McCormick v. Johnston et al

Filing 114

MEMORANDUM AND ORDER ; IT IS HEREBY ORDERED that the motion of defendant Archdiocese of St. Louis for summary judgment [Doc. # 103 ] is granted. IT IS FURTHER ORDERED that the motion of defendant Rev. Robert Johnston for summary judgment [Doc. # 109 ] is granted. IT IS FURTHER ORDERED that the defendants' motions to have facts deemed admitted, legal arguments waived, and for entry of judgment [Doc. # 112 and # 113 ] 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
MATTHEW McCORMICK,
Plaintiff,
vs.
REV. ROBERT JOHNSTON, et al.,
Defendants.

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Case No. 4:09-CV-140 (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 Matthew McCormick 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 April 3, 1969, 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

1

Plaintiff testified at his deposition that the dates in the first amended complaint
were incorrect and that he was abused by Johnston between the years of 1982 and
1983. Pl.’s Dep. at 41, 56-57, 118. The Archdiocese’s statement of uncontroverted
facts states that the abuse occurred between 1982 and 1985.

is intentional failure to supervise (Count VII). The remaining claims against Johnston
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

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allegations of his pleadings but must set forth specific facts, by affidavit or other
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

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enumerated” must be brought within five years of when the cause of action accrues.
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 April 3, 1990.
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. Alternatively, they
argue that plaintiff’s memory was repressed only until 1998 when he began to consult
with third-parties about the abuse.
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, eighteen 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.

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“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.”
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)).
Plaintiff testified that he was aware he was engaging in sexual conduct
with Johnston and Campbell at the time the acts were occurring and for a period
thereafter:2
Q: And you knew you were being abused by Campbell when it was going
on, didn’t you?
A: I didn’t know -- couldn’t define abuse back then.
Q: You couldn’t call it that, but you knew you were engaging in sexual acts with
Campbell and other boys?
A: Yes.

2

Rev. Alvin Campbell was employed by the Diocese of Springfield, Illinois, which
is not within the Archdiocese of St. Louis.
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...
Q: And you were aware you were engaging in sexual conduct with Johnston?
A: Yes, sir.
...
Q: And when you transferred schools, you still remembered you had engaged
in sexual acts with Campbell, didn’t you?
A: Yes.
Q: And the same for Johnston and the same for Perry, right?
A: Yes.
Q: So you were about 16 when you transferred schools, right?
A: Yes.

(Pl.’s Dep. at 59-61, 68-69).

Plaintiff additionally testified that the recollections of sexual abuse were not
always a prominent part of his memory.
Q: And when you left that hotel room, or you left that lake house or you left the
ball game, you knew that Johnston had done things to you as well as Campbell
and Shane Perry and you to them, correct?
A: That is correct.
Q: And you carried that memory with you for a number of years, didn’t you?
A: I would say probably yes, but again, as you read, I was heavily into alcohol.
I had relationship problems with my girlfriends. So there were other things more
pertinent to my memory.
(Pl.’s Dep. at 72).
A: . . . Life took over. Memories went away. I didn’t ever think about them. I
had no reason to think about them.
Q: You had no reason to recall the memories?
A: Right.
(Pl.’s Dep. at 82).

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Plaintiff also testified to intentionally keeping the abuse confidential and
destroying pictures and videos that documented the abuse because they were
“shameful” and “embarrassing.” (Pl.’s Dep. at 74-80, 88-89, 91-92).
It is unclear from plaintiff’s testimony and the record in this case whether
plaintiff’s memory of the abuse was in fact repressed or whether plaintiff simply did not
want to recall the abuse. Nonetheless, it is clear that plaintiff had or gained back his
recollection of the abuse in 1998 at the latest. Plaintiff testified that he began to
discuss the sexual abuse with his sister, therapists, and attorneys in 1998. (Pl.’s Dep.
at 82, 106-109); see 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) (“‘[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.”). Accordingly,
his damages were capable of ascertainment in 1998.

Because plaintiff filed his

intentional failure to supervise,3 negligence, and intentional infliction of emotional
distress claims ten years later in 2008, these causes of action are barred by the fiveyear statute of limitations as set forth by 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

3

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 facts, 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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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 analysis above, the
Court finds that plaintiff’s damages should reasonably have been discovered or were
capable of ascertainment in 1998. As such, plaintiff was required to file his sexual
abuse of a child claim three years after this date of ascertainment or discovery, which
would have been sometime in 2001.
***
For the foregoing reasons,
IT IS HEREBY ORDERED that the motion of defendant Archdiocese of St. Louis
for summary judgment [Doc. #103] is granted.
IT IS FURTHER ORDERED that the motion of defendant Rev. Robert Johnston
for summary judgment [Doc. #109] is granted.
IT IS FURTHER ORDERED that the defendants’ motions to have facts deemed
admitted, legal arguments waived, and for entry of judgment [Doc. #112 and # 113]
are granted.

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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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