Boggs v. Adams

• Decision Date: 06 December 1993
• Docket Number: No. 91 C 2719.,91 C 2719.
• Citation: 838 F. Supp. 1293
• Parties: Mary J. BOGGS, Plaintiff, v. Charles S. ADAMS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

838 F. Supp. 1293

Mary J. BOGGS, Plaintiff, v. Charles S. ADAMS, Defendant.

No. 91 C 2719.

United States District Court, N.D. Illinois, E.D.

December 6, 1993.

Janine L. Hoft, People's Law Offices, Chicago, IL, for plaintiff.

Louis G. Hector, Evanston, IL, for defendant.

OPINION AND ORDER

NORGLE, District Judge:

Before the court are objections to the Magistrate Judge's Report and Recommendation ("Report"). The Magistrate Judge recommended that defendant Charles S. Adams' ("Adams") motion for summary judgment be denied.¹ The court has reviewed the Report and arguments of counsel on a de novo standard. See 28 U.S.C. § 636(b)(1)(C). For the following reasons, the Report is rejected. Adams' motion for summary judgment on plaintiff's complaint for personal injuries seeking compensatory and punitive damages is granted.

BACKGROUND

Plaintiff Mary J. Boggs ("Boggs") was born on March 18, 1947.² Adams, a close friend of the family, was born on January 28, 1909. When Boggs was age six, she lost her father due to illness. After the death of Boggs' father, Adams became a frequent visitor to Boggs' family and her home. Boggs alleges that during Adams' visits to her home, he sexually abused her repeatedly from the time she was twelve years of age until she was eighteen years of age: from 1959 to 1965. In addition to the years of alleged abuse from 1959 to 1965, Boggs testified during her deposition that Adams attempted to sexually abuse her in 1968 when she was twenty-one years of age and a college student. All of the alleged acts of sexual abuse took place in Illinois.

In 1965, Boggs graduated from high school and in 1969, she received a Bachelor's degree in Education from Western Illinois University and married Tom Boggs. In 1973, Boggs and her husband had their first child. In 1974, Boggs, her husband, and their son moved from Illinois to California. Adams remained in Illinois and for more than fifteen years Boggs communicated with him. In 1981, Boggs obtained a Master's degree in Education from California State University.

After twenty years of marriage, during the period of 1989 to early 1991, Boggs experienced problems with her marriage, reports of her son's lack of effort at school, a poor financial condition, and the deaths of her mother and two friends. Boggs claims, however, that her mental anguish and depressive state were caused solely by her memories of Adams' alleged abuse, which she allegedly began to remember on or after May 6, 1989.³ Boggs alleges that she did not discover the years of alleged abuse or her injuries until on or after May 6, 1989 because she had repressed her memories of the years of alleged sexual abuse. On June 9, 1989, Boggs sought counseling and therapy for the first time. Thereafter, Boggs allegedly remembered additional episodes of sexual abuse committed by Adams.

After Boggs' family relocated to California, Boggs has been in constant contact with Adams through written communication, sending him some sixty-one letters, post cards and numerous family photos, and through a family visit in 1978 at Adams' home. The most recent communication was on May 29, 1989 after Boggs regained her memory of the alleged childhood abuse; however, she did not confront Adams or discuss any of her memories of the alleged sexual abuse. Rather, Boggs' May 29, 1989 letter was a friendly correspondence informing Adams about her general situation, her mother's physical condition, and the treatment plans Boggs had for her mother.

On May 6, 1991, Boggs filed a five-count personal injury complaint against Adams, invoking diversity jurisdiction and alleging the acts of childhood sexual abuse she remembered on or after May 6, 1989. At the time of the filing, Boggs was forty-four years of age and Adams was eighty-two years of age. The complaint is filed twenty-six years after the last act of alleged sexual abuse.

DISCUSSION

Rule 56(c) of the Federal Rules of Civil Procedure provides that for a party to prevail on a summary judgment motion "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, must show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir.1992), a scintilla of evidence in support of the nonmovant's position will not suffice to oppose a motion for summary judgment. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir.1991). Instead, the nonmoving party must elucidate specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Moreover, to preclude summary judgment the disputed facts must be those that might affect the outcome of the suit, First Indiana Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992), and a dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

"One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Accordingly, the nonmoving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

The court will not weigh the evidence or determine the veracity of the allegations made by Boggs. Rather, the court addresses those issues where the material facts are not in dispute and subject to resolution as a matter of law. In the instant motion, the issue in controversy is whether Boggs' personal injury claim against Adams, which was filed when she was forty-four years of age, is time-barred under the Illinois Childhood Sexual Abuse Statute, 735 ILCS 5/13-202.2 (1993) ("Sexual Abuse Statute"), which went into effect on January 1, 1991. The Sexual Abuse Statute in relevant portion provides that:

An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the date the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse, but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abused attains the age of 18 years.

735 ILCS 5/13-202.2(b) (1993).

In order to address the issue, the court must first determine whether Illinois law and its statute of limitations should apply to the instant action. It is a well settled principle that the court, exercising diversity jurisdiction over the parties and sitting in the State of Illinois, must apply Illinois' choice-of-law rules and statutes of limitations. Anabaldi v. Sunbeam Corp., 651 F.Supp. 1343, 1344 (N.D.Ill.1987); see also Colonial Penn Life Ins. Co. v. Assured Enterprise, Ltd., 151 F.R.D. 91, 95 (N.D.Ill.1993). Illinois applies the "most significant contacts" test to determine the applicable law in tort cases. Vantassell-Matin v. Nelson, 741 F.Supp. 698, 702 (N.D.Ill.1990) (citing Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, 595 (1970)). Furthermore, in diversity cases, absent a challenge by either party to the choice-of-law, the law of the forum state will govern the substantive issues raised in the pleadings. Ness v. Ford, 835 F.Supp. 453, 456 n. 5 (N.D.Ill.1993) (citing TransAmerica Ins. Co. v. South, 975 F.2d 321, 327 (7th Cir.1992)).

Because subject matter jurisdiction is based upon diversity of citizenship, the substantive law of Illinois and its statute of limitations will govern the instant motion. All of the alleged acts of sexual abuse occurred in the State of Illinois over a period of seven years and there is no suggestion that any acts of abuse occurred in the State of California. Additionally, neither Boggs nor Adams raises the issue of the applicable state law. Rather, both parties rely on Illinois authority to support their respective positions.

Under Illinois law, the statute of limitations for personal injury is two years.⁴ 735 ILCS 5/13-202 (1993). The general tolling provision for injured minors provides that:

If the person entitled to bring an action, specified in Section 13-201 through 13-210 of this Act ..., at the time the cause of action accrued, is under the age of 18 years, or is under a legal disability, then he or she may bring the action within 2 years after the person attains the age of 18 years, or the disability is removed.

735 ILCS 5/13-211. A unique problem exists in situations where a minor victim of a sexual abuse represses his or her memory of the abuse until after the statutory tolling provision has expired. Pursuant to the literal application of the two-year statute of limitations and the tolling provision, minors have until two years after they reach the age of eighteen to initiate personal injury actions. Therefore, individuals who were injured while they were minors may be barred from bringing a personal injury action after they reach the age twenty.

The Supreme Court of Illinois in Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969) first recognized and adopted a rule commonly referred to as the "discovery rule" which, if applied, tolls the applicable statute of limitations. The Rozny court noted, however, that the discovery rule poses certain problems and opined that:

The basic problem is one of balancing the increase in difficulty of

...