Earle v. State, 98-254.

• Decision Date: 24 November 1999
• Docket Number: No. 98-254.,98-254.
• Citation: 743 A.2d 1101
• Parties: Mark G. EARLE v. STATE of Vermont.
• Court: Vermont Supreme Court

743 A.2d 1101

Mark G. EARLE v. STATE of Vermont.

No. 98-254.

Supreme Court of Vermont.

November 24, 1999.

Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Brannen, P.C., White River Junction, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, Montpelier, and Mark J. Patane, Assistant Attorney General, Waterbury, for Defendant-Appellee.

Present DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and GIBSON, J. (Ret.), Specially Assigned.

JOHNSON, J.

Plaintiff Mark Earle appeals a ruling of the superior court granting summary judgment to the Department of Social and Rehabilitation Services (SRS) on the grounds that his negligence claims against SRS are barred by the statute of limitations. Plaintiff sued SRS claiming that SRS's negligence allowed him to be sexually abused by an older boy in SRS custody. Because the trial court erred in answering the threshold question of how to apply the retroactivity provision of the statute of limitations for cases of childhood sexual abuse, we reverse and remand.

"[S]ummary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Bacon v. Lascelles, 165 Vt. 214, 218, 678 A.2d 902, 905 (1996). The question of which statute of limitations applies to plaintiff's claim is one of law. See Fitzgerald v. Congleton, 155 Vt. 283, 294, 583 A.2d 595, 602 (1990). In this case, the trial court erred in concluding on the basis of the alleged facts that the six-year statute of limitations for childhood sexual abuse was not available to plaintiff. The error lay in failing to consider when plaintiff discovered his "injury or condition was caused by the act of sexual abuse," for purposes of the retroactivity provision in 12 V.S.A. § 522. The trial court failed to recognize that a plaintiff alleging injuries from childhood sexual abuse may allege distinct immediate and long-term injuries or conditions, and that both types of injury must be considered in determining the application of the retroactivity provision, as well as the statute of limitations. Additionally, applying the standard articulated in Rodrigue v. VALCO Enterprises, 169 Vt. ___, ___, 726 A.2d 61, 63 (1999), we clarify that plaintiff's action did not accrue until he knew at least that his injuries may have been a result of a breach of duty by SRS.

The following facts are undisputed. Plaintiff was born on February 8, 1975. He lived in a trailer with his mother and brother on his grandparents' farm, across the street from the grandparents' home. Plaintiff's mother received counseling and services from SRS to aid her in developing parenting skills. Plaintiff's grandparents provided foster care to an older boy, N.C., and N.C. was regularly in the company of plaintiff and his brother, sometimes acting as a babysitter. The parties agree that N.C. had no record of sexually abusive behavior prior to plaintiff's reports. Between December 1980 and April 1982, N.C. sexually abused plaintiff on numerous occasions.

In December 1980, plaintiff reported N.C.'s sexual abuse for the first time. He told his mother that N.C. had forced plaintiff to put N.C.'s penis in his mouth. Plaintiff was five years old. Plaintiff's mother reported the behavior to SRS. The agency confirmed the assaults, but did not remove N.C. from the grandparents' home. In April 1982, plaintiff, then seven, told his mother he was still being abused by N.C., and that he had recently been anally raped by N.C. Plaintiff's mother again reported the behavior to SRS. The agency recommended prosecution of N.C. by the Windsor County state's attorney and began seeking alternative accommodations for N.C. In September 1982, SRS removed N.C. from placement with plaintiff's grandparents.

The record before the trial court revealed the following facts. Counseling for plaintiff was provided by SRS beginning sometime in 1983 or 1984. Plaintiff attempted to commit suicide in 1984, which prompted plaintiff's mother to send plaintiff to a live-in school in late 1984. In 1986, plaintiff was engaging in self-mutilation and other self-destructive and antisocial behavior. In 1987, when plaintiff was twelve years old, he was diagnosed with a conduct disorder and major depression, and found to exhibit persistent suicidal ideation. He was hospitalized in late 1988 or early 1989 to prevent another suicide attempt.

Although plaintiff was never in SRS custody, SRS maintained information concerning him in connection with services provided to his mother. Following juvenile delinquency proceedings in 1991, SRS maintained an independent file on plaintiff. Plaintiff's present counsel first requested access to SRS information concerning plaintiff on December 15, 1995. As the result of a court order filed in Windsor Superior Court, plaintiff's counsel received a copy of this SRS file on September 25, 1996. Included in the file were records of SRS's action following plaintiff's mother's reports of sexual abuse of plaintiff.

Plaintiff filed a complaint against SRS on October 24, 1996, alleging that SRS had breached a duty owed plaintiff by failing to prevent N.C. from sexually abusing plaintiff and failing to intervene once the sexual abuse was reported. SRS filed a motion for summary judgment, arguing that plaintiff's claims were time-barred by all applicable statutes of limitations.¹ Plaintiff opposed the motion, arguing that his complaint had been timely filed. The superior court granted summary judgment to SRS, concluding that, even if all of plaintiff's alleged facts were accepted as true, the applicable statute of limitations barred this action.

The trial court concluded that the six-year statute of limitations applying to child sexual abuse, see 12 V.S.A. § 522, did not apply because the acts of sexual abuse had occurred before July 1, 1984 (the date upon which § 522 became retroactively available). Applying the three-year statute of limitations applicable to a personal injury action, see 12 V.S.A. § 512, tolled until plaintiff's eighteenth birthday, see 12 V.S.A. § 551, the trial court concluded plaintiff had to have filed this action by February 8, 1996, which he did not. The trial court declined plaintiff's request to toll the statute because SRS had allegedly obstructed plaintiff's access to his records, determining that both SRS and plaintiff had contributed to the delay. This appeal followed.

On appeal, plaintiff claims that the trial court erred in concluding that plaintiff brought his claim outside of the three-year statute of limitations of 12 V.S.A. § 512; alternatively, he asserts that the six-year statute of limitations of 12 V.S.A. § 522 should apply.²

The first question that must be addressed is whether § 522 — which encompasses plaintiff's claim substantively — should be applied to plaintiff's claim under the retroactivity provision created by the Legislature. The second question, once the applicable statute of limitations is determined, is when plaintiff's cause of action accrued, and hence whether this action was timely. The error by the trial court in this case lay in equating these two questions. Although in many cases the two dates may coincide, the facts of this case indicate that the triggering events for the retroactivity analysis and the accrual of plaintiff's cause of action occurred at two different times.

I.

To properly analyze whether plaintiff's claim is barred by applicable statutes of limitations, we must first determine which statute of limitations applies to plaintiff's claims. The six-year statute of limitations of § 522 would normally govern plaintiff's claims, given their subject matter. That statute provides in relevant part:

A civil action brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within six years of the act alleged to have caused the injury or condition, or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later. The victim need not establish which act in a series of continuing sexual abuse or exploitation incidents caused the injury.

12 V.S.A. § 522(a). In Sabia v. State, we clarified that the word "act" in this context should not be interpreted to refer solely to the alleged act of sexual abuse, but could refer also to the alleged act of negligence by a third party. See Sabia v. State, 164 Vt. 293, 309, 669 A.2d 1187, 1198 (1995). Therefore, plaintiff's claim against SRS for failing to prevent N.C. from abusing him falls within the category of cases intended to be covered by § 522.

The statute of limitations was enacted in 1990, however, and applies retroactively only to cases where "the act of sexual abuse or the discovery that the injury or condition was caused by the act of sexual abuse occurred on or after July 1, 1984." 1989, No. 292 (Adj.Sess.), § 4(b). Thus, the threshold question is whether plaintiff's claim is encompassed in the period of retroactive application, even though it is substantively within § 522. Since the abuse ceased after N.C. was removed in 1982, the question is whether plaintiff discovered that his injury or condition was caused by the act of sexual abuse after July 1, 1984.³

In cases of childhood sexual assault, the Legislature has specifically indicated that the injuries of which a plaintiff is immediately aware and the injuries that may manifest only later are both relevant for purposes of applying the retroactivity provision. The statutory language instructs that the act of sexual abuse "or the discovery that the injury or condition was caused by the act of sexual abuse" must have occurred on or after July 1, 1984.1989, No. 292 (Adj.Sess.), § 4(b) (emphasis added). The provision takes into account the fact that the psychological effects of abuse and even the memory of the abuse and perpetrator may be more difficult to discover than...