*1 271 or of laches barred doctrines Sawyer’s equitable claims are unclean hands. and the below is reversed entered summary judgment is against Sawyer entered default
entry judgment of default and vacated. Springer Mowbray, JJ., Steffen, J.,
Young, C.
Gunderson, J.,4 concur. Sr. Appellant, PETERSEN, v. NED
TOR Respondent. BRUEN, No. 19878
May 792 P.2d Parker, Manoukian, E. Ailing & Carson Scarpello Jeff City, for Appellant. Reno, V
Perry, Thierry Barkley, & Spann Hebert Respondent. Justice, Young, appointed The Honor Cliff Chief 4The Honorable Justice, Gunderson, place Honorable to sit in of The able E. Senior M. Rose,
Robert E. Justice.
OPINION Steffen, Court, J.: By the appellant complaint
The district court dismissed Tor Petersen’s by on the that it was time-barred the statute of limitations. ground Petersen, from child seeking damages injuries resulting sex- (CSA), ual abuse contends that the lower court erred in refusing “discovery rule” to toll the apply running statutory action, Convinced that Petersen is entitled to maintain his period. we reverse.
Facts Bruen, Petersen was abused Ned dur- respondent, when, under the ing auspices Bruen brother” to Big program, assigned “big Brothers was as brother,” Petersen, Petersen. The record reflects that the “little years old when the abuse commenced. approximately seven seduc- relationship Bruen his trust Petersen exploited various acts of sexual ing committing battery upon him and his depravity by taking victim. Bruen also memorialized his young before, of Petersen and after Bruen’s sexual during photographs with his victim. trysts sought help psychological
Petersen first with his emotional and when he commenced psycho- in November problems Peter- with his counseling psychiatrist, In the process therapy. officers of Bruen’s law enforcement apprise decided to
sen of Petersen’s disclosures and As a result criminal behavior. of sex- eventually Bruen was convicted investigation, subsequent assault, assault, with a minor lewdness attempted
ual fourteen, in producing pornogra- use of a minor under the age child pornography. possession phy, 20, 1988, July action Bruen on against Petersen filed a civil connection between realized the causal that he first claiming prob- emotional and mental and his impositions Bruen’s sexual allegations treatment. Petersen’s during psychiatric lems his battery negli- of action for Bruen consisted of causes against emotional distress. In an affida- intentional infliction of gent dismiss, Petersen to Bruen’s motion to vit in opposition submitted out the of sexual molesta- eight years that he had blocked averred during therapy. recalled his vividly tions Bruen until overtures, considering not to Bruen’s consenting further recalled time, injury no suffering physical acts offensive at the Bruen. encounters with from his two-year period determined that Nevada’s
The district court *3 Accord- complaint. and dismissed Petersen’s applied limitations 1983, record, approxi- molested Petersen in to the Bruen last ing Petersen filed his action. Petersen insists years five before mately because dismissing complaint court erred in his that the district Bruen’s behavior and his discover the nexus between he did not July filed his in Having complaint distress until 1987. emotional 1988, timely. that his action was argues
Discussion in impression issues of first Nevada. presents This appeal whether the district court properly on is appeal narrow issue to the facts of Petersen’s case. the statute of limitations applied must be 11.190(4) (e) declares that civil expressly NRS actions . . . two “for to a caused years injuries person commenced within act . . . of another.” wrongful us, it is to consider the necessary the issue before resolving limitation. Justice Holmes suc- statutes of served purposes of such statutes is to purpose cinctly primary stated that have been the revival of claims through “[prevent] surprises lost, memories have evidence has been to slumber until allowed faded, Ry. v. Telegraphers disappeared.” and witnesses have 342, (1944). stat- Although 348-349 321 U.S. Express Agency, for the benefit of individ- adopted are generally of limitation utes concerns, Acres at Kyle v. Green public policy rather than uals 513, has been stated Verona, Inc., (N.J. it A.2d 519 207 that:
274 embody impor- of limitation broadly,
Viewed . . . statutes they in that stimulate activ- tant considerations public policy by giving ity, negligence, promote repose punish Thus, statutes of to human affairs. security stability in that reasons of sound upon public limitation rest of society, and welfare they peace tend to promote oppression, compel fraud and safeguard against after their period settlement of claims within reasonable memory evidence remains fresh in the origin and while the of the witnesses. (1970) (footnotes
51 Am.Jur.2d
Actions
18
Limitation
§
omitted).
citations
find
Finally, it has been observed that
of limitation
“[s]tatutes
logic,
and convenience rather than
justification
necessity
than
they
expedience
and it has been said that
rather
represent
19,
v.
(citing
Corp.
Id. at
603
Chase Secur.
principles.”
p.
§
Donaldson,
(1945)).
275
the
by
claims are barred
notice
be
on
before
put
should
Fidler,
F.2d at
See
714
198.
of time.
passage
the
rule in
discovery
the
that have considered
Jurisdictions
conclu-
differing
reached
of CSA have
of adult survivors
context
the
of
policies
balanced
Appeals
Wisconsin Court of
sions.1 The
determining
when
the
of limitations
rule and
statute
discovery
the
of incestuous
rule
to cases
discovery
apply
the
should
whether
Hammer,
(Wis.Ct.App.
23
v.
418 N.W.2d
abuse.
Hammer
In
denied,
1988),
held
(Wis.
the court
1987),
will not discovered, the fact and cause have reasonable should diligence Hammer, of the adult survivor the Id. at 26. In injury.” of past present understand the sexual abuse did not childhood sought psychiatric help. abuse she of the sexual until impact remanded cases and discovery the rule for incest court adopted was applicable the rule the case to determine whether alleged from the rejected argument the victim. The court eroded being protection abuser the statute of limitations’ that alleged meritless for claims subject and defendants would argument, years rejecting wrongdoing past. at the expense adult abuser that to sexual protect
court noted
Id. at
justice.”
of
perversion
of the child is an “intolerable
victim’s
balancing the
by
reached this determination
court
“the
concluding
injustice
that
the defendant’s interests
knows
before the claimant
meritorious claims
barring
Id.
fraudulent actions.”
threat
stale or
outweighs the
injury
have
hand,
courts
decided
Washington
other
On the
v.
Tyson
similar Hammer.
to cases
apply
rule did not
ruling
Tyson
1986).2 Although
(Wash.
P.2d 226
727
Tyson,
by
statute,3
been cited
has
opinion
superseded
has been
v.
Johnson,
(N.D.Ill. 1988); Meiers-Post
F.Supp. 1363
701
1Johnson v.
H.,
1988);
v. D. C.
754
Schafer,
E. W.
(Mich.Ct.App.
606
427 N.W.2d
1986);
(Wash.
1988);
Tyson,
(Mont.
Tyson
3The statute
brought
intentional conduct
based on
or causes of action
claims
[A]ll
injury
as a result
damages for
suffered
recovery any
person
years
within three
be commenced
abuse shall
childhood
condition,
years
or three
injury or
caused the
alleged to have
act
reasonably
have discovered
should
discovered or
the victim
time
act,
expires later.
whichever
caused
said
injury
condition was
or
adding a
(1988) (amending
4.16.350 and
RCW
4.16.340
§
West’s RCWA
4.16).
to RCW
new section
*5
expressed by
the different viewpoints
and Bruen for
both Petersen
Tyson, the Washington Supreme
and dissent. In
majority
only
discovery
adopted
rule “should
Court concluded that
outweighed by
is
unfairness
the risk of stale claims
when
at 228.
Tyson,
action.”
727 P.2d
causes of
justified
precluding
rule
discovery
previously applied
The court stated that it has
there was
verifiable
objective,
abuse cases where
in non-sexual
the resulting injury.
act and
original wrongful
evidence of the
not
Tyson,
evidence in
the court did
there was no such
Because
victim. Id. at
rule to the sexual abuse
apply
can be reconciled with the
at
argues
Tyson
case
convictions,
that Bruen’s criminal
based upon
hand. He asserts
suffered, serve as an
mani-
“objective
the sexual abuse Petersen
We
that the concerns
injuries.
agree
festation”
Petersen’s
are satisfied Bruen’s
regarding objective
evidence
convictions.
have held that the discovery
Courts in California and Montana
knew the
rule does not
when the victims
factual elements
apply
long
of their cause of action
before
statute
limitations ran.
See,
Carswell, 242
e.g.,
Cal.Rptr.
DeRose v.
368 (Cal.Ct.App.
H.,
1987);
(Mont. 1988).
E. W. v. D. C.
(a) can make out case she has plaintiff repressed her memory upon of the facts which claim is predicated, rights that she could not have been aware of the she was know, (b) there is otherwise bound to corroboration for testimony that the sexual assault occurred. plaintiff’s Id. at 610. 11.190(4)(e) and its
Turning again application to NRS we Petersen’s first observe that this court has complaint, long recognized that: legislature,
In order to reach the intention of the
courts are
take the words of a statute either in their
always
not bound to
sense,
ordinary
doing
any
literal or
if
so
it would lead to
but
mod-
absurdity
injustice,
or manifest
such cases
words,
restrict,
meaning
or extend the
so as to
ify,
act,
meet the
evident
plain,
purview
bring
legislature
it within the intention which the
had in view
added).
at the time it
enacted (emphasis
*6
Mark,
172, 176,
387,
v.
43
(1919)
Escalle
Nev.
183 P.
Siebenhauer,
365,
(1879)).
Ex Parte
14 Nev.
(quoting
See
Mason,
(1869).
also Gibson v.
eight such all of which were reported and of which were twenty-four decided since It is logical 1980. to infer from the statistics that foregoing criminal in prosecutions involving Nevada CSA have increased greatly during the last two decades. It logical is also to conclude that the Legislature did not specifically contemplate CSA within the “wrongful acts” termi- of the statute when it in nology was enacted
We think it is safe to assume that the attitudes and policies reflected our statute of limitations were formulated without concern for the recent comparatively and growing public cogni- tion of CSA and its long-term day, effects. To this the issue evokes a of plethora problems stemming from such factors as the child-victims, witnesses, age of lack of frequent lack of physical evidence, mechanisms, victim defense prosecutorial inexperi- ence, and controversial imprecise investigative and meth- therapy involvement, odology, parental tension between an responses accused’s of confrontation and right compounding the extent and child-victim, duration of trauma to the hysteria, and adver- length sarial nature of and fear. judicial proceedings, Although the foregoing unspecified factors and others primarily impact affect, of complexity prosecutions, they criminal also in varying duration, victims, degrees and of life of the quality whether system to the criminal or not. exposed justice thus question policies favoring becomes whether of stale claims
unenforceability prevail should situations adult survivors of CSA. the fact involving Obviously, that claim allegations is based of CSA does not eliminate or diminish upon claims; concerns about fraudulent and nor does it oppressive render evidentiary problems resulting delay important. less hand, where, here, On the other as of CSA is clearly fact shown, convincingly place we find it difficult plight abuser in a over that the victim position preeminence of of Ofttimes survivors of CSA are beset with irrespective delay. embarrassment, anxiety, as crippling symptoms guilt, indi- of time.4 As periods fear over protracted depression, redress seeking in Nevada lack of civil actions cated CSA, abuse will of such survivors perpetrators against call their attempting without ever struggle life’s complete with their to survive may continue to account. Others
tormentors to bear great becomes too the pressure in the dike until fingers help. to find they compelled are clearly abuse is In those instances fact need or corroborated, no compelling perceive we convincingly limitations of a intervention which justifies recovery against to seek CSA victims eliminate the right CSA, noted that: summary long-term effects of it was 4In a long-term many of effects Empirical with adults confirm studies literature. Adult women abuse mentioned in the clinical likely depression, self- children are more to manifest victimized as behavior, feelings stigma, poor anxiety, of isolation and destructive self-esteem, revictimization, abuse. tendency and substance toward Difficulty trusting maladjustment. . . has also [sic] others and sexual . reported empirical been researchers. . . *7 Abuse, Finkelhor, (1986). at 162-63 See D. A Sourcebook on Child Sexual McLeer, Stress paper, Another research Susan V. et al. Post-Traumatic Children, Academy Sexually of American of Disorder in Abused Journal 1988, 27, 5:650-54, Psychiatry reported Child and Adolescent that studies impact abused children on the of CSA reveal that “46 to of 66% Forty eighty percent of significant symptoms. and . . . to demonstrate severe anxiety of symptoms are related to and its associated manifestations these behaviors, phenome- hyperarousal, re-experiencing and autonomic avoidant [Diagnostic symptoms partial non . . . that constitute criteria for DSM-III-R (DSM-III-R), Psychiatric Society, American Wash- and Statistical Manual D.C., (PTSD).” ington, Id. at post-traumatic stress disorder 1989] study upon which this was based were scored interviews of CSA victims developed according subcategories symptoms of to a checklist with three behavior, “(1) re-experiencing including from DSM-III-R criteria for PTSD: abuse, flashbacks, talking repetitive play, nightmares, repetitive about the activity talking, places, people, things inappropriate or and fear of and behaviors, abuse; (2) including symbolic of the avoidant that were viewed as abuse, things people, places, associated with the an unwill- avoidance of and abuse, no, abuse, memory ingness about the or limited of the to talk concentration, activities; (3) symptoms and lack of interest in decreased difficulty staying hyperarousal, including falling asleep or of autonomic behavior, distractibility, irritability, anger aggressive hypera- asleep, lert, anxious, and/or reactions, changes.” physiological Id. at 651-52. or startle subjects study that of the abused met DSM-III-R concluded 48.4% Finally, paper Id. at 652. noted that other studies criteria for PTSD. symptoms of CSA have demonstrated more indicate that survivors “[a]dult controls, dysfunction symptoms clustering in three than normal with behaviors, anxiety depression and its associate and associated lowered areas: self-esteem, dysfunction. Continuing, the social and sexual . . .” Id. at 650. investigators have noted that some of these article observed that “[s]everal PTSD, suggest symptom fit DSM-III-R criteria for and these data clusters years may unremitting symptoms after the that women have PTSD for experience . of CSA. . .” Id. of the discovery time of abusers, or the delay of irrespective In these injury. and the between the abuse causal connection obscured the abuse has not been where of proof limited instances of time, be a source hardly can delay by the passage likely to abusers. It disadvantage appears or significant prejudice accountability enjoy an abuser can defer longer victim, of a by the claims and use of assets unencumbered accrual Conversely, perspective. the better from the abuser’s cases, deteriorate progressively lives of CSA survivors or tolerable.5 longer is no possible individual coping where point who have CSA victims that We do with agree proposition not should periods for extended or litigation exposure avoided disturbance claims or the disfavoring for a stale sacrificed concern free of living grown who have accustomed abusers their victims. day reckoning over an eventual convincing clear and Moreover, cases unique in these pro- would exists, discovery rule adoption CSA proof of First, bizarre, untoward, possibilities. if not duce some victims instances, burdening emotions complex undoubted their confront prematurely them to by forcing be exacerbated Second, a for redress. prospects order to their preserve abusers in his or the realization victim’s be intensified suffering may relief to seek courage will or muster the timely her failure civil forever immune latter has left the from the abuser certain Third, to assume reasonable it is accountability. rule, add to will victims, when informed bar to avoid the in order by dissembling inner turmoil rule, bewill the CSA victim Fourth, under statute. her his or to demonstrate having irony to the ultimate subjected psy reflecting psychiatrists between report 5In a a basic consensus symptoms diagnostic purposes, chologists reviewing relevant all data depres post-traumatic stress disorder characteristic of included: identified as future, numbing, psychic anxiety, of a sion and a sense foreshortened *8 fear, nightmares hypervigilence. and pervasive conscious and recurrent report also observed that immediately usually begin or soon the trauma. Symptoms after latency period symptoms may develop after a of Reexperiencing trauma, though symptoms years following avoidance or the months usually present during period. this been have nearly every may mild or severe and Impairment be either affect resembling of situations or activities or aspect of life. Phobic avoidance may interpersonal rela- symbolizing original interfere with the trauma lability, depres- marriage family life. tionships as Emotional such or sion, may self-defeating actions. guilt in behavior or result suicidal complications. are common Psychoactive Substance Use Disorders (DSM-III-R), Psychiatric American Soci- Diagnostic and Statistical Manual 248, D.C., Washington, pp. ety, of the The thrust the rule. of the benefit claiming in integrity of injuries and the of the abuser the actions from will shift action allegations victim’s concerning the proof of to matters victim the discovery or of and circumstances date the actual either regarding have should reasonably the victim when the time yet, worse her of his or the source conduct abuser’s discovered distress. and mental emotional in his has dissembled Petersen that suggest we do not Although statute, the of the the barrier through passage to secure effort of his irony are illustrative affidavit his of allegations sworn memory the his from he blocked that had averring By position. course the was achieved in recall until Bruen involving incidents ambit within the to himself sought place has Petersen of therapy, believa- Moreover, to buttress the he seeks rule. discovery not he did that by alleging forgetfulness of his bility of occurrence, their the of at time offensive acts to be the perceive as a injured not physically and was thereto he consented that words, perfidy, the time of Bruen’s at other result. In wrongful- with the impressed or traumatized sufficiently was not difficult. repression particularly to of acts make ness of rule is one discovery by the produced thus spectacle trier of convince trying to with the victim transmogrification, as an of truth an become abuser now he has not fact that And, tormentor. his former requital against to achieve expedient in depend cases must of types in these discovery of proof because an psyche, with the dealing science inexact on an measure large dimension a further will add opinion of expert conflict anticipated first base. to attempt reach victim’s to the and obstacle instances that other readily concede We the time prove to the plaintiff shifts burden rule is applied, cases, how- In discovering injury. of method cases the burden. meet help exists ever, evidence objective sustaining of survivors, only means virtually the CSA mentation plaintiff’s fact that the trier to convince burden is a over effects deleterious or their abuse the acts of repressed have survivor that CSA The fact of time. certain period his or her asserting incapable emotionally mentally been under no relevance would have statutory period claim within rule. to statutes subjected complainants other almost all Unlike a form abuse suffer limitation, of sexual child victims makeup emotional their mental on intrusion personal development.6 personality emotional normal with interferes disorder in development post-traumatic stress study involving 6In a day-care setting, observed it was reportedly abused ten children perva- appeared be a personal-social relationships “[problems *9 result, may perceptibly As a the adverse effects of such abuse And, if not an entire lifetime. prolonged periods, increase for may trauma and in other torts although physical injury present gradual result in a deterioration with concomitant emo- physical distress, are not usually complicated by tional such actions fear and associated with CSA. stigma, depression short, In circumstances present unique adult survivors CSA readily that do not conform to the usual constructs injuries sense, which of limitations are upon periods imposed. victims of false imprisonment,
survivors are analogous each new confinement creates a new cause of action. day of however, Unfortunately, hostage CSA survivors are to their own abusers, and from which thought processes, implanted by Indeed, never be released. the mental and emo- they may totally dysfunction may virtually tional suffered such victims prevent them from relief their tormentors until the seeking against of limitations has since To of time long expired. place passage over the position importance in a of CSA priority plight ultimate victims to be the exaltation of form over would seem substance, convenience over principle.
Based we hold that no statute of upon foregoing, existing action of an limitations7 to bar the adult survivor of CSA applies when it clear and evidence that the convincing is shown sexually minority by has in fact been abused plaintiff during evidence, named defendant.8 Absent such a cause action based difficulty.” paper area of also noted that the Minnesota Child “[o]n sive functioning Development Inventory, the children were found to be in the study age personal-social development.” lower of children their 10% represent present “appeared in the children also stated that the fearfulness Kiser, accomplishment.” Laurel J. et al. collapse developmental Post- Young Purported A Reaction to Traumatic Stress Disorder Children: Academy Adolescent Abuse. Journal of American of Child and Sexual 1988, 27, Psychiatry, 5:645-649. McLeer, Moreover, et al. footnote it was in the article {see may well be that abused children with PTSD are concluded that “[i]t symptom persistence, perhaps even from child- at risk for and/or disorder hood into adulthood.” Id. at 653. limited an period of time that no fixed law there was 7At common Am.Jur.2d, See, generally, 51 action. right maintain an aggrieved party’s (1987). Actions (1970); Limitations § 54 C.J.S. Actions 1 §
Limitation legislature did not contem that the we feel assured previously, As observed fixing general periods cases in unique aspects of CSA plate or consider categories of limitations. may it measures as legislature will take such 8We are confident that demon ruling if it determines the instant to address deem advisable enforce time within which limited in the of CSA should be survivors strated pursued. able actions two-year to the subject regular of CSA will be allegations upon *10 11.190(4)(e). under NRS currently of limitations period specified in ruling result from our injustice may that recognize We by demonstrated but cannot be where CSA has occurred instances We are convincing. clear and evidence that is corroborative however, claims is for fraudulent persuaded, potential time at least until such sufficiently ruling, to warrant such a great of limitations the elect to a legislature may provide as Because CSA will most this directly addressing specific problem. we are difficult to prove, often occur under circumstances which designed enact encourage legislature legislation would the in most diffi- justice the maximum these provide opportunity types cult of cases.9
Conclusion stated, we conclude that For reasons hereinbefore convincing clear and showing demonstrated by requisite a child and that evidence that he was in fact abused as Therefore, court erred in Bruen was his abuser. the district and is reversed dismissing judgment Petersen’s complaint. the matter remanded for trial. J.,
Young, J., C. Mowbray, concur.
Rose, J., concurring:
I concur in the
How-
majority opinion.
result reached in the
ever, I would
prefer
running
a rule that tolls the
adopt
statute of
until
the cause of the
limitations
victim’s psychological
been done in cases from
problems as has
other jurisdictions
Hammer,
such
N.W.2d 23
as Hammer v.
denied,
1988),
(Wis.Ct.App.
(Wis.
rev.
Springer, J., dissenting: concurring rule “discovery” opinion I agree majority with however, disagree, I of cases is unrealistic. these kinds *11 civil cases of limitations the statute to annul majority’s attempt majority from I dissent abuse cases. out of child sex arising therefore, and, the decision regard in this opinion reverse. of limita- the statute choose to eliminate legislature think that do not cases. I abuse to child respect tions with I decisions. major these kinds be making court should the statute away doing reasoning support find contrived. a bit hard follow limitations to be INC., LINES, STAGE LAS VEGAS-TONOPAH-RENO OF SOUTHERN Appellant, TOURS LINE v. GRAY Respondent. NEVADA, No. 19305 P.2d 386
May