Hollander v. Brown

Decision Date09 August 2006
Docket NumberNo. 05-3176.,05-3176.
Citation457 F.3d 688
PartiesJacque HOLLANDER, Plaintiff-Appellant, v. James BROWN and Brown Enterprises, Incorporated, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Donald Rosen (argued), Carpentersville, IL, for Plaintiff-Appellant.

Debra A. Opri, Beverly Hills, CA, Jo Anne B. Bruzgul, Tammy L. Wade (argued), Bruzgul & Associates, Chicago, IL, for Defendants-Appellees.

Before EASTERBROOK, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Jacque Hollander appeals the dismissal, on statute of limitations grounds, of a personal injury action that she brought against James Brown and Brown Enterprises for an alleged 1988 incident of sexual assault. Ms. Hollander submits that the limitations period should not have begun until 2003, when she was informed by her physicians that the 1988 sexual assault had caused her to suffer from a condition known as Graves' disease. For the reasons set forth in this opinion, we affirm the judgment of the district court.

A. Facts

The complaint alleges the following facts; we must accept them as true in reviewing a Rule 12(b)(6) dismissal. See Moranski v. Gen. Motors Corp., 433 F.3d 537, 539 (7th Cir.2005).

In the late 1980s, James Brown Enterprises, Inc. ("Brown Enterprises"), hired the plaintiff, Ms. Hollander, as a public relations assistant. Some time in April 1988, there was a meeting between Mr. Brown and Ms. Hollander at the offices of Brown Enterprises in Augusta, Georgia. As the meeting was wrapping up, Mr. Brown invited Ms. Hollander to take a ride with him to see a car that he was having customized. Ms. Hollander agreed, and the two drove to a nearby car dealership.

On the way back from the dealership, Mr. Brown allegedly began driving erratically and exited the highway onto a deserted piece of land in South Carolina. There, according to Ms. Hollander's complaint, he proceeded to beat, rape and psychologically torture her over the course of several hours. Mr. Brown then returned Ms. Hollander to Augusta and threatened to have her killed if she told anyone what had happened.

Ms. Hollander alleges that, some twelve years later, she was diagnosed with a condition known as Graves' disease, an auto-immune deficiency that affects the thyroid gland and causes low energy, depression and mood swings. Three years later, in 2003, Ms. Hollander was informed by a physician that the cause of her Graves' disease was the rape and torture allegedly perpetrated by Mr. Brown in 1988.

B. District Court Proceedings

On January 5, 2005, invoking the district court's diversity jurisdiction, Ms. Hollander brought this action against Mr. Brown and Brown Enterprises in the Northern District of Illinois. Counts I through III asserted claims against Mr. Brown for false imprisonment, intentional infliction of emotional distress, sexual assault and battery. Count IV alleged negligence against both Mr. Brown and Brown Enterprises. Count V claimed that Brown Enterprises was vicariously liable for Mr. Brown's actions under the doctrine of respondeat superior.

On February 16, 2005, Mr. Brown and Brown Enterprises joined in filing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, holding that Ms. Hollander's action was barred by the two-year statute of limitations that governs tort claims for personal injury in Illinois.1 See 735 ILCS 5/13-202. Under that statute, the two-year limitations period begins when the "cause of action accrued." Id. In determining the accrual date of Ms. Hollander's claim, the district court began by noting two basic principles of Illinois law: (1) that a cause of action accrues at the time a plaintiff's interests are invaded; and (2) that, under the "discovery rule," a plaintiff also must know, or be on reasonable notice, that her interests have been invaded before the limitations period begins to run. R.21 at 4.

In rejecting Ms. Hollander's claim that the discovery rule should extend the statute of limitations in this case, the court distinguished between the late realization of one's injury from the late realization of the extent of that injury. In the district court's view, Ms. Hollander's allegations described a sudden, traumatic injury that was, or should have been, obvious to her at the moment it occurred. The court therefore ruled that her discovery of the full extent of her injury, some fifteen years later, did not provide a basis for extending the statute of limitations.

The court also rejected Ms. Hollander's claim that the statute of limitations should have been tolled because she feared retaliation from Mr. Brown.


We first address whether the district court erred in concluding that Ms Hollander's action was time-barred. Under the familiar rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we apply Illinois2 substantive law to resolve this question. See Guaranty Trust v. York, 326 U.S. 99, 110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) (holding that statutes of limitations are considered substantive matters for purposes of the Erie doctrine). Further, as a consequence of our obligation under Erie, we shall not anticipate changes to state law in the absence of concrete evidence that the state court would adopt that position today. See Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir.1996). Indeed, we have warned litigants that those who seek to base their claims on an innovation in state law would be well-advised to file their claims in state court. See id.; Shaw v. Republic Drill Corp., 810 F.2d 149, 150 (7th Cir.1987) (per curiam).

Under the Illinois Code of Civil Procedure, the statute of limitations for personal injury claims requires that an action be commenced within two years of the date on which the cause of action accrued. See 735 ILCS 5/13-202. As a general rule, a cause of action for personal injury accrues when the plaintiff suffers the injury. To alleviate the harshness that would flow from literal application of this general principle, Illinois courts also recognize a "discovery rule." See, e.g., Parks v. Kownacki, 193 Ill.2d 164, 249 Ill.Dec. 897, 737 N.E.2d 287, 294 (2000). The effect of the discovery rule "is to postpone the commencement of the relevant statute of limitations until the injured plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused." Golla v. Gen. Motors Corp., 167 Ill.2d 353, 212 Ill.Dec. 549, 657 N.E.2d 894, 898 (1995).

In determining when a plaintiff reasonably should have discovered her injury, Illinois courts distinguish between injuries caused by sudden, traumatic events and those that have a late or "insidious" onset. See Hauk v. Reyes, 246 Ill. App.3d 187, 186 Ill.Dec. 405, 616 N.E.2d 358, 360 (1993). For limitations purposes, a "sudden, traumatic event" is one that, because of its force or violence, permits the law to presume that the event immediately placed the plaintiff on notice of her injury and a right of action. See Golla, 212 Ill.Dec. 549, 657 N.E.2d at 899. When a plaintiff suffers this type of injury, her cause of action accrues on the date of the traumatic event, and the limitations period does not begin anew simply because a latent condition later may arise from the same occurrence. See id. The rationale is that "the nature and circumstances surrounding the traumatic event are such that the injured party is thereby put on notice that actionable conduct might be involved." Id.

In insidious onset cases, by contrast, the nature of the event does not permit the plaintiff to learn of her injury, or of the causal link between the defendant's conduct and her injury, until some time after the event. For example, a plaintiff who has been exposed unknowingly to asbestos may not discover until years later that she now has cancer and that the exposure was its cause. See, e.g., Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 52 Ill.Dec. 1, 421 N.E.2d 864, 866 (1981). In such situations, the discovery rule starts the statute of limitations from the date when the plaintiff discovers, or reasonably could discover, both her injury and the causal connection between her injury and the tortious conduct. See id. at 868.

Ms. Hollander submits that her injuries from the 1988 sexual battery were not sudden, but rather "slow and cumulative." Appellant's Br. at 10. The thrust of Ms. Hollander's argument is that the psychological trauma of the rape made discovery of her full injury a slow and lengthy process. Notably, Ms. Hollander does not contend either that she repressed memories of her encounter with Mr. Brown or that she was unaware of the fact that she had been sexually assaulted until she was diagnosed with Graves' disease. Additionally, Ms. Hollander does not appear to be arguing that she ever was unaware of the false imprisonment and intentional infliction of emotional distress that she allegedly suffered at the hands of Mr. Brown.

It may well be that Ms. Hollander, like many victims of traumatic injury, only gradually came to understand the full extent of the injuries that the rape caused. However, Illinois, whose law we are obliged to apply under the Erie doctrine, see Erie R.R. Co., 304 U.S. at 78, 58 S.Ct. 817, has made it clear that this circumstance does not justify the application of the discovery rule. In Clay v. Kuhl, 189 Ill.2d 603, 244 Ill.Dec. 918, 727 N.E.2d 217, 221 (2000), the Supreme Court of Illinois was asked to apply the discovery rule and save an otherwise time-barred claim brought by a woman who had been abused sexually as a child. The plaintiff had alleged that the abuse began when she was nine years old and continued until she was fifteen or sixteen. She reached the age of majority in 1982, but did not bring suit until 1996, when she was nearly thirty-two years old. In urging the court to delay the running of the limitations period, she...

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