Ault v. Jasko

Francis E. Sweeney, Sr., J. This is a case of first impression for this court. We must determine whether the discovery rule applies in Ohio to toll the statute of limitations where a victim of childhood sexual abuse represses memories of that abuse until a later time. For the following reasons, we find that it does apply and, accordingly, affirm the judgment of the court of appeals. Initially, we must address which statute of limitations applies to appellee’s cause of action against Jasko. Appellee’s complaint alleges that Jasko negligently, recklessly, and/or intentionally caused her serious emotional distress. Appellee also alleged that the acts of Jasko were intentional, malicious, willful and wanton. However, all of these claims were premised upon Jasko’s alleged sexual abuse of his daughter during her minority, commencing approximately when she was twelve. We recently answered the question of which statute of limitations applies to such acts of sexual abuse in Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 629 N.E.2d 402. In Doe, at paragraph one of the syllabus, we held that a cause of action premised upon acts of sexual abuse is subject to the one-year statute of limitations for assault and battery. This court held: “The fact that appellant pled negligence and intentional infliction of emotional distress cannot be allowed to mask or change the fundamental nature of appellant’s causes of action which are predicated upon acts of sexual battery.” Id. at 537, 629 N.E.2d at 407. Now that we have determined that the one-year statute of limitations applies to appellee’s cause of action, we note that pursuant to R.C. 2305.16, the limitations period could not have been triggered on appellee’s claim before she reached the age of majority, which is eighteen years old. Consequently, a minor who is aware of the sexual abuse at the time he or she reaches the age of majority has only one year from that date to assert any claims against the perpetrator arising from the sexual abuse. Id. at paragraph two of the syllabus. However, in the present case, appellee alleges that she repressed her memory of the sexual abuse until she was approximately twenty-nine years old, on October 23, 1990, when she was able to verify that she had been sexually abused and that her father was responsible for the abuse. Appellee filed her claim on October 22, 1991, within one year of her alleged verification that she had been sexually abused by appellant. Thus, we must now address whether the discovery rule tolls the running of the statute of limitations where appellee alleges that her knowledge of the sexual abuse was repressed until after her eighteenth birthday. The discovery rule generally provides that a cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, — 116 — that he or she has been injured by the conduct of defendant. O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727; Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438. In Oliver, this court stated the rationale behind the application of the discovery rule as follows: “ * * * Use of the discovery rule eases the unconscionable result to innocent victims who by exercising even the highest degree of care could not have discovered the cited wrong. By focusing on discovery as the element which triggers the statute of limitations, the discovery rule gives those injured adequate time to seek relief on the merits without undue prejudice to * * * defendants.” Id. at 114, 5 OBR at 250, 449 N.E.2d at 441. This court has applied the discovery rule in a number of contexts including medical malpractice, legal malpractice, bodily injury caused by exposure to asbestos, DES-related injuries, and injuries arising out of the negligence of a hospital in credentialing a physician. See Doe, supra, 68 Ohio St.3d at 538, 629 N.E.2d at 408. While we have not previously addressed the application of the discovery rule in the context of the present case, the trend in other jurisdictions is to apply the discovery rule where repression of the sexual abuse has prevented the plaintiff from filing a claim within the applicable statutory limitations period. Callahan v. Iowa (Iowa 1990), 464 N.W.2d 268; Doe v. LaBrosse (R.I.1991), 588 A.2d 605; Evans v. Eckelman (1990), 216 Cal.App.3d 1609, 265 Cal.Rptr. 605; Hammer v. Hammer (App.1987), 142 Wis.2d 257, 418 N.W.2d 23; Jones v. Jones (1990), 242 N.J.Super. 195, 576 A.2d 316; Meiers-Post v. Schafer (1988), 170 Mich.App. 174, 427 N.W.2d 606; Osland v. Osland (N.D.1989), 442 N.W.2d 907. In Osland, 442 N.W.2d 907, the North Dakota Supreme Court applied the discovery rule to a case brought by a twenty-two-year-old plaintiff against her father for sexual abuse that occurred when the plaintiff was between the ages of ten and fifteen. The court recognized that plaintiff experienced “severe emotional trauma” that “resulted in her being unable to fully understand or discover her cause of action during the applicable statutory limitations period.” Id., 442 N.W.2d at 909. Likewise, in Evans, supra, 216 Cal.App.3d at 1616, 265 Cal.Rptr. at 609, the court applied the discovery rule to an action based on a parent’s sexual abuse of plaintiffs as children. The court stated the following in support of its decision: “It has been widely recognized that the shock and confusion engendered by parental molestation, together with the parent’s demands for secrecy, may lead a child to deny or block the traumatic events from conscious memory, or to turn the anger and pain inward so that the child blames himself or herself for the events.” Id. at 1615, 265 Cal.Rptr. at 608, citing Comment, Adult Incest Survivors and the — 117 — Statute of Limitations: The Delayed Discovery Rule and Long-Term Damages (1985), 25 Santa Clara L.Rev. 191, 192-195. Finally, the Supreme Court of Iowa in Callahan, supra, 464 N.W.2d at 271-272, discussed the reasoning behind applying the discovery rule in such cases as follows: “There is a phenomenon among sex abuse victims, sometimes referred to as ‘Post-Traumatic Stress Disorder,’ which causes victims to repress information regarding the abuse * * *. “ * * * This repression syndrome, together with other considerations of fairness, have prompted courts to apply the discovery rule liberally in child sex abuse cases.” This court has recognized the unique character of child sex abuse cases and the need to toll the statute of limitations in State v. Hensley (1991), 59 Ohio St.3d 136, 571 N.E.2d 711. This court held that for the purposes of the statute of limitations for criminal prosecutions, “the corpus delecti of crimes involving child abuse or neglect is discovered when a responsible adult, as listed in R.C. 2151.421, has knowledge of both the act and the criminal nature of the act.” Id. at syllabus. In formulating this holding, we recognized the problems of “internalization” for child victims and the fact that “the mental and emotional anguish that the victims suffer frequently inhibits their ability to speak freely of the episodes of abuse.” Id. at 138-139, 571 N.E.2d at 714. In the present case, defendant argues that application of the discovery rule to this type of case is unfair to defendants in light of the lack of enduring physical evidence and potential reliance on expert psychiatric testimony to prove liability and damages. However, we find that application of the discovery rule will not cause defendants undue prejudice, as plaintiffs still bear the burden of proving their claims. Also, defendants will be able to present expert testimony to rebut testimony offered by plaintiffs. Furthermore, application of the discovery rule is fair to defendants in light of the hardship that would be visited upon plaintiffs by refusing them a remedy for an injury they were unaware existed until after the expiration of the statute of limitations. Plaintiffs with valid claims should not be denied the opportunity to prove that repression of memory precluded them from bringing their claims within the statute of limitations period. Thus, in balancing the equities between defendant and plaintiff, we find that the burden placed on the defendant is much less than the greater injustice that the plaintiff would suffer. See Oliver, supra. We conclude that the discovery rule applies in Ohio to toll the statute of limitations where a victim of childhood sexual abuse represses memories of that abuse until a later time. The one-year statute of limitations period for sexual abuse in Ohio begins to run when the victim recalls or otherwise discovers that he — 118 — or she was sexually abused, or when, through the exercise of reasonable diligence, the victim should have discovered the sexual abuse. Accordingly, the court of appeals properly concluded that the trial court’s granting of defendant’s Civ.R. 12(B)(6) motion to dismiss was improper. Based on the complaint, appellee filed her action within a year of her discovery that she had been sexually abused by her father. Judgment affirmed. A.W. Sweeney, Douglas, Resnick and Pfeifer, JJ., concur. Moyer, C.J., and Wright, J., separately dissent.