Kupa, Deborah M.

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1996 Survey of Rhode Island Law: Cases: Statutes of Limitations

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Roger Williams University Law ReviewVolume 2 | Issue 2 Article 16Spring 19971996 Survey of Rhode Island Law: Cases: Statutesof LimitationsDeborah M. KupaRoger Williams University School of LawFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Survey of Rhode Island Law is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion inRoger Williams University Law Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationKupa, Deborah M. (1997) "1996 Survey of Rhode Island Law: Cases: Statutes of Limitations," Roger Williams University Law Review:Vol. 2: Iss. 2, Article 16.Available at: http://docs.rwu.edu/rwu_LR/vol2/iss2/16490 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 2:490Statutes of Limitations. Kelly v. Marcantonio, 678 A-2d 873(R.I. 1996). The seven year limitation imposed by Rhode IslandGeneral Laws section 9-1-51 for bringing claims for childhood sex-ual abuse is applicable only to actions against defendant perpetra-tors. A three year period under section 9-1-14(b) is applied to non-perpetrator defendants. Section 9-1-51 does not apply retroac-tively to claims already barred by a statute of limitations in effectprior to July 26, 1993.FACTS AND TRAVELIn response to litigation in both the United States DistrictCourt for the District of Rhode Island and the Rhode Island Supe-rior Court regarding alleged sexual abuse of minors by Catholicpriests, these courts sent four certified questions to the Rhode Is-land Supreme Court for consideration.' These cases involvedabuse claims against priest-perpetrators, as well as negligence andvicarious liability claims against non-perpetrator agents, includingvarious church employers of the perpetrators, among others.2 Thequestions were as follows: 1) "whether claims for injuries resultingfrom the sexual abuse of a minor are governed by G.L. 1956 § 9-1-51 .. . or G.L. 1956 § 9-1-14(b) when those claims are assertedagainst someone other than the alleged abuser;"3 2) "when does acause of action accrue against a nonperpetrator-defendant pursu-ant to § 9-1-14(b);" 4 3) "whether repressed recollection of past sex-ual abuse could qualify as a tolling feature encompassed within the'unsound mind' factor in § 9-1-19;"5 and as a matter of first impres-sion, 4) "whether, under both the Federal and the State Constitu-tions, it is constitutionally permissible for our General Assembly torevive a previously time-barred cause of action by application of§ 9-1-51 to that cause of action."6 The supreme court accepted thefour certified questions.71. Kelly v. Marcantonio, 678 A-2d 873, 874 (ILI. 1996).2. Id.3. Id. at 875.4. Id. at 877.5. Id. at 879.6. Id. at 880.7. Id. at 875-80.SURVEY SECTIONBACKGROUNDWhen it enacted chapter eighty-four of the 1992 Public Laws,the Rhode Island General Assembly first recognized a special causeof action for victims of childhood sexual abuse.8 When the Act wasfirst passed, the general civil action statute of limitations of threeyears commencing when the injury occurred applied to these cases,unless it was tolled under section 9-1-19. 9 The Act also included adelayed discovery rule which permitted a plaintiff to bring an ac-tion when he or she first discovered or reasonably should have dis-covered the injury.10 Prior to the enactment of section 9-1-51, theRhode Island Supreme Court had "reserved decision on whether topermit utilization of a discovery rule in a sexual abuse... claim" soas to expand the three year limitation period.". In 1993, the Gen-eral Assembly enlarged the original limitation period, extending itfrom three to seven years in cases of childhood sexual abuse.' 2 Lit-igation arising under section 9-1-51 prompted questions for boththe federal and state trial courts as to the proper use and interpre-tation of the statute of limitations, which the Rhode IslandSupreme Court answered in Kelly v. Marcantonio.13ANALysis AD HOLDINGThe first question addressed by the court was "whether claimsfor injuries resulting from the sexual abuse of a minor are gov-erned by G.L. 1956 § 9-1-5114 ... or G.L. 1956 § 9-1-14(b)' 5 when8. Id. at 881 (citing 1992 ILI. Pub. Laws ch. 84).9. RI. Gen. Laws § 9-1-14(b) (1985); i& § 9-1-19 (Supp. 1996).10. ILI. Gen. Laws § 9-1-51(a) (Supp. 1996).11. Kelly, 678 A.2d at 811 (citing Doe v. LaBrosse, 588 A-2d 605 (R.I. 1991)).In Kelly, the court noted that the Doe case may have served a small role in prompt-ing the legislature to adopt a delayed discovery rule in the session following theDoe decision. Id. at 881 n8.12. 1993 Pub. Laws ch. 274 (amending MI. Gen. Laws § 9-1-51(a)).13. 678 A.2d 873 (RI. 1996).14. R.I. Gen. Laws § 9-1-51. This section reads in part as follows:(a) All claims or causes of action based on intentional conduct brought byany person for recovery of damages for injury suffered as a result of child-hood sexual abuse shall be commenced within seven (7) years of the actalleged to have caused the injury or condition, or seven (7) years of thetime the victim discovered or reasonably should have discovered that theinjury or condition was caused by said act, whichever period expires later.(b) The victim need not establish which act in a series of continuing sexualabuse or exploitation incidents causes the injury complained of, but maycompute the date of discovery from the date of the last act by the same19971492 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 2:490those claims are asserted against someone other than the allegedabuser."16 Section 9-1-51 permits a claimant to bring an action"for recovery of damages for injury suffered as a result of childhoodsexual abuse" within seven years of the act which caused theclaimant's injury, or "seven (7) years of the time the victim discov-ered or reasonably should have discovered ... that the injury orcondition was caused by said act."17 The court determined that the"only intended target of [section 9-1-51]" was the perpetrator of thecriminal sexual act.18 It based its conclusion on a strict construc-tionist reading of the legislative language in section 9-1-51, espe-cially 9-1-51(e), and found further support in a California court'sinterpretation of a similar statute in Debbie Reynolds ProfessionalRehearsal Studios v. Superior Court.19 In Reynolds, the statuteaddressing the time permitted to bring a sexual abuse claim waslimited to claims made against the actual perpetrator.20 Addi-tional support, the court noted, was demonstrated by the fact thatwhen section 9-1-51 was first enacted, it confined the statute oflimitations to the general three year time period permitted for civilpersonal injury actions. 2 1 However, the legislature designatedthat the "intended defendant" was the "perpetrator" for purposes ofcomputing the period of limitation for child sexual abuse victims.22According the statutory language its plain and ordinary meaning,perpetrator which is part of a common scheme of plan of sexual abuse orexploitation.(e) As used in this section, "childhood sexual abuse" means any act com-mitted by the defendant against a complainant who was less than eight-een (18) years of age at the time of the act and which act would have beena criminal violation of chapter 37 of title 11.Id.15. Id. § 9-1-14(b) (1985) (providing that actions for personal injuries must becommenced within three years after the cause of action accrues).16. Kelly, 678 A.2d at 875.17. Id. (quoting RI. Gen. Laws § 9-1-51(a) (Supp. 1996)).18. Id. at 876.19. 25 Cal. App. 4th 222 (1994) (The goal of the statute was to allow sexualabuse victims more time to become aware of their psychological injuries and con-tinue to be eligible to bring suit. The California statute did not explicitly excludeactions against non-perpetrators, but the appellate court noted that the legislaturecould easily have expressed their desire to include such defendants if they had sointended).20. Id. at 232-33.21. Kelly, 678 A.2d at 877.22. Id.SURVEY SECTIONthe court found it both "clear and unambiguous" that section 9-1-51 had no application to claims made against non-perpetrator de-fendants, but rather that for those defendants, the three year stat-ute of limitations provided in section 9-1-14(b) applied.23After determining that section 9-1-51 did not apply to non-per-petrator defendants, the court considered when a cause of actionwould accrue against such defendants under section 9-1-14(b). 24Because child sexual abuse "is essentially a common law battery,"the statute of limitations generally starts running at the time theinjury occurs. 25 Following the reasoning of Reynolds, the courtfound that since it was the perpetrator of the abuse who was re-sponsible for instigating the memory repression defense mecha-nism in the claimant, the delayed discovery rule should only beapplied to perpetrator defendants.26 The court perceived "no per-suasive policy" reasons to support applying a delayed discoveryrule to non-perpetrator defendants, and noted that the running ofthe three year limit in section 9-1-14(b) could be tolled pursuant tosection 9-1-19.27The court found further support for its decision on this secondquestion in Anthony v. Abbott Laboratories,28 where it applied thedelayed discovery rule to drug-product liability actions.2 9 Weigh-ing the "policy of eliminating the enforcement of stale claims withthe opportunity of a person to have his or her day in court," thecourt found the equities coming down on the side of applying thedelayed discovery rule in product liability cases.30 Then-JusticeWeisberger dissented, warning that "'the right to be free of staleclaims in time comes to prevail over the right to prosecutethem.'"31 Finding no policy reason strong enough to support the23. Id. (quoting Bottiglieri v. Caldarone, 486 A.2d 1085, 1087 (RI. 1985)).24. Id.25. Id. (quoting Silveira v. Santos, 490 A.2d 969, 973 (RLI. 1985)) (citingSoares v. Ann & Hope, 637 A.2d 339 (ILI. 1994)).26. Id. at 878 (citing Debbie Reynolds Profl Rehearsal Studios v. Superior Ct.,25 Cal. App. 4th 222, 233 (1994)).27. Id. Section 9-1-19 sets out the disabilities which postpone the running of astatute of limitations, including being under "the age of eighteen (18) years, or ofunsound mind, or imprisoned, or beyond the limits of the United States." RI. Gen.Laws § 9-1-19 (Supp. 1996).28. 490 A.2d 43 (R.I. 1985).29. Kelly, 678 A-2d at 877 (citing Anthony, 490 A.2d at 43).30. Id. at 878 (quoting Anthony, 490 A.2d at 46-47).31. Id. (quoting Anthony, 490 A.2d at 49 (Weisberger, J., dissenting)).1997] 493494 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 2:490application of the delayed discovery rule to non-perpetrators, andrecognizing that "the General Assembly considered the right of thenonperpetrator-defendant to be free of stale claims to be as greatas the right of a plaintiff to prosecute a childhood sexual abuseclaim," the court declined to upset the balance set by the legisla-ture.3 2 Thus, the court answered the second certified question byholding that "in actions against nonperpetrator defendants fordamages resulting from childhood sexual abuse, the period of limi-tation, under § 9-1-14(b), commences to accrue at the time the in-jury occurs, subject to the tolling provision of § 9-1-19."33The third question required the court to answer "whether re-pressed recollection of past sexual abuse could qualify as a tollingfeature encompassed within the 'unsound mind' factor in section 9-1-19."34 While suggesting that it would answer this affirmatively,the court noted that it "was not the proper forum" to make thisdetermination, and chose to leave the final question for the trialcourts.35 The court noted that in a particular case, trial judgeswould hold hearings to consider expert medical and scientific evi-dence to determine whether the "alleged repressed recollection in aparticular case is sufficiently relevant, reliable, and scientificallyand/or medically established so as to constitute 'unsound mind,'thereby tolling the action limitation period."36 The standard setfor the trial judges in examining expert testimony is set forth inState v. Wheeler,3 7 which requires the trial court to determinewhether the evidence is relevant, whether the expert, is qualifiedon the subject matter, and whether the expert opinion is of sub-stantial probative value.38 If the trial court decides that evidenceof an unsound mind exists, the claim arising out of "the childhoodsexual abuse would not be ... time-barred ... until three yearsafter the unsound mind disability ends, and the repressed recollec-tions are recovered."3932. Id.33. Id. at 879.34. Id.35. Id.36. Id. A finding of "unsound mind" is similar to a finding of insanity, which isalso determined by the trial courts. Id. at 879 n.6.37. 496 A.2d 1382 (RI. 1985).38. Id. at 1388.39. Kelly, 678 A-2d at 880.SURVEY SECTIONFinally, the court turned to the fourth question, "under boththe Federal and the State Constitutions, is it constitutionally per-missible for our General Assembly to revive a previously time-barred cause of action by application of section 9-1-51 to that causeof action."40 The court answered this issue of first impression inthe negative, holding that while the General Assembly may "en-large an already existing action limitation period that would be ap-plicable to causes of action thereunder not already time-barred," itwas precluded by the Rhode Island Constitution from reviving an"already time-barred action that would impinge on a defendant'svested and substantive rights."41In 1986, the Rhode Island Constitution was amended to in-clude a civil due process clause.42 Prior to this amendment, therevival of time-barred claims through retroactive application ofstatutes of limitation were not constitutionally prohibited.43 Deci-sions made prior to this time relied upon a general federal rulestated in William Danzer & Co. v. Gulf & Ship Island RailroadCo.,44 that "general statutes of limitation that are procedural innature affect only remedies, and not rights, and as a result therewould be no per se due process violation caused by enactment of astatute reviving an already time-barred claim.. 45However, in Twomey v. Carlton House,46 the Rhode IslandSupreme Court, in dicta, expressed its desire to protect a defend-ant's right to immunity from prosecution, because that right "is asvaluable a right to one party as the right to prosecute that suit is tothe other ... the opportunity to defend on statute of limitationsgrounds is a vested right protected by due process concepts." 47Once the Rhode Island Constitution was amended to add a civil40. Id. (noting that this question pertained only to perpetrator defendants, asthe scope of section 9-1-51 was limited to that class of defendants).41. Id. at 883 (citing Twomey v. Carlton House, 320 A.2d 98 (R.I. 1974)).42. R.I. Const. art. I, § 2 (amended 1986).43. Kelly, 678 A.2d at 882 (citing Dandeneau v. Board of Governors for HigherEduc., 491 A.2d 1011 (R-I. 1985); Spagnoulo v. Bisceglio, 473 A.2d 285 (MI. 1984);Twomey, 320 A.2d at 98).44. 268 U.S. 633 (1925).45. Kelly, 678 A.2d at 882 (citing Danzer, 268 U.S. at 633; Campbell v. Holt,115 U.S. 620 (1885); Chase Sec. Corp. v. Donaldson, 325 U.S. 304 (1945)). Thecourt noted that most state courts do not follow the general federal rule set out inthese cases. Id. at 883.46. 320 A.2d 98 (R.I. 1974).47. Id. at 101 (quoting Campbell, 115 U.S. at 620 (Bradley, J., dissenting)).1997I 495496 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 2:490due process clause in 1986, the court was free to follow its inclina-tion as expressed in Twomey, and did so here, by precluding legis-lation with retroactive features from permitting the revival of analready time-barred action. Such revival was held to impinge upona defendant's vested and substantive rights to immunity fromprosecution, and would offend a defendant's state constitutionaldue process protections.48CONCLUSIONThe court has clearly established that Rhode Island GeneralLaws section 9-1-51 regarding the limitation period on childhoodsexual abuse actions applies only to claims against perpetrator de-fendants, while actions against non-perpetrator defendants areproperly within the time limits set by section 9-1-14(b). It is withinthe trial court's purview to determine whether the statute of limi-tations period can be tolled due to the inability of a claimant torecall incidents of sexual abuse. Finally, section 9-1-51 cannot beretroactively applied to claims which are barred by a statute oflimitations already in effect prior to the effective date of thatprovision. 49Deborah M. Kupa48. Kelly, 678 A-2d at 883.49. The effective date of section 9-1-51 was July 26, 1993.

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1996 Survey of Rhode Island Law: Cases: Statutes of Limitations

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