Petersen v. Bruen

• Decision Date: 10 May 1990
• Docket Number: No. 19878,19878
• Citation: 792 P.2d 18,106 Nev. 271
• Parties: Tor PETERSEN, Appellant, v. Ned BRUEN, Respondent.
• Court: Nevada Supreme Court

Page 18

792 P.2d 18

106 Nev. 271

Tor PETERSEN, Appellant, v. Ned BRUEN, Respondent.

No. 19878.

Supreme Court of Nevada.

May 10, 1990.

Manoukian, Scarpello & Alling and Jeff E. Parker, Carson City, for appellant.

Perry, Hebert & Spann and Thierry V. Barkley, Reno, for respondent.

OPINION

STEFFEN, Justice:

The district court dismissed appellant Tor Petersen's complaint on the ground that it was time-barred by the statute of limitations. Petersen, seeking damages for injuries resulting from child sexual abuse (CSA), contends that the lower court erred in refusing to apply the "discovery rule" to toll the running of the statutory period. Convinced that Petersen is entitled to maintain his action, we reverse.

Facts

Petersen was sexually abused by respondent, Ned Bruen, during the period from 1975 to 1983 when, under the auspices of the Big Brothers program, Bruen was assigned as a "big brother" to Petersen. The record reflects that Petersen, the "little brother," was approximately seven years old when the abuse commenced. Bruen exploited his relationship of trust with Petersen by seducing him and committing various acts of sexual battery upon his young victim. Bruen also memorialized his depravity by taking photographs of Petersen before, during and after Bruen's sexual trysts with his victim.

Petersen first sought help with his emotional and psychological problems in November of 1987, when he commenced psychotherapy. In the process of counseling with his psychiatrist, Petersen decided to apprise law enforcement officers of Bruen's criminal behavior. As a result of Petersen's disclosures and a subsequent investigation, Bruen was eventually convicted of sexual assault, attempted sexual assault, lewdness with a minor under the age of fourteen, use of a minor in producing pornography, and possession of child pornography.

Petersen filed a civil action against Bruen on July 20, 1988, claiming that he first realized the causal connection between Bruen's sexual impositions and his emotional and mental problems during his psychiatric treatment. Petersen's allegations against Bruen consisted of causes of action for battery and negligent and intentional infliction of emotional distress. In an affidavit submitted in opposition to Bruen's motion to dismiss, Petersen averred that he had blocked out the eight years of sexual molestations by Bruen until vividly recalled during his therapy. Petersen further recalled consenting to Bruen's overtures, not considering the acts offensive at the time, and suffering no physical injury from his encounters with Bruen.

The district court determined that Nevada's two-year period of limitations applied and dismissed Petersen's complaint. According to the record, Bruen last molested Petersen in 1983, approximately five years before Petersen filed his action. Petersen insists that the district court erred in dismissing his complaint because he did not discover the nexus between Bruen's behavior and his emotional distress until 1987. Having filed his complaint in July 1988, Petersen argues that his action was timely.

Discussion

This appeal presents issues of first impression in Nevada. The narrow issue on appeal is whether the district court properly applied the statute of limitations to the facts of Petersen's case. NRS 11.190(4)(e) expressly declares that civil actions must be commenced within two years "for injuries to a person ... caused by the wrongful act ... of another."

In resolving the issue before us, it is necessary to consider the purposes served by statutes of limitation. Justice Holmes succinctly stated that the primary purpose of such statutes is to "[prevent] surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348-349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). Although statutes of limitation are generally adopted for the benefit of individuals rather than public policy concerns, Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 207 A.2d 513, 519 (1965), it has been stated that:

Viewed broadly, ... statutes of limitation embody important public policy considerations in that they stimulate activity, punish negligence, and promote repose by giving security and stability to human affairs. Thus, statutes of limitation rest upon reasons of sound public policy in that they tend to promote the peace and welfare of society, safeguard against fraud and oppression, and compel the settlement of claims within a reasonable period after their origin and while the evidence remains fresh in the memory of the witnesses.

51 Am.Jur.2d Limitation of Actions § 18 (1970) (footnotes and citations omitted).

Finally, it has been observed that "[s]tatutes of limitation find their justification in necessity and convenience rather than logic, and it has been said that they represent expedience rather than principles." Id. at § 19, p. 603 (citing Chase Secur. Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945)).

The general rule concerning statutes of limitation is that a cause of action accrues when the wrong occurs and a party sustains injuries for which relief could be sought. Nelson v. A.H. Robbins Co., 515 F.Supp. 623, 625 (N.D.Cal.1981). An exception to the general rule has been recognized by this court and many others in the form of the so-called "discovery rule." Under the discovery rule, the statutory period of limitations is tolled until the injured party discovers or reasonably should have discovered facts supporting a cause of action. See, e.g., Sorenson v. Pavlikowski, 94 Nev. 440, 443-444, 581 P.2d 851, 853-854 (1978) (in legal malpractice action, cause of action accrues when plaintiff sustains damage and discovers, or should discover, his cause of action); Prescott v. United States, 523 F.Supp. 918, 940-941 (D.Nev.1981) ("Plaintiff who relies upon this delayed discovery rule must plead facts justifying delayed accrual of his action. The complaint must allege: (1) the time and manner of discovery, and (2) the circumstances excusing delayed discovery."), aff'd, 731 F.2d 1388 (9th Cir.1984); Fidler v. Eastman Kodak Co., 714 F.2d 192 (1st Cir.1983); Raymond v. Eli Lily & Co., 117 N.H. 164, 371 A.2d 170 (1977).

The rationale behind the discovery rule is that the policies served by statutes of limitation do not outweigh the equities reflected in the proposition that plaintiffs should not be foreclosed from judicial remedies before they know that they have been injured and can discover the cause of their injuries. Plaintiffs should be put on notice before their claims are barred by the passage of time. See Fidler, 714 F.2d at 198.

Jurisdictions that have considered the discovery rule in the context of adult survivors of CSA have reached differing conclusions. ¹ The Wisconsin Court of Appeals balanced the policies of the discovery rule and the statute of limitations when determining whether the discovery rule should apply to cases of incestuous abuse. In Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23 (Wis.Ct.App.1987), rev. denied, 144 Wis.2d 953, 428 N.W.2d 552 (1988), the court held "as a matter of law, that a cause of action for incestuous abuse will not accrue until the victims discover, or in the exercise of reasonable diligence should have discovered, the fact and cause of the injury." Id. 418 N.W.2d at 26. In Hammer, the adult survivor of childhood sexual abuse did not understand the past and present impact of the sexual abuse until she sought psychiatric help. The court adopted the discovery rule for incest cases and remanded the case to determine whether the discovery rule was applicable to the victim. The court rejected the argument from the alleged abuser that the statute of limitations' protection was being eroded and defendants would be subject to meritless claims for alleged wrongdoing from many years past. In rejecting the argument, the court noted that to protect the adult sexual abuser at the expense of the child is an "intolerable perversion of justice." Id. at 27. The court reached this determination by balancing the victim's and the defendant's interests and concluding that "the injustice of barring meritorious claims before the claimant knows of the injury outweighs the threat of stale or fraudulent actions." Id.

On the other hand, Washington courts have decided that the discovery rule did not apply to cases similar to Hammer. Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986). ² Although the Tyson ruling has been superseded by statute, ³ the opinion has been cited by both Petersen and Bruen for the different viewpoints expressed by the majority and dissent. In Tyson, the Washington Supreme Court concluded that the discovery rule "should be adopted only when the risk of stale claims is outweighed by the unfairness of precluding justified causes of action." Tyson, 727 P.2d at 228. The court stated that it has previously applied the discovery rule in non-sexual abuse cases where there was objective, verifiable evidence of the original wrongful act and the resulting injury. Because there was no such evidence in Tyson, the court did not apply the discovery rule to the sexual abuse victim. Id. at 229.

Petersen argues that Tyson can be reconciled with the case at hand. He asserts that Bruen's criminal convictions, based upon the sexual abuse Petersen suffered, serve as an "objective manifestation" of Petersen's injuries. We agree that the concerns regarding objective evidence are satisfied by Bruen's convictions.

Courts in California and Montana have held that the discovery rule does not apply when the victims knew of the factual elements of their cause of action long before the statute of limitations ran. See, e.g., DeRose v. Carswell, 196 Cal.App.3d 1011, 242 Cal.Rptr. 368 (1987); E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817 (1988).

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