Case Number: SC86875
Handdown Date: 06/13/2006
Appeal From: Circuit Court of the City of St. Louis, Hon. John J. Riley
Counsel for Appellant: Joseph L. Bauer, Jr., and James E. Hopkins, Jr.
Counsel for Respondent: Gerard T. Noce, Matthew W. Potter and Michael L. Young

Opinion Summary:

In the fall of 1973, Michael Powel, then 15 years old, began attending Chaminade College Preparatory School in St. Louis. He remained as a boarding student at the school until the spring of 1975, when he was 17 years old and Chaminade expelled him for selling alcohol to other students. Living in the same hall on campus were Father William Christensen and Brother John Woulfe, members of the Marianist Province of the United States and teachers at Chaminade. In February 2000, when he was 41 years old, Powel was diagnosed with a brain tumor. In the course of treatment for that condition, he alleges he regained previously repressed memories of five occasions of sexual abuse by Christensen and three occasions of sexual abuse by Woulfe occurring while he was living at Chaminade. He also alleges remembering that Christensen also introduced him and one of his friends to pornography. In June 2002, Powel sued Chaminade and the Marianist Province (collectively, Chaminade) for intentional failure to supervise clergy and sued Christensen and Woulfe individually for damages resulting from sexual abuse. In part, Powel alleged that the sexual abuse by the clergy caused post-traumatic stress disorder that subconsciously affected his conduct, causing him to act out inappropriately. He alleged this led to his dismissal from Chaminade as well as to later inappropriate sexual behavior and continuing emotional and physical problems.

Chaminade moved for summary judgment, arguing that Powel's suit was barred by the statute of limitations. Chaminade noted that Powel's psychologist said Powel remembered being molested until approximately age 17 but then repressed his memories and that, at his deposition, Powel said he always knew he had been abused, but did not specify which abuse he remembered – that allegedly committed by the clergy or sexual abuse that he said was committed by family and non-family members when he was between the ages of 5 and 13. Powel countered that his claim was not barred, arguing the statute of limitations did not begin to run until he remembered, as an adult in his 40s, that he had been abused as a minor. The psychologist also clarified that Powel never told him he knew of the sexual abuse before age 17. The trial court granted Chaminade's motion for summary judgment, concluding that it was bound by H.R.B. v. Rigali, 18 S.W.3d 440 (Mo. App. 2000), to hold that damages resulting from sexual abuse are sustained and capable of ascertainment at the time of the abuse. Powel appeals.

REVERSED AND REMANDED.

Court en banc holds: (1) The statute of limitations began to run when the damage resulting from the alleged abuse was sustained and capable of ascertainment. The statute specifically requires that, for a claim to accrue, there must be a wrongful act, damages must result from that act, and those damages must be "capable of ascertainment." To hold that the statute of limitations begins to run at the time of the wrong would render meaningless the additional language in the statute that the wrong "is capable of ascertainment." If damages are not capable of ascertainment at either the time of the wrong or the time of discovery of the wrong and resulting damages, the statute of limitations begins to run when the evidence would place a reasonably prudent person on notice of a potentially actionable injury. See, e.g., Business Men's Assurance Co. of America v. Graham, 984 S.W.2d 501, 507 (Mo. banc 1999). This is an objective test of when the damages would be substantially complete.

(2) This Court has held that, in cases of involuntary repressed memory, the date the injury occurs may be later in time than the battery. Sheehan v. Sheehan, 901 S.W.2d 57 (Mo. banc 1995). If the memory of the wrong was repressed before the victim had notice both that a wrong had occurred and that substantial damage had resulted, or before the victim knew sufficient facts to be on notice of the need to inquire further as to these matters, then the cause of action would not have accrued yet at the time the victim repressed his memory of the events. Only when the victim regained the repressed memories would the victim, for the first time, have reason to question the defendant's conduct and have information sufficient to place a reasonably prudent person on notice of a potentially actionable injury and cause the person to ascertain the extent of the damages. Where memories are repressed before the victim becomes aware of the damages, the statute of limitations might not begin to run until the victim regains repressed memories, as it is the memory of the consequential injury and damages, not the occurrence of the wrong or the discovery of who committed the wrong, that begins the running of the statute. See, e.g., K.G. v. R.T.R., 918 S.W.2d 795, 798 (Mo. banc 1996).

(3) Because the "capable of ascertainment" standard is objective, when relevant facts are not contested, a court may decide the statute of limitations issue as a matter of law. When contradictory or different conclusions may be drawn, however, as to whether the statute of limitations has run, it is a question of fact for a jury to decide. Whether a reasonable person in Powel's situation would have been capable of ascertaining the substantial nature of the damages he suffered and for which he now seeks recompense are questions of fact that this Court cannot resolve on summary judgment on this record. The parties did not have the benefit of this opinion; neither they nor the trial court have addressed the statute of limitations from the objective, reasonable person standard; and they have not addressed whether additional discovery is necessary to resolve the relevant issues under this standard. On remand, it is appropriate for the trial court and parties to resolve these issues under this standard.

(4) To the extent that H.R.B.; Vandenheuvel v. Sowell, 886 S.W.2d 100 (Mo. App. 1994); Harris v. Hollingsworth, 150 S.W.3d 85 (Mo. App. 2004); and similar cases set out a standard inconsistent with that set out in this opinion, they should not be followed any longer.