Opinion
No. WD 63095
November 2, 2004
On Motion for Rehearing.
In her motion for rehearing, appellant argues that this court failed to give her the benefit of the inference that her repressed memory prevented ascertainment of injury. She argues that recent decisions of the Missouri Supreme Court require that inference.
It is clear that, as of 1987, Missouri did not apply the "discovery test" to repressed memories, but at that time still applied the test of whether an injury was "capable of ascertainment." See, e.g., Vandenheuvel v. Sowell, 886 S.W.2d 100, 101-102 (Mo.App. 1994). Repressed memory also did not defer accrual under the "capable of ascertainment" test. Id. Appellant points to Sheehan v. Sheehan, 901 S.W.2d 57 (Mo. banc 1995), however, as suggesting that the Missouri Supreme Court now considers repressed memory as not capable of ascertainment and, accordingly, asks that we grant rehearing or transfer to the Supreme Court.
This case differs from Sheehan, a case involving childhood sexual abuse and repressed memory, in that in Sheehan the petition did not state the date that the plaintiff sustained damage. Although the petition stated that plaintiff "sustained and suffered and continues to sustain and suffer . . . consequential injuries and damages," id. at 58, the petition did not specify when the injuries were ascertainable. The Court thus determined that the petition was "ambiguous" as to when she objectively could have ascertained the fact of damage. The only date alleged in that case was "that she involuntarily repressed conscious memory until August 1990 or thereafter." Id. at 59. Because of the ambiguity, the Court was required to construe the petition in the plaintiff's favor. Thus, the court reversed the dismissal and remanded the case for further proceedings.
While the Court in Sheehan did not specifically hold that in cases of repressed memory the date the injury is sustained may be later in time than the battery, the court in a later decision regarded Sheehan as so holding. K.G. v. R.T.R., 918 S.W.2d 795, 798 (Mo. banc 1996). Here, the allegation is that plaintiff suffered damage from the sexual abuse during her childhood and adolescence and it has continued into adulthood. Ms. Harris knew she had suffered damage and knew she had been victimized, but because it was too painful to retain the memories, she repressed the memory of the events.
Traditionally, absence of memory alone, occurring after the tortious act, does not defer either the accrual of the cause of action or the running of the statute. Because of the ambiguity in the petition in Sheehan, it was unclear whether Sheehan signaled a change in the proposition. Then, in 1996, the Court decided K.G., supra. In that case, the Court again reviewed the dismissal of a petition alleging childhood sexual abuse. The thirty-year-old plaintiff, K.G., alleged that she was abused between the ages of three and seven. Plaintiff alleged she involuntarily repressed conscious memory of these events until January of 1989, but had no conscious memory of the identity of the perpetrator until December of 1990. The trial court applied the two-year statute of limitations for battery, tolling the statute for minority reasons until the plaintiff's 21st birthday. The Court in K.G. cited Sheehan for the proposition that "it is the memory of the consequential injury and damages, not the memory of the identity of the perpetrator," that triggers the running of the statute of limitations. K.G., 918 S.W.2d at 798. The Court in K.G. affirmed the trial court's dismissal of the petition. The Court said that in giving plaintiff's petition its broadest possible intendment, "one might conclude" that she first "became aware" of her injury in January 1989. Id. The Court in K.G. refused to extend the accrual of the cause of action to the date she recovered the memory of the identity of the perpetrator but was willing, at least for purpose of argument, to allow her until she "became aware" of her injury. Id. Because K.G. did not file her petition within two years of when she allegedly recalled the fact of abuse (without recalling the perpetrator), the dismissal of the petition was held proper.
Sometimes the difference between accrual of a cause of action and the tolling of a limitations period seems to be blurred in the discussion. Perhaps "repressed memory" is not really an issue of accrual, as discussed infra.
It can also be confusing when we talk in terms of "awareness" (a subjective factor) rather than using the phrase "capable of ascertainment," which is an objective standard.
Missouri law relating to the accrual of a cause of action for childhood sexual abuse was arguably altered in 1995 and 1996 through the decisions in Sheehan and K.G. These cases suggest that under § 516.100, in cases of repressed memory, childhood sexual abuse claims may not accrue until awareness of the fact of the sexual battery is recovered. However, at the same time, the cause of action may accrue and expire before the plaintiff recovers the memory of the identity of the abuser. See K.G., 918 S.W.2d at 798.
In H.R.B. v. Rigali, 18 S.W.3d 440 (Mo.App. 2000), a childhood sexual abuse claim was brought by a man who had repressed, for twenty-eight years, memories of sexual abuse perpetrated by a priest in St. Louis. The plaintiff obtained a verdict against the archdiocese for intentional failure to supervise the priest. On appeal, the defendant contended that the trial court erred in submitting the claim because the claim was barred by limitations in that the claim had accrued at the time of the sexual abuse and that the only applicable tolling was the tolling until the age of majority. In that case, the Eastern District found that the plaintiff, who was thirteen or fourteen at the time of the abuse, had "full knowledge of the events and knew they were wrongful" at the time the abuse occurred. Id. at 444. The court held that at that time the cause of action accrued because the plaintiff's damages were sustained and capable of ascertainment. Id. Accordingly, the court found the claim was time-barred and reversed the judgment against the archdiocese. The Supreme Court declined to grant plaintiff's application for transfer in H.R.B. H.R.B. casts doubt on the otherwise arguable effect of Sheehan and K.G. in that, by the definition of the phrase "repressed memory," one would think that there is always, at the time of the act of abuse (unless the child is then unconscious or very, very young) "full knowledge" of the abuse. One would assume that the memory repression is not simultaneous with the abuse, but only comes after the event. This would suggest that memory repression does not involve an issue of accrual but rather should be an issue of tolling.
We need not decide the full implications of Sheehan and K.G., and the potential applicability to this case because even if the Supreme Court's rulings in 1995 and 1996 constitute a substantive change in the law of accrual of a cause of action for childhood sexual abuse, this change also would, it seems, be governed by the rule of Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338 (Mo. banc 1993). In other words, Sheehan and K.G. would not be applied retroactively to resuscitate a claim already time-barred.
Doe v. Roman Catholic Diocese holds that legislative changes since an action was barred under old law cannot resuscitate a previously barred cause of action. Appellant fails to show that prior to Sheehan in 1995 Missouri considered repressed memory as deferring the accrual of a cause of action for childhood sexual abuse until the memory was recovered. Vandenheuvel indicated that as of 1994 repressed memory did not delay the accrual of a cause of action under 516.100. We believe, accordingly, this appellant's memory recovery was too late to authorize an action under the law existing prior to 537.046, enacted in 1990, and too soon to allow her to bring an action under Section 537.046 itself. We believe the petition unambiguously indicates facts leading to the conclusion that the claim was time-barred in 1987.
There are strong public policy reasons on both sides of the issue of how repressed memory should be handled, making the issue particularly appropriate for legislative determination. The legislature has addressed the matter in Section 537.046. Because of Doe, however, that statute can apply only to claims still viable at the time of the effective date of the statute.
The legislature also adopted Section 516.371 in 1989 (the ten year statute of repose or statute of limitations, depending on interpretation of the statute) mentioned in K.G. and addressed in Ridder v. Hibsch, 94 S.W.3d 470 (Mo.App. 2003).
For all the foregoing reasons, we deny rehearing and transfer in this case.