We are asked in these cases to extend the limitation period for the civil actions brought by plaintiffs who allege they were sexually abused as children by the defendants, but were unable to timely file claims because of repression of the memory of abuse. We must decide whether (1) the discovery rule is applicable to determine the time of accrual of the claims triggering the running of the limitation period for plaintiffs' tort actions of assault and battery, negligence, and intentional infliction of emotional distress, or (2) if the limitation period can be extended by the one-year statutory grace period allowed after removal of the disability of insanity under MCL 600.5851(1); MSA 27A.5851(1).
We hold that neither the discovery rule nor the insanity disability statute addresses the exception claimed to extend the time allowable for bringing suit in these cases. The question of tolling the allowable time for bringing claims allegedly due to repressed memory is appropriately addressed to the Legislature.
The Court of Appeals decision in Lemmerman is reversed, and both cases are remanded to the trial
LEMMERMAN v FEALK
Plaintiff Marlene Lemmerman alleges that she was sexually and physically abused by her father and aunt for approximately ten years, beginning in 1939, when she was three. Plaintiff asserts that during the period in which these assaults were occurring she attempted to tell her mother about the abuse, but that her mother denied the allegations, took no action to halt the abuse, and on at least one occasion responded by threatening her with a pair of scissors. As a coping mechanism, plaintiff maintains that she developed a second personality who took her place during the abusive episodes. It is alleged that this personality dissociation repressed plaintiff's active memory of the abuse.
On May 19, 1989, plaintiff alleges to have confirmed her knowledge of sexual abuse through a confrontation with her father, who was a patient in a psychiatric hospital at the time of the encounter.
On May 18, 1990, plaintiff filed a complaint in
On appeal, the Court of Appeals reversed the decision of the trial court. 201 Mich.App. 544; 507 N.W.2d 226 (1993). The Court held that the discovery rule was applicable to determine when the plaintiff's cause of action accrued. The Court also found that when the plaintiff knew or should have known that she had a cause of action was a question of fact. Id. at 548-553. In addition, the Court found the provisions of MCL 600.5851; MSA 27A.5851 applicable, holding that there were questions of fact regarding whether the plaintiff suffered from insanity and, if she did, when that disability had been removed. 201 Mich.App. 553-554. The Court found that corroboration was not necessary under either theory. We granted leave to appeal and ordered that the case be argued together with Williford v Bieske. 445 Mich. 934 (1994).
WILLIFORD v BIESKE
Plaintiff Gale Williford alleges that her father, Irwin Bieske, repeatedly sexually abused her,
On April 19, 1993, plaintiff filed a complaint in circuit court against her father, alleging intentional infliction of emotional distress and assault and battery. Defendant moved for summary disposition, pursuant to MCR 2.116(C)(7), claiming that plaintiff's action was barred by the applicable limitation period because she provided no corroboration of her allegations of sexual assault. The motion was initially denied pending discovery, and on reconsideration the trial court found that plaintiff's action could survive summary disposition under the terms of MCL 600.5851; MSA 27A.5851, if corroborating evidence of the allegations was uncovered during discovery.
Leave to appeal to the Court of Appeals was denied for lack of merit, citing Lemmerman, supra.
As a general rule, untimely filed tort claims are barred by the statute of limitations. Claims for assault and battery normally must be brought within two years after they accrue, and claims for negligence and intentional infliction of emotional distress must be brought within three years after
The statute of limitations bars plaintiffs' claims in the instant cases, absent some exception, because the assaults are alleged to have occurred some forty to fifty years ago. Such assaults would inflict immediate damage on the children so abused.
Plaintiffs claim that the statute of limitations is tolled because either the discovery rule or the insanity disability grace period serves to extend the limitation period for claims by adults of childhood
The policy goals underlying statutes of limitation are well established:
"In summary, the primary purposes behind statutes of limitations are: 1) to encourage plaintiffs to pursue claims diligently, and 2) to protect defendants from having to defend against stale and fraudulent claims." Larson, supra at 311.
Despite the importance of these goals, we have recognized that the tension between the need to protect against stale claims and the injustice of precluding some claims requires application of a discovery rule in certain circumstances. When a plaintiff would otherwise be denied a reasonable opportunity to bring suit because of the latent nature of the injury or the inability to discover the
Where the discovery rule is found to be appropriate, a "plaintiff's claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered ... (1) an injury, and (2) the causal connection between plaintiff's injury and the defendant's breach [of duty to the plaintiff]." Moll v Abbott Laboratories, 444 Mich. 1, 16; 506 N.W.2d 816 (1993).
"This Court has recognized specific situations in which the discovery rule must be utilized to prevent unjust results." Id. at 17. We have found such situations present, e.g., where there has been a negligence action brought against a hospital and its agent before statutory characterization of such negligence as medical malpractice, Chase, supra, in pharmaceutical products liability actions, Moll, supra, and in asbestos-related products liability actions, Larson, supra. In each of those cases, we have weighed the benefit of application of the discovery rule to the plaintiff against the harm this exception would visit on the defendant and the important policies underpinning the applicable statute of limitations. Balancing is facilitated where there is objective evidence of injury and causal connection guarding against the danger of stale claims and a verifiable basis for the plaintiffs' inability to bring their claims within the statutorily
In those instances in which we have applied the common-law discovery rule to extend the statute of limitations, the dispute between parties has been based on evaluation of a factual, tangible consequence of action by the defendant, measured against an objective external standard. The presence of this external standard addresses the concern for reliable fact finding that is the underlying rationale for precluding untimely claims. Unlike the present claims, where liability must be determined solely by reference to one person's version of what happened as against another's, the factfinder's determination of liability is measured against an objective standard of care, such as the standard of care in the relevant profession or industry, at the time of the injury. Thus, despite the passage of time, an objective standard can be recreated for evaluation by the factfinder. In such contexts, confidence in the outcome does not hinge on whether a defendant remembered the particular operation resulting in the plaintiff's claim of malpractice, or whether the individuals who exposed product liability plaintiffs to latent injuries are still available to explain their decisions.
A number of other jurisdictions have recently considered the propriety of the application of the discovery rule to cases in which the plaintiffs have claimed inability to pursue tort actions on the basis of alleged sexual assault as a result of repressed memory of the events.
In Tyson, the Washington court was confronted with a request from a twenty-six-year-old plaintiff to apply the discovery rule to preserve her tort claims. These claims arose out of alleged sexual assaults by her father that occurred when she was between the ages of three and eleven. The court cautioned that "[t]he discovery rule should be adopted only when the risk of stale claims is outweighed by the unfairness of precluding justified causes of action." Id. at 76. In examining past application of the discovery rule, the court noted that, as a threshold, such risk can only be outweighed when "objective, verifiable evidence of the original wrongful act and the resulting physical injury" is present. Id. In explaining the rationale for the need for such evidence, the court stated that
The Washington court declined to extend the
Plaintiffs assert that in addition to delaying accrual of their causes of action through use of the discovery rule, the insanity provision of our statute providing a grace period for bringing action after certain disabilities are removed also applies to delay the limitation period applicable to their claims. Pursuant to MCL 600.5851(1); MSA 27A.5851(1), inter alia, a person who is entitled to bring a cause of action, but is insane when the claim accrues, is allowed a one-year grace period after the disability is removed to file suit, even though the limitation period for that action has run. Insanity is defined for purposes of the statute to mean "a mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know...." MCL 600.5851(2); MSA 27A.5851(2).
Although the definition of "insanity" provided in the statute was adopted from an earlier opinion of this Court, Valisano v Chicago & NWR Co, 247 Mich. 301, 304; 225 NW 607 (1929),
In Makarow, the plaintiff was injured in an automobile accident in New York and filed a products liability action in Michigan against the automobile manufacturer more than five years after the accident. The manufacturer responded to plaintiff's claim by filing a motion for accelerated judgment on the basis, inter alia, of the filing of the action outside the applicable limitation period. Id. at 405. The plaintiff answered that he had been unable to bring his claim earlier because his accident-based insanity at the time of accrual had rendered him unable to work with his retained attorneys to pursue any legal rights he might have had against the defendant. Id. at 407. The Court of Appeals held that, although the plaintiff's assertions of insanity were sufficient to require denial of the defendant's motion under Michigan's statutory insanity grace period, our borrowing statute
In Hill, the plaintiff was injured when a heavy bale of cardboard fell on him while stacking bales with a forklift manufactured by the defendant. The plaintiff commenced his personal injury action against the defendant, alleging ordinary and gross negligence, breach of implied warranty, and strict liability, almost three years after the accident. He asserted that his claims should be allowed under the statutory insanity grace period because he had suffered from a condition of traumatic insanity due to the accident at the time of accrual, causing him to be unable to comprehend or assist his retained attorney in asserting any cause of action against the defendant.
We need not address the soundness of the lower courts' application of the insanity grace period in these cases beyond noting that in each instance, no question was raised regarding the speculative nature of the plaintiff's claim or the inability of the factfinder to render a reliable verdict. In each case there was a factually verifiable consequence of some action by the defendant, as well as an objective external standard against which to measure the defendant's conduct. The question implicating
Application of the discovery rule and insanity grace period in the cases before us would endanger precisely those policy goals advanced by statutes of limitation. The absence of verifiable evidence creates "circumstances [that] would be unfavorable to a just examination and decision" and would increase the danger of the assertion of fraudulent or speculative claims. Lothian, supra at 167.
We approvingly quote the following summary of the Washington court in Tyson, supra at 79, articulating the basis for the decision not to apply the discovery rule to extend the limitation period for repressed memory cases:
We emphasize that our decision today does not in any way invite or signal affirmation of a claim supported by "objective and verifiable evidence," whatever that phrase might encompass, that would allow pursuit of plaintiffs' claims through application of the discovery rule or insanity grace period. If true, the defendants' conduct was reprehensible, and the absence of such facts makes neither a plaintiff's injury nor a defendant's moral responsibility less genuine. We hold only that those devices, absent legislative action subsequent to this opinion,
Adoption of the plaintiffs' position would leave a determination of the onset of a limitation period an open question within the subjective control of the plaintiff. Placing a plaintiff in this discretionary position to allege the onset of the disability of repressed memory and the termination of that condition within an applicable grace period would "vitiate the statute of limitations as a defense" and is a circumstance we have rejected in the past. Moll at 16 (refusing to adopt a rule that the limitation period for actions against DES producers should only commence after the plaintiff "perceived herself to be injured"). We therefore hold that neither the discovery rule nor the statutory grace period for persons suffering from insanity
Our decision should not be read as an expression of opinion that assault-based tort actions that plaintiffs have allegedly been unable to commence because of memory repression should never be recognized. We hold only that the devices presently available to this Court to allow actions beyond the statutory limitation period are inappropriate vehicles by which to allow these claims to survive a statute of limitations challenge. Neither the discovery rule nor the insanity disability grace period contemplates the situations presented to us by plaintiffs' claims.
The more appropriate forum for resolution of the question whether persons alleging repression of memory of past assaults should be allowed to pursue claims against their accused attackers is the legislative arena. There is justifiably deep and widespread social concern over, and condemnation of the incidents of, sexual assaults of minor children.
The Legislature has clearly demonstrated its ability to consider the question of extension of the limitation period for actions based on sexual abuse of children and act where it deems appropriate. In 1987, the Legislature amended MCL 767.24(2); MSA 28.964(2), to provide that where the alleged
In the context of these cases, we decline to apply the discovery rule or disability tolling statute to indefinitely extend the time limitation for bringing tort actions based on alleged sexual abuse of the plaintiffs when they were children. Neither the discovery rule nor the grace period extended to plaintiffs suffering from the disability of insanity comprehends extension of the limitation periods as
The decision of the Court of Appeals in Lemmerman is reversed. Both Lemmerman and Williford are remanded to the trial courts for proceedings consistent with this opinion.
BRICKLEY, C.J., and LEVIN, CAVANAGH, and MALLETT, JJ., concurred with BOYLE, J.
WEAVER, J. (concurring).
While I join without hesitation in the majority's holding, that neither the discovery rule nor the insanity disability statute addresses repressed memory, I write separately because I disagree with certain portions of the majority's analysis of the discovery rule.
The majority focuses on balancing the benefit of application of the discovery rule against the harm this exception would visit on the defendant and the policies underpinning the statute of limitations. Ante, p 66. My disagreement with this reasoning is that the majority has failed to make the initial determination whether the discovery rule is applicable in cases of repressed memory syndrome.
"The doctrine of contra non valentem agere nulla currit prescriptio, an exception to the prescription rules, tolls the prescriptive period when a party is unable to exercise his cause of action when it accrues." 54 CJS, Limitations of Actions, § 86, p 122. The doctrine recognizes certain situations in which the prescriptive period is prevented from running, including where the cause of action is not known or reasonably knowable by the plaintiff. Id. Larson v Johns-Manville Sales Corp, 427 Mich. 301; 399 N.W.2d 1 (1986).
In a case of alleged repressed memory, I would find that the plaintiff has not shown an inability to bring suit. There is no agreement on the viability and reliability of repressed memory syndrome within the American Medical Association or the American Psychiatric Association.
RILEY, J., concurred with WEAVER, J.
At least twenty-eight other states have passed or considered legislation extending the period of limitation for sexual-abuse-related civil actions. Ernsdorff & Loftus, supra at 145-147.
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