The plaintiff filed a complaint on February 28, 2002, against the defendant, Gordon J. Mercer, alleging negligence in allowing a pastor of the plaintiff's church to sexually abuse him.
Facts. We recite the facts in the light most favorable to the plaintiff, reserving certain details for our discussion of the issues. The plaintiff was born on August 25, 1968. During his childhood, the plaintiff and his parents attended Parkway Christian Center, a church where Paul Braco, Sr., was the pastor.
After the picnic incident, the plaintiff continued to participate in church activities. He claims that, despite his efforts to avoid Braco, there were at least two other instances of abuse, and that in 1984 or 1985 he ran away from home because he "wasn't being heard," respected, or protected. For approximately one and one-half years, the plaintiff lived on the streets and engaged in stealing, dealing drugs, and drinking alcohol.
In December, 1998, the plaintiff entered therapy to help him cope with his inability to focus and control his anger. A psychiatrist, Rafael Ornstein, met with the plaintiff on February 8, 1999. The medical record from this session states, in relevant part, that the plaintiff "wants help . . . with anger [and] anxiety. . . [and] [h]as had a history of sexual abuse by a pastor." Furthermore, the plaintiff stated in his deposition that by February 8, 1999, he knew that he had been sexually abused by Braco, that the abuse was wrong, and that, through the evaluation process with the psychiatrist, he was able to think about connections between what was happening in his life and the abuse.
On February 28, 2002, the plaintiff filed his complaint, and on July 8, 2004, Allen J. Brown, a psychologist, examined him. Brown, who submitted an affidavit in support of the plaintiff's opposition to the defendant's motion for summary judgment, diagnosed the plaintiff with post traumatic stress disorder due to the sexual abuse. Furthermore, Brown stated that the plaintiff's failure to make the connection between Braco's abuse and his emotional problems prior to late 1999 or early 2000 was reasonable, as such a failure was not uncommon in situations where abuse occurred over a long period of time and the child's parents were unsupportive.
Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgement as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974).
Statute of limitations. The plaintiff's claim for negligence is governed by G. L. c. 260, § 2A, which provides a three-year period of limitations for, inter alia, tort actions.
Under this discovery rule, the statute of limitations starts when the plaintiff discovers, or reasonably should have discovered, "that [he] has been harmed or may have been harmed by the defendant's conduct." Id. at 205-206. Therefore, the three-year statute of limitations period of § 2A does not start to run "until a plaintiff has first, an awareness of [his] injuries and, second, an awareness that the defendant caused [his] injuries." Doe v. Creighton, 439 Mass. 281, 283 (2003).
Once a plaintiff relies upon the discovery rule to argue that his claim was delayed due to an inability to recognize the cause of his injuries, he bears the burden of "proving both an actual lack of causal knowledge and the objective reasonableness of that lack of knowledge." Id. Generally, an issue concerning what the plaintiff knew or should have known is a factual question that is appropriate for the trier of fact. Riley v. Presnell, 409 Mass. 239, 240 (1991). However, in order for a plaintiff's claim to survive a summary judgment motion, he must demonstrate a reasonable expectation of proving that the claim was timely filed. Doe v. Creighton, supra at 284. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). In the present case, the plaintiff has failed to make this showing.
Like the plaintiff in the Bowen case, the plaintiff here failed timely to act on his causal knowledge. Once the psychiatrist drew the connection between the plaintiff's emotional problems and his history of sexual abuse on February 22, 1999, the plaintiff had reasonable notice that the defendant may have been the cause of his harm and, consequently, a duty to act or at least
2. Objective reasonableness of lack of actual knowledge. The standard for evaluating whether a plaintiff's lack of knowledge is objectively reasonable is that of "a reasonable person who has been subjected to the conduct which forms the basis for the plaintiff's complaint." Riley v. Presnell, supra at 245. Personal character traits, educational history, and cultural backgrounds are usually immaterial in determining whether a lack of knowledge is objectively reasonable. Doe v. Creighton, supra at 284. In the Doe case, we noted that factors such as the timing of the abuse, a perpetrator's attempts to disguise it, and whether the abuse was a "watershed event" can be considered when determining whether a reasonable person in the plaintiff's situation would fail to realize his injuries were caused by the defendant's conduct. Id. at 285. We consider each, in turn.
a. The plaintiff argues that his inability to connect his emotional problems with Braco's abuse was objectively reasonable because the abuse occurred when the plaintiff was a child. We recognize that a person who is abused at an early age over a prolonged period of time might have difficulty later in life linking the psychological problems with the abuse. Doe v. Creighton, supra at 285. In the Doe case, a sixteen year-old girl was abused by a priest for a year. The court determined that the "defendant's conduct and its consequent effects would hardly be a distant memory when the plaintiff reached her eighteenth birthday." Id. Therefore, timing did not play a large role in concealing the causal relationship. Here, the plaintiff was fourteen or fifteen when the abuse began. He testified that shortly after the first incident, he knew Braco's conduct was wrong, informed his parents, and even thought about killing Braco. Furthermore, the alleged abuse was truncated rather than prolonged because the plaintiff ran away from home following it, feeling abandoned by his parents. Given the plaintiff's thoughts and conduct, he
b. The plaintiff also argues that the defendant attempted to disguise the abuse, which made it difficult for the plaintiff to make the connection between the abuse and his symptoms. Evidence of cloaking or attempts to disguise abuse can impede the plaintiff's ability to recognize that he has been harmed by the abuse. Doe v. Creighton, supra at 285. However, unlike in the Doe case, where the defendant was the abuser, in this case the defendant was not a perpetrator. Here, there is nothing in the record to indicate that cloaking by Braco was an issue; rather, the plaintiff asserts that it was the defendant's custom to persuade children and families that sexual abuse was "horseplay." The defendant's testimony about this is contradictory. Despite these inconsistent statements, the defendant's conduct did not operate to hinder the plaintiff from recognizing that he had been harmed by Braco, because by February 22, 1999, the psychiatrist had made the connection for him.
Furthermore, the plaintiff argues that the defendant would "customarily request that families not discuss incidents of sexual abuse." However, the record indicates that the defendant asked
c. The plaintiff argues that it is objectively reasonable for him to fail to appreciate the connection between the abuse and his symptoms because of the length of time between his symptoms and the abuse: the first instance of abuse occurred in 1983 and the emotional distress began in 1998. Although the plaintiff now argues that because the symptoms did not immediately follow the abuse, his "leaving home was not a watershed response to the sexual abuse," the record indicates otherwise.
Expert's affidavit. One method by which a plaintiff can prove the objective reasonableness of his or her lack of causal knowledge is through affidavits or testimony from competent
Conclusion. We sympathize with the victims of abuse. However, "the United States Supreme Court has long recognized. . . [that statutes of limitations are] `vital to the welfare of society . . . . They promote repose by giving security and stability to human affairs.'" Franklin v. Albert, 381 Mass. 611, 618 (1980), quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879).
The Appeals Court's analysis, id. at 668, relied on Doe v. Harbor Schs., Inc., 446 Mass. 245 (2006), and applied the actual knowledge standard, which is applicable for claims involving breach of fiduciary duty, rather than the discovery rule, which hinges on when "a plaintiff discovers, or reasonably should have discovered, that [he was] harmed . . . by the defendant's conduct." Phinney v. Morgan, 39 Mass.App.Ct. 202, 204 (1995).