Applying the statutes of limitation in institutional childhood sex abuse cases.

• Author: Winsby, Joseph M.

Despite a four-year statute of limitation for most causes of action against employers and volunteer entities arising from childhood sexual abuse, plaintiffs often bring decades-old claims and try to avoid the limitation defense. In these institutional (1) sex abuse suits, plaintiffs typically make allegations of fraudulent concealment by the institutional defendant or memory problems of the plaintiff in an attempt to avoid the statute of limitation. However, over the past decade, three appellate decisions have provided a roadmap for defeating defenses to the statutes of limitation in institutional sexual abuse cases. Those opinions are Cisko v. Diocese of Steubenville, 123 So. 3d 83 (Fla. 3d DCA 2013), reh'g denied (Oct. 23, 2013), review denied, No. SC13-2216, 2014 WL 700534 (Feb. 20, 2014); Rubio v. Archdiocese of Miami, Inc., 114 So. 3d 279 (Fla. 3d DCA 2013), reh'g denied (June 11, 2013); and John Doe No. 23 v. Archdiocese of Miami, Inc., 965 So. 2d 1186 (Fla. 4th DCA 2007). (2)

Florida's statutes of limitation for an institutional sex abuse defendant:

afford[s] parties needed protection against the necessity of defending claims which, because of their antiquity, would place the defendant at a grave disadvantage. In such cases how resolutely unfair it would be to award one who has willfully or carelessly slept on his legal rights an opportunity to enforce an unfresh claim against a party who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses. Indeed, in such circumstances, the quest for truth might elude even the wisest court. (3)

With that policy background, Florida courts have steadfastly enforced the legislature's time limits on claims for money damages, while they are also mindful that society benefits when survivors of child sexual abuse come forward. (4)

After a discussion of Florida's sex abuse-specific statutes of limitation, each of the popular theories to avoid the statutes of limitation is addressed along with the case law that can be used to defeat each theory.

Sex Abuse-specific Statutes of Limitation F.S. [section] [section] 95.11(7) and (9)

F.S. [section] 95.11(3) provides a four-year statute of limitation for virtually all potential causes of action in an institutional sex abuse case. Causes that fall under that statute include negligence, (5) intentional infliction of emotional distress, (6) and respondeat superior. (7) The Florida Legislature, however, enacted two sex abuse-specific sections of the civil statutes of limitation: F.S. [section] 95.11(7) for intentional torts based on abuse, and F.S. [section] 95.11(9) for sexual battery offenses on victims under age 16. F.S. [section] 95.11(9) applies to "any such action other than one which would have been time barred on or before July 1, 2010." Thus, this article concerns cases in which the four-year statute of limitation applicable to sexual abuse causes of action expired prior to July 1, 2010. If the statute of limitation section applicable to a cause of action does not expire until after that date, good defenses still exist if the conduct at issue did not actually constitute "sexual battery." (8) F.S. [section] 95.11(7) is "for intentional torts based on abuse," and does not apply to causes of action against an institutional defendant in a sex abuse case. (9)

Thus, the following discussion applies to cases that satisfy two criteria: 1) They are against an institutional tortfeasor, and 2) the claims would be time-barred before July 1, 2010, under a four-year statute of limitation.

Repressed Memory

Plaintiffs often allege repressed memory, suppressed memory, traumatic amnesia, or other memory defects in an attempt to invoke a common law "delayed discovery" doctrine in childhood sex abuse cases. (10) The Cisko opinion clarified Florida's line of case law in this area by holding that allegations of repressed memory do not delay the accrual of the statute of limitation against an institutional defendant. (11) Following Cisko, the delayed discovery doctrine is inapplicable to negligent or vicariously liable tortfeasors in childhood sexual abuse claims. (12) To explain how the Cisko court arrived at its holding, the case law leading up to Cisko must be examined, beginning with Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000).

Most plaintiffs who claim repressed memory cite to the Florida Supreme Court's Hearndon decision for support to invoke the delayed discovery doctrine. (13) In Hearndon, the plaintiff filed a complaint in 1991 against her stepfather for injuries that resulted from sexual abuses he allegedly committed from 1968 through 1975, when the plaintiff was between the ages of 8 and 15. (14) The trial court dismissed the complaint as time-barred, despite the plaintiff's allegations that she suffered from "traumatic amnesia" caused by abuses perpetrated by her stepfather until approximately 1988. (15)

The First District Court of Appeal affirmed, refusing to apply the delayed discovery doctrine where the legislature had not allowed for it by statute. (16) The Florida Supreme Court, however, concluded that the delayed discovery "doctrine should apply to causes of action alleging subsequent recollection of childhood sexual abuse cases" and answered the following rephrased certified question in the affirmative: Where a plaintiff in a tort action based on childhood sexual abuse alleges that she suffered from traumatic amnesia caused by the abuse, does the delayed discovery doctrine postpone accrual of the cause of action? (17)

The Hearndon court cited two reasons in favor of the application of the doctrine in the case of child sexual abuse: 1) "[I]t is widely recognized that the shock and confusion resultant from childhood molestation, often coupled with authoritative adult demands and threats for secrecy, may lead a child to deny or suppress such abuse from his or her consciousness"; and 2) "the doctrine is well established when applied, for example, in cases involving breach of implied warranty or medical malpractice; it would seem patently unfair to deny its use to victims of this uniquely sinister form of abuse." (18)

Accordingly, the Hearndon court held that the "application of the delayed discovery doctrine to childhood sexual abuse claims is fair given the nature of the alleged tortious conduct and its effect on victims, and is consistent with our application of the doctrine to tort cases generally...." (19) The court also alluded to the fact...