Applying the Statutes of Limitation in Institutional Childhood Sex Abuse Cases
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 institutional1 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. §§95.11(7) and (9)
F.S. §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. §95.11(7) for intentional torts based on abuse, and F.S. §95.11(9) for sexual battery offenses on victims under age 16. F.S. §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. §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 that the 1992 enactment of F.S. §95.11(7) and a statutory application of delayed discovery doctrine would have applied to Hearndon’s claim, but for the fact that her claim was filed in 1992.20 Thus, the Hearndon decision is narrow and did not specifically address whether the court was permitting delayed discovery in all childhood sexual abuse cases involving traumatic amnesia, or solely those involving the perpetrator. Plaintiffs’ counsel have, thus, argued that repressed memory delays the accrual of the statute of limitation in all sex abuse cases.
The next case interpreting Hearndon is Davis v. Monahan, 832 So. 2d 708 (Fla. 2002), a suit by an elderly woman arising from her family’s misappropriation of her assets.21 In Davis, the Florida Supreme Court declined to extend application of the delayed discovery doctrine to claims of breach of fiduciary duty, conversion, civil conspiracy, and unjust enrichment.22 In explaining its rationale, the court discussed its ruling in Hearndon and stated that it found application of the doctrine appropriate in Hearndon “because the lack of memory was caused by the abuser — a situation similar to the statutory circumstances to which the doctrine applies.”23 The court further explained:
While we applied the delayed discovery doctrine to causes of action arising out of childhood sexual abuse and repressed memory in Hearndon, we did so only after considering the unique and sinister nature of childhood sexual abuse, as well as the fact that the doctrine is applicable to similar cases where the tortious acts cause the delay in discovery .24
The Davis court further opined:
The Florida Legislature has stated that a cause of action accrues or begins to run when the last element of the cause of action occurs. An exception is made for claims of fraud and products liability in which the accrual of the causes of action is delayed until the plaintiff either knows or should know that the last element of the cause of action occurred. The [l]egislature has also imposed a delayed discovery rule in cases of professional malpractice, medical malpractice, and intentional torts based on abuse.25
The Davis court noted that its ruling in Hearndon relied on F.S. §95.11(7), as the basis for the application of the delayed discovery doctrine to intentional torts based on abuse.26 The Davis court further noted that its ruling in Hearndon was premised, in part, on the legislature’s amendment of F.S. §95.11(7) (1999) “to include intentional torts based on abuse and the fact that the application of the doctrine among the states is both the majority rule and modern trend.”27 As a result, Davis stands for the proposition that the delayed discovery doctrine is solely applicable to “cases of fraud, products liability, professional and medical malpractice, and intentional torts based on abuse[;] there is no other statutory basis for the delayed discovery rule.”28 Moreover, the court stated that the common law delayed discovery doctrine applied in “Hearndon is limited to the specific facts in that case….”29
The facts of Hearndon and the Florida Supreme Court’s own statements in Davis regarding its rationale in deciding Hearndon show that the court limited the application of the doctrine of delayed accrual to child sexual abuse cases in which a claim was being brought against the intentional tortfeasor, and not against a negligent actor.30
Despite the Davis court’s clarification that the Hearndon court’s application of the delayed discovery doctrine was limited to intentional torts, Davis was not a sexual abuse case. The holding in Davis is, therefore, often argued and distinguished. Upon this precedential background Cisko was decided.
The Cisko plaintiffs filed a one-count complaint in 2009 seeking damages for negligence against the Diocese of Steubenville (Diocese).31 The complaint alleged that the abuse suffered by the plaintiffs at the hands of a priest took place in 1966 or 1967 at Christ the King Church in Miami-Dade County, Florida.32 The plaintiffs alleged that the suit was filed within four years of recovering their memories of abuse.33 Their theory of liability against the Diocese was based upon its alleged knowledge of the priest’s history of sexual molestation and its alleged negligence in permitting the priest to be placed at Christ the King Church without informing the church or the Archdiocese of Miami that the priest’s contact with children should be restricted.34
The Diocese filed a motion for summary judgment, arguing that the plaintiffs’ assertions that they had repressed their memories of their sexual molestation until May 2005 were insufficient to delay the accrual of F.S. §95.11(3)(a), the four-year statute of limitation for a negligence action.35 In addition, the Diocese argued that F.S. §95.11(7), regarding intentional torts based on abuse, and F.S. §95.11(9), regarding sexual battery on victims under age 16, were not applicable on the facts of the case.36
In opposition to the motion for summary judgment, the plaintiffs argued that their repressed memories were sufficient to delay the accrual of their cause of action as to the negligence claim.37 They relied upon the Florida Supreme Court’s opinion in Hearndon, arguing that it was controlling on the facts before the trial court.38 Plaintiffs also argued that F.S. §95.11(7) did not alter their rights under Hearndon and the common law.39
Both the Cisko trial court upon granting summary judgment, and the appellate court affirming same, held that “ Hearndon [does] not apply to a negligence action.”40 The Cisko opinion explains:
A plain reading of Hearndon makes clear the holding is limited to its specific historical and procedural facts. The plaintiff in Hearndon brought an intentional tort action against her stepfather for sexual abuse she suffered by him as a child. She alleged the trauma caused her to suppress her memory of the events for many years, only recalling them later as an adult. The trial court and the district court of appeal determined the statute of limitations barred her action. The Florida Supreme Court, however, allowed the action to stand under the delayed discovery doctrine based on the plaintiff’s allegations of traumatic amnesia. The opinion strongly suggests the holding hinges not only on these specific allegations but also on the specific cause of action: a suit for intentional tort against the perpetrator. 41
The court also cites to Davis to explain that there are only certain enumerated causes of action for which delayed discovery is applicable: “Aside from…cases of fraud, products liability, professional and medical malpractice, and intentional torts based on abuse, there is no other statutory basis for the delayed discovery rule.”42 Thus, repressed memory is not a basis to toll the statute of limitation, and the “matter [is] for legislative consideration.”43 However, “in more than ten years since enacting section 95.11(7), the legislature has not extended the limitations period to causes of action other than intentional torts.”44
Cisko thereby clarified previous case law by explicitly rejecting repressed memory as a means to toll or delay the accrual of the statute of limitation against a negligent or vicariously liable defendant. It clarified that while the Florida Supreme Court’s opinion in Hearndon will delay the accrual of the statute of limitation against the actual abuser, absent the application of the legislature’s sex-abuse specific statutes of limitation, repressed memory is not a basis to delay the accrual of a cause of action against an institutional tortfeasor.45
Equitable Estoppel Due to Fraudulent Concealment
In Rubio, the plaintiff sued the Archdiocese of Miami, Inc., for negligence and vicarious liability related to alleged sexual abuse that he suffered as a child at the hands of his parish priest. The complaint was not filed until approximately 35 years after the alleged abuse ended.46 The trial court dismissed the plaintiff’s complaint with prejudice on the basis of the statute of limitation; the plaintiff appealed.47
In his complaint, the plaintiff made extensive factual allegations concerning the alleged wrongdoings by the Archdiocese of Miami, which allegations were taken as true for the purposes of the appeal:
Rubio was a devout Catholic who served as an altar boy at Our Lady of Divine Providence when he was child. Starting when he turned ten years old, for a two-year period from 1976 to 1977, Rubio was sexually abused by his parish priest…. The abuse followed the classic pattern in which the sexual predator groomed his selected child-victim with compliments and special favors. In Rubio’s case, the sexual predator used his position as a priest employed by the Archdiocese to prepare, commit, and conceal the abuse. The Archdiocese knew of [the priest’s] history of molesting underage boys, but nevertheless continued to hold [the priest] out as a priest and spiritual leader. When it became aware of [the priest’s] misconduct, the Archdiocese failed to report the sexual abuse as required by law. Instead, the Archdiocese transferred [the priest] to different parishes, and ultimately to Spain, to conceal his criminal behavior from his parishioners and the public. This conduct was part of a systematic cover-up that reached to the highest levels of the Vatican. The Archdiocese was negligent in hiring and retaining [the priest], and was vicariously liable, as the employer, for [the priest’s] misconduct.48
The Rubio court rejected the alleged fraudulent concealment as a means to circumvent the statute of limitation, affirming the dismissal and holding that “equitable estoppel does not apply in this case because Rubio has not alleged any facts indicating the Archdiocese caused or induced him to refrain from filing suit within the limitations period.”49 The Rubio court stated:
Rubio knew the abuse had occurred, knew the identity of the abuser, and knew the abuser worked for the Archdiocese. Yet, the amended complaint fails to allege any acts of the Archdiocese towards Rubio that caused him to delay filing his claims for the three decades that elapsed since the time he had allegedly been abused as a child. As such, there is simply no basis upon which to apply the doctrine of equitable estoppel.50
Rubio is the strongest and most recent case rejecting equitable estoppel in a sex abuse case, but it follows another decision which would likewise require dismissal in a similar case. In John Doe No. 23, the plaintiff filed suit more than 30 years after the acts giving rise to the plaintiff’s causes of action for negligence and respondeat superior liability.51 The plaintiff:
conceded that his delay in filing suit was not the result of any repressed memory of the events. Rather, he asserted that his delay resulted from the defendants’ concealment of their knowledge that the subject employees had sexually abused other boys. He contends that this information would have assisted him in pursuing his wrongful hiring and supervision claims.52
Despite that allegation, the trial court dismissed the plaintiff’s amended complaint, and the appellate court upheld that dismissal. The John Doe No. 23 court quoted a New York decision for its rationale to affirm the dismissal:
As New York’s highest court explained in Zumpano v. Quinn , 6 N.Y.3d 666, 816 N.Y.S.2d 703, 849 N.E.2d 926, 930 (2006): “Even if the Court were to assume that a fiduciary relationship existed between the parties during plaintiffs’ infancy and that the diocesan defendants had a legal duty to disclose any knowledge of prior incidents of sexual abuse and breached that duty, plaintiffs still failed to demonstrate how that breach prevented them from bringing a timely action. As noted above, defendants’ concealment of their own actions and of the priests’ conduct, postwrongdoing, does not alter the fact that plaintiffs were fully aware that they had been abused . Plaintiffs also knew the identity of their abusers and that the abusers were employed by the Diocese. They failed to establish that any concealment by defendants changed their awareness of these facts or that defendants had a direct role in plaintiffs’ failure to file suit within an appropriate time period.”53
Stated differently, John Doe 23 held in part that an element of equitable estoppel, “reliance on a party’s representation,” requires justifiable and reasonable reliance.54 Therefore, any allegation that an institutional defendant concealed its own negligence is irrelevant according to Rubio and John Doe No. 23.
The decision in Florida Dep’t of Health v. S.A.P., 835 So. 2d 1091 (Fla. 2002), is often relied upon to argue that any alleged acts of concealment by a defendant of their own negligence will give rise to an equitable estoppel defense to the statute of limitation. However, “[s]everal facts in S.A.P. render that case unique” and unlike the facts of most institutional sex abuse claims, which are more akin to the facts of Rubio and John Doe No. 23.55 Justice Cantero’s dissent from the Ryan court majority’s discharge of jurisdiction distinguished S.A.P. because:
The plaintiff was in foster care. She was, at most, four years old when the abuse occurred. The statute of limitations expired when she was eight. No facts suggest that she had parents or other guardians who could file a cause of action in her behalf. The only possible plaintiffs were the foster parents, who committed the abuse, and the state, which was in a fiduciary relationship to the plaintiff and was supposed to supervise the foster parents. Instead, it actively concealed the abuse and in fact (according to the complaint) falsified records.56
The Rubio court found Justice Cantero’s interpretation of S.A.P. persuasive, and distinguished S.A.P. because 1) the S.A.P. plaintiff had no memory of the abuse due to her age; 2) the S.A.P. plaintiff’s only means to file suit during her minority were her abusive foster parents or the state, who allegedly concealed the abuse by obstructing an investigation through falsification of documents; and 3) the plaintiff filed suit within three years of discovering the abuse.57 Thus, S.A.P. ’s application is limited to instances when the institutional defendant is in loco parentis for the plaintiff, the defendant has obstructed an investigation through falsification of documents, and the plaintiff was unable to remember the abuse due to his or her age.58 These factual allegations also distinguish S.A.P. from John Doe No. 23 and most institutional sex abuse cases.
Failure to “Connect the Dots” from the Abuse to Mental Health Damages
Some plaintiffs have alleged that their failure to connect the abuse to some recently recognized psychological damages should toll or delay the accrual of the statute of limitation. However, Rubio and John Doe No. 23 hold that the statute of limitation begins running when a plaintiff alleges his or her awareness of 1) the abuse when it occurred, 2) the identity of the abuser, and 3) the abuser’s relationship to the institutional defendant.59 Further, there is no requirement that the putative plaintiff have knowledge of the elements of his or her cause of action for negligence or vicarious liability embodied within the statute of limitation or interpreted through case law.60
F.S. §95.11(3)(a) and (p), the applicable statutes of limitation for negligence and vicarious liability, may be contrasted with the medical and professional malpractice statute of limitation found at F.S. §95.11(4)(a). That statute states that the limitation period “shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” The professional malpractice limitation period codifies the delayed discovery doctrine, whereas the negligence and vicarious sections of statute of limitation do not. On the basis of this statutory construction, there is no knowledge requirement for putative plaintiffs in negligence or vicarious liability cases for the statute of limitation to begin running. Therefore, a delay by a plaintiff in realization of one component of their damages does not impact the running of the statute of limitation.
In Young v. Ball, 835 So. 2d 385 (Fla. 2d DCA 2003), the plaintiff pleaded a civil conspiracy count against several defendants claiming that his name was forged on a loan document.61 The loan documents were forged in 1990, but the plaintiff discovered the forgery in 1993.62 He waited to file the complaint until 1999.63 The court granted summary judgment for the defendants on the basis of a four-year statute of limitation beginning in 1990, at the time the documents were forged, despite Mr. Young’s lack of notice until 1993.64 The Young court held:
The Monahan decision now makes it clear that the delayed discovery doctrine does not apply to a cause of action for civil conspiracy. Therefore, in this case the statute of limitations began to run when Young’s cause of action accrued. That happened in 1990, when the alleged conspirators applied for the loan and received the proceeds. Thus, Young’s 1999 action was barred under the four-year limitation period in section 95.11(3)(p), Florida Statutes (1989).65
On the basis of the plain language of F.S. §§95.11(3)(a) and 95.031 and Young, even if a plaintiff is ignorant of his causes of action or damages, the statute of limitation begins to run once the last element of the cause of action occurs. Therefore, a plaintiff’s claim of failure to realize psychological injury from his or her abuse has no impact on the statute of limitation.
As shown above, the relevant and controlling case law all reaches the same conclusion: The four-year statute of limitation applies to virtually all causes of action against an institutional defendant arising from child sexual abuse. Florida courts have not delayed the accrual of an individual’s cause of action against an alleged institutional tortfeasor based upon the application of the delayed discovery doctrine, indirect fraudulent concealment, or a failure of the plaintiff to connect the dots between the negligence and his or her injury. In so doing, the courts have kept the responsibility for any changes to those statutes squarely where it belongs — with the legislature.
1 “By institutional,” the authors mean to describe cases in which the employer is sued because it is alleged to have had knowledge of the abuser’s dangerous propensities and failed to act or protect the plaintiff, or otherwise facilitated the abuse. There are separate issues in defending the actual abuser in a civil case not discussed here.
2 The authors’ firm served as counsel for the for appellants in each of these cases.
3 Fla. Dep’t of Health & Rehabilitative Servs. v. S.A.P., 835 So. 2d 1091, 1096 (Fla. 2002).
4 Rubio v. Archdiocese of Miami, 114 So. 3d 279, 283 (Fla. 3d DCA 2013).
5 Fla. Stat. §95.11(3)(a).
6 Fla. Stat. §95.11(3)(o).
7 Fla. Stat. §95.11(3)(p).
8 As defined in Fla. Stat. §794.011(1)(h): “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object….”
9 See Doe v. Sinrod, 90 So. 3d 852, 854-855 (Fla. 4th DCA 2012) (holding that Fla. Stat. §95.11(7) “applies to intentional torts committed by an individual” and does not apply to actions “solely based on negligence”); Cisko, 123 So. 3d 83 (same proposition); see also Davis v. Monahan, 832 So. 2d 708, 710 (Fla. 2002) (“Aside from the provisions above, for the delayed accrual of a cause of action in cases of fraud, products liability, professional and medical practice, and intentional torts based on abuse, there is no other statutory basis for the delayed discovery.”).
10 See, e.g., Cisko, 123 So. 3d at 83.
11 Id.
12 Id.
13 Hearndon, 767 So. 2d at 1179.
14 Id. at 1181.
15 Id.
16 Id.
17 Id. at 1181-82.
18 Id. at 1186.
19 Id.
20 Id. at 1186.
21 Davis, 832 So. 2d at 710.
22 Id.
23 Id.
24 Id. at 712 (emphasis added).
25 Id. at 709-10 (footnote omitted).
26 Id. at 712.
27 Id.
28 See id. at 710 (emphasis added).
29 Id. at 712.
30 See also Sinrod, 90 So. 3d at 855 (“ Hearndon provides that a child should not, as a result of [a memory suppression] reaction to abuse, be denied the opportunity to bring a claim against his or her attacker.”).
31 Cisko, 123 So. 3d 83.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 Id.
39 Id.
40 Id. at 84.
41 Id. (emphasis added) (citations omitted).
42 Id. at 85.
43 Id.
44 Id.
45 Hearndon, 767 So. 2d 1179.
46 Rubio, 114 So. 2d at 279.
47 Id.
48 Id. at 280-281.
49 Id.
50 Id. at 282.
51 John Doe No. 23, 965 So. 2d at 1186. See also John Doe No. 69 v. Archdiocese of Miami, Inc., 95 So. 3d 262 (Fla. 3d DCA 2012) (PCA affirmed citing to John Doe No. 23 and Zumpano v. Quinn, 849 N.E.2d 926 (2006)).
52 John Doe No. 23, 965 So. 2d at 1187.
53 Id. at 1188 (emphasis added).
54 Id.
55 Ryan v. Lobo de Gonzalez, 921 So. 2d 572, 577 (Fla. 2005), Cantero, J., dissenting.
56 Id. at 577.
57 Rubio, 114 So. 3d at 283.
58 Id.
59 Id. at 281-82; John Doe No. 23, 965 So. 2d at 1188.
60 See Tobin v. Damian, 772 So. 2d 13, 16 (Fla. 4th DCA 2000) (“The fact that appellant may not have known the full extent of the injury did not toll the period of limitations”); see also Young v. Ball, 835 So. 2d 385 (Fla. 2d DCA 2003).
61 Young, 835 So. 2d at 386.
62 Id.
63 Id.
64 Id. (citations omitted) .
65 Id.
Joseph M. Winsby is an associate in the Coral Gables office of Gaebe, Mullen, Antonelli & DiMatteo, P.A. He is a trial attorney who represents corporate clients and insurers in insurance coverage, professional malpractice, premises liability, construction defect, personal injury, and institutional sex abuse defense cases.
Elaine D. Walter is an associate in the Coral Gables office of Gaebe, Mullen, Antonelli & DiMatteo, P.A. She is an appellate attorney who handles all of the firm’s appeals.
