Fager v. Hundt, 75S05-9303-CV-341

Citation610 N.E.2d 246
Decision Date12 March 1993
Docket NumberNo. 75S05-9303-CV-341,75S05-9303-CV-341
PartiesChristine M. FAGER, Appellant (Plaintiff Below), v. Junior HUNDT, Appellee (Defendant Below).
CourtSupreme Court of Indiana

Stephen R. Bowers, Carlos A. Razo, Mellinger & Bowers, Elkhart, for appellant.

Jere L. Humphrey, Kizer & Neu, Plymouth, for appellee.

DICKSON, Justice.

Although filing her complaint approximately 22 years after the alleged occurrence of child sexual abuse upon which her damage claim is based, and over 15 years after attaining the age of majority, the plaintiff here seeks to avoid the two-year statute of limitations on grounds of repressed memory. To address this question of first impression in this Court, we grant transfer.

Plaintiff-Appellant Christine M. Fager alleges that she suffered emotional distress and ultimately a mental breakdown due to repeated sexual assaults and batteries inflicted by her father, Defendant-Appellee Junior Hundt, over a period of time during her minority. Invoking both the parental immunity doctrine and the statute of limitations, the trial court entered summary judgment in favor of the defendant. The Court of Appeals affirmed in an unpublished memorandum decision based solely upon the issue of parental immunity.

Since that decision, this Court has determined that parental tort immunity is not applicable to a cause of action predicated upon a claim of intentional felonious conduct. Barnes v. Barnes (1992), Ind., 603 N.E.2d 1337. As in Barnes, the plaintiff here alleges intentional felonious conduct, and no issue of parental privilege has been raised. Thus, parental tort immunity does not bar her claim.

The remaining issue is whether the trial court erred in granting summary judgment for the defendant upon his statute of limitations defense. In her complaint filed June 15, 1990, the plaintiff stated that she was born September 11, 1953, but did not specify any dates for the alleged repeated sexual assaults by the defendant. She generally asserted that they occurred "for a substantial period of time" during her minority. The complaint alleged that emotional trauma "had suppressed all memory or recollection of the incestuous conduct" until December of 1989. Record at 6-7.

The defendant responded with a motion to dismiss, claiming that plaintiff reached the age of majority on September 11, 1974, and thereafter failed to timely file this action within the applicable two-year statute of limitations. Ind.Code Sec. 34-1-2-2. Following the defendant's filing of his deposition of the plaintiff, the trial court ordered that the motion to dismiss be converted to a motion for summary judgment. Ind.Trial Rule 12(B). Other than the plaintiff's complaint and her deposition, the defendant designated no other evidentiary matter for consideration on summary judgment.

As to her claim of repressed memory, the plaintiff testified in her deposition that her first realization of the alleged sexually abusive experience with her father occurred in December, 1989, during a brief telephone conversation with her older brother. In response to defense counsel's question "[W]hen did you realize that he had molested you?" the plaintiff stated:

A. It came back to me the day that my brother called me on the phone and was inquiring about what was going on at the house, that [the defendant] was molesting two (2) younger girls, as of last year. And somehow it ringed a bell in his mind that he remembered when he was younger, my father used to come down to my room a lot, when I was a little girl. So he called and wanted to know if this was true. And to that point in time I never remembered until, you know, he just point blank came out and asked me. And I really didn't want to answer him then, for some reason; I just kept saying, "Why are you asking all these questions to me? Why are you asking me?", you know....

Q. Why do you think you did answer?

A. I guess it must have just came back, you know, just like, "Gosh, I do remember, he did do this to me.", you know.

Record at 69-70. In response to defense counsel's inquiry as to why she had never told anyone of the incidents, the plaintiff replied:

A. Cause I didn't remember. I got to the point where I didn't remember he was doing it when he was doing it to me. Then I suppressed it that much. I guess it's hard to understand, but that's the way I done it, to survive.

Record at 72. At another point in the deposition the following colloquy occurred:

Q. But it's your testimony then that from the time of thirteen (13), I'm not trying to be precise on that, but whenever the last act occurred, until he asked you when you were thirty-seven (37) [sic], some twenty-four (24) years later, that's the first time you had even thought about it?

A. Right.

Record at 77-78.

Discovery Rule and Childhood Injuries

The plaintiff argues that her discovery at age 36 of sexual abuse last occurring when she was 13 or 14 years of age was reasonably delayed due to impaired cognition or memory loss generated by the trauma she experienced. She seeks application of the discovery rule to delay the commencement of the statute of limitations. She contends that her cause of action did not accrue until she discovered it as an adult, and that her complaint was thereafter timely filed. The defendant asserts that the claim is barred by the statute of limitations and that application of the discovery rule in this case runs counter to social policies served by statutes of limitations.

In cases involving repressed memory of childhood sexual abuse, 1 a number of jurisdictions permit the action notwithstanding a statute of limitations, generally leaving factual issues for determination at trial. Daly v. Derrick (1991), 230 Cal.App.3d 1349, 281 Cal.Rptr. 709; Petersen v. Bruen (1990), 106 Nev. 271, 792 P.2d 18 ("where the fact of abuse is clearly and convincingly corroborated"); Jones v. Jones (1990), 242 N.J.Super. 195, 576 A.2d 316 (psychological impact of incestuous sexual abuse held to constitute statutory insanity); Osland v. Osland (1989), N.D., 442 N.W.2d 907; Meiers-Post v. Schafer (1988), 170 Mich.App. 174, 427 N.W.2d 606 (jury question whether person "insane" under state statutory definition; corroboration required that assault occurred); Hammer v. Hammer (1987), Ct.App., 142 Wis.2d 257, 418 N.W.2d 23.

In contrast, several jurisdictions have applied statutes of limitations to bar such claims. Lindabury v. Lindabury (1989), Fla.App., 552 So.2d 1117; Baily v. Lewis (E.D.Pa.1991), 763 F.Supp. 802, aff'd Lewis v. Baily (3rd Cir.1991), 950 F.2d 722; Hildebrand v. Hildebrand (S.D.Ind.1990), 736 F.Supp. 1512 (discovery rule presumed not applicable, decided before this Court's enunciation of Indiana's discovery rule in Wehling v. Citizens Nat'l Bank (1992), Ind., 586 N.E.2d 840); Tyson v. Tyson (1986), 107 Wash.2d 72, 727 P.2d 226 (superseded by statute permitting tolling of statute of limitations in such cases).

These decisions from other jurisdictions, grounded primarily upon diverse state statutory and case law, are not directly applicable. Resolution of this issue for Indiana requires consideration of both our state's statutory provision regarding the effect of legal disabilities upon statutes of limitations and our discovery rule for determining when causes of action accrue so as to commence the running of limitation periods.

Our cases clearly recognize that a tort claim accrues and the statute of limitations thus begins to run when the plaintiff knew or, in the exercise of ordinary diligence, should have discovered that an injury had been sustained as a result of the tortious act of another. Madlem v. Arko (1992), Ind., 592 N.E.2d 686, 687; Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 564; Wehling, 586 N.E.2d at 843; Burks v. Rushmore (1989), Ind., 534 N.E.2d 1101, 1104; Barnes v. A.H. Robins Co., Inc. (1985), Ind., 476 N.E.2d 84, 86.

When a cause of action arises from incidents occurring during a plaintiff's minority, however, application of the discovery rule can become problematic. The statute of limitations disability provision requires that, as to each cause of action accruing during the disability of minority, a plaintiff must bring the action within two years after reaching majority.

Any person being under legal disabilities 2 when the cause of action accrues may bring his action within two (2) years after the disability is removed.

Ind.Code Sec. 34-1-2-5. This grace period allows a person a reasonable opportunity upon reaching adult age to assess and assert his or her legal rights. Such opportunity, however, is of no avail to the new adult who lacks knowledge of early childhood trauma and injury. While the resulting complete deprivation of remedy could be redressed by a subjective application of the discovery rule from an injured child's perspective, this would have unacceptable ramifications.

The legitimate and proper role of statutes of limitations would be obviated in the many cases of ordinary injuries to children whose age or developmental limitations impaired or precluded their capacity to discover that an injury resulted from another person's tortious act. The present case, wherein the plaintiff claims a lack of cognition or memory of events at age 13 or 14, suggests even more commonplace scenarios. For example, a middle-aged claimant, suddenly learning that he had been involved as an infant in an automobile accident, could attempt to invoke the discovery rule to assert an action seeking damages for a permanent medical condition allegedly resulting. We therefore decline, in cases of childhood injuries, to apply the discovery rule subjectively based upon the child's actual knowledge.

The responsibility to learn of a child's injuries and to recognize that they may have been caused by the tortious act of another must fall to parents and legal guardians. When a young child sustains physical harm or is involved in a significant, potentially harmful incident, sound...

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