Opinion
Case No. 4:02CV3296.
August 2, 2004
MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the Motion for Summary Judgment submitted by Defendant St. John Lutheran Church of Seward, Nebraska, d/b/a St. John Lutheran School (the "Church") and Does 1-1000 ("Does") (Filing No. 96). The Motion is supported by a brief and index of evidence (Filings No. 97 and 98). The Plaintiff, T. Mark Kraft, submitted a brief (Filing No. 102) and index of evidence (Filing No. 103) in opposition. The parties also cross-reference evidence submitted in connection with earlier motions for summary judgment filed by Defendants Arlen L. Meyer and the Estate of David Mannigel that were granted in the Court's Order of July 7, 2004 (Filing No. 94). The Church's and the Does' Motion for Summary Judgment is based on the running of the statute of limitations, as were the Meyer and Mannigel motions. For the same reasons set forth in the Court's Order on the Meyer and Mannigel motions, the Church's and Does' Motion for Summary Judgment will be granted.
FACTS
Kraft was born on August 13, 1964. (Filing No. 73, Ex. A, Deposition of T. Mark Kraft ("Kraft Dep.") 5:12-15). From 1976 through 1978, when he was 12 to 14 years old, Kraft allegedly endured sexual abuse perpetrated by Meyer. During that time, Kraft was a student, and Meyer was an art teacher and "holy man" at St. John Lutheran School in Seward, Nebraska. (Complaint, Filing No. 1, ¶¶ 18-27). The last episode of alleged sexual abuse by Meyer occurred in 1979 or 1980 when Kraft was in his early high school years. (Kraft Dep. 71:1-7).
In 1990, Kraft disclosed the alleged sexual abuse to his wife and his parents. (Kraft Dep. 19:12 to 20:19; 90:23 to 92:6; 92:14 to 94:23). In 1991, Kraft made an anonymous report of Meyer's alleged conduct to David Mannigel, who was principal of St. John Lutheran School at all times relevant to this action. ( Id., 54:18 to 56:1). Also in 1991, Kraft told family friends about the alleged abuse, raising his concern about the welfare of the friends' grandchildren who were attending St. John Lutheran School at that time. ( Id., 57:22 to 58:24; 127:5 to 128:16; 129:9 to 130:1).
In 1995, Kraft discussed the alleged abuse with Donna Stains, who had a master's degree in psychology and was a licensed professional counselor and a licensed drug, alcohol, and addictive behaviors counselor. (Deposition of Donna Stains ("Stains Dep.") 5:8 to 14:9). Stains told Kraft that she thought there was a "strong possibility" the sexual abuse contributed to the problems for which he was then seeking counseling. ( Id., 46:6 to 47:9). At that time, Stains was addressing issues of Kraft's sadness, low self-esteem, mild depression, and the primary issue of Kraft's "addictions to anonymous sex." ( Id., 14:13 to 15:21). Kraft told Stains that he had also sought out counseling for issues related to his sexual abuse in 1991. ( Id., 46:6-17).
In October 2001, Kraft's lawyer, David Savitz, presented Kraft's allegations and claim for "appropriate redress" to the principal of St. John Lutheran School. (Filing No. 26, Ex. B, Attachment B-1). In January 2002, Savitz specified that Kraft was "seeking compensation for injuries suffered by him as a result of acts committed by . . . Meyer." ( Id., Attachment B-3). In March 2002, Savitz noted that "[w]e are in the process of preparing . . . an itemization of damages." ( Id., Attachment B-5). Kraft's specific demand for damages claimed was submitted to defense counsel on May 2, 2002. ( Id., Attachment B-7).
On May 16, 2002, Savitz referred Kraft to clinical psychologist Ralph I. Fisch, Ph.D., for evaluation and consultation. Fisch spoke with Kraft 37 times between May 2002 and June 2004, either in person or by telephone, focusing on the alleged childhood sexual abuse. (Filing No. 90, Ex. 6, Affidavit of Ralph I. Fisch, Ph.D. ("Fisch Aff.")). In his affidavit of June 23, 2004, Fisch diagnosed Kraft as having developed 1) moderate to severe post-traumatic stress disorder, 2) moderate to severe dysthymic reaction, 3) moderate to severe fulminating somataform disorder, 4) complex trauma reaction, and 5) chronic fulminating dissociative disorder, as well as "certain other psychological symptoms and physical illnesses from which he currently suffers. . . ." ( Id. at ¶ 9). Fisch opined that "[o]nly intensive therapy could foster the memory processing necessary to make clear the personality problems caused by Meyer's conduct." ( Id. at ¶ 17). Fisch concluded:
It would only have been after Mr. Kraft was referred in mid-May 2002 to the undersigned and began describing some of the details of the abuse that he was able to begin to understand that there were a number of connections between the abuse and certain of the illnesses, symptoms, peculiarities, lifestyle, and other issues that directly resulted from the abuse. His understanding, however, is often fleeting and unstable. Because of his dissociation, post-traumatic stress disorder, and other diagnoses, Mr. Kraft remains unable to maintain an ongoing and reliable understanding of the connections between the abuse and the harm, and currently suffers from massive denial regarding many of these issues.
(Id. at ¶ 23).
In 2004, Kraft disclosed his history of alleged child sexual abuse to Dr. Brent M. Cohen, Kraft's primary care and internal medicine physician. Dr. Cohen then issued a letter to Savitz, linking the sexual abuse and abdominal pain Kraft suffered in 1999: "[i]t is my opinion as Mr. Kraft's internist and primary care physician, that his severe abdominal pain and irritable bowel type symptoms were directly related to the emotional turmoil that he suffered as a result of the sexual abuse. . . ." (Filing No. 90, Ex. 5B ("Cohen letter") p. 1).
Kraft is employed by Bank One as a manager of mortgage loan officers for branches in Colorado and Utah. He manages a staff of 13 to 14 people responsible for approximately 85 bank branches (Kraft Dep. 86:15 to 90:11). Although he experienced intermittent unemployment when he interrupted his banking career to pursue a career in acting from 1992 to 1997 ( id., 82:22 to 87:3), Kraft has never experienced a period when he was unable to hold a job, or when he was fired or terminated from employment, or when he missed work as a result of a mental or emotional disturbance. ( Id., 89:18 to 90:12; 122:18-23). During at least the ten-year period preceding the filling of this lawsuit, Kraft handled his own business and financial affairs and made his own health care decisions, and he has never had a guardian or conservator appointed for him. ( Id., 50:9-25; 90:13-22).
Kraft's Complaint was filed on October 30, 2002. (Filing No. 1). With respect to his claims against the Church and Does, he invoked this Court's diversity jurisdiction under 28 U.S.C. § 1332(a). With respect to his claims against the Church, he also invoked the Court's federal subject matter jurisdiction under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (Title IX), and the Equal Protection Clause of the United States Constitution. ( Id. at ¶ 1). His causes of action against the Church are 1) negligent supervision and retention ( Id. ¶¶ 31-33), 2) fraudulent deceit ( Id. ¶¶ 35-37), 3) breach of fiduciary duty ( Id. ¶ 39), 4) negligent failure to report child abuse ( Id. ¶¶ 41-42), 5) outrageous conduct — intentional infliction of emotional harm ( Id. ¶¶ 44-49), 6) negligent infliction of emotional harm ( Id. ¶ 51), 7) violation of Title IX by creating a "sexually hostile and charged environment for Kraft," ( Id. ¶¶ 53-54), and 8) violation of the Equal Protection Clause by failing to protect Kraft "from sexual harassment and harm in the same way as other students who were of a different gender or orientation" (Id. ¶ 55). Kraft asserts the third, fourth, fifth, and sixth claims against the Does as well as the Church. No Does are identified in any manner, and no specific allegations are made against any "Doe."
SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir. 2003). The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. at 586.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. at 249-50 (citations omitted).
Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327. Nevertheless, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).
DISCUSSION
For purposes of the Court's review of the Motion for Summary Judgment, the Court assumes that the alleged sexual abuse occurred as Kraft describes, and that Kraft suffered serious emotional and psychological injuries as a result of the abuse.
Neb. Rev. Stat. § 25-207(3)-(4) (Reissue 1995) provides a four-year statute of limitations for "an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated," and for "an action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. . . ." The Nebraska Supreme Court has held that in the context of a fraud action, the limitations period begins to run upon discovery of the facts constituting the fraud, or facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery. Henderson v. Forman, 486 N.W.2d 182 (1992). Neb. Rev. Stat. § 25-219 (Reissue 1995) provides a three-year statute of limitations for all "actions upon a liability created by a federal statute, other than a forfeiture or penalty, for which actions no period of limitations is provided in such statute. . . ." Title IX contains no independent period of limitations. Although Kraft does not mention 42 U.S.C. § 1983, to the extent that his Equal Protection claim is asserted through § 1983, it is noted that no independent period of limitations is provided in the federal statute.
The statutes of limitations were tolled until Kraft reached the age of 21 years. Neb. Rev. Stat. § 25-213 (Reissue 1995); Lawson v. Ford Motor Co., 408 N.W.2d 256, 258 (Neb. 1987). Neb. Rev. Stat § 25-213 also tolls the statute of limitations for "a person with a mental disorder" and provides that "every such person shall be entitled to bring such action within the respective times limited by this chapter after such disability is removed." The Nebraska Supreme Court has also recognized an equitable tolling of the statute of limitations in certain categories of cases where an injury is not obvious and is neither discovered nor discoverable within the limitations period. Shlien v. Board of Regents, 640 N.W.2d 643, 650-51 (Neb. 2002).
Kraft reached the age of 21 on August 13, 1985. If no other tolling provision applies, the statute of limitations for his actions against the Church and Does expired no later than August 13, 1989. In his Complaint, Kraft argues that his action was timely filed because (1) he had a mental disorder and was not emotionally capable of evaluating and pursuing his legal rights in this matter until some time within four years of the filing of the Complaint, (2) he did not discover the connection between the alleged abuse and the harm caused by the abuse until sometime within four years of the filing of the Complaint, and (3) he did not become aware of the Church's alleged fraudulent deceit until other alleged victims "came forward" and Defendant Mannigel died, about one year before the filing of the Complaint. (Filing No. 1, ¶¶ 33 and 37). In the brief in opposition to the Church's and Does' Motion for Summary Judgment, Kraft agues only that his alleged mental disorder prevented him from understanding his legal rights or from instituting legal action.
To defeat the statute of limitations defense for any of his causes of action at this stage of review, Kraft needs to demonstrate a genuine issue of material fact as to (1) whether he suffered from a "mental disorder" until at least October 30, 1998, or (2) whether he discovered or with reasonable diligence should have discovered his alleged injury by October 30, 1998, or (3) whether he discovered or with reasonable diligence should have discovered the Church's alleged fraudulent deceit by October 30, 1998.
Kraft's "Mental Disorder"
What constitutes a "mental disorder" under Neb. Rev. Stat. § 25-213 was addressed in Vergara v. Lopez-Vasquez, 510 N.W.2d 550, 554 (Neb.App. 1993). The plaintiff, Vergara, alleged that he suffered from mental disorders that prevented him from filing his tort actions within the statute of limitations. Vergara claimed that he had insomnia; could not concentrate; suffered from obsessions; could not drive; and had physical disabilities, including diarrhea, resulting from his mental disorders. The Court of Appeals upheld the district court's granting of summary judgment, finding that Vergara was not "a person who was suffering from a mental disorder which resulted in incapacity to protect his legal rights." Id. at 554-55. The court considered whether a 1986 statutory amendment to Neb. Rev. Stat. § 25-213 that changed the word "insane" to "mental disorder" was intended to expand the scope of the tolling statute:
From our review of the legislative history, we find that the trial court correctly determined that the substitution of the term "mental disorder" for the word "insane" in § 25-213 did not change the legal standard involved. We find that a person with a mental disorder is one who suffers from a condition of mental derangement which actually prevents the sufferer from understanding his or her legal rights or from instituting legal action. A mental disorder within the meaning of § 25-213 is an incapacity which disqualifies one from acting for the protection of one's rights. See Sacchi [v. Blodig, 341 N.W.2d 326(1983)], supra. . . . Persons suffering mental derangement cannot be expected to evaluate and communicate information so that their rights can be protected and enforced. Sacchi, supra.Id. at 554. The court's review of the legislative history demonstrated that the change of the word "insane" to "mental disorder" did not broaden the class of individuals described within § 25-213, but was intended to replace obsolete language such as "imbecile," "idiot" and "lunatic" with more modern, respectful terms. Id.
Prior to the amendment of Neb. Rev. Stat. § 25-213, the Nebraska Supreme Court held that the word "insane" meant such condition of mental derangement that actually prevented the sufferer from understanding his or her legal rights or instituting legal action. Sacchi v. Blodig, 341 N.W.2d 326, 330 (Neb. 1983).
While this Court does not depreciate the seriousness of the mental disorders that Dr. Fisch attributes to Kraft, those disorders are, as a matter of law, not the kind of mental disorders that would cause a tolling of the statute of limitations under Neb. Rev. Stat. § 25-213. In his most recent affidavit (Filing No. 103, Attachment 5), Dr. Fisch states that Kraft "perceived himself as an active participant in the very behaviors in which he has been victimized and thus unworthy of any legal consideration" and until 2002 Kraft was unable to "maintain and sustain forceful, concerted, and self-determined action toward a goal which he believed was right or correct. Without the capacity to feel that he is in the right and while undergoing constant confusion in that regard, his ability to pursue and maintain a legal goal was impaired." Id. at ¶ 7. Dr. Fisch views Kraft's competence and success in his personal and professional life as evidence of his pathology: "[M]erely because Mr. Kraft has been able to function in the work place, supervise other workers, handle his personal affairs, and has never been hospitalized for any mental illness are not reflective of good mental health in him, but rather are manifestations of his pathology and psychological defenses." Id. at ¶ 4.
Dr. Kraft, who was retained after settlement negotiations failed, has made a valiant attempt to explain why this action was filed more than 13 years after the statute of limitations expired. Giving due deference to all Dr. Fisch's diagnoses, there is no factual basis for his legal conclusion.
The Court has viewed all material facts, and ultimate inferences that may be drawn from those facts, in a light most favorable to Kraft. The Court finds that there is no genuine issue of any material fact that could lead any reasonable jury to conclude that Kraft suffered from a mental derangement that actually prevented him from understanding his legal rights or instituting legal action from August 13, 1985, until at least October 30, 1998.
Kraft's Discovery of the Wrong Perpetrated and the Injury Suffered
Nebraska's equitable tolling standard, referred to as the "discovery rule," was described by the Nebraska Supreme Court in Shlien v. Board of Regents, supra. In Shlien, a professor allegedly published a student's papers on an Internet website without her permission. The Nebraska Supreme Court held that summary judgment for the defendant based on a statute-of-limitations defense was improper because genuine issues of material facts remained regarding when the professor uploaded the papers and when the student in the exercise of reasonable diligence should have discovered the website.
We have stated, "`[T]he mischief which statutes of limitations are intended to remedy is the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.'" Condon v. A.H. Robins Co., 217 Neb. 60, 63, 349 N.W.2d 622, 624 (1984). The statutes of limitations are "`enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time if he [or she] has the right to proceed. The basis of the presumption is gone whenever the ability to resort to the courts is taken away.'" Id. "`If an injured party is wholly unaware of the nature of his [or her] injury or the cause of it, it is difficult to see how he [or she] may be charged with lack of diligence or sleeping on his [or her] rights.'" Id.
In a negligence action, it has generally been stated that a statute of limitations begins to run as soon as the cause of action accrues, and an action in tort accrues as soon as the act or omission occurs. Berntsen v. Coopers Lybrand, 249 Neb. 904, 546 N.W.2d 310 (1996). We have determined, however, that the discovery rule applies in certain categories of cases. The rationale behind the discovery rule is that in certain categories of cases, the injury is not obvious and the individual is wholly unaware that he or she has suffered an injury or damage. In such cases, "`[i]t is manifestly unjust for the statute of limitations to begin to run before a claimant could reasonably become aware of the injury.'" Condon v. A.H. Robins, 217 Neb. at 67, 349 N.W.2d at 626 (1984) (quoting with approval Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983)). Thus, we have stated that when the discovery rule is applicable, the statute of limitations does not begin to run until the potential plaintiff discovers, or with reasonable diligence should have discovered, the injury. E.g., Condon v. A.H. Robins, supra. Although we have not explicitly so stated, it is implicit in our prior rulings that in those cases in which the discovery rule applies, the beneficence of the discovery rule is not bestowed on a potential plaintiff where the potential plaintiff in fact discovers, or in the exercise of reasonable diligence should have discovered, the injury within the initial period of limitations running from the wrongful act or omission. However, in a case where the injury is not obvious and is neither discovered nor discoverable within the limitations period running from the wrongful act or omission, the statute of limitations does not begin to run until the potential plaintiff discovers, or with reasonable diligence should have discovered, the injury.
Shlien, 640 N.W.2d at 650 (emphasis and bracketed material appear in original opinion).
The parties acknowledge that there is no Nebraska case specifically addressing the application of the "discovery rule" to facts involving child sexual abuse, and they direct the Court's attention to cases from other jurisdictions where courts have either tolled or refused to toll a statute of limitations applying such an equitable-tolling principle. As would be expected, such cases are very fact-specific, and they will not be discussed herein.
In applying the Shlien analysis to the fact of this case, it is important to note that Kraft acknowledges that his case is not one involving repressed memory. (Filing No. 87, p. 18). Instead, he contends that he has emotional and psychological injuries which were caused by the alleged sexual abuse, but that he did not discover the connection between the abuse and the injuries until he began treatment with Dr. Fisch in May 2002. (Plaintiff's Brief in Opposition to Summary Judgment, Filing No. 87, at 18).
For Kraft to claim that he experienced an epiphany through treatment by Dr. Fisch beginning May 16, 2002, enabling Kraft to "discover that his emotional and psychological injuries were caused by Meyers' sexual abuse," is disingenuous. The record before the Court demonstrates that Kraft was aware of the nature of the alleged abuse at the time it occurred, and that he could identify some emotional injury at that time. (Kraft Dep. 23:20 to 24:21; 133:21 to 135:16). It is clear that no later than 1990, Kraft himself drew a direct link between the alleged abuse and a variety of behaviors and negative consequences in his life. It was in 1990 that he disclosed the alleged sexual abuse to his wife and parents, when confronting issues of his marital discord, homosexual activity, anger, and reckless sexual conduct. ( Id., 19:12 to 20:17; 90:23 to 94:23). In 1995, Kraft discussed the abuse with a professional counselor during seven months of therapy focusing on sex addictions, and the counselor advised Kraft that she thought the alleged sexual abuse contributed to the issues for which he was seeking counseling. ( Id., 111:17-24; 116:6 to 117:10; Stains Dep. 12:9-19, 27:2 to 28:10; 30:22 to 31:6; 46:9 to 47:9).
The only evidence supporting Kraft's claim that he did not "discover" the connection between the alleged sexual abuse and some resulting harm is Dr. Fisch's report and Dr. Cohen's letter. Kraft sought counseling from Dr. Fisch, and informed Dr. Cohen of the alleged sexual abuse, after St John Lutheran School failed to meet Kraft's settlement demands. While settlement negotiations are inadmissible for certain purposes under Fed.R.Evid. 408, they can and will be considered by this Court for purposes of confirming that Kraft had made the logical connection between his alleged sexual abuse and his alleged injuries well before he sought counseling from Dr. Fisch or secured Dr. Cohen's letter.
Kraft's Discovery of the Alleged Fraudulent Deceit
Kraft's claims of fraudulent deceit were largely directed to Defendants The Nebraska District of the Lutheran Church-Missouri Synod (the "District") and The Lutheran Church-Missouri Synod (the "Synod"), both now dismissed from this case by Kraft. (Filings No. 31 and 41). Kraft alleged that the District, Synod and Church "created an environment of concealment and deceit" through "laxity, failures and misrepresentations." (Filing No. 1, ¶ 35). More specifically, Kraft claimed that the three entities engaged in fraudulent deceit by:
(1) failing to disclose that any meaningful screening procedures or background investigation had taken place before a teacher was extended a "calling" or granted a synodical ministry; (2) representing, expressly or impliedly, without a meaningful background investigation and/or adequate supervision that commissioned ministers of religion, such as Meyer, were persons of good character, moral integrity, honesty, and trustworthiness, and (3) failing to disclose that meaningful policies or guidelines had not been established or implemented to identify, suspect, report, prevent or reduce child abuse or inappropriate sexual contact with students.Id.
With respect to the Church — the only one of these three entities remaining in this litigation — Kraft offers only one reason why his discovery of the alleged fraudulent deceit was delayed: Kraft contends that when other victims came forward and Mannigel died, which occurred approximately a year before his filing of the Complaint, only then did Kraft suspect that Mannigel as an official of the Church had failed to act on Kraft's 1991 anonymous disclosure. ( Id. at ¶ 37). If Mannigel and the Church did conceal and fail to act upon the information Kraft anonymously supplied to Mannigel in 1991, then that concealment and failure-to-act may have caused injury to others, but it did not cause any injury to Kraft. To the extent that Kraft's allegations of fraudulent deceit state any claim upon which relief may be granted, Kraft has not demonstrated a genuine issue of material fact with respect to whether he discovered or should have discovered the alleged fraudulent deceit by October 30, 1998.
CONCLUSION
When any child, adolescent or adult is subjected to physical, emotional or sexual abuse, the psychological injuries may be far-reaching. No doubt, Kraft's understanding of the impact of his history of sexual abuse has evolved over time. Kraft may gain still deeper insights into the nature of his emotional and psychological injuries in the future. However, for the Court to infer that Kraft was 1) so mentally deranged that he could not understand his legal rights or institute legal action, or 2) wholly unaware of the nature of his injuries or the cause of them, or 3) fraudulently deceived by the Church, until sometime after October 30, 1998, would require the Court to turn a blind eye to clear and undisputed evidence to the contrary.
There is no genuine issue of material fact with respect to the expiration of the statute of limitations for Kraft's causes of action against the Church and the Does, and judgment will be granted in their favor as a matter of law.
IT IS ORDERED:
1) The Motion for Summary Judgment of Defendant St. John Lutheran Church of Seward, Nebraska, d/b/a St. John Lutheran School, and Does 1-1000 (Filing No. 96) is granted; and
2) A separate Judgment will be entered.