Baily v. Lewis

• Decision Date: 06 May 1991
• Docket Number: Civ. A. No. 90-3371.
• Parties: Kenneth BAILY v. Allen LEWIS.
• Court: U.S. District Court — Eastern District of Pennsylvania

763 F. Supp. 802

Kenneth BAILY v. Allen LEWIS.

Civ. A. No. 90-3371.

United States District Court, E.D. Pennsylvania.

May 6, 1991.

Peter DeToy, Norman, Hanson & DeToy, Portland, Me., and Guillermo Bosch, Lauredo and Bosch, Philadelphia, Pa., for plaintiff.

Clifford Cohn, Philadelphia, Pa., for defendant.

Tsiwen M. Law, Hwang and Associates, Philadelphia, Pa., for third-party defendant.

MEMORANDUM OPINION AND ORDER

VANARTSDALEN, Senior District Judge.

Plaintiff Kenneth Baily (Baily) seeks to recover for injuries allegedly incurred as a result of defendant Allen Lewis' acts of sexual molestation and abuse while Baily was a minor. Because I find that all of Baily's claims are barred by the applicable statute of limitations, I will grant Lewis' motion for summary judgment.

FACTUAL ALLEGATIONS

The complaint in this matter avers that beginning in 1967, Lewis "cultivated and formed a close personal and social relationship" with Baily's parents, and "gained the trust and friendship" of the Baily family, including the children. Amended Complaint at ¶¶ 7-8. Plaintiff Kenneth Baily apparently "came to place deep trust and faith in Lewis," who allegedly "led Baily to believe that he, Lewis, was a considerate responsible, well-meaning adult to whom Baily could look for moral guidance and supervision." Id. at ¶ 10. Baily claims that in fact, beginning in 1969, at a time at which he was twelve years old, and continuing for a period of several years, Lewis sexually molested him on a regular basis. This molestation continued until approximately 1974, at which time Baily was 17 years old. Id. at ¶ 11. According to Baily, after the incidents of molestation ceased, he psychologically repressed "any memory and conscious awareness" of Lewis' conduct. Id. at ¶ 16. Baily claims that he "first became consciously aware" of the alleged abuse on May 26, 1988, during the course of psychotherapy he was undergoing for various emotional problems. Id. at 17. Baily asserts that he suffers from "sleeping disorders, gastrointestinal disorders, nervousness, tension, self-doubt, self-hatred, social inhibition or retardation, and disruption of family relationships," and he attributes these conditions to the conduct of Lewis. Id. at ¶ 15.

On May 16, 1990, more than fifteen years after the last alleged incident of sexual abuse, Baily filed the complaint in this matter, including counts for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, fraudulent misrepresentation, and breach of an affirmative duty to protect the plaintiff. Lewis has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that all of Baily's claims are barred by the statute of limitations.

DISCUSSION

Under Rule 56, summary judgment should be entered if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A dispute concerning a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. In ruling on a motion for summary judgment, the court must consider the evidence in the light most favorable to the nonmoving party, Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir.1986); however, the nonmoving party must present some "affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 251, 106 S.Ct. at 2514. Such affirmative evidence "must amount to more than a scintilla, but may amount to less ... than a preponderance." Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir.1989). The burden on the moving party to show that there is no genuine issue of material fact may be satisfied by "pointing out to the District Court — that there is an absence of evidence to support the nonmoving party's case." Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

There is no doubt that sexual abuse of minors is a serious and sensitive problem in our society. It is imperative however, that the shocking nature of the alleged facts not affect the judgment of the courts with respect to the controlling legal principles.

As jurisdiction in this case is based on diversity of citizenship,¹ the law of the forum state, Pennsylvania, controls. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This includes the forum state's statutes of limitation. Walker v. Armco Steel Corp., 446 U.S. 740, 745, 100 S.Ct. 1978, 1982, 64 L.Ed.2d 659 (1980); Guaranty Trust Co. v. York, 326 U.S. 99, 110, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945). All of Baily's claims are thus governed by the two year limitations period specified in 42 Pa.Cons.Stat.Ann. § 5524.² As a general rule, a statute of limitations begins to run "as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations." Pocono International Raceway v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). Persons asserting claims are under a duty to use "all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.... even though a person may not discover his injury until it is too late to take advantage of the appropriate remedy, this is incident to a law arbitrarily making legal remedies contingent on mere lapse of time." Id. at 84-85, 468 A.2d at 471. It would therefore appear that Baily's claims for conduct occurring more than fifteen years ago would obviously be time-barred.

The Discovery Rule

Baily argues, however, that the running of the statute of limitations was tolled in this case by the so-called "discovery rule." The discovery rule is "an equitable provision created to protect plaintiffs who are unaware either that they have been injured or of who caused their injury." Rendenz by Rendenz v. Rosenberg, 360 Pa.Super. 430, 434, 520 A.2d 883, 885, alloc. denied, 516 Pa. 635, 533 A.2d 93 (1987). It serves to toll the running of the statute of limitations until "the plaintiff knows or reasonably should know (1) that he has been injured, and (2) that his injury has been caused by another party's conduct." Id. at 434, 520 A.2d at 885. The discovery rule applies in cases where the plaintiff is unable, despite the exercise of diligence to know of an injury or its cause. Pocono International Raceway, 503 Pa. at 85, 468 A.2d at 471.

The parties have not cited, nor has my own research revealed any Pennsylvania cases dealing with this precise issue; that is, whether the discovery rule tolls the running of the statute of limitations when the plaintiff alleges that he was the victim of sexual abuse while a minor and that until recently, he psychologically repressed the memory of the events. Although this appears to be a case of first impression in this jurisdiction, courts in a number of other jurisdictions have addressed the question. In Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988), Judge Plunkett noted that cases involving this issue have generally involved one of two fact patterns: (1) cases in which the plaintiff claims to have known about the sexual abuse at or before his or her majority, but did not realize that other physical and psychological problems were caused by the molestation (type 1 cases); and (2) cases in which the plaintiff alleges that he or she repressed the memory until shortly before he or she filed suit (type 2 cases). Id. at 1367.

Courts in Indiana, Montana and California have declined to apply the discovery rule to type 1 cases. See Hildebrand v. Hildebrand, 736 F.Supp. 1512, 1521 (S.D. Ind.1990); E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817, 820 (1988); DeRose v. Carswell, 196 Cal.App.3d 1011, 1020, 242 Cal. Rptr. 368, 373 (6 Dist.1987). In all three of these cases, the courts focused on the fact that the plaintiffs admittedly were fully aware of the wrongful conduct but did not connect it to their subsequent problems. In such cases, the plaintiff is considered to have been on notice that he or she may have been injured and therefore under a duty to investigate possible causes of action. Under those circumstances, the courts reason, an application of the discovery rule would undercut the protection of the statute of limitations. See Hildebrand, 736 F.Supp. at 1521; E.W. v. D.C.H., 231 Mont. 481, 754 P.2d at 820; DeRose, 196 Cal.App.3d at 1017, 242 Cal. Rptr. at 371.

In contrast, courts in North Dakota and Wisconsin have applied the discovery rule in type 1 cases, on the grounds that the emotional trauma suffered by abuse victims justifies tolling the statute where they knew of the abuse but did not understand its connection to later emotional and physical difficulties. See Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989); Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23, 27 (1987).

A number of courts have applied the discovery rule to type 2 cases. In Mary D. v. John D., 264 Cal.Rptr. 633 (Cal.App.6 Dist.1989), review dismissed, ___ Cal.3d ___, 275 Cal.Rptr. 380, 800 P.2d 858 (1990), the court held that where a minor victim of sexual abuse repressed the memory of the events while a minor as a direct result of the tortious conduct, "it would be most unfair to the plaintiff not to toll the statute" and accordingly applied the discovery rule to such a claim. Id., 264 Cal.Rptr. at 638-639. In so doing, the court...