Nicolette v. Carey
Decision Date | 19 November 1990 |
Docket Number | No. 1:90-CV-159.,1:90-CV-159. |
Citation | 751 F. Supp. 695 |
Parties | Suzanne NICOLETTE, Plaintiff, v. Joseph CAREY, Defendant. |
Court | U.S. District Court — Western District of Michigan |
William W. Jack, Jr., Smith, Haughey, Rice & Roegge, P.C., Grand Rapids, Mich., for plaintiff.
Daniel R. Fagan, Bruggink & Valentine, Grand Rapids, Mich., for defendant.
Plaintiff, Suzanne Nicolette, a Michigan resident, brought the present six-count diversity action against her father, Joseph Carey, a resident of Iowa. Plaintiff presents claims for negligence, willful and wanton misconduct, intentional acts and conduct, intentional infliction of emotional distress, and assault and battery arising out of her father's alleged sexual abuse of her as a child. Plaintiff asserts that from the time she was approximately three years old until she was at least thirteen years of age, beginning in 1962 and continuing through at least 1972, defendant sexually abused her. As a result she contends that she has suffered and continues to suffer severe emotional trauma and depression. Presently pending before the Court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(b).
Summary judgment is appropriate when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); Atlas Concrete Pipe, Inc. v. Roger J. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir.1982). There is no material issue of fact for trial unless, by viewing the evidence in favor of the non-moving party, a reasonable jury could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Boddy v. Dean, 821 F.2d 346, 349 (6th Cir.1987). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249, 106 S.Ct. at 2510 (citations omitted).
The party moving for summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Potters Medical Center v. City Hospital Association, 800 F.2d 568, 572 (6th Cir.1986). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and come forward with specific facts to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. If after adequate discovery the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Id.
Defendant's motion for summary judgment is based on the alleged running of the statute of limitations applicable to plaintiff's claims. He argues that under the relevant tolling provisions of the statute of limitations, plaintiff's claims are time barred. As a preliminary matter, the Court notes that the Michigan limitations period and tolling provisions apply. A federal court in diversity must apply the substantive laws of the forum state. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This includes the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); General Motors Corp. v. National Auto Radiator Manufacturing Co., 694 F.2d 1050, 1052 (6th Cir.1982). In the present case, plaintiff is a Michigan resident and the alleged cause of action accrued in Iowa. Under Michigan choice of law rules, the Michigan statute of limitations applies to causes of action accruing in another state, where suit is brought in Michigan and the plaintiff is a Michigan resident. Mich.Comp.Laws § 600.5861; see DeVito v. Blenc, 47 Mich. App. 524, 209 N.W.2d 728 (1973).
Michigan provides a three-year limitation period for personal injury actions. Mich.Comp.Laws § 600.5851 (Mich. Stat.Ann. § 27A.5851). This limitation period was applied to a complaint alleging childhood sexual abuse in Meiers-Post v. Schafer, 170 Mich.App. 174, 427 N.W.2d 606 (1988). Michigan also recognizes that a cause of action for sexual abuse may be tolled by a plaintiff's "disability" and Michigan Compiled Law Section 600.5851 recognizes "insanity" as a disability that tolls the limitations period. This section provides that a plaintiff's cause of action will not be time barred by the statute of limitations until "one year after the disability is removed." Insanity is defined as "a condition of mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know." Mich.Comp.Laws § 600.5851. In the present case, plaintiff alleges that she was disabled from bringing the complaint due to her repression, disassociation and severe depression.
In Meiers-Post, the Michigan Appellate Court applied Section 600.5851 to an adult plaintiff who had psychologically repressed the memory of childhood sexual abuse. Her memory was allegedly restored less than one year before she filed suit. The court relied on precedents from California and Washington in determining that plaintiff's cause of action was tolled for roughly twelve years by her disability. The court concluded:
The rule we derive from the California and Washington cases is that the statute of limitations can be tolled under the insanity clause if (a) plaintiff can make out a case that she has repressed the memory of the facts upon which her claim is predicated, such that she could not have been aware of rights she was otherwise bound to know, and (b) there is corroboration for plaintiff's testimony that the sexual assault occurred. We believe the rule is sound. It strikes a fair balance between the risk of stale claims and the unfairness of precluding justifiable causes of action.
Meiers-Post, 427 N.W.2d at 610 (citation omitted).
Defendant asserts that the present action is time barred even if the tolling provision applied in Meiers-Post is applicable here. He contends that, "The Plaintiff has had a vivid recollection of the alleged sexual misconduct of the Defendant since at least 1987." Defendant's Brief in Support of Motion for Summary Judgment ("Defendant's Brief") at 2. Because plaintiff filed this lawsuit more than one year after regaining a "vivid recollection of the alleged sexual misconduct" (i.e., suit was filed on February 20, 1990), defendant maintains she is outside the protection of Section 600.5851's one year tolling provision. Defendant relies on a letter written by plaintiff and dated March 26, 1987, wherein she confronts defendant with an alleged incident of sexual abuse. Since plaintiff knew of the abuse in March of 1987, defendant's conclusion is that she was required to file suit by March 1988 at the latest.
Plaintiff answers that although she was aware of one incident of alleged abuse as early as March 1987, more recently she has become aware of further incidents of abuse. It is asserted that her recovery from the disability did not begin until March or April of 1989 and that she has remembered additional acts of sexual abuse as late as February 9, 1990.
Plaintiff claims to have suffered from Post Traumatic Stress Disorder ("PTSD") throughout her adulthood. As a result she has not been able to bring to consciousness much of the sexual abuse that occurred in her childhood, although she was aware of at least one incident of abuse as early as March 1987. In support of her contention that she has repressed the memory of the facts upon which her claim is predicated, she offers the affidavit of Terry Rosander, a certified social worker who is working toward her doctorate degree in social work. Rosander states that she has counseled plaintiff since July 1986. At that time plaintiff was suffering from acute anxiety and associated depression. Plaintiff acknowledged and discussed one incident of sexual abuse but allegedly was unaware of other incidents of abuse that she now claims occurred during her childhood. According to Rosander, plaintiff gradually became aware of these further acts of abuse in the spring of 1989. By way of explaining plaintiff's inability to recall the sexual abuse previously, Rosander states:
To continue reading
Request your trial-
Florez v. Sargeant
...incompetency sufficient to toll the statute. See Jones v. Jones, 242 N.J.Super. 195, 576 A.2d 316 (App.Div.1990); Nicolette v. Carey, 751 F.Supp. 695 (W.D.Mich.1990); Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18 Child sexual abuse cases present very difficult problems because of the competi......
-
Doe v. Roe
...expressed in Ritchie and would eviscerate the statute as a defense. The dissent relies for its proposal on the case of Nicolette v. Carey, 751 F.Supp. 695 (W.D.Mich.1990). This case is clearly distinguishable. In interpreting Michigan law, the federal district court relied on the Michigan d......
-
Olsen v. Hooley
...the statute of limitations produce corroborating evidence in support of the allegations of abuse. See, e.g., Nicolette v. Carey, 751 F.Supp. 695, 699-700 (W.D.Mich.1990); Meiers-Post v. Schafer, 170 Mich.App. 174, 427 N.W.2d 606, 610 (1988). 5 Corroborating evidence may include, but is not ......
-
Lovelace v. Keohane
...victims of sexual abuse the benefit of the discovery rule if they have repressed the memory of the traumatic events. Nicolette v. Carey, 751 F.Supp. 695 (W.D.Mich.1990) (applying Michigan law); Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988) (applying Illinois law); Evans v. Eckelman, 2......