Perry v. Johnston et al
Filing
112
MEMORANDUM AND ORDER ; IT IS HEREBY ORDERED that the motion of defendant Archdiocese of St. Louis for summary judgment [Doc. # 104 ] is granted. IT IS FURTHER ORDERED that the motion of defendant Rev. Robert Johnston for summary judgment [Doc. # 108 ] is granted. IT IS FURTHER ORDERED that the defendants' motions to have facts deemed admitted, legal arguments waived, and for entry of judgment [Doc. # 110 and # 111 ] are granted. Judgment in favor of the defendants will be entered separately. Signed by District Judge Carol E. Jackson on 10/09/2012; (DJO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHANE PERRY,
Plaintiff,
vs.
REV. ROBERT JOHNSTON, et al.,
Defendants.
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Case No. 4:09-CV-105 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on the motions for summary judgment filed
separately by defendant the Archdiocese of St. Louis and defendant Rev. Robert
Johnston.
Plaintiff Shane Perry has not responded to the motions, and the time
allowed for doing so has expired. In light of plaintiff’s failure to respond, defendants
Archdiocese and Johnston have also filed motions to have facts deemed admitted, legal
arguments waived, and for entry of judgment pursuant to Local Rule 7-4.01(B) and
(E).
I.
Background
Plaintiff brings this action to recover damages stemming from alleged abuse he
sustained when he was a minor. Plaintiff, born on September 13, 1970, alleges in his
complaint that defendant Johnston sexually abused him on various occasions between
1979 and 1982 while Johnston was employed by the Archdiocese of St. Louis.1 Plaintiff
filed this action on June 30, 2008. The only remaining claim against the Archdiocese
is intentional failure to supervise (Count VII). The remaining claims against Johnston
1
Plaintiff testified in his deposition that the alleged abuse may not have ended
until 1984, but he was not certain.
are assault and battery/sexual abuse of a child (Count I), negligence (Count II), and
intentional infliction of emotional distress (Count III).
The Archdiocese asserts that plaintiff’s intentional failure to supervise claim is
barred by the five-year statute of limitations set forth in Mo. Rev. Stat. § 516.120(4).
Further, the Archdiocese argues that plaintiff can also not sustain the action under
Missouri common law because the “premises element” required for an intentional
failure to supervise claim has not been satisfied.
Johnston asserts that the 10-year
limitations period set forth in Mo. Rev. Stat. § 537.046 bars plaintiff’s assault and
battery/sexual abuse of a child claim, and that the five-year limitations period of Mo.
Rev. Stat. § 516.120(4) bars plaintiff’s negligence and intentional infliction of emotional
distress claims.
II.
Legal Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing
v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
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evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322
(1986).
Local Rule 7-4.01(B) provides that “[a] party opposing a motion for summary
judgment under Fed. R. Civ. P. shall file a memorandum and any appropriate
documentary evidence twenty-one days after being served with the motion.” Local
Rule 7-401(E) further instructs: “All matters set forth in the statement of the movant
shall be deemed admitted for purposes of summary judgment unless specifically
controverted by the opposing party.” Defendant Archdiocese filed its motion for
summary judgment on June 29, 2012 and defendant Johnston filed his motion for
summary judgment on August 8, 2012. Plaintiff has not responded to either motion in
the time allotted under the Local Rules. Accordingly, the Court will deem each fact
contained in both defendants’ statements of uncontroverted material facts, which are
attached to their respective motions for summary judgment, as admitted. The Court
will also treat all arguments in opposition to defendants’ motions for summary
judgment waived.
III.
Discussion
Mo. Rev. Stat. § 516.120(4) provides that an action “for any other injury to the
person or rights of another, not arising on contract and not herein otherwise
enumerated” must be brought within five years of when the cause of action accrues.
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If a cause of action accrues when the individual is under twenty-one years of age, the
statute of limitations will not begin to run until that person reaches the age of twentyone years. Mo. Rev. Stat. § 516.170. The five-year limitations period set forth in §
516.120(4) applies to plaintiff’s claims of intentional failure to supervise, negligence,
and intentional infliction of emotional distress. Because the alleged acts accrued while
plaintiff was a minor, it is uncontested that the statute of limitations should, at
minimum, be tolled until his 21st birthday on September 13, 1991.
A claim can be further tolled when a plaintiff adequately brings forth evidence
of a repressed memory. See Powel v. Chaminade, 197 S.W.3d 576 (Mo. 2006); Mo.
Rev. Stat. § 516.100. Plaintiff alleges that the sexual abuse and the circumstances
under which it occurred caused him to develop a repressed memory until
approximately early 2004. Defendants argue that the facts of this case do not support
the existence of a repressed memory and, as such, the running of the five-year statute
of limitations period began on plaintiff’s 21st birthday and no later.
Mo. Rev. Stat. § 516.100 provides that a cause of action accrues “when the
damage resulting therefrom is sustained and is capable of ascertainment.” Because
plaintiff filed his complaint against defendants on June 30, 2008, seventeen years after
his 21st birthday, the survival of plaintiff’s claims for intentional failure to supervise,
negligence, and intentional infliction of emotional distress turns on whether there is a
genuine issue of material fact in regard to when his damages were capable of being
ascertained.
“In Powel, the Missouri Supreme Court stated that damages are capable of
ascertainment and the statute of limitations begins to run when ‘the evidence [is] such
to place a reasonably prudent person on notice of a potentially actionable injury.”
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Dempsey v. Johnston, 299 S.W.3d 704, 706 (Mo. Ct. App. 2009) (quoting Powel, 197
S.W.3d at 582). “The Court emphasized that the test is an objective one and that the
issue is ‘when a reasonable person would have been put on notice that an injury and
substantial damages may have occurred and would have undertaken to ascertain the
extent of the damages.’” Id. (quoting Powel, 197 S.W.3d at 584).
“Damage is ascertainable when the fact of damage ‘can be discovered or made
known,’ not when a plaintiff actually discovers injury or wrongful conduct.” Sheehan
v. Sheehan, 901 S.W.2d 57, 58-59 (Mo. 1995) (quoting Chemical Workers Basic Union
Local No. 1744 v. Arnold Savings Bank, 411 S.W.2d 159, 163-65 (Mo. 1966). “‘[A]ll
possible damages do not have to be known, or even knowable, before the statute
accrues,’ the date Plaintiff completed his psychological process of uncovering is
irrelevant.” Graham v. McGrath, 243 S.W.3d 459, 463 (Mo. Ct. App. 2007) (quoting
Klemme v. Best, 941 S.W.2d 493, 497 (Mo. 1997)).
The evidence in this case establishes that plaintiff knew of the acts constituting
sexual abuse prior to his attaining the age of twenty-one. In his deposition, plaintiff
testified that he did not remember being abused by defendant Johnston “until later on
in life” after he had undergone therapy. (Doc. # 105-2, p. 38). However, in answer to
interrogatories plaintiff stated that he “informed his parents at the time [the sexual
abuse] occurred, but they did not believe him and told him not to tell anyone that. As
such, no action was taken.” (Doc. # 105-3, p. 10) (emphasis added). When asked
about this answer in deposition, plaintiff testified that he could not remember whether
he had answered truthfully. (Doc. # 105-2, p. 38).
Plaintiff also testified that during the period 1979-1982 he was sexually abused
by Rev. Alvin Campbell, a parish priest. Campbell introduced plaintiff to Johnston in
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1979 or 1980. According to plaintiff, Campbell and Johnston sexually abused him
together. Plaintiff knew in 1985 that Campbell was being prosecuted for sexual abuse
of children and that he (plaintiff) was one of the victims. Plaintiff also knew that it was
wrong for adults to have sex with children. When plaintiff was in his twenties, he knew
that Campbell had gone to prison for sexually abusing children, including himself.
Further, plaintiff was cognizant that he was a victim of sexual abuse as a child by
informing his parents of Campbell’s indecent actions. See Graham, 243 S.W.3d at 463
(“In 1995 and 1996, Plaintiff had memory of the acts constituting sexual abuse, he was
beginning to understand he was a victim . . . These facts show that the evidence was
sufficient to put a reasonable person on notice that ‘an injury and substantial damages
may have occurred;’ therefore, Plaintiff’s damages were capable of ascertainment[.]”)
(quoting Powel, 197 S.W.3d at 584).
“[I]t is the memory of the consequential injury and damages, not the memory
of the identity of the perpetrator, that triggers the running of the . . . statute of
limitations.” K.G. v. R.T.R., 918 S.W.2d 795, 198 (Mo. 1996) (emphasis added).
Plaintiff must have “sufficient knowledge to be put on ‘inquiry notice’ of the wrong and
damages[.]” Powel, 197 S.W.3d at 583. “‘[P]laintiff just must have notice of the facts
of the mere existence of the wrong in order to motivate plaintiff to inquire further.” Id.
at 584 (quoting Klemme, 941 S.W.2d at 497).
Because plaintiff was aware of the sexual abuse by Campbell, as “a reasonable
person [plaintiff] would have . . . undertaken to ascertain the extent of the damages.”
Id. This is especially true here as plaintiff testified that Campbell was always present
when Johnson sexually abused plaintiff. As such, plaintiff’s damages were capable of
ascertainment when he reached the age of twenty-one years. Because plaintiff filed
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his claims of intentional failure to supervise,2 negligence, and intentional infliction of
emotional distress more than five years after he attained the age of twenty-one, these
claims are barred by the statute of limitations under Mo. Rev. Stat. § 516.120(4).
Plaintiff’s assault and battery/sexual abuse of a child claim is governed by a
special statute of limitations, which provides:
Any action to recover damages from injury or illness caused by childhood
sexual abuse . . . shall be commenced within ten years of the plaintiff
attaining the age of twenty-one or within three years of the date the
plaintiff discovers, or reasonably should have discovered, that the injury
or illness was caused by childhood sexual abuse, whichever later occurs.
Mo. Rev. Stat. § 537.046.2 (emphasis added).
Missouri courts have recognized the literal distinction between the ‘discovery’
standard, under § 537.046, and the ‘capable of ascertainment’ standard used for other
causes of action.” Walker v. Barrett, 650 F.3d 1198, 1206 (8th Cir. 2011). “But, to
date, Missouri courts have not addressed whether the discovery standard operates
differently, in practice, than the capable of ascertainment standard.” Id. “Indeed, some
Missouri courts have apparently treated the standards as functional equivalents.” Id.
See e.g. Dempsey v. Johnston, 299 S.W.3d 704 (Mo. Ct. App. 2009) (court used
capable of ascertainment standard for § 537.046). Relying on the above analysis, the
Court finds that plaintiff’s damages should reasonably have been discovered or were
capable of ascertainment prior to plaintiff’s twenty-first birthday. As such, plaintiff was
2
Plaintiff’s intentional failure to supervise claim would independently fail under
Missouri common law because the Archdiocese was only under a duty to control
defendant Johnston when he was on its premises or when he was using its chattel. See
Doe v. Roman Catholic Archdiocese of St. Louis, 347 S.W.3d 588, 591-594 (Mo. Ct.
App. 2011); Gibson v. Brewer, 952 S.W.2d 239, 248 (Mo. 1997). Based on the
uncontroverted evidence, the alleged sexual abuse by Johnston did not occur on the
premises of the Archdiocese or while Johnston was using chattel owned by the
Archdiocese.
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required to file his sexual abuse of a child claim on or before September 13, 2001, ten
years after his twenty-first birthday. Because he failed to do so, his claim of assault
and battery/sexual abuse of a child is time-barred.
***
For the foregoing reasons,
IT IS HEREBY ORDERED that the motion of defendant Archdiocese of St. Louis
for summary judgment [Doc. #104] is granted.
IT IS FURTHER ORDERED that the motion of defendant Rev. Robert Johnston
for summary judgment [Doc. #108] is granted.
IT IS FURTHER ORDERED that the defendants’ motions to have facts deemed
admitted, legal arguments waived, and for entry of judgment [Doc. #110 and # 111]
are granted.
Judgment in favor of the defendants will be entered separately.
____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 9th day of October, 2012.
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