Todd M. v. Richard L.

• Decision Date: 14 July 1995
• Citation: 696 A.2d 1063,44 Conn.Supp. 527
• Court: Connecticut Superior Court
• Parties: , 119 Ed. Law Rep. 1087 TODD M. et al. * v. RICHARD L.

Page 1063

696 A.2d 1063

44 Conn.Supp. 527, 119 Ed. Law Rep. 1087

TODD M. et al. ^* v. RICHARD L.

Superior Court of Connecticut July 14, 1995.

FOLEY, Judge.

The plaintiffs claim that on or about June 6, 1988, and for some time prior thereto, Todd M., the minor plaintiff, was a student at an elementary school in a town in Connecticut. During the 1987-88 school year, while being transported to and from school on a school bus, the minor plaintiff was allegedly subjected to repeated physical and sexual abuse by other students being similarly transported, whereby he was forced, through the threat and use of physical violence, to engage in sexually self-abusive conduct. This alleged conduct caused him to suffer the severe personal and emotional injuries set forth in the plaintiffs' complaint.

The several defendants in this action were responsible for providing, selecting or conducting all or part of the transportation of Todd M. and the other students to and from the elementary school. The named defendant, Richard L., as the director of transportation for the town's board of education, was responsible for securing and supervising the transportation of children to and from the town's public schools. The defendant, Jody O., was an employee of the town's board of education, and was acting within the scope of his duties for the town's board of education as the driver of the bus which transported the minor plaintiff to and from school.

The plaintiffs brought this claim by an amended complaint, dated November 7, 1994, in which it is alleged that the defendants were negligent in the provision, selection and conduct of Todd's transportation. The complaint further alleges that as a result of this negligence, Todd M. was subjected to abuse and to injuries suffered as a result thereof. On March 28, 1995, the defendants filed an "Amended Answer to Plaintiffs' Amended Complaint" in which they asserted several special defenses. These defenses are the subject of this motion to strike.

The first special defense asserts that the plaintiffs' claim is barred by the limitations period provided in General Statutes § 52-584 ¹. The second special defense asserts that this claim is barred by the limitations period provided in General Statutes § 52-577 ². The defendants' third special defense claims that "[l]iability of these defendants is barred by General Statutes § 52-577n ³." The fourth special defense alleges governmental immunity and the fifth special defense maintains the claims are barred by the doctrine of sovereign immunity. The sixth special defense raises the doctrine of laches. The seventh special defense asserts that the conduct of the other students involved in this incident is a superseding cause of the plaintiff's injuries.

A special defense is a pleading used by a defendant who seeks the admission of evidence that is not inconsistent with the claim by the plaintiff but nevertheless tends to show that the plaintiff has no cause of action. Practice Book § 164; Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973).

A motion to strike challenges the legal sufficiency of the allegations of a complaint, or any one or more counts thereof to state a claim upon which relief may be granted. Practice Book § 152(1). "In deciding upon a motion to strike ... a trial court must take the facts to be those alleged in the complaint ... and cannot be aided by the assumption of any facts not therein alleged." Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990) (Citations omitted; internal quotation marks omitted.) The facts are to be construed in the light most favorable to the pleader. Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). If the facts provable under the allegations of the pleadings would support a cause of action, the motion to strike must fail. Mingachos v. CBS, Inc., 196 Conn. 91, 109, 491 A.2d 368 (1985). A defendant may raise the doctrine of sovereign immunity on a motion to strike. See Heigl v. Board of Education, 218 Conn. 1, 2, 587 A.2d 423 (1991).

In the first and second special defenses, the defendants invoke §§ 52-584 and 52-577 respectively in asserting that the plaintiff's claims are time barred. The plaintiff maintains, however, that the applicable statute of limitations is provided in General Statutes § 52-577d, in which case the plaintiff's claim is timely.

Section 52-577d provides: "Limitation of action for damages caused by sexual abuse, exploitation or assault. Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than seventeen years from the date such person attains the age of majority."

The plain language of this section provides that this period of limitations applies to all claims for personal injuries to a minor caused by sexual assault or sexual exploitation. The statute provides that, regardless of the general limitations period for torts, such as those relied upon by the defendants, no action seeking redress for injuries suffered as a result of misconduct of a sexual nature may be brought later than seventeen years from the date of majority. This action, brought on behalf of this minor plaintiff, seeks redress for personal injuries caused by a sexual assault. Under this statute, as long as this action was brought within seventeen years from the date that the minor plaintiff attains the age of majority, it is timely.

The defendants argue that § 52-577d only applies to actions brought against the actual perpetrators of the sexual assault.

A review of the legislative history of § 52-577d is instructive. This extended statute of limitations was originally enacted in 1986 as part of "An Act Concerning Victims Rights"; Public Acts 1986. No. 86-401; which was intended to assure that victims of crime and their families were educated as to their rights and to facilitate the exercise of these rights.

The portion of the victims' rights bill that was later codified as § 52-577d was authored and introduced by Representative Richard Tulisano who remarked upon the legislation after moving for its adoption: "Mr. Speaker, this amendment effectively tolled the statute of limitations in civil cases in which a minor who has been victimized by sexual assault could bring an action against the offender--a civil action against the offender." 29 H.R. Proc., Pt. 12, 1986 Sess., pp. 4387-88, remarks of Representative Richard D. Tulisano.

A review of the record of debate on this bill demonstrates that it was intended to provide minor victims of sexual abuse with an opportunity to exercise their rights against the offender once they had attained the age of majority and could exercise control over their lives. See generally 29 H.R. Proc. Pt. 12, 1986 Sess., pp. 4387-97.

The legislature revisited the issue in 1991 when the period of limitations was extended from seven years from the date of the alleged abuse to seventeen years from the age of majority. Public Acts 1991, No. 91-240. At that time, the Joint Standing Committee on the Judiciary heard extensive testimony from professionals and victims about the frequency of repressed memories of abuse and the need to "redress a fundamental inequity and hardship that is worked upon adult victims of childhood incest abuse when traditional rules of actual accrual are applied to the civil claims." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1991 Sess., p. 1141, remarks of Gail Burns Smith of the Connecticut Sexual Assault Crises Services Association: 34 H.R. Proc., Pt. 13, 1991 Sess., pp. 4704-4707, remarks of Representative Sally M. Bolster. In describing the amended legislation, Tulisano, its chief author, once again noted that "Connecticut was among the first states to recognize that minor victims of sexual assault often do not have the independence and the opportunity to bring civil actions against the perpetrators of crimes against them...." (Emphasis added.) Id., 4705. Tulisano elaborated that in these cases the only way it was thought the legislature might be able to help a victim become whole was to be able to bring a civil cause of action against the perpetrator. Id., 4706-4707.

The defendants further argue that of all of the states having extended statutes of limitations for civil actions for sexual abuse, only one, Minnesota, specifically provides for an action against a person who negligently permitted sexual abuse to occur. Minn.Stat. § 541.073 (1994). By contrast, a clear majority of states specifically provide for an action against a perpetrator only and thereby exclude an action against a nonperpetrator, such as these defendants, from the scope of their extended statutes. ⁴ The remaining state statutes, including Connecticut, are silent as to the definition of "an action based on childhood sexual abuse."

This issue has been considered in a thoughtful and well reasoned opinion of United States District Court Judge Alan Nevas in Almonte v. New York Medical College, 851 F.Supp. 34 (D.Conn.1994), wherein the court determined that § 52-577d was not limited in application to perpetrators only. The court found that the unambiguous language of the statute indicated that the focus is on the particular type of harm that is the basis of the action rather than on the parties that are involved. In so holding, the court pointed out that "in defining the scope of the statute, courts should look to whether the underlying harm was allegedly 'caused by sexual abuse, sexual exploitation or sexual assault' ... rather than whether the named defendants are potentially primarily or secondarily liable for the alleged harm." (Citation omitted.) Id., at 37. In the court's opinion, such a "harm-based" approach was consistent with the intent of the legislature. Citing the Supreme Court case of Roberts v. Caton, 224 Conn....