Koe v. Mercer

• Decision Date: 21 November 2007
• Docket Number: SJC-09973.
• Parties: Kevin KOE<SMALL><SUP>1</SUP></SMALL> v. Gordon J. MERCER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

876 N.E.2d 831

450 Mass. 97

Kevin KOE¹ v. Gordon J. MERCER.

SJC-09973.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 6, 2007.

Decided November 21, 2007.

A. Neil Hartzell, Boston (Matthew M. O'Leary with him) for the defendant.

Carmen L. Durso for the plaintiff.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, CORDY, & BOTSFORD, JJ.

IRELAND, J.

The plaintiff filed a complaint on February 28, 2002, against the defendant, Gordon J. Mercer, alleging negligence in allowing a pastor of the plaintiff's church to sexually abuse him.² On February 15, 2005, a Superior Court judge granted the defendant's motion for summary judgment and dismissed the plaintiff's negligence claim because he failed to file within the three-year statute of limitations period. G.L. c. 260, § 2A. The plaintiff appealed. The Appeals Court vacated the order of summary judgment in favor of the defendant and remanded the case to the Superior Court for further proceedings. Koe v. Mercer, 67 Mass.App.Ct. 664, 672, 855 N.E.2d 1145 (2007). We granted the defendant's application for further appellate review. Because we conclude that the plaintiff reasonably should have known by February 22, 1999, that there was a causal link between the alleged abuse and the emotional problems he suffered, we affirm the decision of the Superior Court that the plaintiff's claim is barred by G.L. c. 260, § 2A.

Facts. We recite the facts in the light most favorable to the plaintiff, reserving certain details for our discussion of the issues. The plaintiff was born on August 25, 1968. During his childhood, the plaintiff and his parents attended Parkway Christian Center, a church where Paul Braco, Sr., was the pastor.³ The plaintiff claims that, in 1983, he was swimming at a church picnic when Braco sexually abused him by touching his genitals.⁴ A couple of days after the incident, the plaintiff told his parents that Braco inappropriately touched him. Subsequently, the plaintiff's parents arranged a time to meet with Braco, but the defendant, who was an elder of the church and a member of the church's council, met with them instead. The defendant promised to speak with Braco; ultimately, the defendant explained to the plaintiff's parents that the incident was inadvertent and a result of mere "horsing around."

After the picnic incident, the plaintiff continued to participate in church activities. He claims that, despite his efforts to avoid Braco, there were at least two other instances of abuse, and that in 1984 or 1985 he ran away from home because he "wasn't being heard," respected, or protected. For approximately one and one-half years, the plaintiff lived on the streets and engaged in stealing, dealing drugs, and drinking alcohol.⁵ Ultimately, he was placed in the custody of the Department of Social Services, at which time he was able to obtain his GED.

In December, 1998, the plaintiff entered therapy to help him cope with his inability to focus and control his anger. A psychiatrist, Rafael Ornstein, met with the plaintiff on February 8, 1999. The medical record from this session states, in relevant part, that the plaintiff "wants help . . . with anger [and] anxiety . . . [and][h]as had a history of sexual abuse by a pastor." Furthermore, the plaintiff stated in his deposition that by February 8, 1999, he knew that he had been sexually abused by Braco, that the abuse was wrong, and that, through the evaluation process with the psychiatrist, he was able to think about connections between what was happening in his life and the abuse.⁶ In addition, the plaintiff stated that on February 22, 1999, Ornstein suggested that his depression and anger might be related to the sexual abuse he experienced as a child. However, the plaintiff quickly dropped the subject because he "didn't want to talk about it." The plaintiff continued his therapy, and on March 2, 1999, in a session with a social worker, the social worker claimed that the plaintiff was able to "identify [his rage] as feeling like a boy about the age of his sexual abuse." As the plaintiff continued to make connections during his therapy sessions he became uncomfortable and embarrassed; he ceased treatment after April, 1999.

On February 28, 2002, the plaintiff filed his complaint, and on July 8, 2004, Allen J. Brown, a psychologist, examined him. Brown, who submitted an affidavit in support of the plaintiff's opposition to the defendant's motion for summary judgment, diagnosed the plaintiff with post traumatic stress disorder due to the sexual abuse. Furthermore, Brown stated that the plaintiff's failure to make the connection between Braco's abuse and his emotional problems prior to late 1999 or early 2000 was reasonable, as such a failure was not uncommon in situations where abuse occurred over a long period of time and the child's parents were unsupportive.

Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgement as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), citing Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974).

Statute of limitations. The plaintiff's claim for negligence is governed by G.L. c. 260, § 2A, which provides a three-year period of limitations for, inter alia, tort actions.⁷, ⁸ The three-year limitations period "commences . . . after the cause of action accrues." G.L. c. 260, § 2A. The statute does not define the term "accrues." However, the general rule for tort actions is that an action accrues when the plaintiff is injured. Joseph A. Fortin Constr., Inc. v. Massachusetts Hous. Fin. Agency, 392 Mass. 440, 442, 466 N.E.2d 514 (1984). Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 741, 374 N.E.2d 582 (1978). This court has developed a discovery rule to determine when the statute of limitations begins to run in circumstances where the plaintiff did not know or could not reasonably have known that he or she may have been harmed by the conduct of another. Bowen v. Eli Lilly & Co., 408 Mass. 204, 205, 557 N.E.2d 739 (1990).

Under this discovery rule, the statute of limitations starts when the plaintiff discovers, or reasonably should have discovered, "that [he] has been harmed or may have been harmed by the defendant's conduct." Id. at 205-206, 557 N.E.2d 739. Therefore, the three-year statute of limitations period of § 2A does not start to run "until a plaintiff has first, an awareness of [his] injuries and, second, an awareness that the defendant caused [his] injuries." Doe v. Creighton, 439 Mass. 281, 283, 786 N.E.2d 1211 (2003).⁹ The plaintiff admits that he began experiencing emotional problems in 1998. Therefore, his statute of limitations argument is based on the second prong: he claims that he did not become aware of the connection between the sexual abuse and his emotional problems until late 1999 or early 2000.

Once a plaintiff relies upon the discovery rule to argue that his claim was delayed due to an inability to recognize the cause of his injuries, he bears the burden of "proving both an actual lack of causal knowledge and the objective reasonableness of that lack of knowledge." Id. Generally, an issue concerning what the plaintiff knew or should have known is a factual question that is appropriate for the trier of fact. Riley v. Presnell, 409 Mass. 239, 240, 565 N.E.2d 780 (1991). However, in order for a plaintiff's claim to survive a summary judgment motion, he must demonstrate a reasonable expectation of proving that the claim was timely filed. Doe v. Creighton, supra at 284, 786 N.E.2d 1211. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). In the present case, the plaintiff has failed to make this showing.

1. Actual lack of causal knowledge. The record does not provide sufficient support for a finding that the plaintiff actually lacked causal knowledge. The plaintiff filed his complaint on February 28, 2002. It is undisputed that by February 22, 1999, the psychiatrist had made the connection, the link between the sexual abuse and his emotional symptoms, for him. In the plaintiff's response to the defendant's statements of undisputed facts and during the plaintiff's deposition testimony, he acknowledged that his psychiatrist had suggested that there was a connection between his symptoms and the abuse. However, the plaintiff denies understanding the connection until March, 1999. We appreciate that a history of sexual abuse is painful and may be difficult to come to terms with. However, the discovery rule does not grant plaintiffs the option of ignoring connections once they have been made aware of them. In fact, one does not have to fully comprehend the full extent or nature of an injury in order for a cause of action to accrue. Olsen v. Bell Tel. Lab., Inc., 388 Mass. 171, 175, 445 N.E.2d 609 (1983) (rejecting argument that knowledge of extent of injury is necessary for accrual to occur). Instead, the statute of limitations begins to run when a plaintiff has "knowledge or sufficient notice that [he] was harmed and ... knowledge or sufficient notice of what the cause of the harm was." Bowen v. Eli Lilly & Co., supra at 208, 557 N.E.2d 739. In the Bowen case, the plaintiff had been exposed to the drug diethylstilbestrol (DES) in utero and subsequently was diagnosed with vaginal cancer. Id. at 205, 557 N.E.2d 739. The plaintiff there had read a letter sent by a physician that suggested there was an association between DES and vaginal tumors as well as articles on the matter but failed timely to file her claim. Id. at 209, 557 N.E.2d 739. The court stated that "[r]easonable notice that a particular product or a particular act of another person may have been a cause of harm to a plaintiff creates a duty of inquiry and starts the running of the statute of limitations." Id. at 210...