J.J. v. Luckow

(hold- (Minn.App.1997) immunity application J.J., of official ing Appellant, that the operator, plow proper where snow poli- snow removal implementing the state’s City Robert William LUCKOW and discretionary decisions such cy, had to make Minneapolis, Respondents. type equip- speed to travel and the as the (Minn. use), review denied June ment to No. C3-97-1930. 1997). Appeals Court of of Minnesota. immunity bar Before official would claims, actu Bergs’ failure to warn Smith May 1998. ally have to make a decision based would Review Denied county’s warning pol implementing the on or light icy. the evidence is viewed When Bergs, question

most favorable knowl to the extent of Smith’s fact exists as and circum edge of the accident location county Accordingly, cannot stances. establishing that it made a its meet burden act based on its warn to act or not decision therefore, immunity, ing official policy; court’s affirm the district inapplicable. We immu county’s claim for official denial of the nity.

DECISION part, part, affirm in reverse We reverse the district court’s remand. We county judgment grant statutory immunity to the extent county’s Bergs’ challenge the summer claims snow and maintenance and winter removal affirm court’s hold- policies. the district We county entitled to statuto- ing that the is not ry immunity of its failure or official because implement warning sign policy its after it previous accident. Its fail- notified of a inspect prevented the condition it from

ure to against measuring the road hazard its warn- county accordingly, ing sign policy; point protected decision that- unable to statutory application or official merits the immunity. to the dis- The case is remanded proceedings in accor-

trict court for further this decision. dance with part, part, Affirmed in reversed in remanded. Anderson, Felt,

Jeffrey R. Barbara J. Anderson, Paul, appel- Reinhardt and St. for lant. Stieh, Kreidler, Brisbois,

Michael S. Leo I. Kreidler, Ballou, P.A., Angelí, & Brownson Minneapolis, respondent for Luckow.

Jay Heffem, City Attorney, M. A. James Moore, City Attorney, respon- Assistant City Minneapolis. dent CRIPPEN, by Considered and decided P.J., PETERSON, LANSING JJ.

OPINION

CRIPPEN, Judge. abuse, injuries Based on caused sexual appellant J.J. commenced action when years old; days he was six and four judg- after the abuse In a ended. affirm, that we trial ment court deter- mined that the statute of limitation appellant brought this and re- before action jected appellant’s contention he had rea- failing sexually son for to know he had been until abused he was confronted about abuse one week after it ended.

FACTS respondent

The evidence indicates that appellant during sexually Luckow abused years ending several appellant age days after turned 18. Until questioned days appellant was six later about Luckow, relationship his with one else The two ac- aware became father, through quainted who had Minneapolis appellant partner knew or should have been Luekow’s known abused, apply Department. we are to Police reasonable person standard. Id. at 681. This standard Au- commenced this action on adopted by has been court gust Noting that did not recognition that the “[w]hile manifestation repressed claim his memories of the to have injury significant and form of the is abuse, perti- that the trial court found at all victim, simply is it not relevant to the ulti appellant nent “recalled and under- times question mate of the time at which the com of the abuse.” The court stood the details plainant or should have known that knew person [ap- that reasonable in “[a] concluded sexually was abused.” Blackowiak v. he/she pellant’s] should have known that situation (Minn.1996). 1, Kemp, 546 N.W.2d 3 24, prior August he to had been abused” 1989. inseparable the Because of inter play between the act of sexual abuse and

ISSUES personal injury, immediately “the victim put on in notice of the causal connection finding 1. the trial court err that- be Did abuse, W.J.L., 24, injury.” tween the and August- the limitations ran on 573 “Accordingly, N.W.2d at 681. the statute of 1995? begins to run once a victim is infancy disability prior appellant’s 2. Did legal disability, abused unless there is some July to extend the 1989 the age, disability, such as victim’s or mental 24,1995? beyond August repressed memory abuse, as such person would incap which make a reasonable ANALYSIS recognizing understanding able of or that he sexually or she had been abused.” Id. 1. ' Rejecting “wholly application of a sub- Generally, the date on which vic jective inquire unique into circum- [W.J.L.’s] abuse know or to tims of sexual have reason stance,” supreme court in W.J.L. found they have a know that been abused involves being that W.J.L.’s recollection confused and is a question factual determination for by representation the abuse her abuser’s Bugge, of fact. W.J.L. v. trier therapeutic that the (Minn.1998) misconduct was not (citing N.W.2d Wittmer helpful determining a (Minn. reasonable v. Ruegemer, 419 N.W.2d person in should 1988)). the same situation have “pleadings, deposi But where the (quoting known of Id. at 682 tions, interrogatories, to answers and admis Blackomak, 3). The court 546 N.W.2d file, affidavits, together with the if sions on thinking “[m]erely concluded not about that any, genuine that there is no show issue as to delay enough the abuse is to not a material fact” as matter of law Similarly, Id. of limitations.” party judgment, is entitled to either sum Blackomak, noting that the victim not appropriate. mary judgment (quoting Id. 56.03). discussed his abuse with a counselor because moving P. Minn. R. Civ. While the “shame,” court concluded party must show that no issues of material d recognition is evidence that of shame that exist, party nonmoving may fact avoi psychological injury and that occurred by summary judgment presenting specific injured. he was victim should have known genuine showing that there is a issue facts 546 N.W.2d at 3. (noting nonmoving that trial. Id. party rely allegations plead on cannot case, appellant In did not tell ings speculate might on evidence or that be anyone being ques prior of the abuse to trial). produced at by police. psychologist offering A tioned behalf, explained Appellant asserts that not an affidavit on he did often suffer reason to know that “sexual victims from know or have that he was abuse confusion, pre guilt sexually police questioned before the and self-blame abused they realizing him that determining clude them from have on infancy legal disability prior state of trusting adult authori- been victimized —his W.J.L., 15,1989. birthday Although we ty figure.” As in Blackowiak and his 18th days, of when as an for 40 he are left with evidence he was abused adult injured silence than his years. knew other as a child was abused for several confusion, guilt, and its roots in suggests he has seven does not shame that he suffered. But silence bring an a suit on after he becomes adult delay run- special represent cause years in- childhood abuse. The seven W.J.L., ning of the statute of limitations. 541.073, § years under cludes six Minn.Stat. delay justi- is not 573 N.W.2d at 682. And 2(a) (1996) (governing actions for dam- subd. confusion, guilt, or self- by evidence fied abuse), ages due to sexual and one Id.; Blackowiak, at 3. blame. (the 541.15(a)(1) (1996) under Minn.Stat. Moreover, Minneapolis respondent City of as rule). proposition represents This a infancy contends, easily appellant’s was not silence 541.15(a). of section misconstruction August he broken when was confronted 541.15(a) (1996), § Under Minn.Stat. the 30, 1989, his concern which he attributes to “suspend[s] of the circumstance childhood This prison. Luckow would to that be sent period running of the of limitation” until the immediately upon the having arisen concern age 18. child becomes Added to this statute appellant, that confrontation of it is evident period” that is the declaration “such shall not con- well that Luckow’s aware extended, infancy, case be the of “for more improper. duct was year disability after the than one ceases.”1 pri- attempts distinguish Appellant to ease, of appellant’s In the circumstances this authority by suggesting that victims do or disability infancy provides advantage him no injured they due to not know have been 15, 1990, an action commenced after prior appreciating that the sexual abuse birthday. period His is his 19th limitation Appellant’s psy a perpetrator wrongdoer. is one-year infancy the than shorter under rule chologist explains great a that it often takes limitations, six-year under statute of of time for of sexual abuse to deal “victims running began than which sooner they suspect or even that were understand 24,1989. victimized,” again, they suffer from because understanding language of the of the Our confusion, expert guilt, and The self-blame. prompted by is case law that has statute proffers wrongdoing that is not understood disabilities, one-year applied the rule for de person position attributed to a in a of when termining “period limitations” that of authority. un trust and This distinction is expiration period of ends after the maximum supported specifically the rea refuted (one infancy disability) for year for the which soning in Blackowiak. The victim’s absolu statute; under the the limita it is “extended” perpetrator tion of the not eliminate does not the extension Rather, period tions is added to knowledge of sexual as ex Newmann, See, e.g. Langer period. v. 100 here, guilt plained in the it reflects record (1907) 27, 29,110 68, self-doubt, (party N.W. Minn. 69 person for a reasonable (victim bring any not entitled to action time recognition injury. a of id. of action is See disability period of after he had been within limitation sexual abuse should have known “but, contrary, injured point recognized [the statute] he did not on the that ceases provides period of that limita expressly discuss abuse with counselor because of shame). by any in no case shall be extended year than after dis disability for more one * * * ability can no exten [t]here ceases be case, period beyond one present majority of of the limitation sion of removed”) disability during period year a of after the has been abuse occurred years, completely, provides than five nor in case that a for more 1. More the statute extended disabilities, including infancy, year disability "shall number of suspend ceas- than one after the for more running period 541.15(a) (1996) limitations (emphasis § of the Minn.Stat. es.” added). of removed; provided that such until the same is except infancy, be period, in the shall not case of added); period Voegele Mahoney, 237 tions (emphasis under sexual abuse statute (if (1952) have begun year 54 N.W.2d “would to run one Minn. after action possession majority accrues age when adverse W.J.L. reached the of and ex- infant, running “the of claimant is an pired (citing turned 25.” Id. she Minn. suspended 541.15(a)(1)). for not § limitation as Stat. Troublesome of disability ceas year more after than one be, may unpersuaded observation we are es”) added); (emphasis Anderson v. Luther represents reinterpretation it of section Hosp., an Deaconess 541.15(a)(1) overruling and an of over 90 (Minn.1977) (where statutory period for impact of decisions on the of the one- malpractice bringing a medical suit infancy. extension event The a minor statute of plaintiff while precise determination run reached would have before he necessary tions date was not decision operated pro age majority, nothing suggests of W.J.L. and that either age one-year period reaching vide after party infancy exception. raised the suit); majority which to commence within infancy contends that lan- Digest Minn. generally see Dunnell Limi guage in should be viewed as a W.J.L. con- 2.05(a) (4th ed.1996) (cerr tation Actions struction section 541.073. But this asser- suspend tain disabilities ignores tion the fact that court limitation, period period but is ex “[t]he of attributed its observation section year in no case for more than one tended 541.15(a)(1). case, any no construction of ceases”); disability after see also Lelm helpful section 541.073 is immediate Found., Mayo Lelm v. F.3d 587- adding six-year situation without to its (8th Cir.1998) (contrasting section period year provided tion the one for in 541.15(a), says the 8th Circuit court 541.15(a)(1). of appel- section From date of the limits maximum extension “limitations 15, 1989, majority July six-year lant’s on period,” later-enacted section with 15,1995, expired period over a month 541.15(b) (1996),which limits the of extension quoted before this suit commenced. The (for “suspension” period of the limitation given language cannot be from W.J.L. suits); certain health care former work year significance adding one the de- ing of action when the exten to bar a cause layed discovery unless it is viewed as statute providing the latter period sion ends and under a redetermihation of the1 law Minn. period running the full of limitations 541.15(a)(1). Stat. ends). after the extension Urging a different construction of section DECISION 541.15(a)(1), points language in disputed Because there are issues of case, W.J.L. In that W.J.L. initiated an ac expiration regarding material fact after the in abuse ended 14½ limitations, and because trial statute in more than which was one after law, correctly applied the we affirm the court in W.J.L. an adult 1979. See W.J.L. became to reach re- judgment and decline C6-96-1619,1997 30721, unpub. Bugge, WL n on other claims for 1997) spondent’s contentions *1, op., (Minn.App. at Jan. the same relief. (Randall, concurring part, dissenting J. case).

part) (reporting facts of the The su Affirmed. preme court denied W.J.L. extension premised on the statute LANSING, (concurring specially). Judge knowledge injury had absence of she suffered I result. concur in the W.J.L., due to sexual abuse. result, according to the court’s As holding, long before Commenting in 1995. suit was instituted

in these circumstances about the limitations, section exclusive of 541.073, the court observed the limita-

Case Details

Case Name: J.J. v. Luckow

Court Name: Court of Appeals of Minnesota

Date Published: May 19, 1998

Citation: 578 N.W.2d 17

Docket Number: C3-97-1930

Court Abbreviation: Minn. Ct. App.