Doe v. Archdiocese of Washington

HOLLANDER, Judge. This case concerns the timeliness of a suit instituted by appellant, John Doe, in the Circuit Court for Prince George’s County. In 1995, seventeen years after reaching adulthood, Doe sued the Reverend Thomas Sebastian Schaefer, the Reverend Alphonsus Michael Smith, and the Archdiocese of Washington, 1 appellees, because of the sexual child abuse that he suffered during the period 1972 through 1978, when Doe was between eleven and seventeen years of age. Based on the statute of limitations, the trial court granted appellees’ motions to dismiss.

Appellant has appealed and presents the following questions for our review, which we have rephrased. I. Did the trial court correctly conclude that appellant’s suit was time-barred, because his claims based on childhood ¹⁷³ sexual abuse accrued in 1878, when he reached the age of majority?

II

Did the trial court err in rejecting appellant’s argument that the statute of limitations was tolled by the doctrine of fraudulent concealment? For the reasons discussed below, we conclude that the court properly dismissed the suit. Therefore, we shall affirm. Factual Background 2 Appellant served as an altar boy at the Church of St. Matthias in Lanham, Maryland beginning in 1972, when he was 11 years old.

Between 1972 and 1978, at least two priests sexually abused appellant. 3 This appeal involves sexual abuse by Schaefer, who served as pastor at St. Matthias from 1972 through 1975, and Smith, who served as pastor there beginning in 1975. The priests gained appellant’s trust by giving him money and gifts, and then repeatedly molested him. In addition, Schaefer used pornographic material while engaging in sexual acts with appellant, and also took pornographic photographs of him. According to the allegations, when the Archdiocese learned in 1967 that Schaefer was a pedophile, he was required to undergo treatment.

Subsequently, the Church placed him at Saint Francis de Sales Parish in Washington, D.C. in 1971, and later transferred him to St. Matthias in 1972. Appellant ¹⁷⁴ did not allege that the Archdiocese knew that Smith was a pedophile. Appellant asserted that, when his marriage “fell apart” in 1994, he first became aware that he was injured as a result of the sexual child abuse committed by the priests. 4 As a result, in July 1995, appellant filed suit against the priests for battery, negligence, negligent and intentional infliction of emotional distress, and conspiracy. He asserted several claims against the Archdiocese: negligence; negligent and intentional infliction of emotional distress; negligent failure to warn; conspiracy; and negligent hiring, placement, and supervision.

Appellees moved to dismiss the complaint as time-barred. The circuit court granted the motion, adopting appellees’ arguments. Ruling from the bench, the court (Perry, J.) noted that Maryland uses the discovery rule, rather than the maturation of harm rule, to determine the accrual of a cause of action for purposes of the statute of limitations. The judge stated that “[t]he Court sees no conceivable way that a person couldn’t be cognizant of an actionable injury[,] where something like this occurred[,] for a period of seventeen years.” Because appellant reached the age of majority in 1978, she held that the statute of limitations barred all of appellant’s claims no later than sometime in 1981.

Discussion I. When ruling on a motion to dismiss, the trial court must decide whether the complaint states a claim, assuming the truth of all well-pleaded facts in the complaint and taking all inferences from those facts in the light most favorable to the Plaintiff. Sharrow v. State Farm Mut. Ins. Co., 306 Md. 754, 762 , 511 A.2d 492 (1986); Tadjer v. Montgomery Co., 300 Md. 539, 542 , 479 A.2d 1321 (1984); Lemon v. Stewart, 111 Md. ¹⁷⁵ App. 511, 517, 682 A.2d 1177 (1996). “Dismissal is proper only if the facts and allegations ... would ... fail to afford plaintiff relief if proven.” Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993) (collecting cases).

If it is apparent from the face of the complaint that the action is barred by the statute of limitations, the complaint fails to state a claim upon which relief can be granted and the statute of limitations can be the grounds for a motion to dismiss. G & H Clearing and Landscaping v. Whitworth, 66 Md.App. 348 , 503 A.2d 1379 (1986); see also Antigua Condominium Ass’n v. Melba Investors Atlantic, Inc., 307 Md. 700 , 711 & n. 5, 517 A.2d 75 (1986). The Legislature has settled upon a three-year period of limitations as a reasonable time to bring suit in most cases. The parties agree that the applicable statute of limitations in this case is set forth in Maryland Code (1974, 1995 RepLVol.), § 5-101 of the Courts and Judicial Proceedings Article (“C.J.”).

It provides: A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced. Although the Legislature has chosen to create some exceptions to the general rule, it has not created an exception for victims of childhood sexual abuse. 5 “[W]here the legislature has not expressly provided for an exception in a statute of limitations, the court will not allow any implied or equitable exception to be engrafted upon it.” Booth Glass Co. v. Huntingfield Corp., 304 Md. 615, 623 , 500 A.2d 641 (1985). ¹⁷⁶ While the parties do not dispute the applicability of C.J. § 5-101, they vigorously controvert the accrual date of appellant’s claims. “The question of when a cause of action accrues is left to judicial determination.” Booth Glass, 304 Md. at 619 , 500 A.2d 641 . “[T]he purposes of statutes of limitation are to provide adequate time for a diligent plaintiff to bring suit as well as to ensure fairness to defendants by encouraging prompt filing of claims.” Hecht v. Resolution Trust Corp., 333 Md. 324, 338 , 635 A.2d 394 (1994). Statutes of limitation thus strike a balance between protecting the interests of a plaintiff who pursues his claim diligently and allowing repose to a potential defendant. Doe v. Maskell, 342 Md. 684 , 679 A.2d 1087 (1996); Pennwalt Corp. v. Nasios, 314 Md. 433, 437-38 , 550 A.2d 1155 (1988).

They are intended “to ensure fairness by preventing ‘stale’ claims.” Edmonds v. Cytology Services of Maryland, Inc., 111 Md.App. 233, 244 , 681 A.2d 546 (1996) cert. granted, 344 Md. 330 , 686 A.2d 635 (1996). In a recent case involving child sexual abuse, the Court of Appeals observed that “[s]tatutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients rather than principles.” Maskell, 342 Md. at 689 , 679 A.2d 1087 (citations omitted). What the Court said in McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 159-60 , 40 A.2d 313 (1944), is also pertinent here: Statutes of limitations are remedial legislation and rest upon sound public policy, for they are enacted to afford protection against stale claims after a lapse of time which ought to be sufficient for a person of ordinary diligence, and after which the defendant might be placed at a disadvantage by reason of long delay.

By requiring persons to seek redress by actions at law within a reasonable time, the Legislature imposes a salutary vigilance and puts an end to litigation. Accordingly, the Courts should refuse to give statutes of limitations a strained construction to evade their effect. Historically, a cause of action in Maryland accrued for purposes of the statute of limitations on the date that the wrong occurred. Hahn v. Claybrook, 130 Md. 179, 182 , 100 A. ¹⁷⁷ 83 (1917).

The “date of wrong” accrual rule barred recovery for an injury that was not discovered until after the statute of limitations period had expired, and made no distinction between a “blamelessly ignorant” plaintiff and a plaintiff who had “slumbered on his rights.” Maskell, 342 Md. at 690 , 679 A.2d 1087 (citations omitted). Recognizing the harshness of this rule, however, the Court of Appeals replaced the “date of wrong” rule with the “discovery rule” in civil cases, by which the action is deemed to accrue on the date when the plaintiff knew or, with due diligence, reasonably should have known of the wrong. Mas-kell, 342 Md. at 690, 679 A.2d 1087 . Nevertheless, the cause of action does not accrue until all elements are present, including damages, however trivial.

Mattingly v. Hopkins, 254 Md. 88, 95 , 253 A.2d 904 (1969); Baker, Watts & Co. v. Miles & Stockbridge, 95 Md.App. 145, 187 , 620 A.2d 356 (1993); American Home Assurance v. Osbourn, 47 Md.App. 73, 86 , 422 A.2d 8 (1980). The discovery rule, applied first to medical malpractice cases, was later expanded to apply to other forms of professional malpractice. Maskell, 342 Md. at 690 , 679 A.2d 1087 (collecting cases). In Poffenberger v. Risser, 290 Md. 631 , 431 A.2d 677 (1981), the Court of Appeals expanded the applicability of the discovery rule generally to all civil cases, in order to “prevent ... injustice.” Poffenberger, 290 Md. at 636 , 431 A.2d 677 .

Under the discovery rule, the statute of limitations is activated based on actual knowledge — that is express cognition, or awareness implied from “knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry [thus, charging the individual] with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued. In other words, a [person] cannot fail to investigate when the propriety of the investigation is naturally suggested by circumstances known to him; and if he neglects to make such inquiry, he ... must suffer from his neglect.” ¹⁷⁸ Id. at 637 , 431 A.2d 677 (quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393 , 250 A.2d 69 (1969)) (internal citations omitted); see also Pennwalt Corp., 314 Md. at 448-49 , 550 A.2d 1155 ; Baker, Watts & Co., 95 Md.App. 145 , 620 A.2d 356 . The discovery rule is not a rigid rule, however.

Rather, the Court of Appeals has “retained ... the power to shape the contours of the discovery rule.” Maskell, 342 Md. at 691 , 679 A.2d 1087 . Thus, the operation of the discovery rule is determined by the Court. See O’Hara v. Kovens, 305 Md. 280, 286 , 503 A.2d 1313 (1986). See also Trimper v. Porter-Hayden, 305 Md. 31, 47 , 501 A.2d 446 (1985) (holding date of accrual for latent disease actions occurs at the earlier of discovery or death); Pennwalt Corp., 314 Md. at 452 , 550 A.2d 1155 (“[T]he discovery rule in a product liability action requires that the statute of limitations should not begin to run until the plaintiff knows or ... should know of injury, its probable cause, and either manufacturer wrongdoing or product defect.”).

In making a determination as to when the statute of limitations accrues in a particular circumstance, a court must do so “with awareness of the policy considerations unique to each situation.” Hecht, 333 Md. at 338 , 635 A.2d 394 . As we noted, the determination of when a cause of action accrues under the discovery rule is usually a determination made by the court. Poffenberger, 290 Md. at 633 , 431 A.2d 677 ; Lombardi v. Montgomery County, 108 Md.App. 695, 711 , 673 A.2d 762 (1996). When the viability of a statute of limitations defense hinges on a question of fact, however, the factual question is ordinarily resolved by the jury, rather than by the court.

Id.; O’Hara, 305 Md. at 299, 503 A.2d 1313 ; Morris v. Osmose Wood Preserving, 99 Md.App. 646, 664 , 639 A.2d 147 (1994), rev’d in part on other grounds, 340 Md. 519 , 667 A.2d 624 (1995). “ ‘Depending upon the nature of the assertions being made with respect to the limitations plea, th[e] determination [of whether the action is barred] may be solely one of law, solely one of fact or one of law and fact.’ ” Lombardi, 108 Md.App. at 711 , 673 A.2d 762 (quoting Poffenberger v. Risser, 290 Md. 631, 634 , 431 A.2d 677 (1981)). ¹⁷⁹ II. In essence, we must decide at what point in time an adult who was repeatedly sexually abused or battered as a child is put on inquiry notice that the conduct constituted an actionable “wrong”. See Russo v. Ascher, 76 Md.App. 465, 470 , 545 A.2d 714 (1988). We must also determine when the wrong actually occurred.

We observe that the Complaint states that the sexual acts were “non-consensual.” Apparently, appellant retreated from that position at the motion hearing. There, counsel argued that while Doe was aware of the priests’ conduct, he did not appreciate the offensiveness of the contact or realize that he had been harmed until he reached the age of thirty-three. Rather, at the time of the abuse, because of his age and his relationship to the priests, appellant believed that the priests’ conduct was “right and natural”, and he thus did not know that he had been battered. Consequently, appellant argued that none of his claims against the priests accrued until 1994, when his marriage “deteriorated [and] he discovered that [the priests’] conduct had injured him.” Counsel for appellant explained: [The defendant priests] used their position of power and trust and the confidence that was generated by that relationship to consistently, and in furtherance of their own sexual pleasure, take advantage of this boy.

These people were charged with responsibility for knowing right from wrong and serving as examples to society and this boy. They obscured those notions of right and wrong and they transformed wrong into right, making this child believe that what was happening to him was natural and an ordinary course of events in his life. Now, this isn’t a case about repressed memory. It’s a case about when you discover that you have been injured.

A battery is an offensive touching. If you reasonably believe that you have not been offensively touched and have not been injured, you do not know that there has been a battery.... [I]f you are consistently taken advantage of because of your youth and ¹⁸⁰ the relationship between yourself and this priest and the series of priests, over a period of time, and you’re told that this is right and you’re told that it’s natural and you’re told that it’s part of what — something that should go on in your life and part of your growing process, which you and I, sitting here today, know to be rationally irrational and wrong and morally decadent, and this conduct goes over time for a period of five or six years, you begin to think that it’s right and natural. (Emphasis supplied.) Although appellant asserted numerous claims in his suit, they all arose from the- sexual abuse that he endured. Clearly, the abuse itself constituted a battery.

A battery is the intentional, unpermitted touching of the body of another that is harmful or offensive to the person who was touched. Ghassemieh v. Schafer, 52 Md.App. 31, 38, 43, 447 A.2d 84 (1982). “The gist of the action is ... absence of consent to the contact on the plaintiffs part.” Id. Accidental or inadvertent contact does not amount to a battery, however. Janelsins v. Button, 102 Md.App. 30, 35 , 648 A.2d 1039 (1994).

Thus, an action against a tortfeasor for battery allows recovery for “intentional invasions of the interests in freedom from harmful or offensive contact.” Janelsins, 102 Md.App. at 35 , 648 A.2d 1039 (quoting Fowler v. Harper, et al., The Law of Torts, § 3.3 at 272-73, 276 (2d ed. 1986)). The case of Cooksey v. Portland Public School Dist. No. 1, 143 Or.App. 527 , 923 P.2d 1328 (1996) illustrates that an actionable wrong occurred when the battery happened. There, the plaintiff brought suit for battery and negligence arising out of an unlawful sexual contact.

Id. at 529 , 923 P.2d at 1329 . The court determined that the claim was barred by the applicable statute of limitations, notwithstanding the plaintiffs contention that her causes of action only accrued months later when she began to exhibit adverse symptoms. Id. In rejecting that argument, the court said that plaintiffs claims accrued at the time the inappropriate touching occurred, because that is when she suffered “an invasion of a legally protected interest.” Id. at 534 , 923 P.2d at 1332 .

What the court said is pertinent here: “That plaintiff later experienced ¹⁸¹ physical and emotional symptoms resulting from the same incidents does not mean that the claims arising out of those incidents accrued later.” Id. In the same way, appellant suffered “an invasion of a legally protected interest” immediately when the batteries actually occurred, even if his problems worsened over time. In analyzing the timeliness of appellant’s claims, we find the Court’s decision in Maskell, 342 Md. 684 , 679 A.2d 1087 , decided shortly after the parties submitted their briefs, instructive. There, the Court of Appeals concluded that repression of childhood sexual abuse does not toll the statute of limitations.

The Court noted that the scientific community has not reached a consensus on the validity of repression theory, and the theory remains controversial. Id. at 694 , 679 A.2d 1087 . It also considered the legal impact of giving credence to the repression theory when there is no way to prevent the possibility of therapist-influenced “recovered” memories. Id. at 695 , 679 A.2d 1087 .

Finally, the Court found that there is no persuasive empirical evidence to support the claim that repression of memory exists as a phenomenon distinct from forgetting. Id. at 695 , 679 A.2d 1087 . With regard to “forgetting,” the Court said: It is crystal clear that in a suit in which a plaintiff “forgot” and later “remembered” the existence , of a cause of action beyond the 3-year limitations period, that suit would be time-barred. Dismissal of such a case reflects our judgment that the potential plaintiff had “slumbered on his rights,” should have known of his cause of action, and was blameworthy.

To permit a forgetful plaintiff to maintain an action would vitiate the statute of limitations and deny repose for all defendants. Id. at 692 , 679 A.2d 1087 . The repression theory posits two models of repression: “serial” repression, in which the memory of a traumatic event is repressed soon after it occurred, and “collective” repression, in which all the memories are repressed at the same time, perhaps many years after the occurrence of the last episode of ¹⁸² abuse. Id. at 687-88 n. 3, 679 A.2d 1087 .

The Court noted that, even if it were to recognize the repression theory, in a case of “collective” repression, “if [the victims] had not yet repressed the memories of the sexual assault by the defendants by even the day after their attaining majority, the statute of limitations barred these claims three years after their eighteenth birthdays----” Id. (emphasis supplied). Therefore, under a repression theory, the repression itself would have had to occur while the victim was protected by the disability of infancy. If, however, any memory of sexual abuse suffered during childhood survives into adulthood, the statute of limitations begins to run when the victim reaches the age of majority and the disability of infancy is lifted.

Nevertheless, the Court ultimately held that even if no memory at all survives into adulthood, the limitations period still begins to run on the date the victim reaches the age of majority. In