Hammer v. Hammer, 86-2039

• Decision Date: 19 November 1987
• Docket Number: No. 86-2039,86-2039
• Parties: Laura S. HAMMER, Plaintiff-Appellant, v. Warren J. HAMMER, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 23

418 N.W.2d 23

142 Wis.2d 257

Laura S. HAMMER, Plaintiff-Appellant, v. Warren J. HAMMER, Defendant-Respondent.

No. 86-2039.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 4, 1987.

Opinion Released Nov. 19, 1987.

Opinion Filed Nov. 19, 1987.

Review Denied.

Kaftan, Kaftan, Van Egeren, Ostrow, Gilson, Geimer & Gammeltoft, S.C. (G. Jane Kaftan of counsel), Green Bay, for plaintiff-appellant.

Schmaus Law Office (William J. Chandek of counsel) Menomonee Falls, for defendant-respondent.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

WEDEMEYER, Judge.

Laura S. Hammer appeals from the trial court's order of summary judgment which dismissed her complaint against her father, Warren J. Hammer. The dispositive issue of this case is whether the discovery rule of Hansen v. A.H. Robins Co., 113 Wis.2d 550, 335 N.W.2d 578 (1983) applies to cases of incestuous abuse. ¹ Because we conclude that the discovery rule applies to the facts of this case, and because there still exist genuine issues of material fact to be resolved, we reverse the trial court's determination that the claims were barred by sec. 893.16, Stats., and remand for trial.

Laura, in an amended complaint, filed three claims against her father for incestuous abuse, intentional infliction of emotional distress, and negligent infliction of emotional distress. Warren moved to dismiss Laura's claims pursuant to sec. 802.06(2), Stats., on the ground that the claims were barred by the statutes of limitations, contained in secs. 893.57 and 893.54(1). ²

Along with her brief in opposition to the motion to dismiss, Laura filed an affidavit of her psychological counselor, Michael Filipiak, to support the allegations of her complaint. This affidavit was accepted and considered by the court. The parties stipulated in open court on the day the motion to dismiss was argued, that the amended complaint would be accepted, and that the trial court's decision on the motion to dismiss would apply to the amended complaint. ³ The trial court decided that Laura's claims were barred by sec. 893.16, Stats. ⁴

Laura alleges in her amended complaint that she was sexually abused by Warren on an average of three times a week, beginning in 1969 when she was five years old and ending in August, 1978 when she was fifteen. The conduct included, but was not limited to, indecent touching and oral intercourse, and was forced upon her without her consent.

The conduct occurred in secret and was accompanied by threats that harm would come to her if she ever told anyone about it. In an atmosphere of paternal dominion, Warren repeatedly told Laura that she had caused the acts he committed and that they were her fault. The acts and the circumstances in which they occurred caused Laura to develop various coping mechanisms and symptoms of psychological distress, including great shame, embarrassment, guilt, self-blame, denial, depression, and disassociation from her experiences.

At the age of fifteen, Laura reported Warren's acts to her mother. Warren, along with his mother, denied such conduct and trivialized it. He convinced Laura that she was not injured by the conduct but that she was at fault for her problems and for the family's problems. Warren also influenced her brother and sister to blame her, and to blame the family's problems on her having revealed his actions.

Laura further alleged that during the course of the abuse, because of the psychological distress caused by the abuse and the coping mechanisms which resulted, she was unable to perceive or know the existence or nature of her psychological and emotional injuries. These manifestations continued to operate on her long after the incidents of sexual molestation had ended, preventing her from perceiving her psychological and emotional injuries and their connection to her father's earlier acts, and causing her to resist and reject any suggestions that she obtain psychological counseling or legal advice.

She avers that in February, 1985, because of her emotional shock and distress at her father's attempt to obtain legal custody of her minor sister, she began to consider the relationship between his acts against her and her continuing psychological and emotional problems. Since that time, she has sought psychological counseling and legal advice and has begun to understand the past and present impact of his abuse.

The affidavit of Michael Filipiak, Laura's psychological counselor, declared that he was experienced in treating victims and perpetrators of intrafamilial sexual assault and that he was presently treating Laura for psychological and emotional injuries which he believed were caused by her father's sexual and other abuse. He believed that Laura was traumatized by the abuse and isolation and was unable to reveal and explore the damage she had suffered. He concluded that Laura had not perceived the incestuous conduct as injurious because (1) it was of such a long duration and frequency that it had been perceived by her as natural behavior; (2) Warren had imposed isolation and secrecy on her; (3) the abuse had depersonalizing effects which had made her think of herself as an object to be used rather than as a person with rights; (4) she had been told by her father that the conduct was normal and his right, and (5) the abuse by an authority figure on whom she was dependent had made her distrustful of other authority figures who might have helped her.

He further declared that, as a normal post-traumatic stress reaction, Laura had developed denial and suppression coping mechanisms. Because she had failed to understand or appreciate the abusive nature of her father's acts she had been unable to discover their psychological damage. The danger of her father subjecting her younger sister to the same type of abuse stimulated her awareness and delayed feelings about what had transpired years before.

Filipiak further opined that the minimization by Laura's family members of the abuse and its effects, and their blaming her for the breakup of the family had intensified the coping mechanisms of denial and suppression. He further stated that Laura's psychological manifestations were the usually recognized symptoms of post-traumatic stress disorder in victims of intrafamilial sexual abuse.

When reviewing the grant of a summary judgment motion, we are required to apply the standards set forth in sec. 802.08(2), just as the trial court applied those standards. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Because we conclude that the trial court incorrectly decided a legal issue and there are material facts in dispute, we reverse. See Germanotta v. National Indem. Co., 119 Wis.2d 293, 297, 349 N.W.2d 733, 735 (Ct.App.1984).

The trial court declared that it was aware that the Wisconsin Supreme Court had adopted a discovery rule for all tort actions but stated that it was

unwilling to adopt a rule of delayed discovery that would operate to extend the statute of limitations for minors, sec. 893.16 for a period longer than that mandated by the legislature. The legislature is free to carve out an exception for cases of incestuous abuse involving minors in Chapter 893 of the Wisconsin Statutes. Although the most atrocious behavior has been alleged on the part of the defendant, the Court concludes that the plaintiff is barred by sec. 893.16(1) and accordingly dismisses plaintiff's complaint.

We disagree with the trial court's decision not to apply the discovery rule to this case. We hold, as a matter of law, that a cause of action for incestuous abuse will not accrue until the victim discovers, or in the exercise of reasonable diligence should have discovered, the fact and cause of the injury. See Borello v. U.S. Oil Co., 130 Wis.2d 397, 411, 388 N.W.2d 140, 146 (1986).

The discovery rule, ⁵ as enunciated in Hansen, was formulated to avoid the harsh results produced by commencing the running of the statute of limitations before a claimant was aware of any basis for an action. In the interest of justice and fundamental fairness, our supreme court adopted a "discovery rule for all tort actions other than those already governed by a legislatively created discovery rule. Such tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first." Hansen, 113 Wis.2d at 560, 335 N.W.2d at 583. In announcing this rule, our supreme court established its power to determine when claims accrue. In doing so, it declared that

[w]ith the exception of sec. 893.55, Stats., for medical malpractice claims, the Wisconsin statutes do not speak to this issue. In the past this court has fixed the time for accrual for tort claims, and we retain the authority to do so now. Past deference to the legislature does not preclude our adoption of the discovery rule. Id. at 559-60, 335 N.W.2d at 582.

Recently, Borello further explained the meaning of the discovery rule by declaring, "under Wisconsin law, a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of injury but also that the injury was probably caused by the defendant's conduct or product." Id., 130 Wis.2d at 411, 388 N.W.2d at 146. In applying the discovery rule of Hansen to the circumstances in which Borello found herself, the supreme court further explained that even though Borello had symptoms and a subjective belief as to the cause of her problems, her cause of action did not accrue until she "had information to a reasonable probability of the nature of her ailment and the factual information to a reasonable probability that the defendant's furnace was the cause of her injuries." Id. at 423-24, 388 N.W.2d at 151.

In applying the Hansen discovery rule to the factual context of Borello, the court was quick to point out that tort claims may still accrue at the time of the negligent act or...