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Plaintiff Roger Rodriguez filed an action for sexual abuse as a child against Brother Matthew Miles and John Donadio and the Congregation of the Priests of the Sacred Heart for alleged abuse that occurred in the 1970's while plaintiff was a student at St. Joseph's Indian School. The defendants asserted that, based on plaintiff's deposition testimony, the statute of limitations for plaintiff's action barred plaintiff's claims because plaintiff discovered or reasonably should have discovered that the childhood sexual abuse caused him injury more than three years before his lawsuit was filed. The trial court granted defendants' motion for summary judgment, and plaintiff appealed. The Supreme Court affirmed, finding that it was undisputed that plaintiff knew of the alleged abuse more than three years before he filed suit and that plaintiff was aware of enough facts to put him on inquiry notice more than three years before he filed suit.Receive FREE Daily Opinion Summaries by Email
2011 S.D. 29
IN THE SUPREME COURT
STATE OF SOUTH DAKOTA
* * * *
ROGER RODRIGUEZ a/k/a
Plaintiff and Appellant,
BROTHER MATTHEW MILES, JOHN
DONADIO and (The) CONGREGATION
OF THE PRIESTS OF THE SACRED
Defendants and Appellees.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
BRULE COUNTY, SOUTH DAKOTA
* * * *
HONORABLE BRUCE V. ANDERSON
* * * *
ARGUED ON MARCH 21, 2011
OPINION FILED 06/22/11
WILLIAM G. TAYLOR
JUSTIN G. SMITH of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota
STEVEN R. SMITH of
Andera & Smith Law Offices
Chamberlain, South Dakota
Attorneys for plaintiff
JAMES E. MCMAHON
ROCHELLE R. SWEETMAN of
Murphy, Goldammer & Prendergast, LLP
Sioux Falls, South Dakota
Attorneys for appellee
ROBERT B. ANDERSON of
May, Adam, Gerdes and Thompson, LLP
Pierre, South Dakota
Attorneys for appellee
RICK W. ORR
TIMOTHY M. GEBHART of
Davenport, Evans, Hurwitz and Smith, LLP
Sioux Falls, South Dakota
Attorneys for appellee
MEIERHENRY, Retired Justice
The circuit court determined that the plaintiff’s action for childhood
sexual abuse was barred by the three year statute of limitations. We affirm.
The alleged sexual abuse against the plaintiff, Roger Rodriguez,1 while
he was a student at St. Joseph’s Indian School in Chamberlain, South Dakota,
occurred in the 1970’s when Rodriguez was between seven and ten years old. The
defendants are Brother Matthew Miles and John Donadio (the alleged perpetrators)
and the Congregation of the Priests of the Sacred Heart, Inc. (the entity that owned
and operated St. Joseph’s).
The South Dakota Legislature permits a person who was sexually
abused as a child to sue within three years of the abuse or three years from the time
the person “discovered or reasonably should have discovered that [his] injury or
condition was caused by the act.” SDCL 26-10-252 (emphasis added). The
defendants asserted that this statute barred Rodriguez’s claims because Rodriguez
Rodriguez is also known as Roger Hickey.
At time of this lawsuit, SDCL 26-10-25 provided as follows:
Any civil action based on intentional conduct brought by any
person for recovery of damages for injury suffered as a result of
childhood sexual abuse shall be commenced within three years
of the act alleged to have caused the injury or condition, or three
years of the time the victim discovered or reasonably should
have discovered that the injury or condition was caused by the
act, whichever period expires later.
The 2010 Legislature added the following language: “However, no person
who has reached the age of forty years may recover damages from any person
or entity other than the person who perpetrated the actual act of sexual
discovered or reasonably should have discovered that the childhood sexual abuse
caused him injury more than three years before his lawsuit was filed. The
defendants point out that Rodriguez admitted in a deposition that he knew he had
been sexually abused and that, over the years, the memory of it made him angry
and caused him to use alcohol and drugs and lash out at others. He also admitted
that it had affected his work and family life and had caused him indescribable pain
and anger. Based on his deposition testimony, the defendants moved for summary
In response, Rodriguez submitted an affidavit to clarify his deposition
testimony. His affidavit indicated that he only became aware of the effects of the
childhood sexual abuse after a psychologist, Dr. Frank Dame, explained them to
him in 2005. Rodriguez recognized that he always had painful memories of the
abuse and that he became “angry when [he] thought about being abused, . . . and
lashed out, or drank or used drugs.” He clarified, however, that when the
defendants’ lawyer asked him “if [he] knew at the time ‘that this abuse was causing
[Rodriguez] these problems,’ it was those behaviors [(lashing out, drinking, and
drug use)] [he] was referring to.” Rodriguez claimed that he considered his
behaviors normal and “an everyday part of life in Lower Brule [Indian
Reservation].” He further claimed that he did not understand the link between the
behaviors and the sexual abuse.
Dr. Dame’s opinion, presented by affidavit, was that Rodriguez “was
unable to and did not associate his anger, depression, resistance to authority,
sexual dysfunction, drug and alcohol abuse, and violent behavior patterns with [the
childhood sexual abuse].” Dr. Dame indicated that Rodriguez recognized that he
got angry and used drugs and alcohol as coping mechanisms when he thought about
the childhood sexual abuse but that Rodriguez “did not connect the injuries and
conditions he suffered from with the [sexual abuse]” until the summer of 2005.
Because this issue comes to us from an order granting summary
judgment, we direct our review to “whether genuine issues of material fact exist and
whether the law was correctly applied.” Zephier v. Catholic Diocese of Sioux Falls,
2008 S.D. 56, ¶ 6, 752 N.W.2d 658, 662 (quoting Bordeaux v. Shannon Cnty. Sch.,
2005 S.D. 117, ¶ 11, 707 N.W.2d 123, 126). We view the evidence in the light most
favorable to the non-moving party, Rodriguez. Id. (citing Wulf v. Senst, 2003 S.D.
105, ¶ 17, 669 N.W.2d 135, 141). “Entry of summary judgment is mandated 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.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.
Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986)). “[T]hose resisting summary judgment
must show that they will be able to place sufficient evidence in the record at trial to
support findings on all the elements on which they have the burden of proof.” Id. ¶
6 n.3 (citing Bordeaux, 2005 S.D. 117, ¶ 14, 707 N.W.2d at 126 (quoting Chem-Age
Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 18, 652 N.W.2d 756, 765 (citation omitted))).
The statute of limitations in “SDCL 26-10-25 is an affirmative defense,
and the burden of proof to establish affirmative defenses is on the party who seeks
to rely on it.” Id. ¶ 9 (citing Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d 295, 297
(1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d 863, 865 (1959))). “In
summary judgment proceedings, where the defendant asserts the statute of
limitations as a bar to the action, and presumptively establishes the defense by
showing the case was instituted beyond the statutory period, the burden [of
production] then shifts to the plaintiff to establish the existence of material facts in
avoidance of the statute of limitations[.]” Id. (quoting Conway v. Conway, 487
N.W.2d 21, 23 (S.D. 1992)). “Generally, a statute of limitations question is left for
the jury; however, ‘[d]eciding what constitutes accrual of a cause of action’ is a
question of law and reviewed de novo.” One Star v. St. Francis Mission, 2008 S.D.
55, ¶ 12, 752 N.W.2d 668, 675 (quoting Peterson v. Hohm, 2000 S.D. 27, ¶¶ 7-8, 607
N.W.2d 8, 10-11 (citations omitted)).
It is undisputed that Rodriguez knew of the alleged abuse more than
three years before he filed suit. It is also undisputed that he got angry and
depressed, exhibited aggressive behavior, and used drugs and alcohol when he
thought about the abuse. Dr. Dame labeled Rodriguez’s reactions as coping
mechanisms and concluded that Rodriguez had not connected the sexual abuse with
his reactions, i.e. injuries, until 2005 during counseling.
Dr. Dame’s affidavit may support Rodriguez’s claim that he did not
have actual notice more than three years before filing his action. But Dr. Dame’s
affidavit leaves open whether Rodriguez had inquiry notice. An action “accrues and
the plaintiff is put on inquiry notice when facts come to light that would prompt a
reasonably prudent person to seek out information regarding his or her injury or
condition and its cause.” One Star, 2008 S.D. 55, ¶ 18, 752 N.W.2d at 677. This
Court explained inquiry notice in Zephier as follows:
[O]ne having actual notice of circumstances sufficient to put a
prudent person on inquiry about a particular fact, and who omits
to make such inquiry with reasonable diligence, is deemed to
have constructive notice of the fact itself sufficient to start the
running of the statute of limitations. Limitations periods will
not abide indefinitely while those aggrieved discover all their
damages. Statutes of limitations begin to run when plaintiffs
first become aware of facts prompting a reasonably prudent
person to seek information about the problem and its cause.
Consequently, as we noted in One Star, SDCL 26-10-25 accrues
when the plaintiff is put on inquiry notice of facts that would
prompt a reasonably prudent person to seek out information
regarding his or her injury or condition and its cause.
2008 S.D. 56, ¶ 14, 752 N.W.2d at 665 (citations and quotations omitted).
Rodriguez commenced his action in November 2007. Even assuming that Rodriguez
did not discover the connection between the sexual abuse and his injuries or
condition until 2005, his action may still be barred if he was put on inquiry notice
more than three years before he commenced his action. Therefore the question is
whether Rodriguez became aware of facts that would have prompted “a reasonably
prudent person to seek information about the problem and its cause” more than
three years before commencing his action, or, stated otherwise, whether he had
inquiry notice. Id.
The facts material to inquiry notice are not in dispute. Rodriguez
admitted in his deposition that, over the years, memories of the sexual abuse made
him angry and caused other negative reactions. He answered as follows:
In terms of your memories of these events,
either of the sexual abuse from John Donadio
or Brother Matt, did you think about that
from time to time over the years?
When you would think about this abuse, it
would make you very angry?
Oh, very angry.
You knew in your mind at the time that it
was affecting you in that way?
Oh, yes, it did.
And there was never a time that you ever
forgot about any of this, did you?
You’ve had a number of problems with
alcohol and drug abuse over the years?
Do you attribute that to the sexual abuse?
So when you would think about the abuse,
that would make you want to use alcohol and
It was either lash out or crawl in a bottle.
Lash[ing] out ended me in prison. Lashing
out caused me to go to prison.
What other ways do you think the abuse has
It affected my work back then. It affected
my family life. The way I raised my
children. I mean, there’s just so much—
there’s just so much that it— so much pain
and anger that it caused. It’s [in]describable.
You knew at the time that this abuse was
causing you these problems?
Rodriguez also admitted that he disclosed to a prison official that he was sexually
abused sometime before 2000. He explained:
Every time you go to prison, they do a psychological evaluation
on you. I had mentioned it one time that I’d been sexually
abused. . . . [The counselor] had recommended that I come back
and see him, but I never did. I never mentioned no names. I
didn’t mention no stories. I just told him that I had been
sexually abused and that I had – I should start trying to deal
I told ‘em that I needed to deal with a sexual abuse that was
with me. But I didn’t tell ‘em no details.
He later qualified his answer by affidavit as follows:
At the time I went into the federal prison system, I had no
understanding of the injuries and conditions I sustained as a
result of the sexual abuse. I didn’t understand how the abuse
affected me until after I began discussing it with Dr. Dame in
2005. I recognized that the memories were painful for me, and it
was the pain associated with those memories I was referring to
when I said I “had to deal with it.” I was prideful, tough, angry,
violent, and a drug and alcohol abuser at the time, living on a
reservation where those behaviors are the norm, not the
exception. I never saw any reason to modify my behavior nor did
I remotely link any of it to the sexual abuse. I thought my
behavior was normal.
Rodriguez further acknowledged that he corresponded with Donadio around 1994
and asked “why he had done this to us.” Around that time, Rodriguez contacted
Donadio’s ex-wife to warn her about Donadio’s abuse since Donadio had “two little
boys at the time.”
Inquiry notice is determined by an objective standard. Rodriguez and
Dr. Dame focus on what Rodriguez knew subjectively. Even though Rodriguez was
subjectively unable to connect the full extent of his injuries or condition to the
sexual abuse, he was aware of enough facts to put him on inquiry notice. He knew
he had been abused as a child. He knew when he thought about the abuse he got
angry, he lashed out, and he used drugs and alcohol. He knew the memory of the
abuse affected his behavior. He knew the memories were painful. He
acknowledged to the prison counselor that he “should start trying to deal with it.”
These facts were sufficient to “prompt a reasonably prudent person to seek out
information regarding his injury or condition and its cause.” Zephier, 2008 S.D. 56
¶ 18, 752 N.W.2d at 677. Because Rodriguez had inquiry notice more than three
years before he filed suit, we affirm.
GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,
and HOFFMAN, Circuit Court Judge, concur.
HOFFMAN, Circuit Court Judge, sitting for KONENKAMP, Justice,