Hearndon v. GrahamHearndon v. Graham
Paula Jean Hearndon appeals the trial court‘s order dismissing her complaint against Kenneth Graham, Hearndon‘s stepfather, for injuries that resulted from sexual abuses he allegedly committed upon her beginning in 1968 when she was 8, and continuing until 1975 when she turned 15 (at which time, according to the complaint, Graham allegedly murdered Hearndon‘s mother). The complaint was dismissed with prejudice on the sole ground that the alleged cause of action was barred, as a matter of law, by the four-year statute of limitations in
Lindabury v. Lindabury
An action for damages from child abuse is governed by the four-year statute of limitations applicable to civil actions for injury or damages caused by an intentional tort. See
Lindabury involved an action brought in 1985 in which Lindabury sought damages from her father and her mother based on alleged sexual batteries perpetrated by her father beginning in 1955 and continuing through 1965, the memories of which she allegedly had repressed but had “rediscovered” when she sought psychological counseling just prior to filing the complaint. Reading
Chapter 92-102, Laws of Florida
As noted above, by chapter 92-102, Laws of Florida, the Florida Legislature amended
FOR INTENTIONAL TORTS BASED ON ABUSE. An action founded on alleged abuse, as defined in s. 39.01 or s. 415.102, or incest, as defined in s. 826.04, may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later. (emphasis added)
Most significantly, however, section 2 of chapter 92-102 further provides that “[n]otwithstanding any other provision of law, a plaintiff whose abuse or incest claim is barred under section 1 of this act has 4 years from the effective date of this act to commence an action for damages.” The effective date of chapter 92-102 was April 8, 1992. Hearndon argues that she is entitled to the benefit of these amended provisions.
Notwithstanding, the Florida Supreme Court quashed the Second District‘s decision in Roof. In Wiley v. Roof, 641 So.2d 66 (Fla.1994) (Wiley), the Supreme Court held unconstitutional the Legislature‘s attempt in chapter 92-102 to revive time-barred claims founded on alleged childhood abuse or incest, expressly adopting the dissenting view expressed in Campbell v. Holt and holding that once an action has been barred by the statute of limitations, “a property right to be free from a claim has accrued” and the Legislature cannot subsequently “change [its] mind” and resurrect it. Id. at 68. Thus, under the rule established in Wiley, section 95-11(7) cannot benefit Hearndon here.
Equitable Exceptions to the Statute of Limitations
By itself, however, Wiley is not dispositive of the issue before us. Wiley addressed only the issue of the Legislature‘s power to resurrect a time-barred cause of action once the statute of limitations defense has vested. It did not address the judicial prerogative to recognize an exception to or to toll the running of the statute of limitations to prevent an injustice in certain extraordinary circumstances by the application of the equitable doctrine of delayed discovery.
As in Lindabury, the appellant argues here that the operation of the statute of limitations should be tolled by the equitable doctrine of delayed discovery based upon the appellant‘s traumatic amnesia caused by the very abuse for which she seeks recovery. In recent years, courts have recognized exceptions to the statute of limitations in cases where it has been alleged and proven that the plaintiff could not reasonably have discovered his or her cause of action within the limitations period. This is commonly seen in medical malpractice and wrongful death actions. See, e.g., Sara L. Johnson, Annotation, Medical Malpractice: Applicability of “Foreign Object” Exception in Medical Malpractice Statutes of Limitations, 50 A.L.R.4th 250 (1986). Courts have also applied the delayed discovery rule in instances of childhood sexual abuse involving alleged traumatic amnesia or posttraumatic stress disorder. See, e.g., Gregory G. Sarno, Annotation, Emotional or Psychological “Blocking” or Repression as Tolling Running of Statute of Limitations, 11 A.L.R. 5th 588 (1993); Annotation, Posttraumatic Syndrome as Tolling Running of Statute of Limitations, 12 A.L.R.5th 546 (1993); Michael Krauss, Fundamental Fairness in Child Sexual Abuse Cases, 8 Stan. L. & Pol‘y Rev., 205 (1997); Gary Hood, The Statute of Limitations Barrier in Civil Suits Brought by Adult Survivors of Child Sexual Abuse: A Simple Solution, 1994 U. Ill. L.Rev. 419 (1994). In the majority of these cases, as in the present one, the plaintiff claims to have repressed all memory of the injury and the incident causing the injury until some time after the age of majority and after the limitations period has run. Although no Florida court has directly addressed the effect of traumatic amnesia on a limitations period, the delayed discovery rule was thoroughly examined by Judge Jorgenson in his Lindabury dissent. There, he urged against the mechanical application of the statutory limitations period in instances where adult victims of childhood
Expert testimony regarding past acts and their consequences can readily be evaluated by a fact finder and considered with other evidence in the case to determine whether the alleged repression in fact occurred and, accordingly, whether the plaintiff ever had an opportunity to bring an earlier action.
Id. (Jorgenson, J., dissenting). Decisions from other jurisdictions support Judge Jorgenson‘s view. See, e.g., Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988); Farris v. Compton, 652 A.2d 49 (D.C.App.1994), answer to cert‘d question conformed to, 84 F.3d 1452 (D.C.Cir.1996)(Table); Ault v. Jasko, 70 Ohio St.3d 114, 637 N.E.2d 870 (1994); Callahan v. State, 464 N.W.2d 268 (Iowa 1990); Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18 (1990); Osland v. Osland, 442 N.W.2d 907 (N.D.1989); E.W. and D.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817 (1988); Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23, 25 (App.1987), rev. denied, 144 Wis.2d 953, 428 N.W.2d 552 (1988); D. v. D., 216 Cal.App.3d 285, 264 Cal.Rptr. 633 (1989), rev. dismissed, 275 Cal.Rptr. 380, 800 P.2d 858 (Cal.1990).2
Despite the potentially unjust result created here by the application of the statute of limitations, we conclude that we are constrained to affirm by the recent opinion of the Florida Supreme Court in Fulton County Admin. v. Sullivan, 22 Fla. L. Weekly S578, ___ So.2d ___ (Fla.1997)(rehearing pending). In Sullivan, the court considered the following certified question: “Are statutes of limitations for civil actions tolled by the fraudulent concealment of the identity of the defendant.” Id.3 The Sullivan court ruled that, because
Before proceeding further with our discussion of Sullivan, we must discuss the distinction between delaying the “accrual” of the cause of action or “tolling” the running of the statute of limitations after the cause of action has accrued. This distinction, if it remains viable, is important here. If, rather than tolling the statute, the delayed discovery doctrine works to delay the accrual of the cause of action, then the legislative preclusion on tolling set forth in
Our review of Florida case law on the subject reveals, however, that the concepts of “accrual” and “tolling” have become blurred. Initially, Florida followed the rule stated in Cristiani v. City of Sarasota, 65 So.2d 878, 879 (Fla.1953):
that actions for personal injury based on the wrongful or negligent act of another accrue at the time of the injury and that that the statute of limitations begins to run at the same time. The running of the statute is not postponed even though the injury may not materialize or be discovered till later.
Exceptions to this bright-line rule arose, however. In Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282 (1949), the United States Supreme Court held that an employee‘s claim under the Federal Employers’ Liability Act for injuries in the nature of silicosis was not barred by the three-year statute of limitations where a suit was brought within three years from the time “the accumulated effects of the deleterious substance manifest[ed] themselves.” Id. The court reasoned that “the traditional purposes of statutes of limitations ... require the assertion of claims within a specified period of time after notice of the invasion of legal rights.” Id. The court found that there was “no suggestion that [the injured employee] should have known he had silicosis at an earlier date.” Id. In view of the petitioner‘s “blameless ignorance,” in determining when the cause of action accrued, the court ruled that a mechanical application of the concept of “accrual” under the statute of limitations should not be applied. Id., 337 U.S. at 169-70, 69 S.Ct. at 1024-25.
This so-called “blameless ignorance” doctrine announced in Urie, which delayed the accrual of the cause of action, was adopted in Florida. See City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Seaboard Air Line R. Co. v. Ford, 92 So.2d 160 (Fla.1957); Miami Beach First Nat‘l Bank v. Edgerly, 121 So.2d 417 (Fla.1960). The doctrine became described as a “discovery rule,” see Edgerly, 121 So.2d at 420 (“[T]he statute of limitations begins to run only upon discovery of the fact that a right, which will support a cause of action, has been invaded....“). Over time, however, the doctrine has been alternatively labeled both as an accrual concept and as a tolling provision. For example, in Creviston v. General Motors Corp., 225 So.2d 331, 334 (Fla.1969), the court explained that the “blameless ignorance” doctrine was not limited in its application and was
“merely a recognition of the fundamental principle that regardless of the underlying nature of a cause of action, the accrual of the same must coincide with the aggrieved party‘s discovery or duty to discover the act constituting an invasion of his legal rights.” (emphasis added).
See also Lund v. Cook, 354 So.2d 940, 942 (Fla. 1st DCA 1978)(A cause of action accrues “with the aggrieved party‘s discovery or duty to discover the act constituting an invasion of his legal rights.“); Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd., 450 So.2d 1157, 1162 (Fla. 3d DCA 1984). In Seaboard Air Line R. Co. v. Ford, 92 So.2d at 165, however, the court explained that
if the employee knows or should have known that his disease is occupational in origin he has been put on notice of his right to a cause of action and can no longer rely on “blameless ignorance” as tolling the running of the statute.
(Emphasis added; citations and quotations omitted).
This blurring of the distinction between “accrual” and “tolling” infects the very exception, fraudulent concealment, involved in Sullivan. In adopting the fraudulent concealment doctrine in Proctor v. Schomberg, 63 So.2d 68 (Fla.1953), the Florida Supreme Court recognized that it was conceptually related to the discovery rule. In Proctor, however, the court described the effect of the fraudulent concealment doctrine in the alternative as “toll[ing] the running of the statute of limitations or constitut[ing] an exception to the statute thereby postponing the commencement of the running of the statute until discovery, or reasonable opportunity of discovery, by the owner of the cause of action.” Id. at 70.
Similarly, in Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), modified on other grounds, Tanner v. Hartog, 618 So.2d 177 (Fla.1993), fraudulent concealment was explained as impacting the accrual of the cause of action by “prevent[ing] plaintiffs from discovering their cause of action,” Nardone, 333 So.2d at 37. Nevertheless, the Nardone court ruled that the defendant‘s fraudulent concealment of “the facts showing negligence, will toll the statute of limitations ....” id. (emphasis added), and that:
the statute of limitations will be tolled when it can be shown that fraud has been perpetrated on the injured party sufficient to place him in ignorance of his right to a cause of action or to prevent him from discovering his injury.
Id. at 39, (emphasis added).
The rule in Sullivan seems broadly stated. Although Sullivan holds that section
By the broad language used by the Sullivan court, we are led to conclude that Sullivan marks a return to a more strict judicial interpretation of the statutes of limitations for purposing of determining when the applicable statute should begin to run. Sullivan appears to have receded, sub silentio, from the line of cases which held that the last element occurs for purposes of section 95.031 and the cause of action accrues when the plaintiff knew or through the exercise of reasonable diligence should have known of the invasion of his legal rights. See Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969); D.B. v. CCH-GP, Inc., 664 So.2d 1094 (Fla. 2d DCA 1995); Keller v. Reed, 603 So.2d 717 (Fla. 2d DCA 1992); Flanagan v. Wagner, Nugent, Johnson, Roth, Romano, Eriksen & Kupfer, P.A., 594 So.2d 776 (Fla. 4th DCA 1992). Thus, under Sullivan, unless the legislature has expressly adopted a provision tolling the running of the statute of limitations, delaying accrual of a cause of action, or otherwise recognizing an exception to the statute, the last element for purposes of
Accordingly, we conclude that in the instant case Sullivan precludes a judicial recognition of either an exception to or a tolling of the statute of limitations based upon the application of the doctrine of delayed discovery to actions to recover damages for child abuse where the victim-plaintiff suffers from traumatic amnesia resulting from the abuse. Further, even though the Legislature has provided in
Because we recognize that there may be more than one way to read Sullivan and because the instant case raises issues of first impression involving the interrelated application of Wiley, Sullivan, and
WHERE A PLAINTIFF IN A TORT ACTION BASED UPON CHILD ABUSE ALLEGES THAT SHE SUFFERED FROM TRAUMATIC AMNESIA CAUSED BY THE ABUSE, DOES FULTON COUNTY ADMIN. V. SULLIVAN, 22 FLA. L. WEEKLY S578 [___ So.2d ___] (FLA.1997), PRECLUDE JUDICIAL RECOGNITION OF AN EXCEPTION TO OR A TOLLING OF THE STATUTE OF LIMITATIONS BASED UPON THE DOCTRINE OF DELAYED DISCOVERY RECOGNIZED IN CHAPTER 92-102, LAWS OF FLORIDA?
AFFIRMED; question certified.
MINER and WOLF, JJ., concur.