Clay v. Kuhl
Annotate this Case
No. 2--97--0266
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
JOELL CLAY, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. )
) No. 96--LKA--0019
BROTHER RICHARD KUHL and )
SOCIETY OF THE MISSIONARIES )
OF THE SACRED HEART, ) Honorable
) Timothy Q. Sheldon,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Joell Clay, appeals from the March 4, 1997,
order of the circuit court of Kane County dismissing her complaint
against the defendants, Brother Richard Kuhl and the Society of the
Missionaries of the Sacred Heart (the Society). The plaintiff seeks
recovery for damages arising out of the alleged sexual abuse
committed against her by Brother Kuhl when she was a minor. In her
complaint, the plaintiff alleged that Brother Kuhl began sexually
abusing her in 1972 or 1973 but that she did not recall that
molestation until 1995. Relying on this court s decision in M.E.H.
v. L.H., 283 Ill. App. 3d 241 (1996), aff d, 177 Ill. 2d 207 (1997),
the trial court dismissed the plaintiff s complaint as barred by the
statute of limitations. On appeal, the plaintiff argues that (1)
her action was timely filed under section 13--202.2 of the Code of
Civil Procedure (the Code) (735 ILCS 5/13--202.2 (West 1996)); (2)
M.E.H. is factually distinguishable from the instant case; and (3)
alternatively, we should change or modify our opinion in M.E.H. so
as to allow her action to proceed. We reverse and remand.
The facts relevant to the disposition of this appeal are as
follows. On January 10, 1996, the plaintiff filed a four-count
complaint against the defendants. The plaintiff amended her
complaint twice. In her third amended complaint, the plaintiff
alleged that Brother Kuhl sexually abused her over 900 times during
a four-year period, starting when she was five or six years old.
She also alleged that the Society had notice that Brother Kuhl was
sexually abusing children and failed to take steps to prevent
Brother Kuhl from molesting her. The plaintiff alleged that the
abuse has caused her severe and irreparable psychological harm and
that she has attempted suicide twice due to depression. The
complaint further alleged that the plaintiff "had no memory of the
molestation at any time during her majority until February of 1995."
At the time the plaintiff initially filed her complaint, she was 28
years old.
Both defendants filed motions to dismiss the plaintiff s
complaint pursuant to section 2--619 of the Code (735 ILCS 5/2--619
(West 1996)). In reliance on this court s decision in M.E.H. v.
L.H., 283 Ill. App. 3d 241 (1996), the defendants asserted that the
plaintiff s action was barred by the applicable statute of
limitations. On March 4, 1997, the trial court granted the
defendants motions to dismiss. The plaintiff filed a timely notice
of appeal.
On appeal, the plaintiff argues that the trial court improperly
dismissed her complaint. The plaintiff contends that, pursuant to
section 13--202.2 of the Code, she was entitled to bring her action
within two years of the time she discovered that the act of
childhood sexual abuse occurred. 735 ILCS 5/13--202.2 (West 1996).
She maintains that the acts of abuse occurred from October 1972 or
1973 and continued for four years, ending no later than 1977.
Without any allegation as to why she had no memory of the acts of
abuse, she claims that she did not recall the events until February
1995. Since she filed her original complaint in this cause on
January 10, 1996, which was within two years of when she claims to
have first recalled the abuse, the plaintiff contends that her
action was timely filed. Additionally, she argues that the trial
court s reliance on M.E.H. v. L.H., 283 Ill. App. 3d 241 (1996), was
improper because M.E.H. is factually distinguishable from the
instant case. Alternatively, she asks that we change or modify our
opinion in M.E.H. to allow her action.
The primary purpose of section 2--619 is to afford a means of
obtaining, at the outset of a case, a summary disposition of issues
of law and of easily proved questions of fact. Doe v. Montessori
School, 287 Ill. App. 3d 289, 296 (1997). Under section 2--
619(a)(5), a defendant may raise a statute of limitations issue in
a motion to dismiss. 735 ILCS 5/2--619(a)(5) (West 1996). When the
defendant does so, the plaintiff must provide enough facts to avoid
the application of the statute of limitations. Hermitage Corp. v.
Contractors Adjustment Co., 166 Ill. 2d 72, 84 (1995). When a
plaintiff uses the discovery rule to delay the commencement of the
statute of limitations, the plaintiff has the burden of proving the
date of discovery. Hermitage, 166 Ill. 2d at 85.
Furthermore, when the defendant makes a motion to dismiss under
section 2--619, all well-pleaded facts and reasonable inferences are
accepted as true for purposes of the motion; conclusions of law,
however, are not accepted as true. Hermitage, 166 Ill. 2d at 85.
A reviewing court should conduct an independent review of the
propriety of dismissing the complaint and is not required to defer
to the trial court s reasoning. Doe, 287 Ill. App. 3d at 297.
Whether the plaintiff s action in the instant case was timely
filed is determined by examining the provisions of section 13--
202.2(b) and (c) of the Code. 735 ILCS 5/13--202.2(b), (c) (West
1996). These sections provide:
"(b) An action for damages for personal injury based on
childhood sexual abuse must be commenced within 2 years of the
date the person abused discovers or through the use of
reasonable diligence should discover that the act of childhood
sexual abuse occurred and that the injury was caused by the
childhood sexual abuse.
(c) If the injury is caused by 2 or more acts of child-
hood sexual abuse that are part of a continuing series of acts
of childhood sexual abuse by the same abuser, then the
discovery period under subsection (b) shall be computed from
the date the person abused discovers or through the use of
reasonable diligence should discover (i) that the last act of
childhood sexual abuse in the continuing series occurred and
(ii) that the injury was caused by any act of childhood sexual
abuse in the continuing series." 735 ILCS 5/13--202.2(b), (c)
(West 1996).
Childhood sexual abuse is defined as sexual abuse that occurs
to a person under 18 years of age. 735 ILCS 5/13--202.2(a) (West
1996). The limitations of section 13--202.2(b) do not begin to run
until the alleged victim has attained the age of 18 years. 735 ILCS
5/13--202.2(d) (West 1996).
The principles governing statutory interpretation are well
settled. The primary rule is that a court should determine and give
effect to the legislature s intent. Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997). This intent is best discerned from the words of
the statute itself. Bonaguro v. County Officers Electoral Board,
158 Ill. 2d 391, 397 (1994). Where the statutory language is clear
and unambiguous, a court must construe the statute as enacted
without adding exceptions, conditions, or limitations to the
legislature s clearly expressed intent. Bethania Ass n v. Jackson,
262 Ill. App. 3d 773, 776-77 (1994). Additionally, a court must
construe the statute so as to give each provision some reasonable
meaning and to avoid finding surplusage, if possible. Bethania
Ass n, 262 Ill. App. 3d at 777. On appeal, an issue of statutory
construction is subject to de novo review. Lucas, 175 Ill. 2d at
171.
The plain language of subsection (b) provides that an action
for "childhood sexual abuse must be commenced within 2 years of the
date the person abused discovers or through the use of reasonable
diligence should discover [the abuse]." 735 ILCS 5/13--202.2(b)
(West 1996). Subsection (c) further provides that a person s cause
of action commences when she discovers the last act of childhood
sexual abuse or that she suffered an injury from such abuse. 735
ILCS 5/13--202.2(c). Accordingly, we find that the plain language
of the statute mandates that the limitations period for an action
for childhood sexual abuse begins to run only when the person
discovers, or should have reasonably discovered, that she was the
victim of childhood sexual abuse. In so ruling, we note that our
interpretation of section 13--202.2 is consistent with that of other
Illinois courts. See Hawley v. Kenley, 261 Ill. App. 3d 307, 311
(1994); D.P. v. M.J.O., 266 Ill. App. 3d 1029, 1032 (1994); Pedigo
v. Pedigo, 292 Ill. App. 3d 831, 837 (1997).
As noted above, however, the trial court declined to apply
section 13--202.2(b) to toll the statute of limitations on the
plaintiff s action and instead determined that her action was barred
based upon this court s ruling in M.E.H. v. L.H., 283 Ill. App. 3d
241 (1996), aff d, 177 Ill. 2d 207 (1997). In M.E.H., this court
noted in dicta that the discovery rule should not be applied in
cases of childhood sexual abuse because such abuse is "a sudden
traumatic event." 283 Ill. App. 3d at 252. In M.E.H., the
plaintiffs were 44 and 45 years of age at the time they filed a tort
action against their father based on alleged acts of sexual abuse.
283 Ill. App. 3d at 244-45. In their complaint, the plaintiffs
alleged that their father began sexually abusing them when they were
four years old and that the abuse continued through their high
school years. M.E.H., 283 Ill. App. 3d at 245. The trial court
granted the defendant s motion to dismiss, concluding that the
plaintiffs action was barred by the 12-year statute of repose then
in effect. M.E.H., 283 Ill. App. 3d at 244 (citing 735 ILCS 5/13--
202.2(b) (West 1992) (repealed by Pub. Act 88--127 5, eff. January
1, 1994).
On appeal, we affirmed the trial court and held that the
plaintiff s action was barred by the statute of repose. M.E.H., 283
Ill. App. 3d at 246. However, we also noted in dicta that,
notwithstanding the statute of repose, the plaintiffs action would
have also been barred by the statute of limitations. M.E.H., 283
Ill. App. 3d at 251. We stated that the discovery rule did not toll
the statute of limitations on the plaintiff s action based upon our
conclusion that childhood sexual abuse is "a sudden traumatic event"
that puts the injured party on notice that actionable conduct might
be involved. M.E.H., 283 Ill. App. 3d at 251.
After carefully reconsidering this court s comments in M.E.H.,
we have come to the conclusion that further clarification of our
description of childhood sexual abuse as a "sudden traumatic event"
is necessary. A "sudden traumatic event" involves such force or
violence that the law presumes that the injured party is aware of
its injury and its right of action as soon as it occurs. See Golla
v. General Motors Corp., 167 Ill. 2d 353, 363 (1995); Sharpenter v.
Lynch, 233 Ill. App. 3d 319, 324 (1992). Where a "sudden traumatic
event" causes the plaintiff s injury, the cause of action accrues
immediately, and, thus, the statute of limitations begins to run.
Golla, 167 Ill. 2d at 362. Normally when a plaintiff has been
injured by a "sudden traumatic event," the discovery rule may not
be utilized to toll the statute of limitations. See generally Sille
v. McCann Construction Specialties Co., 265 Ill. App. 3d 1051, 1056
(1994).
As discussed above, however, we find that the plain language
of section 13--202.2 tolls the applicable limitations period until
a person discovers, or reasonably should have discovered, that she
was a victim of childhood sexual abuse. See 735 ILCS 13--202.2
(West 1996). Therefore, although an instance of childhood sexual
abuse is a "sudden traumatic event" that would normally preclude the
application of the discovery rule, the legislature has recognized
the possibility that, in cases of childhood sexual abuse, some
intervening phenomenon could prevent cognizance by the victim of the
event and could thereby trigger the statutorily imposed discovery
rule. Giving effect to the plain language of section 13--202.2, we
are compelled to conclude that childhood sexual abuse, although a
"sudden traumatic event," may not in every instance preclude
application of the discovery rule.
Nonetheless, we agree with the M.E.H. court to the extent that
childhood sexual abuse is a type of event that ordinarily should put
the plaintiff on notice of his injury. See M.E.H., 283 Ill. App.
3d at 251. Victims of childhood sexual abuse would normally be
aware of the occurrence of the actions that constitute the abuse
when it happens. See generally M.E.H., 283 Ill. App. 3d at 251.
However, we recognize the possibility that a plaintiff in such a
case may subsequently suffer from a condition or disability that
renders her unable to recognize that the event occurred or that she
suffered a resulting injury. Other courts have recognized some
conditions that claim to prevent memories of childhood sexual abuse.
See generally Pedigo v. Pedigo, 292 Ill. App. 3d 831, 839 (1997);
D.P. v. M.J.O., 266 Ill. App. 3d 1029, 1033-34 (1994); Phillips v.
Johnson, 231 Ill. App. 3d 890, 893 (1992). Without specifically
considering whether repressed memories represent a valid condition
to toll the statute, we are compelled to agree with these courts
that, in instances where the plaintiff is suffering from a
recognized and accepted condition or disability which prevents
knowledge of the sexual abuse, section 13--202.2 of the Code may
apply to toll the applicable limitations period. See 735 ILCS 5/13-
-202.2 (West 1996). Therefore, notwithstanding our comments in
M.E.H., we acknowledge that in certain instances a plaintiff may be
suffering from a condition that precludes her from recognizing that
she has been a victim of childhood sexual abuse. Our analysis
next turns to whether the plaintiff s action in the instant case was
timely filed. Under section 13--202.2(d), the plaintiff has two
years to file her action after reaching the age of 18. 735 ILCS
5/13--202.2(d) (West 1996). However, as noted above, the statute
allows for a time of discovery. 735 ILCS 5/13--202.2(b), (c) (West
1996). We note that section 13--202.2 is a codification of the
judicially created discovery rule. D.P. v. M.J.O., 266 Ill. App.
2d 1029, 1032 (1994). The discovery rule, as developed at common
law, requires both knowledge of the injury and of its wrongful cause
before the statute of limitations begins to run. Witherell v.
Weimer, 85 Ill. 2d 146, 155-56 (1981). The knowledge need not be
actual or certain so long as "[a]t some point the injured person
becomes possessed of sufficient information concerning his injury
and its cause to put a reasonable person on inquiry to determine
whether actionable conduct is involved. At that point, under the
discovery rule, the running of the limitations period commences."
Knox College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981).
The plaintiff in the instant case did not file her complaint
within two years of reaching the age of 18. As noted above, the
plaintiff was 28 years of age at the time she filed her complaint.
In her complaint, the plaintiff alleges that she "had no memory of
the molestation at any time during her majority until February of
1995." We find that this allegation is ambiguous and insufficient
to toll the statute of limitations under section 13--202.2. See 735
ILCS 5/13--202.2 (West 1996). In other cases where the discovery
rule has been applied, the plaintiff provided a well-articulated
explanation of why it was impossible for her to discover her injury
sooner. See, e.g., Lipsey v. Michael Reese Hospital, 46 Ill. 2d 32,
35 (1970) (plaintiff alleging medical malpractice was unable to
discover injury until three years after doctor misdiagnosed lump
under her arm as benign); Goodman v. Harbor Market, Ltd., 278 Ill.
App. 3d 684, 685-86 (1995) (plaintiff alleging legal malpractice on
issue of a promissory note was unable to discover injury until eight
years later when he was sued by person that attorney had
simultaneously represented).
Based on the plaintiff s bare allegations, she seems to be
alleging that the discovery rule should be applied because she did
not remember until 1995 that the sexual abuse occurred. The
plaintiff cites no authority for the proposition that mere
forgetfulness is a legitimate ground to toll the statute. Moreover,
our research has revealed no authority that accepts such a basis for
application of the discovery rule. We therefore conclude that, as
a matter of law, mere forgetfulness cannot constitute a sufficient
ground to toll the statute. We believe that to hold otherwise would
defeat the purpose of the statute of limitations. See Tom Olesker s
Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 132 (1975) (primary purpose of limitations period is to
require the prosecution of a right of action within a reasonable
time to prevent the loss or impairment of available evidence and to
discourage delay in the bringing of claims). Plaintiffs would
otherwise have an unlimited time to bring their action and could
escape a statutory bar by alleging that they did not remember being
injured until shortly before they filed their action.
Another possible interpretation of the plaintiff s allegations,
however, is that she did not discover her injuries until 1995
because she was suffering from a psychological condition that caused
her to repress the memories of the alleged abuse. As noted above,
several Illinois courts have held that the discovery rule applies
to childhood sexual abuse cases where the plaintiff repressed her
memory of the abuse. See Pedigo v. Pedigo, 292 Ill. App. 3d 831,
839 (1997); D.P. v. M.J.O., 266 Ill. App. 3d 1029, 1033-34 (1994);
Phillips v. Johnson, 231 Ill. App. 3d 890, 893 (1992). We also
note, however, that the validity of repressed memories has been
found to be both controversial and of suspect nature. See Doe v.
McKay, 286 Ill. App. 3d 1020, 1025 (1997); M.E.H. v. L.H., 283 Ill.
App. 3d 241, 252 (1996). As we noted in M.E.H., allegations based
on repressed memories are inherently suspect because there are no
means to independently verify them. M.E.H., 283 Ill. App. 3d at
252. If it is the plaintiff s intention to rely on such a
psychological condition to toll the statute of limitations, then she
is obligated to plead the condition with sufficient specificity to
advise the defendants of the alleged basis on which section 13--
202.2 applies. It then would be for the trial court to determine,
as a matter of law, whether such a condition is a scientifically
recognized condition that would prevent the plaintiff from
reasonably discovering the abuse.
For the foregoing reasons, we conclude that M.E.H. v. L.H., 283
Ill. App. 3d 241 (1996), does not act as an outright bar to the
plaintiff s complaint. However, we do believe that the plaintiff s
complaint insufficiently alleges the basis for the application of
section 13--202.2 to toll the statute of limitations. We therefore
remand the cause to the trial court so that the plaintiff may file
an amended complaint specifically alleging why she was unable to
discover the alleged sexual abuse until 1995. It will then be for
the trial court to determine whether the reasons alleged by the
plaintiff meet the standard of legal and scientific sufficiency.
For the foregoing reasons, the judgment of the circuit court
of Kane County is reversed, and the cause is remanded for further
proceedings consistent with this opinion.
Reversed and remanded.
BOWMAN, J., concurs.
JUSTICE RATHJE, specially concurring:
While I agree with the majority s conclusion that this case
should be reversed and remanded for further proceedings, I do not
agree with some of the reasoning used by the majority in reaching
this result.
Rather than modify M.E.H. s conclusion that all child sexual
abuse is a sudden traumatic event, the majority attempts a
difficult balancing act, in which it gives plaintiff another chance
to overcome defendant s motion to dismiss, while sidestepping the
sudden traumatic event element of the M.E.H. opinion.
As noted by the majority, the M.E.H. court concluded that the
discovery rule does not toll the statute of limitations in the
instances of child sexual abuse because such abuse is a "sudden
traumatic event," which puts the injured party on notice that
actionable conduct might be involved. M.E.H., 283 Ill. App. 3d at
251. It is noteworthy that the M.E.H. court does not appear to
cite any specific legal and/or psychiatric authority for its
conclusion.
In the context of the allegations in the plaintiffs third
amended complaint, it is difficult to see how M.E.H. s "sudden
traumatic event" rule would be applicable in the instant case. The
complaint s allegations are as follows. Plaintiff was born on
August 27, 1967. Late in October of 1972 or 1973, defendant Kuhl,
wearing the uniform of the Society of the Missionaries of the
Sacred Heart, befriended plaintiff, her sister Teresa, and her
mother. At that time, Kuhl began to molest plaintiff and Teresa.
This abuse occurred about two times a week for approximately four
years, until plaintiff was eight or nine years old. Kuhl employed
emotional coercion rather than force or violence to achieve his
ends.
By essentially stating that all child sexual abuse is of the
sudden traumatic event type, the M.E.H. court lumps the instant
alleged series of sexually abusive acts against a very young girl
with all other acts of childhood sexual abuse. The reality is that
such abuse occurs in numerous ways to children of differing ages
and life experiences. Child sexual abuse can range from the
violent sexual abuse of a 17-year old to the sexual molestation of
an infant. Accordingly, it is incorrect to assume, as the M.E.H.
court did, that there is no difference in the type of child sexual
abuse perpetrated upon children or how these children perceive the
sexual abuse perpetrated against them. Indeed, plaintiff alleges
that at the time of the alleged molestation she did not understand
that what was happening to her was abnormal. It strains credulity
that, in this circumstance, she would be "put on notice that
accountable conduct might be involved." Golla v. General Motors
Corp., 167 Ill. 2d 353, 363 (1995).
Moreover, as noted above, the third amended complaint alleges
that Kuhl had befriended plaintiff and her family and that he
committed the acts of sexual abuse "through the use of emotional
coercion and not by force or violence." This type of emotionally
coercive but not overtly violent sexual abuse perpetrated by an
authority figure and family friend differs from the "sudden
traumatic event" envisioned by the M.E.H. court. Here, plaintiff
is alleging that no such "event" occurred.
In my view, the M.E.H. court erred in characterizing all acts
of child sexual abuse as sudden traumatic events. The allegations
in the instant appeal portray a far different but no less abhorrent
circumstance. At the very least, where the alleged victims are
young children, the allegations of child sexual abuse should not
automatically be viewed in the framework of a sudden traumatic
event that puts the injured party on notice that actionable conduct
might be involved.
Further, I disagree with the majority s view that plaintiff s
complaint is essentially so vague and ambiguous that plaintiff has
not put forward an explanation of why it was impossible for her to
discover her injury sooner. It is readily apparent that plaintiff
is alleging a repressed memory theory. Specifically, she alleges
the following subject acts of sexual abuse initially occurred when
she was four or five years old and ended when she was eight or nine
years of age. Late in 1994, plaintiff s sister, Teresa, told
plaintiff that she (Teresa) had been molested by defendant Kuhl.
Teresa suggested to plaintiff that she had also been molested by
defendant. Up until that point in time, plaintiff "had no memory
of the molestation at any time during her majority *** and is
still, to this day, recalling additional incidents of molestation."
In light of these allegations, I do not share the majority s
confusion as to why plaintiff did not come forward earlier with her
complaint. Her allegations point to a "repressed memory" basis for
the timing of the complaint. Further, I do not agree with the
majority s view that in plaintiff s amended complaint on remand she
must plead the condition with greater specificity. Her third
amended complaint sufficiently advises defendant of the alleged
basis on which section 13-202.2 applies.
In conclusion, I disagree with the majority s failure to
modify M.E.H. s characterization of all acts of child sexual abuse
as sudden traumatic events. I also disagree that a further amended
complaint is necessary for plaintiff to elaborate why she did not
discover her injury sooner.
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
JOELL CLAY, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. )
) No. 96--LKA--0019
BROTHER RICHARD KUHL and )
SOCIETY OF THE MISSIONARIES )
OF THE SACRED HEART, ) Honorable
) Timothy Q. Sheldon,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Joell Clay, appeals from the March 4, 1997,
order of the circuit court of Kane County dismissing her complaint
against the defendants, Brother Richard Kuhl and the Society of the
Missionaries of the Sacred Heart (the Society). The plaintiff seeks
recovery for damages arising out of the alleged sexual abuse
committed against her by Brother Kuhl when she was a minor. In her
complaint, the plaintiff alleged that Brother Kuhl began sexually
abusing her in 1972 or 1973 but that she did not recall that
molestation until 1995. Relying on this court s decision in M.E.H.
v. L.H., 283 Ill. App. 3d 241 (1996), aff d, 177 Ill. 2d 207 (1997),
the trial court dismissed the plaintiff s complaint as barred by the
statute of limitations. On appeal, the plaintiff argues that (1)
her action was timely filed under section 13--202.2 of the Code of
Civil Procedure (the Code) (735 ILCS 5/13--202.2 (West 1996)); (2)
M.E.H. is factually distinguishable from the instant case; and (3)
alternatively, we should change or modify our opinion in M.E.H. so
as to allow her action to proceed. We reverse and remand.
The facts relevant to the disposition of this appeal are as
follows. On January 10, 1996, the plaintiff filed a four-count
complaint against the defendants. The plaintiff amended her
complaint twice. In her third amended complaint, the plaintiff
alleged that Brother Kuhl sexually abused her over 900 times during
a four-year period, starting when she was five or six years old.
She also alleged that the Society had notice that Brother Kuhl was
sexually abusing children and failed to take steps to prevent
Brother Kuhl from molesting her. The plaintiff alleged that the
abuse has caused her severe and irreparable psychological harm and
that she has attempted suicide twice due to depression. The
complaint further alleged that the plaintiff "had no memory of the
molestation at any time during her majority until February of 1995."
At the time the plaintiff initially filed her complaint, she was 28
years old.
Both defendants filed motions to dismiss the plaintiff s
complaint pursuant to section 2--619 of the Code (735 ILCS 5/2--619
(West 1996)). In reliance on this court s decision in M.E.H. v.
L.H., 283 Ill. App. 3d 241 (1996), the defendants asserted that the
plaintiff s action was barred by the applicable statute of
limitations. On March 4, 1997, the trial court granted the
defendants motions to dismiss. The plaintiff filed a timely notice
of appeal.
On appeal, the plaintiff argues that the trial court improperly
dismissed her complaint. The plaintiff contends that, pursuant to
section 13--202.2 of the Code, she was entitled to bring her action
within two years of the time she discovered that the act of
childhood sexual abuse occurred. 735 ILCS 5/13--202.2 (West 1996).
She maintains that the acts of abuse occurred from October 1972 or
1973 and continued for four years, ending no later than 1977.
Without any allegation as to why she had no memory of the acts of
abuse, she claims that she did not recall the events until February
1995. Since she filed her original complaint in this cause on
January 10, 1996, which was within two years of when she claims to
have first recalled the abuse, the plaintiff contends that her
action was timely filed. Additionally, she argues that the trial
court s reliance on M.E.H. v. L.H., 283 Ill. App. 3d 241 (1996), was
improper because M.E.H. is factually distinguishable from the
instant case. Alternatively, she asks that we change or modify our
opinion in M.E.H. to allow her action.
The primary purpose of section 2--619 is to afford a means of
obtaining, at the outset of a case, a summary disposition of issues
of law and of easily proved questions of fact. Doe v. Montessori
School, 287 Ill. App. 3d 289, 296 (1997). Under section 2--
619(a)(5), a defendant may raise a statute of limitations issue in
a motion to dismiss. 735 ILCS 5/2--619(a)(5) (West 1996). When the
defendant does so, the plaintiff must provide enough facts to avoid
the application of the statute of limitations. Hermitage Corp. v.
Contractors Adjustment Co., 166 Ill. 2d 72, 84 (1995). When a
plaintiff uses the discovery rule to delay the commencement of the
statute of limitations, the plaintiff has the burden of proving the
date of discovery. Hermitage, 166 Ill. 2d at 85.
Furthermore, when the defendant makes a motion to dismiss under
section 2--619, all well-pleaded facts and reasonable inferences are
accepted as true for purposes of the motion; conclusions of law,
however, are not accepted as true. Hermitage, 166 Ill. 2d at 85.
A reviewing court should conduct an independent review of the
propriety of dismissing the complaint and is not required to defer
to the trial court s reasoning. Doe, 287 Ill. App. 3d at 297.
Whether the plaintiff s action in the instant case was timely
filed is determined by examining the provisions of section 13--
202.2(b) and (c) of the Code. 735 ILCS 5/13--202.2(b), (c) (West
1996). These sections provide:
"(b) An action for damages for personal injury based on
childhood sexual abuse must be commenced within 2 years of the
date the person abused discovers or through the use of
reasonable diligence should discover that the act of childhood
sexual abuse occurred and that the injury was caused by the
childhood sexual abuse.
(c) If the injury is caused by 2 or more acts of child-
hood sexual abuse that are part of a continuing series of acts
of childhood sexual abuse by the same abuser, then the
discovery period under subsection (b) shall be computed from
the date the person abused discovers or through the use of
reasonable diligence should discover (i) that the last act of
childhood sexual abuse in the continuing series occurred and
(ii) that the injury was caused by any act of childhood sexual
abuse in the continuing series." 735 ILCS 5/13--202.2(b), (c)
(West 1996).
Childhood sexual abuse is defined as sexual abuse that occurs
to a person under 18 years of age. 735 ILCS 5/13--202.2(a) (West
1996). The limitations of section 13--202.2(b) do not begin to run
until the alleged victim has attained the age of 18 years. 735 ILCS
5/13--202.2(d) (West 1996).
The principles governing statutory interpretation are well
settled. The primary rule is that a court should determine and give
effect to the legislature s intent. Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997). This intent is best discerned from the words of
the statute itself. Bonaguro v. County Officers Electoral Board,
158 Ill. 2d 391, 397 (1994). Where the statutory language is clear
and unambiguous, a court must construe the statute as enacted
without adding exceptions, conditions, or limitations to the
legislature s clearly expressed intent. Bethania Ass n v. Jackson,
262 Ill. App. 3d 773, 776-77 (1994). Additionally, a court must
construe the statute so as to give each provision some reasonable
meaning and to avoid finding surplusage, if possible. Bethania
Ass n, 262 Ill. App. 3d at 777. On appeal, an issue of statutory
construction is subject to de novo review. Lucas, 175 Ill. 2d at
171.
The plain language of subsection (b) provides that an action
for "childhood sexual abuse must be commenced within 2 years of the
date the person abused discovers or through the use of reasonable
diligence should discover [the abuse]." 735 ILCS 5/13--202.2(b)
(West 1996). Subsection (c) further provides that a person s cause
of action commences when she discovers the last act of childhood
sexual abuse or that she suffered an injury from such abuse. 735
ILCS 5/13--202.2(c). Accordingly, we find that the plain language
of the statute mandates that the limitations period for an action
for childhood sexual abuse begins to run only when the person
discovers, or should have reasonably discovered, that she was the
victim of childhood sexual abuse. In so ruling, we note that our
interpretation of section 13--202.2 is consistent with that of other
Illinois courts. See Hawley v. Kenley, 261 Ill. App. 3d 307, 311
(1994); D.P. v. M.J.O., 266 Ill. App. 3d 1029, 1032 (1994); Pedigo
v. Pedigo, 292 Ill. App. 3d 831, 837 (1997).
As noted above, however, the trial court declined to apply
section 13--202.2(b) to toll the statute of limitations on the
plaintiff s action and instead determined that her action was barred
based upon this court s ruling in M.E.H. v. L.H., 283 Ill. App. 3d
241 (1996), aff d, 177 Ill. 2d 207 (1997). In M.E.H., this court
noted in dicta that the discovery rule should not be applied in
cases of childhood sexual abuse because such abuse is "a sudden
traumatic event." 283 Ill. App. 3d at 252. In M.E.H., the
plaintiffs were 44 and 45 years of age at the time they filed a tort
action against their father based on alleged acts of sexual abuse.
283 Ill. App. 3d at 244-45. In their complaint, the plaintiffs
alleged that their father began sexually abusing them when they were
four years old and that the abuse continued through their high
school years. M.E.H., 283 Ill. App. 3d at 245. The trial court
granted the defendant s motion to dismiss, concluding that the
plaintiffs action was barred by the 12-year statute of repose then
in effect. M.E.H., 283 Ill. App. 3d at 244 (citing 735 ILCS 5/13--
202.2(b) (West 1992) (repealed by Pub. Act 88--127 5, eff. January
1, 1994).
On appeal, we affirmed the trial court and held that the
plaintiff s action was barred by the statute of repose. M.E.H., 283
Ill. App. 3d at 246. However, we also noted in dicta that,
notwithstanding the statute of repose, the plaintiffs action would
have also been barred by the statute of limitations. M.E.H., 283
Ill. App. 3d at 251. We stated that the discovery rule did not toll
the statute of limitations on the plaintiff s action based upon our
conclusion that childhood sexual abuse is "a sudden traumatic event"
that puts the injured party on notice that actionable conduct might
be involved. M.E.H., 283 Ill. App. 3d at 251.
After carefully reconsidering this court s comments in M.E.H.,
we have come to the conclusion that further clarification of our
description of childhood sexual abuse as a "sudden traumatic event"
is necessary. A "sudden traumatic event" involves such force or
violence that the law presumes that the injured party is aware of
its injury and its right of action as soon as it occurs. See Golla
v. General Motors Corp., 167 Ill. 2d 353, 363 (1995); Sharpenter v.
Lynch, 233 Ill. App. 3d 319, 324 (1992). Where a "sudden traumatic
event" causes the plaintiff s injury, the cause of action accrues
immediately, and, thus, the statute of limitations begins to run.
Golla, 167 Ill. 2d at 362. Normally when a plaintiff has been
injured by a "sudden traumatic event," the discovery rule may not
be utilized to toll the statute of limitations. See generally Sille
v. McCann Construction Specialties Co., 265 Ill. App. 3d 1051, 1056
(1994).
As discussed above, however, we find that the plain language
of section 13--202.2 tolls the applicable limitations period until
a person discovers, or reasonably should have discovered, that she
was a victim of childhood sexual abuse. See 735 ILCS 13--202.2
(West 1996). Therefore, although an instance of childhood sexual
abuse is a "sudden traumatic event" that would normally preclude the
application of the discovery rule, the legislature has recognized
the possibility that, in cases of childhood sexual abuse, some
intervening phenomenon could prevent cognizance by the victim of the
event and could thereby trigger the statutorily imposed discovery
rule. Giving effect to the plain language of section 13--202.2, we
are compelled to conclude that childhood sexual abuse, although a
"sudden traumatic event," may not in every instance preclude
application of the discovery rule.
Nonetheless, we agree with the M.E.H. court to the extent that
childhood sexual abuse is a type of event that ordinarily should put
the plaintiff on notice of his injury. See M.E.H., 283 Ill. App.
3d at 251. Victims of childhood sexual abuse would normally be
aware of the occurrence of the actions that constitute the abuse
when it happens. See generally M.E.H., 283 Ill. App. 3d at 251.
However, we recognize the possibility that a plaintiff in such a
case may subsequently suffer from a condition or disability that
renders her unable to recognize that the event occurred or that she
suffered a resulting injury. Other courts have recognized some
conditions that claim to prevent memories of childhood sexual abuse.
See generally Pedigo v. Pedigo, 292 Ill. App. 3d 831, 839 (1997);
D.P. v. M.J.O., 266 Ill. App. 3d 1029, 1033-34 (1994); Phillips v.
Johnson, 231 Ill. App. 3d 890, 893 (1992). Without specifically
considering whether repressed memories represent a valid condition
to toll the statute, we are compelled to agree with these courts
that, in instances where the plaintiff is suffering from a
recognized and accepted condition or disability which prevents
knowledge of the sexual abuse, section 13--202.2 of the Code may
apply to toll the applicable limitations period. See 735 ILCS 5/13-
-202.2 (West 1996). Therefore, notwithstanding our comments in
M.E.H., we acknowledge that in certain instances a plaintiff may be
suffering from a condition that precludes her from recognizing that
she has been a victim of childhood sexual abuse. Our analysis
next turns to whether the plaintiff s action in the instant case was
timely filed. Under section 13--202.2(d), the plaintiff has two
years to file her action after reaching the age of 18. 735 ILCS
5/13--202.2(d) (West 1996). However, as noted above, the statute
allows for a time of discovery. 735 ILCS 5/13--202.2(b), (c) (West
1996). We note that section 13--202.2 is a codification of the
judicially created discovery rule. D.P. v. M.J.O., 266 Ill. App.
2d 1029, 1032 (1994). The discovery rule, as developed at common
law, requires both knowledge of the injury and of its wrongful cause
before the statute of limitations begins to run. Witherell v.
Weimer, 85 Ill. 2d 146, 155-56 (1981). The knowledge need not be
actual or certain so long as "[a]t some point the injured person
becomes possessed of sufficient information concerning his injury
and its cause to put a reasonable person on inquiry to determine
whether actionable conduct is involved. At that point, under the
discovery rule, the running of the limitations period commences."
Knox College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981).
The plaintiff in the instant case did not file her complaint
within two years of reaching the age of 18. As noted above, the
plaintiff was 28 years of age at the time she filed her complaint.
In her complaint, the plaintiff alleges that she "had no memory of
the molestation at any time during her majority until February of
1995." We find that this allegation is ambiguous and insufficient
to toll the statute of limitations under section 13--202.2. See 735
ILCS 5/13--202.2 (West 1996). In other cases where the discovery
rule has been applied, the plaintiff provided a well-articulated
explanation of why it was impossible for her to discover her injury
sooner. See, e.g., Lipsey v. Michael Reese Hospital, 46 Ill. 2d 32,
35 (1970) (plaintiff alleging medical malpractice was unable to
discover injury until three years after doctor misdiagnosed lump
under her arm as benign); Goodman v. Harbor Market, Ltd., 278 Ill.
App. 3d 684, 685-86 (1995) (plaintiff alleging legal malpractice on
issue of a promissory note was unable to discover injury until eight
years later when he was sued by person that attorney had
simultaneously represented).
Based on the plaintiff s bare allegations, she seems to be
alleging that the discovery rule should be applied because she did
not remember until 1995 that the sexual abuse occurred. The
plaintiff cites no authority for the proposition that mere
forgetfulness is a legitimate ground to toll the statute. Moreover,
our research has revealed no authority that accepts such a basis for
application of the discovery rule. We therefore conclude that, as
a matter of law, mere forgetfulness cannot constitute a sufficient
ground to toll the statute. We believe that to hold otherwise would
defeat the purpose of the statute of limitations. See Tom Olesker s
Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 132 (1975) (primary purpose of limitations period is to
require the prosecution of a right of action within a reasonable
time to prevent the loss or impairment of available evidence and to
discourage delay in the bringing of claims). Plaintiffs would
otherwise have an unlimited time to bring their action and could
escape a statutory bar by alleging that they did not remember being
injured until shortly before they filed their action.
Another possible interpretation of the plaintiff s allegations,
however, is that she did not discover her injuries until 1995
because she was suffering from a psychological condition that caused
her to repress the memories of the alleged abuse. As noted above,
several Illinois courts have held that the discovery rule applies
to childhood sexual abuse cases where the plaintiff repressed her
memory of the abuse. See Pedigo v. Pedigo, 292 Ill. App. 3d 831,
839 (1997); D.P. v. M.J.O., 266 Ill. App. 3d 1029, 1033-34 (1994);
Phillips v. Johnson, 231 Ill. App. 3d 890, 893 (1992). We also
note, however, that the validity of repressed memories has been
found to be both controversial and of suspect nature. See Doe v.
McKay, 286 Ill. App. 3d 1020, 1025 (1997); M.E.H. v. L.H., 283 Ill.
App. 3d 241, 252 (1996). As we noted in M.E.H., allegations based
on repressed memories are inherently suspect because there are no
means to independently verify them. M.E.H., 283 Ill. App. 3d at
252. If it is the plaintiff s intention to rely on such a
psychological condition to toll the statute of limitations, then she
is obligated to plead the condition with sufficient specificity to
advise the defendants of the alleged basis on which section 13--
202.2 applies. It then would be for the trial court to determine,
as a matter of law, whether such a condition is a scientifically
recognized condition that would prevent the plaintiff from
reasonably discovering the abuse.
For the foregoing reasons, we conclude that M.E.H. v. L.H., 283
Ill. App. 3d 241 (1996), does not act as an outright bar to the
plaintiff s complaint. However, we do believe that the plaintiff s
complaint insufficiently alleges the basis for the application of
section 13--202.2 to toll the statute of limitations. We therefore
remand the cause to the trial court so that the plaintiff may file
an amended complaint specifically alleging why she was unable to
discover the alleged sexual abuse until 1995. It will then be for
the trial court to determine whether the reasons alleged by the
plaintiff meet the standard of legal and scientific sufficiency.
For the foregoing reasons, the judgment of the circuit court
of Kane County is reversed, and the cause is remanded for further
proceedings consistent with this opinion.
Reversed and remanded.
BOWMAN, J., concurs.
JUSTICE RATHJE, specially concurring:
While I agree with the majority s conclusion that this case
should be reversed and remanded for further proceedings, I do not
agree with some of the reasoning used by the majority in reaching
this result.
Rather than modify M.E.H. s conclusion that all child sexual
abuse is a sudden traumatic event, the majority attempts a
difficult balancing act, in which it gives plaintiff another chance
to overcome defendant s motion to dismiss, while sidestepping the
sudden traumatic event element of the M.E.H. opinion.
As noted by the majority, the M.E.H. court concluded that the
discovery rule does not toll the statute of limitations in the
instances of child sexual abuse because such abuse is a "sudden
traumatic event," which puts the injured party on notice that
actionable conduct might be involved. M.E.H., 283 Ill. App. 3d at
251. It is noteworthy that the M.E.H. court does not appear to
cite any specific legal and/or psychiatric authority for its
conclusion.
In the context of the allegations in the plaintiffs third
amended complaint, it is difficult to see how M.E.H. s "sudden
traumatic event" rule would be applicable in the instant case. The
complaint s allegations are as follows. Plaintiff was born on
August 27, 1967. Late in October of 1972 or 1973, defendant Kuhl,
wearing the uniform of the Society of the Missionaries of the
Sacred Heart, befriended plaintiff, her sister Teresa, and her
mother. At that time, Kuhl began to molest plaintiff and Teresa.
This abuse occurred about two times a week for approximately four
years, until plaintiff was eight or nine years old. Kuhl employed
emotional coercion rather than force or violence to achieve his
ends.
By essentially stating that all child sexual abuse is of the
sudden traumatic event type, the M.E.H. court lumps the instant
alleged series of sexually abusive acts against a very young girl
with all other acts of childhood sexual abuse. The reality is that
such abuse occurs in numerous ways to children of differing ages
and life experiences. Child sexual abuse can range from the
violent sexual abuse of a 17-year old to the sexual molestation of
an infant. Accordingly, it is incorrect to assume, as the M.E.H.
court did, that there is no difference in the type of child sexual
abuse perpetrated upon children or how these children perceive the
sexual abuse perpetrated against them. Indeed, plaintiff alleges
that at the time of the alleged molestation she did not understand
that what was happening to her was abnormal. It strains credulity
that, in this circumstance, she would be "put on notice that
accountable conduct might be involved." Golla v. General Motors
Corp., 167 Ill. 2d 353, 363 (1995).
Moreover, as noted above, the third amended complaint alleges
that Kuhl had befriended plaintiff and her family and that he
committed the acts of sexual abuse "through the use of emotional
coercion and not by force or violence." This type of emotionally
coercive but not overtly violent sexual abuse perpetrated by an
authority figure and family friend differs from the "sudden
traumatic event" envisioned by the M.E.H. court. Here, plaintiff
is alleging that no such "event" occurred.
In my view, the M.E.H. court erred in characterizing all acts
of child sexual abuse as sudden traumatic events. The allegations
in the instant appeal portray a far different but no less abhorrent
circumstance. At the very least, where the alleged victims are
young children, the allegations of child sexual abuse should not
automatically be viewed in the framework of a sudden traumatic
event that puts the injured party on notice that actionable conduct
might be involved.
Further, I disagree with the majority s view that plaintiff s
complaint is essentially so vague and ambiguous that plaintiff has
not put forward an explanation of why it was impossible for her to
discover her injury sooner. It is readily apparent that plaintiff
is alleging a repressed memory theory. Specifically, she alleges
the following subject acts of sexual abuse initially occurred when
she was four or five years old and ended when she was eight or nine
years of age. Late in 1994, plaintiff s sister, Teresa, told
plaintiff that she (Teresa) had been molested by defendant Kuhl.
Teresa suggested to plaintiff that she had also been molested by
defendant. Up until that point in time, plaintiff "had no memory
of the molestation at any time during her majority *** and is
still, to this day, recalling additional incidents of molestation."
In light of these allegations, I do not share the majority s
confusion as to why plaintiff did not come forward earlier with her
complaint. Her allegations point to a "repressed memory" basis for
the timing of the complaint. Further, I do not agree with the
majority s view that in plaintiff s amended complaint on remand she
must plead the condition with greater specificity. Her third
amended complaint sufficiently advises defendant of the alleged
basis on which section 13-202.2 applies.
In conclusion, I disagree with the majority s failure to
modify M.E.H. s characterization of all acts of child sexual abuse
as sudden traumatic events. I also disagree that a further amended
complaint is necessary for plaintiff to elaborate why she did not
discover her injury sooner.
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