The plaintiffs brought an action in the Superior Court against their mother for negligent and intentional infliction of emotional distress. They alleged that their mother failed to protect them from sexual abuse by their father during their childhood. The defendant moved for summary judgment on the sole ground that their actions were
On appeal, the defendant argues that the "discovery rule" should not apply to the plaintiffs' claims because they do not present an inherently unknowable wrong, and the Legislature in enacting G.L.c. 260, § 4C,
The plaintiffs' claims for negligence and intentional infliction of emotional distress are governed by G.L.c. 260, § 2A, as amended through St. 1973, c. 777, § 1, which provides that suit "shall be commenced only within three years next
We see no reason in the absence of a statute not to apply the discovery rule to tort actions arising out of incestuous child abuse against the nonperpetrator of the abuse. See Hoult v. Hoult, 792 F.Supp. 143, 144-145 (D. Mass. 1992) (discovery rule should be applied under Massachusetts law to tort claims by victims of incest who have no memory of sexual abuse until after expiration of statute of limitations). We
We conclude, therefore, that fundamental fairness dictates that the discovery rule apply to tort claims arising out of incestuous child abuse which are not governed by a statute.
Having concluded that the discovery rule applies, the question before us is whether the plaintiffs' claims are barred because they failed as a matter of law to show that they did not know and could not have known that they had been harmed by their mother's failure to protect them from their father's sexual abuse more than three years before they instituted their actions. Riley v. Presnell, 409 Mass. at 246. On this issue, they bore the burden of proof. Id. at 243-244.
We now turn to the summary judgment record to determine this question. The plaintiffs commenced this action on March 23, 1992. At that time, the plaintiff Phinney was thirty-three and the plaintiff Hamby was thirty-eight. In affidavits filed in opposition to the defendant's motion, the plaintiff Phinney averred that she did not know that she suffered any harm from her mother's conduct until the summer of 1989, and the plaintiff Hamby averred that she did not know that she suffered any harm until the spring of 1990. The plaintiffs' averments were supported by an affidavit of a forensic psychologist who stated that the plaintiffs' realization that they had suffered psychological injuries from their mother's conduct occurred at about the time the plaintiffs have claimed and that their failure to appreciate a causal connection at an earlier time is consistent with what is expected of a reasonable and ordinary person under similar traumatic circumstances.
Both plaintiffs admitted that during their minority they complained on numerous occasions about their father's wrongful conduct to their mother and that she had reacted in a variety of ways, including telling them it was their fault, telling them to "just do it," making excuses, being angry, or just ignoring them. The plaintiff Phinney averred that she had begged her mother not to leave her alone with her father, and on one occasion, she begged her mother to get a divorce and take her away from him, and her mother said no. She also averred that she told a youth counselor about her father's abusive conduct and that when her mother found out, she yelled and screamed at her. All of these conversations were alleged to have occurred during her minority. The plaintiff Hamby specifically testified that she ran away from home on three separate occasions in 1971 and told both her mother and a probation officer that she did so because of her father's sexual advances to her. She further averred that she suffered emotional distress at that time and that because of her parents' conduct she grew up believing that she was "orphaned," that there was no one to protect or nurture her, and that she was worthless as a person. Both plaintiffs testified that in 1988 they had read a letter written by their sister Karen to their mother about the abuse heaped upon her brother, sisters, and herself by their father and the mother's
While the plaintiffs may not have been aware of the full extent of their psychological damage until the dates averred by them, we conclude that their admissions are sufficient to establish that the plaintiffs or a reasonable person in their position would have possessed knowledge or sufficient notice that they were harmed and what the cause of the harm was much earlier. Bowen v. Eli Lilly & Co., 408 Mass. at 208. One need not apprehend the full extent or nature of an injury in order for a cause of action to accrue. Olsen v. Bell Tel. Labs., Inc., 388 Mass. 171, 175 (1983). Riley v. Presnell, 409 Mass. at 243. Gore v. Daniel O'Connell's Sons, Inc., 17 Mass.App.Ct. 645, 649 (1984). Here, by their own admission, they were aware during their minority that their mother's failure to take any action against their father to stop the sexual molestation resulted in a continuation of the sexual molestation by their father. Certainly, Phinney's acknowledgment that she discussed bringing suit against her parents in the summer of 1988 with her sister Karen but decided not to bring suit because of her fear of her parents and embarrassment to her is sufficient as matter of law to bar her action as untimely. Olsen v. Bell Tel. Labs., Inc., 388 Mass. at 176 (rejecting argument that statute should be tolled when plaintiff who contracted asthma from exposure to a dangerous chemical would have felt "awkward" suing parties that had a continuing business relationship with his employer). Riley v. Presnell, 409 Mass. at 243. Similarly, Hamby's acknowledgment that she experienced emotional distress in 1971 when she ran away from home three times because of her father's abuse and her mother's failure to protect
While we recognize that ordinarily when a plaintiff knew or should have known of her cause of action is a factual issue to be decided by a trier of fact, Riley v. Presnell, 409 Mass. at 240, this is not such a case. We conclude that on the summary judgment record presented, the plaintiffs have failed as matter of law to sustain their burden that their action was timely. See Bowen v. Eli Lilly & Co., 408 Mass. at 208-211 (the record in summary judgment proceedings established that a reasonable person in the plaintiff's position would have been on notice of her cause of action more than three years before commencing her action). We reverse and remand to the Superior Court for entry of judgment for the defendant.