Killary v. Thompson

• Decision Date: 24 June 2022
• Docket Number: 2020-CA-0194-MR
• Parties: SAMANTHA KILLARY APPELLANT v. LINDA THOMPSON; CITY OF LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; RICK JACKMAN; AND SEAN JACKMAN APPELLEES
• Court: Kentucky Court of Appeals

SAMANTHA KILLARY APPELLANT
v.
LINDA THOMPSON; CITY OF LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; RICK JACKMAN; AND SEAN JACKMAN APPELLEES

No. 2020-CA-0194-MR

Court of Appeals of Kentucky

June 24, 2022

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A. C. MCKAY CHAUVIN, JUDGE ACTION NO. 18-CI-002551.

BRIEFS FOR APPELLANT: Tad Thomas, Lindsay Cordes, Lindsy Lopez.

BRIEF FOR APPELLEE LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT: Michael J. O'Connell, Kristie B. Walker Assistant Jefferson County Attorney

BRIEF FOR APPELLEE RICK JACKMAN: Kent Wicker, William H. Brammell, Jr., Kayla M. Campbell, Erin M. Shaughnessy

BRIEF FOR APPELLEE LINDA THOMPSON: Carol S. Petitt, Adam E. Fuller.

BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.

OPINION

CALDWELL, JUDGE:

Samantha Killary appeals the trial court's entry of dispositive orders in favor of the Appellees, terminating the litigation. Having reviewed the record, the trial court order, and the briefs of the parties, we reverse

1

the trial court and remand this matter back to the trial court for proceedings consistent with this Opinion.

FACTS

Appellant Samantha Killary ("Killary") was adopted by Appellee Sean Jackman ("Sean") when she was a toddler, approximately two (2) years of age. Sean was a police officer with the Louisville Police Department, as was his father, Appellee Rick Jackman ("Rick").^[1] Shortly after turning eighteen (18) years of age on February 7, 2009, Killary alleged that Sean had subjected her to sexual abuse throughout her childhood, ceasing only when she reached her majority.

In 2016, Sean was charged with various criminal offenses for sexually abusing his adopted daughter. He entered a guilty plea in 2017 and was sentenced to a total sentence of fifteen (15) years' imprisonment in January of 2018.

On May of 2018, Killary filed a civil complaint seeking damages for the abuse she had suffered. In addition to Sean, the complaint named her adoptive grandfather, Rick, a retired Louisville Police Department detective sergeant.

Killary alleged that Rick had knowledge of the abuse she suffered at Sean's hands and failed to take any action to prevent the abuse. In addition, the complaint

2

named Linda Thompson, ("Thompson"), also a former Louisville Police Department officer, who had dated Sean for several years. Killary alleged Thompson had likewise known about and failed to take any action to prevent Sean's abuse of her, as well as alleging that Thompson had actively participated in the abuse. Lastly, Killary named the Louisville/Jefferson County Metro Government ("Metro"), alleging that they were vicariously liable for the actions of their employees (Sean, Rick, and Thompson) as well as claims of negligent hiring and retention and intentional infliction of emotional distress.

Metro filed a motion to dismiss, citing sovereign immunity. Thompson, Rick, and Sean all moved to terminate the litigation, arguing that Killary filed her action only after the applicable statute of limitations had run. The trial court granted all the motions, so ruling based upon the 2007 version of the statute, holding that the 2017 version of the statute did not apply to Killary's case because it was enacted after the acts of abuse had occurred. Killary now appeals the order terminating her litigation to this Court. Having reviewed the record, the briefs of the parties, and the applicable law, we reverse the trial court and remand the matter back to the trial court for further proceedings below in accord with our holding.

3

STANDARD OF REVIEW

The determination of whether a cause of action was filed before the lapse of the applicable statute of limitations is a question of law. Questions of law are reviewed by appellate courts de novo. Estate of Wittich By &Through Wittich v. Flick, 519 S.W.3d 774, 776 (Ky. 2017).

Whether an entity is entitled to sovereign immunity is likewise a question of law, to be reviewed de novo. Louisville Arena Auth., Inc. v. RAM Eng'g &Const., Inc., 415 S.W.3d 671, 677 (Ky. App. 2013).

ANALYSIS

This case presents two questions for this Court: whether the trial court properly determined that Killary's cause of action was filed beyond the applicable statute of limitations, and whether Metro was entitled to sovereign immunity. Utilizing the version of the statute in place at the time the abuse occurred, the trial court determined the action was filed untimely and that Metro was entitled to sovereign immunity and dismissed Killary's case.

After the trial court entered the order dismissing, and while this appeal was pending, the General Assembly passed another amended version of the statute. This new iteration of the statute states expressly that it is to be applied retroactively to claims which may have expired prior to the enactment of the 2021 version of the statute and also makes retroactive the 2017 version that the trial court refused to

4

apply to Killary's case because of the lack of retroactivity language in the statute at that time.^[2] Therefore, we must determine if the version of the statute the trial court was applying, effective beginning in 2007, was the proper version to apply to Killary's causes of action, or if the 2017 version was applicable. And further, if the newly-enacted 2021 version of the statute, which provides a new starting point for the running of statutes of limitations to be applied retroactively, applies, and to which defendants.

I. Timeliness

At the time Killary alleged the abuse ended and she attained majority, in 2009, the statute providing a cause of action for the victims of child sexual abuse to seek remuneration provided any action must be filed within five (5) years of the latest of several events:

5

(2) A civil action for recovery of damages for injury or illness suffered as a result of childhood sexual abuse or childhood sexual assault shall be brought before whichever of the following periods last expires:

(a) Within five (5) years of the commission of the act or the last of a series of acts by the same perpetrator;

(b) Within five (5) years of the date the victim knew, or should have known, of the act; or (c) Within five (5) years after the victim attains the age of eighteen (18) years. KRS 413.249 (as effective June 26, 2007, to June 24, 2013).^[3]

Killary did not file her complaint until May 2, 2018. Under the language of the statute in effect at the time the abuse occurred, the complaint was filed untimely. She turned eighteen (18) years of age in 2009 and per the 2007 statute, she had five (5) years to file her action from that date, so under that version of the statute the time to file expired in 2014. Thus, Killary's complaint was not timely under the 2007 version of the statute.

However, Killary argued to the trial court that a later amendment was applicable to her complaint. In 2017, the General Assembly had amended the statute to expand the limitations period to the events that would begin the running

6

thereof and added another event that would trigger the running of the statute of limitations period:

(2) A civil action for recovery of damages for injury or illness suffered as a result of childhood sexual abuse or childhood sexual assault shall be brought before whichever of the following periods last expires:

(a) Within ten (10) years of the commission of the act or the last of a series of acts by the same perpetrator;

(b) Within ten (10) years of the date the victim knew, or should have known, of the act; (c) Within ten (10) years after the victim attains the age of eighteen (18) years; or

(d) Within ten (10) years of the conviction of a civil defendant for an offense included in the definition of childhood sexual abuse or childhood sexual assault.

KRS 413.249 (as effective June 29, 2017, to March 22, 2021). Under this amendment, Killary would have had ten (10) years after she reached the age of majority in 2009, or ten (10) years following the conviction of Sean for his crimes against her, whichever was later. Sean entered a guilty plea in October of 2017 and was sentenced in January of 2018. The trial court determined that the 2017 amendments did not apply to Killary's claim. The trial court determined that only the 1998 version of the

7

statute, which established the cause of action, provided for retroactive application,^[4]and that the 2017 amendment did not so provide. Thus, the court reasoned, the version of the statute which was applicable to her claim was the version in place when she attained her majority; to wit, the 2007 version, which provided only five (5) years in which to file a claim, resulting in her claim having expired in 2014.^[5]

As the court noted, at the time of their passage, there was nothing in the 2017 amendments to indicate that they were to be retroactively applied. Further, under KRS 446.080(3), "[n]o statute shall be construed to be retroactive, unless expressly so declared." See Holcim v. Swinford, 581 S.W.3d 37, 44 (Ky. 2019).

8

Even so, we find that the trial court erred in not applying the 2017 version of the statute to Killary's claim against Sean. Under KRS 413.249(2)(d) of that version, Killary had ten years from the day that Sean was convicted of the crimes against her to initiate her suit, and he was convicted in 2017 and sentenced in 2018. Retroactivity language, or lack thereof, is a red herring as to this subsection of the statute; at the time Killary filed her action, subsection (2)(d) was in effect and gave her a term of limitations of ten (10) years from Sean's conviction, which was finalized with his sentencing in 2018. The trial court's ruling that Killary's complaint was out of time as to subsections (a), (b), and (c) of the 2007 version of the statute was correct. And the longer provisions of ten years for the triggering events in subsections (a), (b), and (c) in the 2017 statute could not be...