State ex rel. Heart of Am. Council v. McKenzie

• Decision Date: 15 March 2016
• Docket Number: SC 94942
• Citation: 484 S.W.3d 320
• Parties: State ex rel. Heart of America Council, Boy Scouts of America and Boy Scouts of America, Relators, v. The Honorable Charles H. McKenzie, Respondent.
• Court: Missouri Supreme Court

484 S.W.3d 320

State ex rel. Heart of America Council, Boy Scouts of America and Boy Scouts of America, Relators,

v.The Honorable Charles H. McKenzie, Respondent.

SC 94942

Supreme Court of Missouri, en banc .

Opinion issued March 15, 2016

Rehearing Denied May 3, 2016

The Boy Scouts were represented by Gerard T. Noce and Justin L. Assouad of HeplerBroom LLC in St. Louis, (314) 241–6160.

Doe was represented by Randall L. Rhodes of Douthit Frets Rouse Gentile & Rhodes LLC in Leawood, Kansas, (913) 387–1600.

Laura Denvir Stith

, Judge

The Heart of America Council of the Boy Scouts of America and the national Boy Scouts of America organization (collectively, "the Boy Scouts") seek a writ of prohibition preventing the trial court from taking any action other than to grant their motions for summary judgment on plaintiff John Doe's claims for statutory childhood sexual abuse in violation of section 537.046,¹ battery, and negligence. The Boy Scouts argue the trial court erred in overruling their motions because the applicable statutes of limitations for all the claims have expired. Further, the Boy Scouts contend that Mr. Doe cannot bring a childhood sexual abuse claim under section 537.046 against the Boy Scouts because it only authorizes actions against the alleged perpetrator of the abuse, who in this case is Scoutmaster Bradshaw.

This Court issued its preliminary writ. It now makes that writ permanent. The statutes of limitations for the battery and negligence claims against the Boy Scouts have expired, and the longer statute of limitations set out in section 537.046 applies only to statutory claims of childhood sexual abuse brought under that section; it does not extend the statute of limitations for the additional common law claims asserted for battery and negligence.

This Court also holds that, by its terms, section 537.046 creates a cause of action only against the person who allegedly committed the abuse. It does not provide a cause of action for childhood sexual abuse against non-perpetrators such as the Boy Scouts organization. This Court cannot expand the scope of the statute beyond its plain and ordinary meaning. Mr. Doe, therefore, cannot sue the Boy Scouts for childhood sexual abuse under section 537.046.

I. FACTUAL AND PROCEDURAL HISTORY

John Doe was born on May 1, 1980. He alleges that he was sexually abused by his scoutmaster, Mr. Bradshaw, from 1992 to 1997, while he was between 12 and approximately 18 years old and was a member of Mr. Bradshaw's Boy Scout troop in Kansas City, Missouri. Mr. Doe does not claim that he repressed his memory of the abuse; to the contrary, he says that he always has been aware of the abuse. Mr. Doe's parents learned of the alleged abuse in 1997 and reported it to the local police.

In mid- to late 1999 and early 2000, Mr. Doe began collecting evidence related to the alleged sexual abuse. In 2001, after he turned 21 years old, Mr. Doe met with an attorney but decided not to proceed with a lawsuit. Mr. Doe claims he and his family did not pursue criminal or civil remedies because the Boy Scouts organization said it would "take care of" the situation without revealing that this was just one of many alleged incidents involving Boy Scout leaders. Mr. Doe does not allege any settlement was reached, nor does he allege that the Boy Scouts hindered Mr. Doe from contacting an attorney or filing suit.

Several years later, sometime between 2007 and 2011, Mr. Doe met again with the same attorney about this same matter, but that attorney declined to represent him. Another attorney also declined to represent Mr. Doe and informed him that the applicable statutes of limitations had run. Mr. Doe contacted another attorney who, on April 4, 2011—a few weeks before Mr. Doe's 31st birthday—filed the underlying suit against Mr. Bradshaw; the Heart of America Council, of which Mr. Bradshaw's Boy Scout troop was a part; and the parent Boy Scouts organization, the Boy Scouts of America.

The petition alleges three counts against the Boy Scouts.

• In Count I, Mr. Doe claims the Boy Scouts are vicariously and directly liable under section 537.046 for the childhood sexual abuse allegedly committed by Mr. Bradshaw against Mr. Doe because Mr. Bradshaw was acting within the course and scope of his duties when he abused Mr. Doe and because the Boy Scouts "(a) aided and abetted Bradshaw; (b) negligently failed to properly vet Bradshaw before allowing him to be a Scoutmaster or an authorized adult volunteer; and/or (c) negligently failed to properly supervise and monitor Bradshaw's interactions with plaintiff."

• In Count II, Mr. Doe claims the Boy Scouts are vicariously liable for the common law battery allegedly committed by Mr. Bradshaw against Mr. Doe.

• In Count III, Mr. Doe claims the Boy Scouts are directly liable for negligence because they had a "duty to protect plaintiff and provide him with a safe Scouting experience" and they breached that duty by the same conduct alleged in support of his statutory claim for childhood sexual abuse.

The Boy Scouts answered that the childhood sexual abuse statute does not provide a basis for liability for anyone other than the actual perpetrator of the abuse and asserted that they were neither directly nor vicariously liable for Mr. Bradshaw's acts, which were not within the scope and course of employment, and that in any event all of Mr. Doe's claims were barred by the various applicable statutes of limitations. They sought summary judgment on these grounds. Mr. Doe argued that his claims were timely filed under language added to section 537.046 in 2004 stating that the limitations period for a childhood sexual abuse claim does not run until 10 years after the victim of childhood sexual abuse turns 21. He alleged that this lengthening of the applicable limitations period applies to all claims pertaining to the abuse, including common law claims for battery and negligence, and further claims that it applies to both perpetrators and non-perpetrators who are alleged to be liable based on vicarious liability, aiding and abetting, or negligent hiring or supervision.

The trial court denied the Boy Scouts' motions for summary judgment. The Boy Scouts filed a petition for writ of prohibition asking this Court to enjoin the trial court from proceeding in the case other than to sustain the Boy Scouts' motions for summary judgment.² This Court issued a preliminary writ of prohibition on June 30, 2015.

II. STANDARD OF REVIEW

This Court "may issue and determine original remedial writs." Mo. Const. art. V, § 4.1. The standard of review of the grant or denial of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

This Court seldom grants a writ to compel the grant of a motion for summary judgment, but a "writ of prohibition is appropriate in the context of summary judgment to prevent unnecessary, inconvenient and expensive litigation." State ex rel. City of Blue Springs v. Nixon, 250 S.W.3d 365, 369 (Mo. banc 2008) (internal quotations omitted). In particular, issuance of a writ "can be an appropriate remedy where a trial court erroneously permits a claim that is barred by the statute of limitations to proceed to trial." State ex rel. Bloomquist v. Schneider, 244 S.W.3d 139, 141 (Mo. banc 2008).³

III. BATTERY AND NEGLIGENCE CLAIMS ARE TIME–BARRED

A. Battery and Negligence Statutes of Limitations are Expired

The Boy Scouts argue that they are entitled to summary judgment on the battery and negligence counts because the statutes of limitations for battery and negligence expired many years ago.⁴ This Court agrees.

The statute of limitations for battery is two years. § 516.140. The statute of limitations for negligence is five years. § 516.120. Each limitations period begins to run when the damages are sustained and capable of ascertainment. § 516.100; State ex rel. Marianist Province of the United States v. Ross, 258 S.W.3d 809, 811 (Mo. banc 2008).

Except in cases of repressed memory, damages are usually ascertainable at the time of the tortious conduct, which normally is sufficient to "place a reasonably prudent person on notice of a potentially actionable injury." Marianist Province, 258 S.W.3d at 811 (internal citation omitted). Where, as here, the plaintiff was a minor at the time of the tortious conduct, however, the statute is tolled until the plaintiff reaches age 21. § 516.170 .⁵

In this case, Mr. Doe alleges the tortious conduct occurred from 1992 to 1997, when he was 12 to approximately 18 years of age. Mr. Doe turned 21 on May 1, 2001. Under section 516.170 as in effect during this period, he had two years from the time he reached age 21 in which to bring suit for battery and five years to bring any claim for negligence. While Mr. Doe consulted attorneys about filing suit in 2001 and 2009, he chose not to file suit until 2011, a few weeks shy of his 31st birthday. This was long after the statute of limitations for battery expired in 2003 and for negligence expired in 2006 if those claims are governed by the two- and five-year statutory periods set out in sections 516.140 and 516.120.

Mr. Doe admits that he failed to file suit within the statutory periods for the battery and negligence claims under sections 516.120 and 516.140 but argues that the statutes of limitations on his claims for negligence and battery should be tolled under section 516.280. That section states: "If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented."

"The essence of a fraudulent concealment action is that a defendant, by his or her post-negligence conduct, affirmatively intends to conceal from plaintiff the fact that the plaintiff has a claim against the defendant." Batek v. Curators of Univ. of Missouri, 920 S.W.2d 895, 900 (Mo. banc 1...