H.R.B. and B.B. v. Rigali

• Decision Date: 28 March 2000
• Parties: (Mo.App. E.D. 2000) . H.R.B. and B.B., Plaintiffs/Respondents, v. Archbishop Justin Rigali, in his representative capacity for the Archdiocese of St. Louis, Defendant/Appellant. Case Number: ED76365 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

18 S.W.3d 440 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

H.R.B. and B.B., Plaintiffs/Respondents, v. Archbishop Justin Rigali, in his representative capacity for the Archdiocese of St. Louis, Defendant/Appellant.

Case Number: ED76365

Missouri Court of Appeals Eastern District

Handdown Date: 03/28/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Floyd McBride

Counsel for Appellant: Gerald T. Noce, Edward M. Goldenhersh, Bernard C. Huger, Mary P. McInnis and Mark J. Swearingen

Counsel for Respondent: Rebecca M. Randles and Stanley Spero

Opinion Summary: Archbishop Justin Rigali of the Archdiocese of St. Louis appeals from the judgment of the trial court after a jury entered a verdict in favor of plaintiff H.R.B. and his wife B.B. on their claims of intentional failure to supervise and loss of consortium.

REVERSED.

Division Five holds: The trial court erred in failing to grant a directed verdict for the Archbishop on H.R.B.'s claim of intentional failure to supervise because his claim is barred by the statute of limitations in section 516.120(4) and 516.100, RSMo 1994. H.R.B's damages were capable of ascertainment when he suffered from the sexual abuse in the summer of 1964. Further, the trial court erred in failing to direct a verdict in favor of the Archbishop on the wife's loss of consortium claim because her claim is derivative only. She cannot recover for damages if H.R.B. has no valid claim for his personal injuries.

Opinion Author: Robert E. Crist, Senior Judge

Opinion Vote: REVERSED. Rhodes Russell, C.J., and Crahan, J., concur.

Opinion:

Archbishop Justin Rigali of the Archdiocese of St. Louis (Archbishop) appeals from the judgment of the trial court after a jury entered a verdict in favor of H.R.B. (Plaintiff) and his wife B.B. (Wife) on their claims of intentional failure to supervise and loss of consortium. We reverse.

On September 30, 1994, Plaintiff and his wife filed a petition alleging that during 1963 and 1964, Plaintiff suffered sexual abuse at the hands of a Roman Catholic priest, J.L.G. (Priest), employed by the Archdiocese, while Plaintiff was a student at the Church of the Immaculate Conception School in south St. Louis City. Plaintiff was born on April 24, 1951. Plaintiff initially brought three counts against Priest and five counts against the Archbishop and the Church of the Immaculate Conception, as well as one count loss of consortium count against all the defendants. Wife brought one loss of consortium count against all defendants. On February 22, 1995, the trial court dismissed the petition on the motion of all defendants. At that time, Plaintiff appealed this decision and our court affirmed in part and reversed in part the dismissal in H.R.B. v. J.L.G., 913 S.W.2d 92 (Mo. App. E.D. 1995).

After the case returned to the trial court, several procedural rulings (from which no one appeals) reduced the case to several counts against Priest, one count of intentional failure to supervise against the Archbishop and the church, and Wife's loss of consortium claim. On February 20, 1999, Plaintiff and Wife settled their claims against Priest for $25,000 and released him from liability.

Plaintiff's claim of intentional failure to supervise and Wife's loss of consortium claim proceeded to trial against the Archbishop and the church on February 22-26, 1999. The trial court entered a directed verdict in favor of the church, but allowed the case against the Archbishop to proceed to the jury. The jury entered a verdict in favor of Plaintiff on the count of intentional failure to supervise for actual damages in the amount of $498,280 and punitive damages of $498,280. The jury also returned a verdict in favor of Wife in the amount of $200,000 for loss of consortium. The trial court reduced the amount of actual damages awarded Plaintiff by the $25,000 settlement with Priest. The Archbishop appeals.

We find Point I of the Archbishop's appeal to be dispositive. In Point I, the Archbishop contends the trial court erred in failing to grant a directed verdict in favor of the Archbishop and erred in failing to grant his motion for judgment notwithstanding the verdict because Plaintiff's claim for intentional failure to supervise is barred by the statute of limitations as set forth in section 516.120(4), RSMo 1994 and section 516.100, RSMo 1994. The Archbishop argues that the court should have determined as a matter of law that Plaintiff's claim was barred by the statute of limitations and should never have submitted the issue to the jury, because when damages are capable of ascertainment under section 516.100 is a question of law. Moreover, under the facts presented, the Archbishop asserts the evidence shows Plaintiff's damages were capable of ascertainment back when he suffered the sexual molestation in the summer of 1964. We agree.

The parties are in agreement that the statute of limitations, section 537.046, RSMo 1994, applying to civil actions for childhood sexual abuse, enacted in 1990 does not apply to the facts of their case. Therefore, Plaintiff's action for intentional failure to supervise can only survive if brought within the five-year statute of limitations set forth in section 516.120(4).

Under section 516.100, the five-year statute of limitations for Plaintiff's cause of action began to run "when the damage resulting therefrom is sustained and is capable of ascertainment." In enacting this test, Missouri has specifically rejected a "discovery" rule to determine when a cause of action accrues. Harris-Laboy v. Blessing Hosp., Inc., 972 S.W.2d 522, 524 (Mo. App. E.D. 1998). Damage is sustained and capable of ascertainment when it can be discovered or made known, not when the plaintiff actually discovers the injury or wrongful conduct. Id. In addition, the capable of ascertainment test is to determine when a plaintiff could have first maintained the action to a successful suit. Carr v. Anding, 793 S.W.2d 148, 150 (Mo. App. E.D. 1990). "Mere ignorance of the plaintiff of his cause of action will not prevent the running of the statute of limitations." Id.; See also, Vandenheuvel v. Sowell, 886 S.W.2d 100, 102 (Mo. App. W.D. 1994).

Moreover, whether or not the damages were sustained and capable of ascertainment at a given time is an objective standard and is a matter of law to be decided by the judge. Id.; Sheehan v. Sheehan, 901 S.W.2d 57, 58-59 (Mo. banc 1995). Only where there could be some contradictory or different conclusion to be drawn from the evidence will a statute of limitations question be submitted to the jury to decide. Lomax v. Sewell, 1 S.W.3d 548, 552-53 (Mo. App. W.D. 1999).

In the case at hand, there was no question of fact for a jury to decide because no contradictory or different conclusion could be drawn from the evidence. Applying an objective standard, it is clear that Plaintiff's damages were sustained and capable of ascertainment in 1964 when they occurred. Where an overt sexual assault occurs, the injury and damage resulting from the act are capable of ascertainment at the time of the abuse. Plaintiff's testimony demonstrated in no unequivocal terms that the sexual abuse was overt, traumatic, painful and violent. Moreover, his testimony shows that he was very much aware of his injury and damages at the time of each sexual assault. He specifically testified he felt pain and confusion and questioned why the abuse was happening to him. In addition, there is no evidence in the record to show that Plaintiff was mentally incompetent at the time of the assaults. The only tolling exception applying in his case under section 516.170, RSMo 1994, was the "minority" exception, which tolled his cause of action until he was 21. However, even applying that exception, Plaintiff was required to file his cause of action by the time he was 26 (April 24, 1977), not 17 years after that date.

Plaintiff argues that he repressed any memory of these events until October 1992 and his repression of memory should toll the statute of limitations until that date. Plaintiff testified that after the attacks, he went to an area park and cried. He stated that while at the park he placed himself in a trance and suppressed his memory of the pain and abuse. However, his testimony shows that, at the time the acts were perpetrated, he had full knowledge of the events and knew they were wrongful. It was at that moment that Plaintiff's damage was sustained and capable of ascertainment. Plaintiff's expert, Dr. Schwartz, testified that even after the trances, Plaintiff was aware he had been injured and damaged in some way, but did not know why. Dr. Schwartz stated:

When Hank was sexually abused, he would go to the park, would disassociate. When he disassociated, he said this didn't happen and then he believed it didn't happen. That system is very common. Maybe two-thirds of sexual abuse victims hold forth very similar experiences like that.

He then somehow knows it, doesn't know it. Meaning that he knows that he's injured and damaged in some way, but he doesn't know why. His memory won't allow him to remember that it is [Priest] that sexually abused him.

Plaintiff relies upon the Sheehan case to support his argument. In Sheehan, the trial court had dismissed a daughter's personal injury action against her father for childhood sexual abuse, finding it barred by the statute of limitations. Sheehan, 901 S.W.2d at 57. The daughter had alleged she suffered sexual abuse as a child and had involuntarily repressed conscious memory of it until August 1990 or thereafter. Id. at 58. The daughter had filed her petition on April 28, 1993. Id. The Supreme Court reversed, finding the daughter's petition did not clearly indicate on its face that her suit was barred. Id. at 59. The Court found that her petition was ambiguous as to when she had sustained her injuries and damages and that in construing the petition...