superior. Brown could not recover under The impose § court further held that Wis. Stat. 48.981 does not duty organizations report
a on abuse. Finally, the circuit court ruled that Brown had failed to diligence discovering exercise reasonable his cause negligent supervision. of action for FACTS AND PROCEDURAL HISTORY—THE TWO
DOE PLAINTIFFS Again, purposes reviewing legal for sufficiency of pled claims, these we must take the facts action, except this subsection shall not extend the time years.
limitation more than 15 According 895.70, to Wis. Stat. "'Therapist' § phy- means a sician, psychologist, worker, social marriage family therapist, professional counselor, nurse, chemical dependency counselor, clergy member of the person, or other whether or not licensed or state, certified performs who or purports to perform psychotherapy." Under section, that same "psychother- apy" 455.01(6). meaning has the designated in §
According 455.01(6), to Wis. Stat. § "'Psychotherapy' means the use of learning, conditioning methods and emotional reac- tions in professional relationship person to assist modify feelings, attitudes and behaviors which are intellectually, socially emotionally maladjustive or ineffectual." *13 plaintiffs the two Doe 1964-1969, as true. From beginning approximately age when BBB John Doe was continuing age 8 and until he was Father position authority, Jerome Lanser misused his trust, priest by reverence, and control as a Roman Catholic repeatedly engaging unpermitted, in harmful, and offensive sexual contact with Doe. The sexual abuse fondling included and oral sex. The abuse occurred at grounds Mary's numerous locations on the of St. Con- gregation. against BBB John Doe filed suit Mary's Congregation, Milwaukee, Archdiocese of St. August and Father 20,1992, Lanser on BBB when Doe years was 36 old. Beginning approximately in 1965 until years age,
1967, when John MMM Doe was 16-18 Neuberger position authority, Father misused his trust, reverence, and control as a Roman Catholic priest by repeatedly engaging unpermitted, harmful and offensive sexual contact with Doe. The sexual fondling abuse included masturbation, and premises occurred on the of St. Boniface. John MMM against Doe filed suit Milwaukee, the Archdiocese of Congregation, Neuberger St. Boniface and Father on April years 12,1993, when MMM Doe was 44 old. According complaints,
¶ 18. to each of the Doe as a result of the sexual abuse, the two Doe developed coping symptoms various mechanisms and psychological including distress, shame, embarrass- guilt, repression, ment, self-blame, denial, experiences. disassociation from their As a result of coping plain- their mechanisms and distress, the Doe perceive tiffs were unable to or know the existence or psychological injuries nature of their and emotional and their connection to the sexual abuse. According complaint, approxi-
¶ 19. to his mately March of when John BBB Doe was 34 began old, BBB Doe to know or have reason to psychologi- know that Father Lanser's acts caused his *14 injuries. approximately 1992, cal In MMM John Doe began to know or have reason to know that Father Neuberger's psychological injuries. acts caused his
¶ 20. Each of the Doe claims that the priest negligently individual defendant counseled fiduciary them, and breached duties owed to them. Each of the Does claims that the Archdiocese of Mil- vicariously waukee and the liable, local church were negligently supervised, and/or retained the individual priest, negligently supervised plaintiff. the minor According complaint, to John BBB Doe's the individual priest by defendant breached his ministerial duties wrongfully instructing BBB Doe on matters of faith religious and morals and doctrine. The defendant priest authority used his and influence as a minister to importune, cajole, overpower coerce, and John BBB Doe. alleges
¶ 21. John MMM Doe further that Father Neuberger duty by also breached his care to Doe failing identify properly respond to the transfer- phenomenon ence and/or counter transference which developed counseling relationship. within their
¶ 22. The defendants in both Doe cases moved to complaints against dismiss the the Archdiocese and the churches. The defendants asserted that the Doe complaints were barred the statute of limitations upon and for failure to state a claim which relief could granted. sep- be These motions heard were and decided arately, by different circuit courts. argued 23. The defendants in the BBB Doe case complaint
to the circuit court that the failed to address many specifics controversy. factual central to this plaintiffs Defendants contended that claims for liability governed by two-year vicarious were stat- They argued ute of limitations for intentional torts. accepted if even the court March of 1990 as the filing date that the accrued, cause of action not until August BBB Doe had missed the statute of liability. limitations deadline for vicarious In addition, by utilizing diligence, defendants maintained that due BBB Doe discovered or should have discovered the sex- (three August years prior ual assaults before suit). such, commencement of As even under the discovery three-year rule, the statute of limitations for injuries bars Doe's claims. responded 24. John BBB Doe that he had not
known nor had reason to know of abuse, the sexual injuries that his resulted from the contacts until March Therefore, under the rule, his suit *15 by three-year was not barred statute of limitations. argued diligence BBB Doe that the exercise of due resulting injuries discover the abuse and the awas question argued of fact. Doe that the defendants did provide prove exercising not sufficient facts to that in diligence, plaintiff due should have known of the sex- resulting injuries ual contacts and his earlier.8 The Judge court, circuit Laurence Gram, Jr., C. dismissed complaint John BBB Doe's as barred the statute of doing adopted so, limitations. In the court as its reason- ing part pertaining ofthe Archdiocese's brief to the
8We note that in opposing his brief motion to defendants' dismiss, alternatively BBB requested John Doe leave to amend if complaint complaint his the court found that his was not properly pled. presented ques Because that issue is not in the us, presented tion certified to nor is it in BBB Doe's briefs to this court, we need not address it. of limitations. The circuit court did not indicate
statute adopted it had as the which of defendants' reasons for its decision. basis
¶ 25. The circuit court declined to consider the therapist Nancy Perry, Dr. first submitted affidavit of part opposition BBB as Doe's to the motion to dis- reviewing miss. In an order of dismissal under Wis. § 802.06, Stat. we will not consider matters outside the pleadings accepted the circuit not court for its con- Thus, sideration. we do not consider affidavits filed opposing BBB with Doe's brief the defendants' motions to dismiss. plaintiff
¶ MMM 26. We turn to John Doe. Although specifically alleged complaint, not in his opposition MMM Doe asserted in his brief that he had suppressed memory of the sexual contacts was not of the aware sexual abuse until less than before According suit, commencement of his or until 1992. experienced psychological injuries MMM Doe, he had years, did over but not discover the cause of those injuries requested until 1992. John MMM Doe leave to pleadings amend his if the circuit court found them insufficient. Doe, 27. Similar to BBB MMM John Doe sub- psychiatrist,
mitted an Jackson, affidavit of Dr. Basil part opposition as of his to the defendants' motion to dismiss. The circuit court's memorandum decision and order made no reference to that affidavit. Judge court, 28. The circuit John E. McCor- granted
mick, defendants' motion to dismiss. The court given injury that, held the dates of or abuse from *16 proper steps 1965-67, MMM John Doe did not take the reasonably repressed discover his emotions. There- fore, his claims were barred the statute of per- limitations. The circuit court further found that to proceed mit a claim to 26-28 after the abuse public policy. would violate
¶ 29. The circuit court also found that MMM Doe against had failed to state a claim the Archdiocese and negligent supervision. First, St. Boniface for the court yet recognized stated that Wisconsin had not the tort of negligent supervision. alleged Second, the conduct of priest scope employment outside the was of his as a matter law, and, therefore the Archdiocese and St. respondeat superior. Boniface could not be liable under plaintiffs appealed ¶ 30. All seven the dismissal complaints by of their the circuit court. These seven cases are us on a consolidated before certification from appeals. the court of
STANDARD OF REVIEW
T.C.,
A.C.,
31. Plaintiffs
BBB
J.J.,
Doe,
John
and John MMM Doe seek
of the
reversal
lower courts'
A motion to
orders
dismissal.
dismiss for failure to
legal sufficiency
state a claim tests the
of the com-
plaint.
accept
Watts,
to assume
conclusions
plaintiffs.
Telephone,
2d
State v. Wisconsin
91 Wis.
(1979). Dismissal
702, 720, of claim is
N.W.2d
any
improper if there are
conditions under which
Morgan
Pennsylvania
plaintiffs could
Gen.
recover.
(1979).
Co.,
Ins.
87 Wis. 2d
seek
appellate
reviewing
order, an
court
In
such an
ment.
applies
as does a circuit court. Wis
the same standards
Compensation Fund v. Wisconsin
consin Patients
Liability
599,
200 Wis. 2d
Plan,
Care
Insurance
Health
(1996).
are set
These standards
606,
issue
judgment
as a matter of law.
judgment
sought,
is
the claim nevertheless is barred as
Byrne Bercker,
a matter of law."
Wis. 2d
(1993).
1045,
¶ 35. We first determine when the
Robins,
claims accrued. Hansen v.
Inc.,
A.H.
113 Wis.
(1983).
550, 559,
2d
ACCRUAL OF THE T.C., CLAIMS OF PLAINTIFFS
J.J., A.C., SMITH, SUSAN AND JOHN BROWN T.C., J.J., A.C., Smith, 36. Plaintiffs Susan John Brown contend that their claims accrued not on they assaults, the date of the on the but date discovered injuries which, their or the date on after reasonable diligence, they injuries. should have discovered their Citing Borello Co., v. 397, 420-21, U.S. Oil 130 Wis. 2d (1986), 140 N.W.2d these five assert that their claims could not have accrued until four condi namely plaintiff met, tions were that each knew, to a 1) probability, identity responsi reasonable the 2) defendant, ble that he or she had sustained an 3) 4) injury, injury, the cause of the the nature of injury. plaintiffs, For these five the asserted dates discovery range from 5 to 25 after the actual dates that the sexual assaults occurred or ended. policy
¶ 37. The considerations behind statutes limitations, claims, and the for accrual of are rules On the one hand, several. allowing we are concerned with opportunity legit-
tort a fair victims to enforce against wrongdoers. imate hand, claims On the other protecting we are concerned with defendants from hav- ing against claims, to defend stale where so much time passed allegedly has between the tortious act and the filing of the claim that witnesses and relevant evidence may preclude be unavailable. Such deficits can both prosecution meaningful the fair of claims and defenses. preventing prosecution We are also concerned with of fraudulent claims. All of these considerations under- ultimately promote lie statutes of limitations and judicial efficient administration. adopt
¶ 38. Prior to 1983, this court declined to reasoning change rule, that such a in the legislature. pre-dis- law should be enacted Our covery Claypool rule Levin, cases are summarized in (1997). para. 584, Wis. 2d 562 N.W.2d 13-14 our Hansen, With decision in Wis. 2d we *19 long reversed a line of cases that had the established personal injury accrual date for actions as the date of causing injury. the tort the Hansen and several subse- quent shaped requirements decisions have the for determining when a tort cause of action accrues Wis- 11 consin.10, Hansen, 550; Borello, See 113 Wis. 2d 130 Wis. 2d 397.
10
Levin,
Claypool
As recounted in
209 Wis. 2d
562
(1997),
2d
malpractice
N.W.
the accrual of a medical
cause
of
by
legislature
action was determined
the
in 1979 when it
893.55(1)(b).
enacted Wis. Stat. §
11See, however,
Makos,
41, 44,
Estate
211 Wis. 2d
(1997)
893.55(1)(b).
N.W.2d 662
considering Wis. Stat. §
Although the concurrence in this case refers to the
opin
Makos
ion,
only "majority"
holding in that case is the mandate. Of
"majority" justices,
the four
separate opinions give
three
three
¶ 39.
In Hansen we wanted to avoid the harsh
produced by commencing running
results
the statute of
plaintiff
any
limitations
before
was aware of
basis
By adopting
discovery
for an action.
rule we bal-
competing policies favoring plaintiffs
anced the
adopted
defendants. We
the rule "for all tort actions
already governed by
legislatively
other than those
a
discovery
created
rule. Such tort claims shall accrue on
injury
the date the
is discovered or with reasonable
diligence should
discovered,
be
whichever occurs first."
113 Wis. 2d at
Borello,
560. In
we said that the discov-
ery
required
only
discovery
injury,
rule
not
of the
discovery
injury. According
but also
of the cause of the
Borello,
the statute of limitations should not com-
plaintiff
mence to run until the
discovers, or in the
diligence,
exercise of reasonable
should have discov-
injury
injury may
ered his or her
and that the
have
been caused
the defendant's conduct.
considered
of the
rule to an inten-
tional tort claim for
Hammer,
incestuous abuse.
citing
There,
Wis. 2d at 258.
Hansen,
Borello and
appellate court held that
law,
as a matter of
cause
action for incestuous abuse will not accrue until the
discovers,
victim
or in the
exercise
reasonable dili-
gence should
discovered,
have
the fact and cause of the
injury.
ent/child and that to the expense perver- at the of the child works an 'intolerable justice.'" sion of Id. at 267. argued
¶ 41. The defendant father
in Hammer
applied
that the statute of
for
to
limitations
minors
his
daughter's claim, and rendered her claim
too late.
rejected
argu
appeals
2d at
The court
Wis.
263.
this
discovery
applied
ment,
rule to claims of incest.
legislature
Id. at 267. The
later codified the Hammer
by enacting
§
decision
Wis. Stat. 893.587 as the statute
of limitations for claims of incest.12
See Pritzlaff
Archdiocese,
302, 319,
194 Wis. 2d
¶ 43. More we were asked discovery rule in a non-incestuous sexual assault case. plaintiff alleged 194 Wis. 2d Pritzlaff, 302. There the priest. that she was coerced into sexual relations with a (1995-96) Incest; Stat. § Wis. 893.587 limitation. An action damages injury to recover for caused incest shall com be plaintiff menced within 2 after the discovers the fact and probable cause, diligence or with the exercise of reasonable cause, probable should have discovered the fact and the of the injury, whichever occurs first. *21 against priest Ms. Pritzlaff filed suit the and the Arch Although only against diocese. the claims the Archdiocese were before us on review, we considered against priest Ms. Pritzlaffs claims both the and the Archdiocese. 194 2d Wis. at n.1. We described the discovery rule: discovery
[T]he
rule is so named
it
because
tolls the
statute of
until
plaintiff
limitations
the
discovers or
with
diligence
reasonable
should have discovered
that he or she has suffered actual damage due to
wrongs
by
particular,
committed
a
per-
identified
time,
son. Until
plaintiffs
are not capable of
enforcing their claims
they
either because
do not
they
know that
wronged
have been
they
because
do not
identity
know the
person
the
who has
"
wronged them. Accordingly,
'[d]iscovery'
in most
implicit
cases is
in the
immediately
circumstances
surrounding
original
the
misconduct."
(citations omitted).
contact was actionable as battery bodily a civil or offensive contact. 194 Wis. 2d at citing Wis JI —Civil 2005; Wis JI —Civil 201013 1960). (approved Thus we concluded that Ms. Pritzlaff, provides Wis pertinent part: JI — Civil 2005 identity knowing and the both the tortfeasor alleged injurious complete cause conduct, could have relationship at of action the time the ended. Id. Her claim that was unaware of additional 316-17. she only distress, created harm, i.e., the severe emotional *22 uncertainty damages suffered, the amount of and as to period In not toll the of limitations. Id. at 317. did applied discovery essence, Pritzlaff, we rule to Ms. discovered, and determined as a matter of law that she diligence, or in the exercise of reasonable should have by discovered all of the elements of her claim the time relationship priest her the defendant ended. with Hansen, 45. Consistent with our decisions in apply ello, Bor and we now rule Pritzlaff, they plaintiffs, to the claims of these to ascertain when diligence, or, discovered in the exercise of reasonable should have discovered all of the elements of their claims. illness, "Bodily physical pain injury, any impair- harm" means or physical
ment of condition. appended Comment Wis JI —Civil 2005 states: contact, bodily injury except When there has without to the been dignity personal person subjected and sensibilities of the to the battery, use Wis JI —Civil 2010. provides pertinent part: Wis JI —Civil subjection The unlawful and intentional of another to an offensive bodily battery. every touching contact is an assault and Not of one person by another unlawful. To an and is constitute assault bat- tery, another, upon there must be an infliction of force without regard degree applied, to the of force and such infliction of force anger, revenge, must for be made or in a rude or insolent man- Every person by right bodily ner. is entitled to be free of offensive contacts, is, contacts which are offensive to a reasonable sense personal dignity, contacts which are unwarranted the social usages prevalent place they at the time and at which are inflicted. plaintiffs' complaints 46. Each of these five alleges priest sexual assault an individual defen- place dant on one or more occasions. Those events took year between 1980-87 for T.C., in the J.J., for during A.C., 1978 for in either 1968 or 1969 for Susan during Smith, and 1979 for John Brown. None of these plaintiffs complaint regard five filed a civil with these acts before 1993. At the time of the sexual assaults, at least three of the five were 8 years old or older. John Brown T.C., least, at were teenagers. abused as Smith, Susan who was 8 or 9 rape appar- old at the time of her assault, ently reported family the assault to several immediate shortly members afterwards. The record indicates that parents John Brown told his within hours of the occur- parents reported rence, and that his it to the complaint, Archdiocese. From his we know that A.C. school-age was a minor at the time of the assault, and according complaint, also to the someone made the *23 Archdiocese aware of the assaults on A.C. Father Effinger.14 ruling As the circuit court noted in on the complaints motions to dismiss the A.C., T.C., of plaintiffs alleged they J.J., none of the that were una- any ble to remember the abuse itself at time between filing the occurrence and the of their claims. plaintiffs perpetrators 47. All five knew the as parish priests. plaintiffs
their or school These five according complaints, perpe- knew, to their that these engaged fondling trators in sexual or other sexual plaintiffs multiple contact with the on one or occasions, 14 Paragraph 27 of A.C.'s alleges: "That complaint after the ARCHDIOCESE had been made aware the sexual assaults by EFFINGER, on A.C. the negligently ARCHDIOCESE failed appropriate to take provide action to proper care and treatment to A.C. to treat his problems." mental and emotional
339 responsi- parents away or other the view of their from persons.15 these five Thus, conclude that we ble plaintiffs responsible identity the of the
knew at least injury no later than of their and the nature defendant assault.16 time of the last sexual the According must Borello and we Pritzlaff, to or, in the discovered consider when also diligence, have discov should exercise of reasonable they injured, the cause of their ered that were injury duty inquire injury. to into Plaintiffs have activity. Arch See E.J.M. v. that results from tortious 1993). (Pa. Super. 1388, 1394 Ct. diocese, 622 A.2d plaintiff diligence required of a to discover measure is such dili of his or her cause of action the elements persons great majority gence in the would use as may not Plaintiffs or similar circumstances. same reasonably ignore information to available means of apply good their attention them, must faith but may particulars to be within which be inferred those Spitler 630, 638, 436 Dean, 148 Wis. 2d their reach. v. (1989). diligence, qualified, we later 308 Such N.W.2d 15 this addition, plaintiffs assert in their briefs that In forcibly was inflicted fondling or other sexual contact sexual and was offensive. jurisdictions have reached the same con Courts in other (Mont. See, D.C.H., P.2d e.g., E.W. v. clusions. statute) 1988) (finding it (superseded by not unreasonable reaching majority age, plaintiff was upon assume act); wrongful was a Lovelace v. that child molestation aware (Okla. 1992) (ruling Keohane, that cause 831 P.2d encounter, despite plain at end of each sexual action accrued Lindabury Lindabury, injuries); her unawareness of all tiffs *24 1989) curiam) (Fla. (stating App. (per Ct. 2d 1117 Dist. 552 So. period contemporaneous injury begins the limitations that last tort). for intentional require plaintiff "officially
does not
that a
be informed
expert
injury,
an
witness of his or her
its cause or
injury
the relation between the
and its cause." Clark v.
(1991).
Erdmann,
161 Wis. 2d
448,
tion of fact for the fact-finder.
not discover the causal between the priests' injuries approx- conduct and their until at least imately 1992. The circuit courts viewed the records differently. granting In defendants' motion for sum- mary judgment, the circuit court found the record replete whereby with instances John Brown knew he suffering psychological injuries, was from and that he directly problems priest's related his to the conduct. The circuit court that dismissed the T.C., claims of A.C., and J.J. found that the were aware of all necessary put position of the facts them the they injured.17 discover that were While the circuit court that dismissed Susan Smith's claim did so based specifically The circuit court stated: *25 grounds, public policy there is also evidence
on pain physical at Susan Smith suffered from record that reported the assault to her time, and also that she parents. conclude, law, as a matter of 51. We complained of were conducted inten- the acts
because tionally, victims, consent of the minor and without the plaintiffs or, discovered in the that each of the five diligence, reasonable should have discov- exercise of injured ered that he or she was at the time of the Further, when a con- assaults. See Wis JI —Civil person perceives injury, an immediate scious conclude, link is We therefore also as a causal obvious. plaintiffs law, of these five discov- matter of that each diligence, or, ered in the exercise of reasonable should injury the cause of their at least have discovered time of the last incident of assault. jurisdictions agree with our conclu 52. Other Washington, e.g., See, 689
sions. Doe v. Archdiocese of ) (Md. App. (plaintiff Spec. 634, who A.2d Ct. 1997 alleged by priests as an adolescent "suf sexual abuse legally protected fered 'an invasion of a immediately interest' actually occurred, when the batteries time"); problems if over DeRose even his worsened (Cal. 1987) Rptr. App. Carswell, (sexual 242 Cal. Ct. abuse, abuse causes harm at time of as a mat- necessary put [T]he were aware of all of the facts them times, position they injured, in the to discover that were at all untimely as a matter of In the actions are therefore and barred law. a sexual or assault case where the conduct causes harm as a abuse occurs, plaintiff matter of law when it should not be allowed to indefinitely simply by alleging toll the statute oflimitations that he (sic) what the incident had caused his harm. never knew 20, 1994 hearing transcript, June at 10-11. law);18 Rptr. Gardner,
ter of Marsha V. v. 281 Cal. (Cal. 1991) ("a App. young sexually Ct. child against molested his her will suffers an actual and appreciable injury time, at the and would be entitled to damages"). recog nominal more than An court Illinois *26 "inevitability injury" nized the of and that "emotional practically harm is certain to result from sexual accomplished . if assaults. .even the abuse not was through violence or of threats violence" in cases of sex Maryland Casualty Havey, ual assault of minors. Co. v. (C.D. 1995). Supp. 195, 198 887 F. Ill.
¶ 53. The Marsha V. court concluded the that plaintiff, incest, a victim of knew should have known injured she was from the time of the assaults. There alleged plaintiff stepfa- the sexual her molestation years during ther a childhood, for number not but did App. file until suit she was 32 old. 231 3d at Cal. According pleadings, plaintiff 268. her the claimed no lack of of the awareness acts molestation at the they committed, time poraneous were nor did she claim "contem- wrongfulness" ignorance
or belated of the that at Thus, conduct. Id. 271. the Marsha court V. plaintiff immediately concluded that unless the suppressed had always acts, awareness of the she had including claim, known the elements of her causation. Id. at 273. find, law, 54. We as a matter of the same mea- plaintiffs.
sure of in awareness the claims of these five recognized injury As we flows Pritzlaff, actionable immediately nonconsensual, from a intentional sexual
18 holding may superseded by a DeRose have been 1578, statutory pp. amendment. Cal. c. See Stats. contra, Gardner, 6403-05, see Rptr. Marsha V. v. 281 Cal. (Cal. 1991). App. Ct. may plaintiffs While the 2d at 317. 194 Wis. touching. at the time their injuries the known not have extent accrual of an action assaults, in Wisconsin of the sexual of one's the full extent knowing upon dependent is not Id. 19 injuries. an inten- there has been In cases where to the one known assault
tional, non-incestuous harm at the actual and the sustains plaintiff plaintiff, a established as assault, causal link is the time of individual knew the These plaintiffs matter of law. that our conclusion plaintiffs characterize The two Doe tru it as an "irrelevant harm when occurs causes sexual abuse n.1; Petitioner reply Doe brief at John MMM ism." Petitioner Although agree that 3 n.2. we reply brief at John BBB Doe plain rule, question is when the proper under the injury and the occurred reasonably should have known tiffs harmed at plaintiffs were injury, the fact that cause of that assault(s) starting not irrelevant but is is the time of the reasonably of when point for determination *27 injured of that they and cause have known were should cases, time of the assault is many harm at the injury. In tort Co., Borello v. U.S. Oil inquiry. for that See point also the end (1986). n.2, 397, 140 2d 404 388 N.W.2d 130 Wis. that accrual of approach also take the jurisdictions Other knowing the full extent of one's dependent upon an action is not (Ill. 931, 933 See, App. Geyer, 568 N.E.2d injuries. e.g.,Franke 1991) all of the facts (holding plaintiff need not know that a Ct. run); begins limitations to the statute of or circumstances before (S.C. 1992) 541, 542 (interpreting statu R.D., Doe v. 417 S.E.2d injured party diligence" mean that tory to term of "reasonable the facts and circumstances promptness where must act with invaded or that right that a has been injury put an him on notice (Ariz. exist); Roe, P.2d might Doe v. some claim that, limitations 1996), granted, (holding for the App. review Ct. knowledge enough facts run, required to all that is is statute investigate and discover full person prompt a reasonable claim). extent of
priests, place, knew the acts of sexual assault took and immediately knew that the assaults caused them injury. plaintiffs We therefore conclude that these dis- diligence, covered, or in the exercise of reasonable should have discovered all the elements of their causes against perpetrators of action the individual at the alleged assault(s), time of the or the last date of the alleged multiple assaults.20 As in Pritzlaff, causes of action for T.C., J.J., A.C., Susan Smith, and John Brown accrued no later than the last incident of assault during minority. their plaintiffs
¶ 56. The
would have us limit Pritzlaff
to cases of sexual abuse of an adult victim, and not
apply
rely
it to abuse of children. Plaintiffs
on the Prit-
distinguishing
special discovery
discussion
zlaff
e.g.,
rule
See,
for claims of incest.
Petitioner T.C.'s brief
citing
15-16,
at
children Because children, were they say, they respect viewed their abusers with they only they say, reverence. Because were children, they did not and could not discover their cause of action These five essentially they admit knew they injury suffered shortly See, at or alleged after the assaults. e.g., injuries Petitioner T.C.'s brief at "The are psychological they develop and gradually beginning manifest at child above, hood." As record, noted there is evidence in the *28 or at least inference, a A.C., reasonable plaintiffs Smith, that Susan reported John Brown the assaults to their parents within a event(s). short time after the on the Based much later adulthood. assault, until
for perpetrator, by we known a of a sexual assault nature the claims of these of law that a matter conclude as by incident of of the last the time accrued sexual assault. oppor- legislature the determines when The
tunity accrued cause of action claim for an to file a by period specified of expires. law, a Unless otherwise may be commenced which an action limitation within computed of action time that the cause from the is Wis. Stat. action is commenced. until the accrues legislature § concluded, as evidenced has 893.04.21 by persons as children are victimized statute, that who opportunity file their claims. an extended have tolling provision [T]he limitations the statute of infancy, disability during period dates of of 1848,ch. 127. 1848.Wis.Rev.Stats. to at least back The ing party's tolling purpose limitations dur- the statute of of disability (in being within the this case a 18) age minor does not lose to ensure that the is guardian neglected protect rights a because timely by bringing in a an action interest minor's initiating period an action is The time for fashion. enforcehis to allowthe minorto extended statute or her own majority. reaching age rights upon Family 2d Co., 115 Wis. American Ins. Korth v. (1983). legislative suspen- This 332, 340 N.W.2d must commence an infant of the time within which sion infancy requirement partly due to the a is lawsuit (1993-94) period Computation § Stat. 893.04 Wis. may commenced. Unless otherwise within which action be law, period specifically prescribed limitation within which may computed is from the time that be commenced an action accrues until the action is commenced. cause of action *29 precludes the commencement of an action in the Christy Schwartz, name infant's alone. 49 2dWis. (1971). Notably, 760, 764, 183 81 however, N.W.2d infancy condition does not foreclose commencement of a lawsuit on the infant's behalf. Wis. Stat. 803.01(3). § An action on of a minor can com behalf be by guardian menced a ad litem. legislature
¶ has 59. tolled the statute oflim- personal injury for to file itations they minors actions until majority. § reach See Wis. Stat. 893.16.22Prior to age majority years. 1971, the in Wisconsin was 21 pre-1971 The relevant statute mandated that cause accruing during minority brought of action be within year birthday, one after the claimant's 21st or be (1965). e.g., See, § barred. Wis. Stat. 893.33 age legislature 1971, In 60. lowered the majority § 5, 213, to 18. Thus, See ch. Laws of 1971. (the beginning publica- 23, on March date after tion), § 893.33 mandated a cause of action accruing during minority year brought within be one birthday, See, after the 18th be claimant's or barred. (1977). e.g., § Wis. Stat. 893.33 repealed Chapter In 1979, 893 was entirety. § recreated its ch. Laws of 1979. (1979) disability. Stat. under § Wis. 893.16 Person (1) person is, bring If a entitled to action time an at the the cause accrues, years, age or of action either under of 18 . . insane,. may years . .the action be commenced within after disability ceases.... (5) only chapter limiting applies This section to statutes this for of a the time commencement of an action or assertion defense except apply it does to: counterclaim not
(c) July 1,1980. prior A cause of action which accrues revamped as and renumbered Section 893.33 was period after §Wis. §893.16, and the limitation Stat. years. minority Thus, two a claim was increased to brought during minority accruing two had to be within birthday, 18th or be barred. of the claimant's apply § not to causes of action *30 However, 893.16 does e.g., arising July § prior See, 1, 1980. 893.16 to (1987-88). undergone further has not The statute changes in the interim. Although
¶ that, a matter of we conclude as 62. plaintiffs' the time of their law, claims accrued at these legislature recognize the has assaults, we that last varying given of time to file their causes them amounts ages upon respective at the time of action their of based permitting time file In this extension of to the assaults. undoubtedly recognized legislature that claim, the a development pro- is human emotional and intellectual six-year gressive. example, a old child who suffers a For years legal to mature to sexual assault has twelve Only point of limita- at that will the statute adulthood. Correspondingly, begin to run on his or her claim. tions sixteen-year youth assault is old who suffers a sexual a intellectually developed. emotionally more legislature affords him or her an additional two comprehend wrongfulness the defendant's the to effect, In conduct, the harm that conduct caused. legislature sliding opportu- created a scale of the nity has upon age suit, the minor's at the time
to file based of accrual. six-year cognizant
¶ a old 63. We are also age example, may fully he not realize at 6 that child, for completed tort, the victim of a and that or she has been of action. Lack of a full under- he or she has a cause standing victim can exist whenever the the child any legis- act. The the victim of tortious child has been obviously problem by lature to decided address this giving minors the extended statute limitations. The younger longer the victim the the tort, at time of the that child has to commence his her lawsuit. plaintiffs All 64. seven here seek benefit from two other statutes of legislature In limitations. the period extended the limitations for claims of by therapist. exploitation § sexual Wis. Stat. 893.585. legislature In 1987, an created extended limita- period § tions for of incest.23 Wis. Stat. 893.587. claims plaintiffs None seven ofthe here assert that priests psychotherapy the defendant rendered to the plaintiffs. they claims Nor do raise Instead, incest. plaintiffs analogies ask this court to draw between their claims and the acts that fall within ambit of therapist and incest statutes. The ask the legislature, not court, and create an extended period minor limitations for victims non-incestuous position perpetrators sexual assault when the *31 are in a of trust vis-a-vis the child/victim.
¶
It is
in
to
66.
true that
1983 this court chose
act
spite
legislative
in
of
inaction. In Hansen we concluded
adopt
in
the time had come to
the
rule
by
for all
Wisconsin
tort actions not otherwise covered
Hansen,
statute.
349 legislature the ¶ has extended our 67. While types assault, of sexual limitations for two statute of exploitation § 893.587, and sexual incest, Wis. Stat. therapist, § 893.585, it has not seen fit to Stat. Wis. period types of actions for other extend the limitations alleging This is true even assault of minors. sexual uniformly point though, plaintiffs out, other as the legislatures have done so.24 state equate the sexual assaults cannot 68. We despite allegations alleged of incest. This is so here to they report plaintiffs' either failed to claims that recognize wrongfulness or did not the assaults great plaintiffs admira- held the assaults because priests. respect reverence, and for Catholic tion, trust, not "devolve into blind and confidence should Trust duty diligently exempt plaintiff from the faith and pursue potential Ins. claims." Groom v. Professionals (Ct. App. 121 n.4, 2d 507 N.W.2d Co., 179 Wis. 1993).25 legislature has Further, the Wisconsin may
already recognized
hold such
that some adults
briefs,
In
refer to statutes
their
these five
overwhelming number
proposition
for the
that "the
other states
legislatures
recognize delayed accrual of causes of
of state
who
strong pub
childhood sexual abuse also attests to the
action for
proceed."
allowing
otherwise 'stale' claims to
policy
lic
favor of
compelling argu
quantity
of those statutes makes a more
leaving
period
of the limitations
ment for
such an extension
legislature,
than to the courts.
may
constraints also
stigmatization
Societal
and familial
claim,
dynamics,
bringing a
but such
as
deter a victim from
*32
case,
by the dissent in a Colorado
do not toll
characterized
Smith,
Cassidy 817 P.2d
applicable statute of limitations. See
(Colo.
1991).
555, 557-58,
App.
Ct.
559
sway over children as to
them
prevent
from recognizing
conduct,
of their
wrongfulness
or to prevent
them
from
that harmful
reporting
conduct to
In
others.
light
of that manipulative
potential,
the legislature
has
defined perpetrators
of incest as persons
related by
blood or
adoption.26
legislature
did not
include
within that
limitations
extension claims of abuse by
other persons who may hold influence in a child's life.
893.587,
70. Section
Stats.,
is a specialized dis-
covery rule applicable only to claims of incest. Pritzlaff,
(1) Marries or has sexual intercourse or sexual contact with a related, adoption, child he or she knows is either blood or and degree kinship cousin; the child is related in a closer than 2nd or (2) person responsible Is a for the child's welfare and: (a) knowledge person Has that another related to the child adoption degree kinship blood or in a closer than 2nd cousin has had or intends to have sexual intercourse or sexual contact with the child; (b) physically emotionally capable taking Is action that prevent will occurring being the intercourse or contact from repeated; (c) action; Fails to take that (d) exposes The failure to act the child to an unreasonable risk may
that intercourse or contact occur between the child and the person other or facilitates the intercourse or contact that does occur person. between the child and the other (Minn. 27 See,e.g., Shamp, State v. 422 N.W.2d Ct. App.) (ruling that where victim and defendant not do live in the house, same and the defendant does not control the victim's *33 periods legislative for claims of incest reflect a tions recognition protect
of the
children in relation-
need
involving legal rights
ships
child,
vis-á-vis the
such as
parents
family
accorded to
and other
those
members.
relationships
can,
Other
between adults and children
any given
continuing
at
time, exist or dissolve without
obligation.
authority
Control
a child that
not
or
over
is
adoption
on blood or
but on the adult's title or
based
position,
degree,
always
is transient
in time and
and is
by
parent
guardian.
terminable
the
¶ 71. Neither should we assume that claims for
by persons
sexual assault of minors
adoptive
other than blood or
persons performing psychother-
relatives, or
apy,
by
legislature.
to,
were unknown
or overlooked
parties
cite abundant literature on the incidence of
Despite
child sexual
data,
abuse.
this collection of
legislature
expressly provided
has not
for an extended
statute of limitations for non-incestuous sexual assault
alleged perpetrator
person
minor,
of a
when the
is a
in
position
of trust vis-a-vis the child/victim. We will not
creating
furnish that extension.28 "Statutes
limitations
movements,
daily
authority
pre
defendant's
is not sufficient to
reporting
crime),
vent
the victim from
rev'd on other
grounds,
(1988);
French,
f
years
through
from 1980
1987.
18
T.C. turned
old in
began
The
statute of limitations
to run in 1984 on
occurring
his cause of action for assaults
when he was a
expired
§
minor, and
in 1986. Wis. Stat.
893.16
(1981-82). T.C. did not file
until
this action
1994. The
began
of
to
on
statute
limitations
run
his cause of
occurring
year,
for the
in
last
1987,
action
assaults
expired
assaults,
the time of
in
at
those
and
1989. None
timely. They
by
T.C.'s
of
claims are
are barred
(1985-86).
§
of
statute
limitations. Wis. Stat. 893.57
sexually
¶ 73. Plaintiff J.J. was
assaulted
complaint
1968. Because his
does not recite his date of
simply
school-age,
birth, we will
infer that J.J. was
years old,
at least 6
at the time of the assaults. There-
See, e.g.,
Anonymous Anonymous,
sexual assault cases.
584
(N.Y.
1992)
713,
(inviting
Sup.
legislative
Ct.
N.Y.S.2d
cases);
R.D.,
adoption
of
rule for sexual abuse
Doe v.
(S.C. 1992)
541, 543
(holding
exception
S.E.2d
an
to the
unambiguous
statute
limitations must
come from
legislature).
29However,
recognize
we
that the statute
limitations for
applies
part
intentional
torts
to that
of T.C.'s claim for sexual
occurring
age
he reached the
of 18.
assaults
after
addition,
Smith,
A.C.,
allege
In
and
Brown all
Susan
John
by
local church and
breach
contract
the Archdiocese.
however,
discovery rule,
apply
does not
contract causes of
to
Instead,
at the
action.
a contract claim accrues
moment of
Partnership
CLL Associates Ltd.
v. Arrowhead
breach.
Pacific
(1993).
Corp.,
604,
174 Wis. 2d
¶ 75. Plaintiff Susan Smith was assaulted in either 1968 or 1969. Susan Smith turned began old in 1978. The statute oflimitations *35 expired run on her in 1978, claims and in 1979. Susan Smith did not file this action until 1993. Susan Smith's timely. They by claims are not are barred the statute of (1977). § limitations. Wis. Stat. 893.33 sexually 76. Plaintiff John Brown was years assaulted 1979. John Brown turned 18 old in began 1984. The statute of limitations to run on his expired in claims and in 1985. John Brown did not file this action until 1993. John Brown's claims are timely. They not are barred the statute of limita- (1977). § tions. Wis. Stat. 893.33 ¶ 77. We reach our conclusion these cases not compassion because we lack for victims of non-incestu- ous assault, sexual or because such assault is somehow reprehensible less than incest. These have brought very allegations they serious that when were teenagers, they by clergymen. children or were abused Undoubtedly, long ago claims of assault and subse- quent psychological injury and emotional can invoke pain only and frustration not for the victims for but Certainly pain their families and loved ones. and stigma allegations of sexual assault are felt also negligent those accused intentional misconduct.30 allegations long 78. When such are made after alleged potential occurrence, for fraud is
heightened. opportunity fairly prosecute, and to against, defend these claims is frustrated.31
SUNBURSTING THEORY plaintiffs suggest ¶ 79. The if that we should hold that the thereby rule does not claims, save these we "sunbursting."
violate the doctrine of In other 30Recognizing potential this stigma, for some states have directly enacted protecting statutes privacy defendants' in sex cases, ual abuse until at least the preliminary limitations inquiry, See, or a proceeding, certificate of merit completed. is (West 1997) e.g., Cal. Civ. Proc. 340.1(g) Supp. Code (plaintiffs § filing may or older at time of complaint suit not serve upon defendant until after court finds claim reasonable and meritorious); La. Rev. Stat. 9:2800.9(d) (West Supp. Ann. § 1997) (court must find reasonable meritorious cause for filing may action before defendant petition); be named in Vt. 522(b) (West 1995) Stat. Ann. tit. Supp. (complaint § sealed, remain if defendant moves to dismiss claim as time- camera). barred, hearing motion held in justice One danger allowing California identified the untimely claims like "Society's justifiable those now before us: (sexual child).. repugnance why toward abuse of a .is the reason *36 falsely gravely accused defendant can be harmed." John R. v. (Cal. 1989) Dist., Oakland School 769 P.2d Unified J., (Eagleson, concurring dissenting). by holding plaintiffs words, discovered, that these or in diligence, the exercise of reasonable should have dis- covered all the elements of their cause of action within they majority, one or two applied after reached we have adversely unsuspecting a new rule of law plaintiffs. disagree. We Jacque court, 80. In a recent decision of this
Steenberg Homes, Inc.,
209 Wis. 2d
623-24, 563
(1997),
sunbursting
N.W. 2d 154
we described
as an
exception
general
to the
rule that a decision which
precedent
overrules
is accorded retroactive effect.
Essentially, we said that when a court announces a
may
prospective
law,
new rule of
it
invoke the device of
overruling
newly
to limit the effect of the
announced
application
inequita
rule, when retroactive
would be
Jacque,
opinion,
ble.
ACCRUAL OF CLAIMS OF PLAINTIFFS ALLEG-
ING REPRESSED MEMORY OF EVENTS According complaints, to their Plaintiffs developed John BBB Doe and John MMM Doe both coping including repression mechanisms, denial, According dissociation, as a result of their abuse. they opposition briefs32 filed to the motions to dis- 32Briefs parties filed on behalf of the are pleadings, not depositions, interrogatories, answers to admissions or affida- *37 suppressed memory miss, BBB Doe his of the sexual sup- until in 1990, contacts sometime and MMM Doe pressed memory his of the sexual contacts until approximately 1992. Because their recollections were delayed, plaintiffs they both Doe assert that una- were identity ble to discover the of the abuser and the fact of long-repressed their until abuse their memories returned. The circuit courts dismissed claims, their however,33 based on the fact that if even the applied cases, rule to these the Doe should injuries have discovered their earlier. plaintiff In Pritzlaff, claimed that she suppressed perceive
had
and been unable to
the exis-
psychological
tence, nature, or cause of her
and
injuries
approximately
emotional
until
seven months
complaint.
before she filed her
priest
alleged
had ended. Id. at 315. Because the
acts
product
were the
coercion,
force and
such acts caused
damage,
actual
and the forcible sexual contact was
immediately actionable. Id. at 317. This was true even
suppressed,
if Ms. Pritzlaff had
of,
been unaware
resulting
alleged
additional harm
from the
acts.
*38
plaintiffs
only
¶ 83. The Doe
here contend not
they
suppressed
repressed
that
have
or
of
awareness
psychological injuries,
their emotional and
but that
they
suppressed
repressed knowledge
have also
or
of
respond
the assaults themselves. The defendants
that
there is little or no reliable scientific basis for the Doe
plaintiffs'
recently
memory
claims of
recovered
of the
appellate
events.
date,
To
Wisconsin
courts have not
recognized a non-incestuous claim of sexual assault
plaintiff
repressed
where the
asserts that he or she has
suppressed
or
all awareness of at least one element of
beyond
point
applica-
his or her claim
at which the
expire.34
ble statute of limitations would
lookWe
to
experience
other
to
courts
consider their
in this realm.
holding
84. Before
that the
rule does
years
not
save
claim of incest filed more than two
plaintiff
majority,
Supreme
after the
reached
the Texas
Court considered the
claim that she had
Byrne
Bercker,
1037,
34 But see
v.
176 Wis. 2d
(1993) (daughter
N.W.2d 402
repressed
claimed
memory of
father;
although
incest
experts opined
many
that
incest vic
repress
memories,
tims
their
the court did not have to rule on
reliability
repression theory
plaintiff
because the
admitted
she recalled the sexual
attacks more than
filing
two
before
complaint).
her
Archdiocese,
In
v.
2dWis.
Pritzlaff
(1995),
N.W.2d 780
we
specialized discovery
limited the
rule of
(Ct.
Hammer,
257, 418
Hammer v.
142 Wis. 2d
App.
N.W.2d 23
1987), along
codification,
with its subsequent
applicable only
as
to cases of incest.
repressed memory of
R.V.,
all
her father's abuse.
S.V.
(Tex. 1996).
disjointed . unwittingly become creative artists... are valid question whether recovered memories passionate among debate
has elicited the most and and the consensus of practitioners, scholars debate organizations reviewing the is professional falsity there is consensus on the truth or of that no agree virtually all would these memories.. . .While necessarily are malleable and not that memories accurate, is no about fully there consensus malleability.. . .It is extent or sources of this not accuracy, with distinguish, complete known how memories based on true events from those derived proportion other It is not what from sources. known who memories of sexual abuse were report of adults actually completely .[T]here is no accurate abused.. way determining validity reports of corroborating information. The available absence and allow accu- scientific clinical evidence does not rate, inaccurate, and fabricated memories to be independent distinguished in the absence of corroboration. true regarded
Recovered memories come to be as for variety Therapists expect a to find reasons. who therapist occupies often And abuse do. because authority patient, position trust with leading ques- can "confirmatory this basis" lead to (citation of suggestion tions and other forms omitted). . . therapists may jump .Some to conclu- may explore fail to other causes for the sions may interpret also certain Therapists memories. abuse, indicating as symptoms childhood sexual but symptoms may general they so do those be not . point eliminate other ills. . . The is possible this: *40 community the scientific has not reached consensus falsity on how to truth or gauge the of "recovered" memories. (citations quotation
¶ 85. factual inferences in plaintiffs, including favor of the Doe consideration of the Jackson affidavit on behalf of MMM Doe, other problems For instance, remain. the record before us is just long unclear as to place how after the sexual abuse took plaintiffs repressed memory that the Doe their complaint the abuse.35 John BBB Doe's does not assert coping including repression, when his mechanisms, developed. According diligently sought to his he brief, psychological counseling age in 1983 at and had no memory early up eighth grade of his childhood to the until December, 5; 1987. BBB Doe brief at A-36. Simi- larly, complaint John MMM Doe's does not assert when coping developed. merely his mechanisms His brief "throughout years, Appellant states that his adult repressed memory all of the sexual molestation." MMM Doe brief at 5. Maryland explained 86. A court one of dif repression poses
ficulties a claim of
purposes.
for limitations
compared
The court
the differences between
repression"
models,
two
"serial
versus "collective
repression"
repression theory
as
described
litera
(Md.
Doe Maskell,
ture.
679 A.2d
1088 n.3
(1997).
1996),
According
denied,
cert.
or some ory immediately This after occurrence. the event of multiple following repression each of could occur person repression model, a collective Under the events. length time, of for a of the events awareness could have multiple then events, and course of over the even altogether, later date. repress at some those memories omitted). (citation timing of when Thus, the Id. complication. poses repressed another are memories reviewing the court, after Maskell 87. The repression recognition against arguments as of for and pro- separate phenomenon the normal from a scientific recognize repression forgetting, of to declined cess of activating discov- past a means of abuse as sexual legislature Maryland ery invited the rule. It then if it claims, limitations for such amend the statute to do so. Id. saw fit testimony accepted have courts 88. Some memory.36
regarding repressed the Doe Cases cited Supp. Gregory, F. v. include Shahzade 1996) (D. (ruling limine, on motion Mass. 286, 287 Daubert v. Merrell factors from considered trial court (1993), and Pharmaceuticals, U.S. 579 Inc., 509 Dow memory repressed reliability phenomenon found established); Isely Capuchin Province, 877 F. and majority of that a substantial states The concurrence preserves the claims of those discovery rule hold that the courts dissenting opinion in memory, citing a repressed suffering from majority of courts dispute that a case. We do not an Arizona repressed a claim of question have allowed considering the assault claims. date for sexual memory extend the accrual concurrence, however, distinguish fails to case cited assault, and non-incestuous sexual of incest and between claims legisla jurisdictions have identify of those fails to which also discovery rule. tively extended (E.D. 1995)
Supp. (considering 1055, 1063-64 Mich. shortly during motions in limine raised before and trial, court relied on Daubert set foundational cri- validity reliability repressed memory teria for theory). *42 ¶ Shazade, In the defendant moved for sum- mary judgment shortly after the trial court decided to permit expert testimony repressed memory. about (D. 1996). Gregory, Supp. v. Shazade 930 F. 673 Mass. grant summary judgment, The court declined to based discovery statutory on Massachusetts' rule for minor victims of sexual assault. That statute was not limited exploitation by therapist. to victims of incest or a Isely, type ¶ 90. In the court held a Daubert hear ing testimony repressed and decided admit on memory. Supp. F. 1055. The motions in limine to testimony expert repressed memory disallow on were shortly during Supp. filed before and the trial. 877 F. at Presumably, 1056 nn.1-2. the motions limine were already after the filed trial court had denied defen summary judgment. Isely dant's motions for See (E.D. Capuchin Supp. Province, 880 F. 1159-60 1995). Mich. Our concern here is more fundamental. question presented ¶ 91. The this certification plaintiff repression whether, is when a claims of an element of his or her cause action of for non-incestuous regains allegedly memory abuse, sexual and later of discovery element, rule saves his her untimely purposes.37 claims for statute of limitations allegation words, In other we must an decide whether 37Thus, evidentiary question do we not address of whether, case, testimony proper regarding in a a recovered, repressed, memory subsequently and is admissible during the course of a trial. memory repressed rule to save invokes the untimely
an action. analysis question provokes an of a 92. This public significant policy considerations. number reliability memory ascertainability repressed of a defined, consideration. In addi- claim, however is one problem of when the memories of assault tion to pointed repressed, Maskell, out in we must became as public policy goals consider served statutes valuable namely preserving plaintiffs right to limitations, right bring juxtaposed to be a claim with a defendant's potentially claims. The stale, free of purposes fraudulent already for the limitations extensions examples legislature additional enacted are public ques- policy considerations that this certified tion embraces. upon considerations, a mat- 93. Based those as contrary it
ter of law we conclude that would be public policy, *43 purposes the limita- and would defeat of repressed memory to statutes, tions to allow claims of indefinitely the the invoke rule and to toll statutory plaintiffs. limitations for these hold that We repressed memory past a claim of of does sexual abuse delay of a of action not the accrual cause for non-inces- regardless assault, of tuous sexual the victim's minority position occupied by and the of trust the alleged perpetrator. response legislature
¶ 94. of The measured our already supports pro- law this conclusion. Wisconsin during tects that accrue Wis. Stat. claims childhood. legislature tolling § 893.16. The has also extended the brought period by for claims children and adults for exploitation by therapist. incest, and for sexual Wis. Allowing plaintiffs simply §§ 893.587, Stat. 893.585. repressed memory pleadings assert in their or briefs thereby years and revive a if suit not decades after the non-incestuous sexual assault occurred would extend tolling period indefinitely. the Such an extension would severely increase risk of fraudulent claims and undermine the statute of limitations. Wisconsin legislature already some, has afforded all, but not by the limitations extensions afforded other states. legislative together balancing That restraint, our with policies protecting plaintiffs' right of the to enforce legitimate protecting claims and those defendants from having against claims, to defend stale or fraudulent tip against judicially extending causes balance to applicable period limitations for these claims of repressed memory. Next, 95. we determine the statute of limita-
f applicable plaintiffs. tions to these As with the five plain- above, claims discussed Doe claims of the two tiffs are controlled the statute of limitations for minors.
¶ 96. John Plaintiff BBB Doe was assaulted years between 1964 and 1969. BBB Doe turned old in 1974. He filed this in action 1992. The statute of began limitations to run in on his cause action occurring minor, for assaults when he awas expired untimely. BBB 1975. John Doe's claims are They are barred statute limitations. Wis. Stat. (1973). § 893.33
¶ 97. Plaintiff John MMM Doe was assaulted between 1965 1967. He turned old in He filed this action 1993. The statute limita- *44 began tions to run in 1970 his of on cause action for occurring expired minor, he assaults when was and They untimely. John 1971. MMM Doe's claims are are 365 by § 893.33 the of limitations. Wis. Stat. barred statute (1965).
CONCLUSION light of our conclusion all seven 98. In that plaintiffs' assault claims based on intentional sexual by applicable limitations, we are barred the statute respondeat not their need address claims based on negligent employment superior Plain- theories. and against causes of action the tiffs' derivative the churches accrued at the same time Archdiocese and underlying accrued, the intentional tort claims that by similarly of limita- and would be barred statute (statute 194 2d at 312 tions. See Wis. Pritzlaff, against period limitations for actions the Archdiocese against begins on same date cause of action accrued defendant). Finally, priest without the individual deciding permits § 48.981 a civil whether Wis. Stat. report abuse, cause of action for failure to child such by plaintiffs T.C., A.C., Smith, J.J., claims Susan merely underly- John Brown here are derivative of the untimely. ing tort and are claims, intentional likewise respective Therefore, case, we conclude that each properly of each circuit courts held claims plaintiff are statutes of limitations. barred By Court.—The decisions the circuit courts are affirmed. CHIEF ABRAHAMSON, S. SHIRLEY (concurring). largely governed This case is
JUSTICE inexorably follows from v. Archdiocese Pritzlaff (1994). Milwaukee, Wis. 2d N.W.2d recognize join I the mandate of the court I because *45 though as law of Wisconsin, the even I did not Pritzlaff agree majority opinion with the in and I con- Pritzlaff, to the tinue believe decision unfortunate. point separately
¶ 100. I write to out the nature majority adopts why of the rule the and I believe the approach prob- court need not take this the difficult validity reliability lem the of evidence in cases presented. such as the ones majority opinion great
¶ 101. The discusses at length the facts the cases before the court. Nonethe- majority's holding less, the is not limited to the facts of presented. majority opinion the cases The a enunciates encompassing plaintiff rule broad of law all children: A sexually by person who a while minor was assaulted a (such position clergyperson)1 in a of trust as a a is, as irrebuttably presumed of law, matter to have discov- injury ered the and the cause thereof at the moment regardless plaintiff assault, of whether repressed memory plaintiff all of the assault did reasonably not know and should not have known of the injury or cause thereof. principal failing
¶ 102. I believe that the of both majority opinion today and the is that Pritzlaff discovery applied categorically; categories rule is con- very particular trol, facts are irrelevant. But its discovery largely plain- nature, the is a rule matter of a subjective (using objective mental tiffs state both family The rule not apply does when the offender was a legislature Hammer, member. codified Hammer 142 Wis. (Ct. 1987), App. 2d N.W.2d Wis. Stat. 893.587 § declaring that a cause of action for incestuous abuse will not discovers, until the victim or in accrue the exercise reasonable discovered, diligence probable should have the fact and cause of injury.
criteria); plaintiffs not a matter ame- mental state is categorical application.2 nable attaching categorical rules to flaw in 103. The today's readily apparent deci- rule is involving plaintiffs the time were children at who sion *46 mental and reduced the The court has the assault. of two child, whether of a traumatized emotional state years age, age rule of of to an absolute or 16 discovery applying to each child the rule law, instead particular circumstances. the basis of the victim on recognize ¶ that stale claims 104. I pose repressed after decades memories recovered daunting problems the truth. court's search for for a key reliability issue, I is a testimonial But because ques- handle such it in the manner we tackle would in other instances.3 tions allege plaintiffs
¶ do not who 105. For those ordinarily memory, repressed deter- fact finder the plaintiff have known of knew or should mines when allege plaintiffs injury who cause. For those the repressed and its memory memory repressed evi- I treat would challenged evidence and scientific dence like other expert opinion. witness approach Realizing to the discov- that its 106. majority contrary prior
ery tries cases, to our rule is 2 majority reported It that "substantial has been of those discovery preserves rule the claims courts hold that the 1115, Doe, memory." v. 931 P.2d suffering repressed from Doe. (Ariz. 1996) (Lankford, J., dissenting part), in App. 1122 Ct. 26, 1997, citing Compton, 652 granted, Farris v. review Feb. (D.C. 1345, 1994); Hooley, 49, Olsen v. 865 P.2d App. 59 A.2d 1993). (Utah 797, D'Arcy, v. 638 A.2d also McCollum See (Ohio (N.H. 1994); Jasko, 637 N.E.2d 799-800 Ault 1994). (1995-96). 904, 906 and 907 Wis. Stat. chs. See by explaining
to its narrow decision that the com- acts plained Majority op. inof this case were intentional. at theory distinguish 343-45. But on what are we to for purposes negligent of the rule between acts Why running and intentional acts? would the of the against plaintiff statute of limitations be controlled by the rea mens of the defendant? Finally, present I comment on the case recently Cheryl
relation
Estate
issued
Makos v.
Wisconsin Masons
Fund,
Health Care
211 Wis. 2d
(1997).
(Jus
¶ 108. The foundation our rule my prudence opinion, has, been disturbed and this decision. Pritzlaff forth, 109. For set I write reasons
separately.