Ferrer v. Kuhl

• Decision Date: 18 December 1998
• Docket Number: 2-98-0179,Nos. 2-98-0164,s. 2-98-0164
• Citation: 235 Ill.Dec. 302,704 N.E.2d 875,301 Ill.App.3d 694
• Parties: , 235 Ill.Dec. 302 Josefa FERRER, Plaintiff-Appellant, v. Richard KUHL et al., Defendants-Appellees. Teresa Clay, Plaintiff-Appellant, v. Richard Kuhl et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 875

704 N.E.2d 875

301 Ill.App.3d 694, 235 Ill.Dec. 302

Josefa FERRER, Plaintiff-Appellant, v. Richard KUHL et al., Defendants-Appellees.

Teresa Clay, Plaintiff-Appellant, v. Richard Kuhl et al., Defendants-Appellees.

Nos. 2-98-0164, 2-98-0179.

Appellate Court of Illinois Second District.

Dec. 18, 1998.

Joseph G. Klest, Law Offices of Joseph G. Klest, Schaumburg, for Josefa Ferrer in No. 2-98-0164 and Teresa Clay in No. 2-98-0179.

Julie L. Trester, Ronald D. Sutter, Querrey & Harrow, Ltd., Chicago, for Brother Richard Kuhl.

Andrew Kopon, Jr., Michael A. Airdo, May H. Soong, Cremer, Kopon, Shaughnessy & Spina, Chicago, for Society of the Missionaries of the Sacred Heart.

Justice BOWMAN delivered the opinion of the court:

Because of the identity of the issues presented, we have consolidated the following appeals. In case No. 2-98-0164, plaintiff, Josefa Ferrer (Ferrer), appeals from the trial court's dismissal of her complaint against defendants, Brother Richard Kuhl and the Society of the Missionaries of the Sacred Heart (Society). Ferrer sought recovery for damages she sustained as a minor as a result of Brother Kuhl's alleged sexual abuse. In case No. 2-98-0179, plaintiff, Teresa Clay (Clay), appeals from the trial court's dismissal of her third amended complaint against the same defendants. Clay sought recovery on the same basis as Ferrer. We reverse and remand.

The facts relevant to the disposition of case No. 2-98-0164 are as follows. Ferrer was born on September 18, 1966. On September 16, 1996, Ferrer filed a three-count complaint alleging that from approximately 1976 to 1981 Brother Kuhl sexually molested her. Ferrer was 29 years old at the time that she filed her complaint. Counts I and II were directed against Brother Kuhl and alleged battery and reckless conduct. Count III alleged that the Society was negligent or reckless because it continued to employ and failed to supervise Brother Kuhl despite its awareness of his sexual abuse. The complaint also alleged that Ferrer first realized in January 1996 that the sexual encounters caused her injury and, since that realization, she has remembered additional incidents of abuse that she did not previously recall. In addition to these allegations, the complaint included a statement from an expert who treats victims of childhood sexual abuse. The statement indicated that victims of childhood sexual abuse often do not realize the causal connection between their present psychological injuries and the past abuse.

Defendants filed motions to dismiss Ferrer's complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 1996)). Defendants argued that the statute of limitations expired on September 18, 1986, when Ferrer reached the age of 20. Relying on our decision in M.E.H. v. L.H., 283 Ill.App.3d 241, 218 Ill.Dec. 702, 669 N.E.2d 1228 (1996), aff'd, 177 Ill.2d 207, 226 Ill.Dec. 232, 685 N.E.2d 335 (1997), defendants maintained that the discovery rule does not apply in childhood sexual abuse cases and does not operate to toll the statute of limitations.

In response to defendants' motions, Ferrer distinguished M.E.H. on the ground that, unlike in M.E.H., the statute of repose in her case had not expired. Additionally, Ferrer asserted that, pursuant to section 13-202.2(e) of the Code (735 ILCS 5/13-202.2(e) (West 1996)), section 13-202.2(b), the provision codifying the common-law discovery rule (735 ILCS 5/13-202.2(b) (West 1996)), applies to actions commenced on or after January 1 1991. Ferrer argued that because she filed her complaint on September 16, 1996, the discovery rule should be applied in her case. In reply to Ferrer's response, defendants argued that section 13-202.2(b) was inapplicable because this amendatory provision did not become effective until more than two years after Ferrer reached the age of majority. According to defendants, applying this provision would impair their vested rights.

On January 30, 1998, the trial court issued a letter opinion granting defendants' motions. In its letter opinion, the trial court determined that the statute of repose was not at issue. The trial court identified the controlling issue as "whether the common law discovery rule applies to childhood sexual abuse cases arising prior to the 1991 enactment of a statutory discovery rule." In granting defendants' motions, the trial court concluded that it was bound by our decision in M.E.H. v. L.H., 283 Ill.App.3d 241, 218 Ill.Dec. 702, 669 N.E.2d 1228 (1996). The trial court also determined that defendants possessed a vested right in the running of the statute of limitations because Ferrer did not file her action within two years after reaching the age of 18. Thus, according to the trial court, section 13-202.2(b) could not be applied retroactively. Thereafter, Ferrer filed this timely appeal.

In case No. 2-98-0179, Clay filed a complaint against defendants on January 10, 1996. On January 17, 1997, she filed her third amended complaint against defendants. The facts in the third amended complaint are as follows. Clay was born on March 31, 1964. When Clay was four or five years old, Brother Kuhl began sexually abusing her once or twice a week for approximately seven years. Clay was evaluated by a licensed psychologist. The psychologist opined that many victims of childhood abuse do not realize the causal connection between their psychological problems and the abuse. The psychologist concluded that "there is good reason to believe that [Clay] was unable to comprehend that the tragic course that her life was on, until quite recently, was, at least in part, due to what the priest did to her." In June 1994, plaintiff first realized that the sexual encounters with Brother Kuhl caused her injuries. Counts I and II were directed against Brother Kuhl and included allegations of battery, negligence, and recklessness. Count III was directed against the Society and alleged that, despite the Society's awareness that Brother Kuhl was a child sexual abuser, it took no action to prevent further incidents of abuse.

Defendants filed motions to dismiss Clay's complaint pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 1996)). They argued that, based on this court's decision in M.E.H., the statute of limitations expired on March 31, 1984, when plaintiff reached the age of 20.

In response, Clay sought to distinguish M.E.H. on the ground that in her own case the statute of repose had not expired and on other grounds. Additionally, Clay asserted that both the discovery rule contained in section 13-202.2 of the Code as well as the common-law discovery rule should apply to toll the statute of limitations. After both parties filed a series of responsive pleadings, the trial court, on February 17, 1998, granted defendants' motions to dismiss Clay's complaint. In dismissing Clay's complaint, the trial court specifically relied upon this court's decision in M.E.H. Thereafter, Clay timely appealed.

On appeal, Ferrer and Clay argue that the trial court erred when it dismissed their complaints. Their principal contention is that the common-law discovery rule applies to childhood sexual abuse cases. In addition, they challenge our decision in M.E.H. as contrary to public policy, section 13-202.2 (735 ILCS 5/13-202.2 (West 1996)), other appellate court decisions, and opinions in the medical community. Both maintain that M.E.H. is distinguishable from their cases because, unlike in M.E.H., the abuse inflicted by Brother Kuhl was not caused by force or violence. Instead, as noted in their briefs, their injuries "evolved with the overlay of life experience." In challenging the propriety of our decision in M.E.H., Ferrer and Clay assert that, contrary to our finding in M.E.H., childhood sexual abuse is not always considered a sudden traumatic event resulting in immediate injury. According to Ferrer and Clay, in many instances of childhood sexual abuse, the victim does not realize that the abuse is harmful at the time that it occurs. They point to clinical evidence that suggests that oftentimes the victim represses the memory of the abuse and does not immediately link the injury to the abuse. Both Ferrer and Clay argue that they were not aware that the abuse caused them injuries until January 1996 and June 1994, respectively.

Ferrer and Clay also argue that several jurisdictions have recognized the applicability of the discovery rule in childhood sexual abuse cases to toll the statute of limitations. Both the willingness of these jurisdictions to employ the discovery rule in childhood sexual abuse cases and the legislature's codification of the discovery rule (see 735 ILCS 5/13-202.2 (West 1996)) support their proposition that the common-law discovery rule should apply in this instance.

In reply, defendants respond that the trial court properly dismissed both complaints based on M.E.H. They maintain that this court in M.E.H. properly employed an objective standard, which examined the nature of the injury, and determined that the common-law discovery rule was inapplicable to cases of childhood sexual abuse. According to defendants, the viability of the repressed memory theory remains the subject of extensive dispute in the medical community. They argue that, based on the finding that childhood sexual abuse is a sudden traumatic event that results in immediate harm, other jurisdictions have refused to apply the discovery rule in childhood sexual abuse cases and that these jurisdictions have also rejected the application of the discovery rule in cases involving allegations of repressed memory. Defendants maintain that both Ferrer and Clay were aware of the alleged abuse but unaware of the causal connection between the injuries and the abuse. Thus, the limitations period commenced when Ferrer and Clay each reached the age of majority, and it expired when they each turned 20 years old.

The Society also...