Wimberly v. Gatch

• Decision Date: 11 April 1994
• Parties: 93-2361 La
• Court: Louisiana Supreme Court

Page 206

635 So.2d 206

93-2361 La. 4/11/94

Thomas WIMBERLY and Ruth Wimberly, Husband and Wife Individually and on Behalf of the Minor Child Brandon Wimberly v. Russell GATCH, Gerald Gatch and Mrs. Gerald Gatch.

No. 93-C-2361.

Supreme Court of Louisiana.

April 11, 1994.

Rehearing Denied May 12, 1994.

Aubrey Richard Snell, Steven Glenn McKenzie, for applicant.

Charles G. Tutt, Cook, Yancey, King & Galloway, James R. Phillips, Steven D. Crews, Watson, Murchison, Crews, Arthur & Corkern, for respondent.

James C. Gulotta, Jr., Paul J. Masinter, for W.R. Grace Co. (amicus curiae).

Harry Alston Johnson, III, for Louisiana Ass'n Defense Counsel (amicus curiae).

[93-2361 La. 1] ORTIQUE, Justice. ¹

We granted writ to determine whether the equitable doctrine of contra non valentem suspends the running of prescription until the parents of a sexually abused child learn about the molestation and/or the various types of molestation. The trial court declined to apply this equitable doctrine to suspend the running of the one year liberative prescriptive period for the three year period in which the young child was repeatedly sexually molested. Consequently, it found only the defendant's last act of molestation fell within the one year period and had not prescribed. The court of appeal affirmed. It determined the facts did not warrant application of the doctrine of contra non valentem since defendant did not harm or otherwise threaten the young child with physical violence to coerce his silence. We reverse.

I.

Brandon Wimberly, born June 18, 1977, was 9 years old when he was sexually abused by his older brother's Boy Scout leader, Michael Keys. A single, painful incident occurred wherein Keys grabbed Brandon's penis and threatened to pull it off. The fearful adolescent promptly told his father, Thomas Wimberly, even though Keys had warned him not to tell. Due [93-2361 La. 2] to this incident, Brandon's parents placed him in weekly group therapy under social worker Charles Lee ² in October, 1987.

The next month, Brandon disclosed to his therapy group that a 16 year old had ejaculated in his presence, but he denied having physical contact with him. In January, 1988, Brandon made a private disclosure to Lee about how a boy had put his mouth on his penis and bit. No names or timeframes were mentioned. Lee believed Brandon was relating a long-past event.

It was not until Monday, April 25, 1988, that Brandon first disclosed to Lee a single incident of oral sex had occurred over the previous weekend (April 22-24, 1988) with a young man named Russell Gatch ("Russell"), who was almost 18 (born July 3, 1970). Russell was a neighbor and a friend of Brandon's older brother. Lee promptly informed Brandon's parents, who were completely astounded by the disclosure.

The Wimberlys took Brandon to the Bossier City Police station that evening, but had to return two days later to meet with a juvenile division officer. The juvenile officer interviewed Brandon without his parents being present. His police report indicates that Russell had been performing oral sex on Brandon (by Russell placing his mouth on Brandon's penis), for a 3 year period at a place known to the neighborhood kids as the "trails." The report reflects that during the previous year, 10 to 15 incidents had occurred. The last occurrence, the single event Brandon described to Lee, happened when Brandon rode his bicycle past Russell's home and stopped to admire Russell's new automobile. Russell, who had been sitting on a porch swing, went to the bushes near his home and invited Brandon to join him. Russell then directed Brandon to remove his pants. Brandon complied. After the act was completed, Russell's mother discovered them in the bushes and inquired as to the nature of their activities. After she was given an excuse, she left. The police officer guesstimated this last act of molestation occurred between the dates of April 10-16, 1988. (Bossier City Police Offense Report No. 88-12485) The officer arrested Russell. His police report reflects that Russell admitted to the occurrence of the above described event, and admitted to four other incidents with Brandon. (Bossier City Police Offense Report No. 88-12485, supplement) [93-2361 La. 3] Brandon's parents filed suit individually and on Brandon's behalf on April 21, 1989. Their original petition named as defendants Russell Gatch and his parents, Gerald and Shirley Gatch. It alleges that "for several months and years" Russell "used his size, age and certain scare tactics to sexually molest and abuse" Brandon. Their amended petition, filed on January 4, 1990, alleges that Russell placed fear in Brandon "to such an extent that the horror of the molestation under which [Brandon] suffered was suppressed inside of [him]." It asserts that after filing suit, they discovered more about the extensiveness of Russell's acts of oral sexual stimulation on Brandon. They learned the molestations commenced when Brandon was approximately 7 years old and continued until the date of Russell's arrest at a rate of approximately two times per week. They also learned (in November or December, 1989) that Russell sodomized Brandon on several occasions. ³

[93-2361 La. 4] Thereafter, defendants filed a peremptory exception raising the objection of prescription. Their exception asserts that Brandon's seventh birthday was on June 18, 1984; Russell was arrested on April 27, 1988; police records place the last act of molestation as occurring between April 10 and 16, 1988 ⁴; and plaintiff's original petition was filed on April 21, 1989. Consequently, under the one year liberative prescriptive period of LSA-C.C. art. 3492, defendants claim either all or most of the allegedly tortious conduct occurred more than one year prior to the filing of suit. They claim the alleged acts of sexual molestation were separate acts and not a continuing tort, citing Laughlin v. Breaux, 515 So.2d 480 (La.App. 1st Cir.1987) [woman's long-term physical abuse by boyfriend did not constitute a continuous tort; each incident of battery gives rise to a separate cause of action]. They also claim the doctrine of contra non valentem is not applicable as the abuse did not produce a mental incapacity rendering the plaintiff unable to file suit. Russell did not physically threaten Brandon, and the child admitted he knew the sexual acts were wrong. ⁵ Defendants claim Brandon did not make an [93-2361 La. 5] earlier disclosure merely because he was "afraid he would get in trouble or Russell would say he liked it."

Brandon's parents' opposition asserts that "the discovery rule" ⁶ suspended the commencement of prescription. They assert they had absolutely no knowledge of Russell's actions until April 25, 1988, when Brandon first disclosed to his therapist that he was being sexually abused by Russell and, in turn, the therapist informed them. They filed suit within one year of their discovery of any of the acts of molestation. Therefore, they contend filing was timely as to all their allegations. They further contend that, at 2 1/2 years after filing suit, they were still discovering additional acts of molestation by Russell.

The deposition and live testimony introduced at the hearing on the exception reveals Russell has a history of sexually molesting young boys. He began molesting boys in the early 1980's in Bossier City before his family moved for a year and a half to Arkansas. He admitted to sexual acts with several boys in Arkansas, and to an arrest in that state on sexual molestation charges. Upon his return to Bossier City, he renewed his sexual acts with the young boys in Brandon's neighborhood. Russell admitted having oral and anal sex with Brandon and to having oral sex with Brandon's friends Jeremy, Corey and Chris. He could not remember whether he had group acts with Brandon and his friends, but Brandon recalled such acts occurring with [93-2361 La. 6] Jeremy (Jason) and Chris. Russell also admitted to being caught with a boy at camp by his Scout Master, Mike Keys.

Lee indicated, in therapy, Brandon progressed as expected. He tried to develop trust and rapport with the other boys in his group, he "[d]id not disclose or open up immediately about what was going on with him, but sort of testing out, seeing where he fit in with the group setting at that time with the other boys." Lee said Brandon first divulged the abuse by Russell on April 25, 1988. Brandon told him he needed to talk privately about something over which he was very upset. Then Brandon revealed the single incident in Russell's yard which had occurred over the previous weekend. Lee said it was months before Brandon disclosed to him that the sexual acts with Russell had been a regular, on-going, almost daily occurrence. Lee related that Brandon did not tell him about the incidents with Russell before April 25, 1988 because "he was afraid to tell his parents." Brandon was afraid he would get into trouble or Russell would say he "liked it." Lee also said the longer Brandon was counseled, the more he revealed. ⁷ Lee said he believes the progression of the disclosures coincided with when Brandon perceived Russell was no longer a threat, such as when Russell moved out of the neighborhood. Lee said Brandon was "very scared" of Russell; he was afraid of retaliation.

Brandon, a seventh grader at the hearing held five years after his initial disclosure, informed the court he did not tell Lee earlier because Russell warned he would get into trouble with his parents if he told. He said he told Lee on April 25, 1988, because Mrs. Gatch had seen him in the bushes with Russell. He was afraid of being caught, so he reported the incident after his next therapy session. Brandon described the earliest acts which occurred in his parents' home when he was 6 or 7 years old, and indicated that once he began riding his bike out on the trails, the wooded area by his subdivision, the molestations occurred almost daily. He expla...