Johnson v. Johnson

• Citation: 701 F. Supp. 1363
• Decision Date: 07 October 1988
• Docket Number: No. 88 C 2243.,88 C 2243.
• Parties: Deborah JOHNSON, Plaintiff, v. William Leo JOHNSON and Josephine Johnson, Defendants.
• Court: U.S. District Court — Northern District of Illinois

701 F. Supp. 1363

Deborah JOHNSON, Plaintiff, v. William Leo JOHNSON and Josephine Johnson, Defendants.

No. 88 C 2243.

United States District Court, N.D. Illinois, E.D.

October 7, 1988.

Hope F. Keefe, Brunswick, Keefe & Deer, Blue Island, Ill., for plaintiff.

Patricia C. Nowak, Terrence M. Burns, Rooks, Pitts & Poust, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

Plaintiff Deborah Johnson brings this diversity suit against her parents, Defendants William and Josephine Johnson. Plaintiff claims that she has sustained injuries as a result of having been sexually abused while a child by Defendant William Johnson, and as a result of Defendant Josephine Johnson's failure to protect Plaintiff from her father's abuse. Plaintiff requests damages under various tort theories stemming from these injuries.

On May 6, 1988, Defendants moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b) arguing that the amended complaint was barred by the Illinois two-year statute of limitations. On July 1, 1988, Defendants filed their reply. In that reply, Defendants incorporated the affidavit of Josephine Johnson and two letters allegedly written by Plaintiff Deborah Johnson. In order to allow Plaintiff to respond to this affidavit, this court, by minute order dated September 7, 1988, gave Plaintiff the opportunity to file a surreply. In that same minute order, the court informed the parties that pursuant to Fed.R.Civ.P. 12(b), the court would treat Defendants' motion to dismiss as a motion for summary judgment because "matters outside the pleading were presented to ... the court." Fed.R.Civ.P. 12(b). For the reasons set forth below, Defendants' motion for summary judgment is denied.

The Allegations of the Complaint

Plaintiff's complaint alleges that she is a citizen and resident of the State of California, and that Defendants are citizens of Illinois. Plaintiff alleges that "from the time she was approximately three years old until she was approximately twelve or thirteen years old (1958 through 1968), while the parties were residing first in Indiana and then in Ohio, Defendant William Leo Johnson did intentionally and repeatedly sexually molest and abuse Plaintiff...." (Amended Complaint, ¶ 5.)

Plaintiff also alleges that she "suppressed all memories of the alleged sexual abuse and was blamelessly ignorant of the causal connection between Defendant's acts and the injuries she suffered until on or about March 16, 1987, when in the course of psychotherapy, Plaintiff was able to begin to remember, perceive and understand the nature and scope of her injuries and their causal connection to Defendant's earlier acts." (Amended Complaint, ¶ 6.) Plaintiff alleges that the suppression of these memories was a self-protecting measure which "prevented Plaintiff from knowing, recognizing and understanding the nature of her injuries and the fact of their causal relationship to Defendant's ... sexual abuse." (Amended Complaint, ¶ 7.)

Plaintiff also alleges that her parents "had a duty to protect Plaintiff ... and prevent acts of physical, sexual and psychological abuse directed at the Plaintiff. ..." (Amended Complaint, ¶ 23.) Plaintiff contends that "Defendant Josephine Johnson knew or should have known that Defendant William Leo Johnson, Plaintiff's father, was repeatedly abusing their infant daughter, but she did nothing to protect Plaintiff from its effects.... and that Defendant Josephine Johnson's failure to protect plaintiff and keep her safe from abuse was a breach of her duty to the Plaintiff and was a proximate cause of the Plaintiff's injuries...." (Amended Complaint, ¶¶ 24 and 25.)

Plaintiff's amended complaint contains four counts. In Count I, Plaintiff requests compensatory and punitive damages from Defendant William Johnson's intentional torts. In Count II, Plaintiff seeks compensatory damages including lost earnings against both Defendants for breach of their duty to protect Plaintiff. In Count III, Plaintiff seeks compensatory and punitive damages from Defendant William Johnson for the mental and physical distress and lost earnings which are proximately caused by Defendant William Johnson's intentional torts. In Count IV, Plaintiff seeks compensatory and punitive damages from both Defendants for the mental and physical distress and lost earnings which were proximately caused by both Defendants' negligence and carelessness in breaching their duty to protect Plaintiff.

Facts

Plaintiff alleges that she was subject to abuse from three years of age to approximately twelve or thirteen years old, i.e., 1958-1968. (Amended Complaint, ¶ 5.) Plaintiff was thirty-two years old in 1987. (Pl. Memorandum in Opposition at 1.) Defendant Josephine Johnson claims to have "received two (2) letters, dated January 1, 1984 and August 24, 1984.... which she recognizes now and recognized on or about the date on the letters ... the handwriting and signature on the letters to be that of her daughter, Deborah Johnson." (Ex. A, Def. Reply, June 29, 1988 Affidavit of Josephine Johnson at 1.)

Plaintiff states that on or about July 12, 1988, her counsel, Linda M. Scaparotti, gave her copies of the aforementioned letters. (Ex. A, Pl. Surreply, September 16, 1988 Affidavit of Deborah Johnson at 1.) Plaintiff states that "I have no memory or recollection of writing those letters. I know that I corresponded with my family over the years, but I do not remember ever writing to my mother or my parents concerning sexual abuse by my father.... Further, I would say the letters look like my handwriting, but it is different somehow — it seems larger, spacier, and more rounded. While I don't believe the letters are forgeries, I question whether I wrote those letters at all because I have no memory of it. It is as though I saw them for the first time on or about July 12, 1988. Further, I do not understand how I could have written those letters in 1984 because I had no memory of any sexual abuse by my father until on or about March 16, 1987, while I was in psychotherapy with Elizabeth E. Rayner, M.A., M.F.C.C." (Ex. A, Pl. Surreply, September 16, 1988 Affidavit of Deborah Johnson, ¶¶ 1 and 3.)

Plaintiff's therapist, Elizabeth E. Raymer, also filed an affidavit in this case. Ms. Rayner states that she has been treating Plaintiff from approximately January 1987 through the present. (Ex. B, Pl. Surreply, September 16, 1988 Affidavit of Raymer, ¶ 3.) Ms. Raymer's diagnosis of Plaintiff "is Multiple Personality Disorder (DSM III-R 300.14, Diagnostic and Statistical Manual of Mental Disorders, 3rd Ed., Revised, American Psychiatric Association (1987)).... basing her diagnosis on ... observation of Ms. Johnson, her understanding of DSM III-R, and her consultation with other mental health care practitioners in this field and her research and reading of scholarly articles in this field...." (Id. at 2, ¶ 4.) Ms. Raymer states that she "can testify ... that Plaintiff had no memory of the letters to her mother dated 1/8/84 and 2/24/84¹...." (Id. at 3, ¶ 5.) Ms. Raymer also asserts that the statements in Plaintiff's affidavit that she cannot remember writing the January 8, 1984 and August 24, 1984 letters and that the handwriting in the letters appeared similar and yet different from her own, was "consistent with Ms. Raymer's observations of Plaintiff.... in that Ms. Raymer had observed different handwriting ... and drawing styles within Plaintiff which Ms. Raymer can now associate with Plaintiff's different and particular personalities." (Id. at 4 and 5, ¶ 11.) Ms. Raymer further states that because of Plaintiff's "psychiatric disturbance ... Plaintiff was unable to remember the sexual abuse by her father until on or about March 16, 1987, when in the course of therapy ... she was able to trust another individual enough to allow suppressed memories and personalities or personality fragments to surface." (Id. at 4, ¶ 10.)

Discussion

Currently before us is Defendants' motion for summary judgment. Defendants request that we find Plaintiff's complaint, which was originally filed on March 16, 1988, time barred. We must first address what law should be applied to determine this question. In diversity suits, a federal court "applies the substantive law of the forum in which it sits, including that forum's choice-of-law rules ... and its statutes of limitation...." Anabaldi v. Sunbeam Corp., 651 F.Supp. 1343, 1344 (N.D. Ill.1987) (citations omitted). Illinois courts generally "apply Illinois statutes of limitation to common law causes of action arising in other states, even when those causes of action are governed by foreign law." Anabaldi, 651 F.Supp. at 1345 (citations omitted).

In Anabaldi, the court found that the general Illinois statute of limitations for personal injury actions did fall within this general rule. Anabaldi, 651 F.Supp. at 1345. This court also found, however, that the Illinois strict liability statute was not covered by this general rule "because it is a substantive rule extinguishing a cause of action upon the lapse of a given period of time — regardless of whether the cause of action ever accrued." Anabaldi, 651 F.Supp. at 1345, quoting Thornton v. Mono Manufacturing Co., 99 Ill.App.3d 722, 726, 54 Ill.Dec. 657, 425 N.E.2d 522 (2d Dist.1981). To determine whether an Illinois statute of limitations applies, Illinois looks to whether the statute of limitations is substantive or procedural.

Based on Anabaldi, the parties assumed that Illinois would apply its discovery rule, which is critical to the determination of Defendants' motion, despite the fact that the sexual assaults at issue in this case apparently occurred in Ohio and Indiana. (Amended Complaint, ¶ 5.) Because the parties have not addressed this issue, we express no opinion on that issue and assume, as did the parties, that Illinois would apply not only its own statute of limitations, but also Illinois' discovery rule to this case.

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